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Home My WebLink About02-3072Mark M. Bridge, Esquire Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19087 Telephone (610) 902-0150 Facsimile (610) 902-0152 Attorney for Plaintiff, Steven B. Wolf IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION STEVEN B. WOLF VS. Plaintiff FARINELLI CONSTRUCTION, INC. and RON KOLVA PLUMBING and DIVERSE INSTALLATIONS Defendants NOTICE TO DEFEND NOTICE You have been sued in court, ffyou 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 an 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. lf you do not have a lawyer or cannot afford one, go to or telephone the office set forth below to find out where you can get legal help. Lawyer Referral Service 4a' Floor Cumberland County Courthouse Carlisle, PA 17013 Telephone (717) 240-6200 AVISO Le han demandado a usted en la corte. Si usted quierer defanderse de estas demandas expuestas en las paginas siguientes, usted tiene viante (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Hace falta asentar una comparencia ascrita o an persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede continuar la demanda en contra suya sin previo aviso o notificacion. Ademas, la corte pande decidir a favor del demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede dinem o sus propiedades u otros darechos importantes para usted. Lleva esta demanda a un abotgado irnrnediatamente. Si no tiene abogado o si no tiene el dinero sufficiente de pagar tal servicio. Vaya en perosna o llame por telefono a la oficina cuya direccion se encuentra escrita abajo para averiguar donde se puede sonsequir aslstencia legal. Lawyer Referral Service 4a' Floor Cumberland County Courthouse Carlisle, PA 17013 Telephone (717) 240-6200 Mark M. Bridge, Esquire Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19087 Telephone (610) 902-0150 Facsimile (610) 902-0152 NOTICE TO PLEAD To the Defendant: You are hereby notified to answer or otherwise plead to the enclosed Complaint within twenty (20) days from the service hereof or a default judgment .~entered against you. /~a~"k M. Bridge, Esquire Attorney for Plaintiff, Industrial Risk Insurers as subrogee of The Rouse Company IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION STEVEN B. WOLF I1 Emlyn Lane Mechanicsburg, PA 17055-8017 Plaintiffs VS. FARINELLI CONSTRUCTION, INC. 3 Kacey Court, Suite 101 Mechanicsburg, PA 17055 and RON KOLVA PLUMBING 827 Pinetown Road Lewisberry, PA 17339 and DIVERSE INSTALLATIONS 260 School House Road Quarryviile, PA 17566 Defendants NO. O:Z COMPLAINT WITH DEMAND FOR JURY TRIAL Plaintiff, Steven B. Wolf as and for its complaint with jury trial demanded against defendants, hereby respectfully allege as follows: 1. At all relevant times, plaintiff, Steven B. Wolf (hereafter "Wolf"), was a Pennsylvania resident and the owner of certain real and personal property located at 11 Emlyn Lane, Mechanicsburg, PA, 17055-8017 (hereinafter "premises"). 2. Defendant, Farinelli Construction, Inc., (hereinafter "Farinelli") upon information and belief, is a corporation authorized to conduct business and regularly conducting business in Pennsylvania from its principal place of business, located at 3 Kacey Court, Suite 101, Mechanicsburg, PA, 17055. 3. Defendant, Diverse Installations, (hereinafter "Diverse.") upon information and belief, is a corporation authorized to conduct business and regularly conducting business in Pennsylvania from its principal place of business, located at 260 School House Road, Quarryville, PA, 17566. 4. Defendant, Ron Kolva Plumbing, (hereinafter "Kolva") upon information and belief, is a corporation authorized to conduct business and regularly conducting business in Pennsylvania from its principal place of business, located at 827 Pinetown Road, Lewisberry, PA, 17339. 5. On or about September 28, 1999 Plaintiff entered into a building construction contract with defendant Farinelli for the purpose of constructing a home on Buyer's lot Number 46 in the Lindenwood Development on Emlyn Lane in Mechanicsburg, Pennsylvania. A true and correct copy of this contract is attached hereto as Exhibit "A". 6. Plaintiff fully executed the terms and conditions of the contract and complied with all applicable payment requirements during the course of the contract. 7. As part of the overall general construction contract, Defendant, Diverse Installations, was hired as a subcontractor for the purpose of providing masonry services. Plaintiff was an intended third-party beneficiary of this sub-contract. Plaintiff is not in possession of the aforementioned sub-contract which is in the care custody and control of Defendant. Consequently, Plaintiff is unable to attach same to this pleading. 8. As part of an overall general construction contract, Defendant, Ron Kolva Plumbing, was hired as a subcontractor for the purpose of providing plumbing services. Plaintiff was an intended third-party beneficiary of this sub-contract. Plaintiff is not in possession of the aforementioned sub-contract which is in the care custody and control of Defendant. Consequently, Plaintiff is unable to attach same to this pleading. 9. On or prior to July 1, 2000, defendant performed the plumbing "rough-in" and installed piping and fixtures to the premises. 10. On or about to July 1, 2000, defendant Diverse, was present at the premises to conduct their work as a masonry sub-contractor. 11. On or about July 1, 2000, during the performance of the aforementioned contract, defendants allowed water to enter the building located on the premises causing considerable and substantial damage thereto in the amount of $80,940.97. COUNT I BREACH OF CONTRACT 12. Plaintiff repeats and realleges all prior paragraphs of this Complaint as if more fully set forth herein. 13. Upon information and belief, Defendant, Farinelli was contracted for the overall construction of the premises. 14. Upon information and belief, Defendant, Kolva was subcontracted for the installation, maintenance, service and repair of the plumbing system. Plaintiff was an intended third-party beneficiary of this contract. 15. Upon information and belief, Defendant, Diverse was subcontracted for the installation, maintenance, service and repair of the masonry system. Plaintiff was an intended third-party beneficiary of this contract. 16. Defendants, breached the contract by reason of the following acts and omissions: a. failing to adequately install the plumbing system in a safe and workmanlike manner; b. failing to service the plumbing system in a safe and workmanlike manner; c. failing to repair the plumbing system in a safe and workmanlike manner; d. failing to maintain the plumbing system in a safe and workmanlike manner; e. failing to install the plumbing system in accordance with specific installation instructions; f. failing to adhere to and follow national standards with regard to the installation of the plumbing system; g. failing to warn Plaintiff of the danger inherent in failing to follow national safety standards; h. failing to properly train and/or supervise their employees prior to the installation, service, maintenance, repair or utilization of the plumbing system; i. failing to employ adequately and appropriately trained personnel prior to the installation, service, maintenance or repair of the plumbing system; j. failing to properly and adequately communicate safety standards concerning the use of the plumbing system by and between all contractor personnel on the premises; k. Otherwise failing to exercise due care under the circumstances. 17. Plaintiff performed the terms of the contract, and paid all relevant fees. 18. The damages sustained by plaintiff were the proximate result of defendants' breach of contract. WHEREFORE the plaintiff Steven B. Wolf respectfully demands judgment against defendants, for damages in an amount of Eighty Thousand Nine Hundred Forty Dollars and Ninety-Seven Cents ($80,940.97) plus costs of suit, attorney's fees, interest, delay damages and such further relief as the Court may deem just and appropriate. COUNT II Negligence 19. Plaintiff repeats and reaileges all prior paragraphs of this Complaint as if more fully set forth herein. 20. Defendants, were negligent in the performance of its duties upon plaintiff~s premises, by reason of the following acts and omissions: a. failing to utilize acceptable industry standards with regards to safety when installing and maintaining a plumbing system; b. failing to properly and adequately cap all open lines which were part of the plumbing system; c. failing to ensure that all open lines were capped; d. failing to insure that all open lines were capped prior to utilizing the plumbing system; e. failing to notify Plaintiff and/or all contractor personnel on the premises of the existence of uncapped lines in the plumbing system; f. failing to notify Plaintiff and/or all contractor personnel concerning the appropriate safety procedures necessary when using the plumbing system which contained uncapped lines; g. failing in insure proper safety procedures were developed and implemented concerning the use of the plumbing system which contained uncapped lines; h. failing to mitigate the flow of water throughout the premises; i. failing to notify Plaintiff and/or all contractor personnel concerning the flow of water throughout the premises; j. failing to properly train and supervise their agents, servants or employees in the proper manner of installing, maintaining and using the plumbing system. 21. As a direct and proximate result of the defendants' negligence, plaintiff was caused to suffer substantial damages as set forth herein. WHEREFORE the plaintiff demands judgment against defendants, for damages in an amount of Eighty Thousand Nine Hundred Forty Dollars and Ninety-Seven Cents ($80,940.97) plus costs of suit, attorney's fees, interest, delay damages and such further relief as the Court may deem just and appropriate. Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19087 Telephone: (610) 902-0150 Facsimile: (610) 902-0152 Attorney for Plaintiff, Steven B. Wolf Date: June 25, 2002 Date: June 25, 2002 VERIFICATION I, Mark M. Bridge, Esquire, am an attorney at law in the Commonwealth of Pennsylvania, and serve as legal counsel to Plaintiff, Steven B. Wolf, I am duly authorized to take this verification on behalf of my clients. By and through their legal counsel, Plaintiff, Steven B. Wolf, makes this verification that the facts set forth in the foregoing document are true and correct based upon reasonable inquiry and investigation. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa CSA Section 4904, relating to unsworn falsification to authorities. ~M. Bridge, Esquire Attorney for Plaintiff, Steven B. Wolf £0' 3~d.q 9t:'8~9~£0'[9 THIS AGREEMENT mnde ~ FARINF~LI CONSTRUCTION, INC. CONSTRUCTION AGREEMENT dayor P. 3 the Contractor: Farine. IH Construction, Inc. 3 ]~a~s~y Court Suite 301 Meehaniesburg PA 170~5 (hereinal~r refen~d m ~ "CO:~r]'I~CTOR") Steven B. and Cho~'Jene Wolf 704 Snn Haven Circle Meehanlcsburg, PA 170SS (hereinafter ~ t~ as "BUYER WITNESSETH That in ~onsideratiOn of the mutual covenants and agreements herein conair-d, ~e pa~es a~'ee to the following terms and eonclition~: ARTIO.R 1 THE CONTRACT DOCUMENTS 1. ! The Contract Document% which constitute the enti~ agreement betw~n the Buyer aud Contta~or, consist of r~e followt~ documents: (A) ~) Architectural Drav~ngs dated 6/21/99. Conn'ac~ Specification Sheet Dated ~/21/99. (D) r. ut~c change orders executed by the Buyer and Contractor. In the event of an inconsistency between this AF~eement and any other Contract Document, th~ mrms of this A{reement shall !~ binding. In the cvr. nt of an inco-,.!~.cy between ~ Drawi~s and I!~ 1.2 Conlract Work. The Con~ractor agrees m f~mi~ all tl~ material and labor necessary for coaslruction of a new single family zesldence on Buyers lot #46 in fl~e Undenwood D*:vclopmant. E.,nlyn Lane, Mechanicsbur8, Pennsylvania seme~mes herein ~fetred to as "Project". 1.3 Bu/ldin~ ~iom. ,l~llcli~$ Dimmsio~ A~e APlS'OXinam. Tl~ Buy~r adcno~ ~ in ~ course of ~ons~'u~on of the. hOUS~ and improvements on the land, certain mi~r changes or deviations may ~sult in s variation of the dlmemions of th~ house. ARTICLE 2 CONTRACT PRICE Buyer slmll pay to the Co. actor tl~ sum of Nine Hundt'ed Seventee~ Thon9 _npd Dollars, in strict a~cordmme ~i~b Article'3 bereinbelow, and subject to additions and/or dedu~/ons by provided in A~ide 8 of this EXHIBIT "A' ARTICLE 3 PATMENTS 3.1 Buye~ bas paid the down paymen~ to the Conlrdctor and the balance shlI be ptid in Jmtallments payable pumant to Section 3.2 Down Payment (3%) 45,000 8~,000 91%000 3.2 Buyer ~ to mnt-~. ~ peymcnts on account ~ the Cout/~wt Prim based upon w~ittea apptical/e~ for payment submttcd to Buyer at the following umes or as nmmally agreed upon between the Buyers lend~ institution and tb~ Contractor prior m atax~ng tbe Pto~e~t: (2 dtava would be combined for a mai of 6 disbunemeflts). Draw #1 10~ $ 87,200 Dniw ir2 25~ $218,000 Draw #3 15% $130,800 Draw #4 10% $ 87,200 Draw #5 15% $130,800 Draw #6 10% $ 87,200 Draw #7 I0% $ 87,200 Draw #8 5% $ Total Ptogzeas P~ymenu $ 8'/2,000 House framed, roof sheathed, exterior windows Rough-ins complete, insulation nd drywall installed, roof shingled. Exterior house finish complete. Interior doorL ~im, cabinets, and appliances complete, water/sewage sysmns oper'aional. He~t completely inslnlled and operational. Flooring, paint, light fixtures, and plumbing Final: 100% complete, AR~CLE4 FINAL PAYMENT 4.1 Final payment consdtuting thc unpaid 'balance of thc Contract price as adjusted by Change Ordurs ~utll be duc and payable when tt~e Project is delivmed to the Buyer, substanl/ally complete. The making d fuel payment shall constitu~ a waiver of all ,-astm~ by t~e Buyer except those arising fn~n (1) unsettled liens, {2) faulty or ddecl/ve work appearing within one (1) year after ~al~antlal Completion, or (3) fa/lute of the work to comply with the requL, mnents of the Contract Document. TIME OF COMME, NCF. b{ ~-NT AND SUBSTANTIAL CObt'PI.~-"rloN 5.1 The work to be p~rforo~d u~d~r this Cootract siudl be commefl~d oJJ or about October 25, 1~ or ddru/(30) days aider ~he dare Buyer Rflfll]cd all obli~tofls rcquircd by Afliclc 6 of this Contrm~ and eXcL'pt aS otherwism provide.41 or pctlnittcd by thc Co~m.'t, shah he substantially complctcd on or about 5.2 Thc Date of Subsuntial Completion of the Project is ll~ d~ when construction is sufflctentiy completed in accordance wi~ the Plato and Speciflcatiom so the Buyer can occupy the Project. Warrmities coiled for by rJ~is A~reemfmt .q~! commcm~ on the Da~ of Subsmfltial Co,-,~,]e~iou of the coosuu~on work. INFORMATION AND SF. RVICF. S I~QU]RF.D OF THE BUYI~ 6.1 The Buyc~ shall, at th~ requmt of tl~ Conimctor, furnish to thc Contractor reamombl~ evidcnce ~hat the Buyer has made fimnchd arruf{emmtm to fulfill him obligations under the Co~ac~. Unless ~,,rh rusonabl~ cvid~ncc is fumishcd, th~ Contractor is not required to commcncc tl~ work, 6.2 The Buyer shall furnish a les, al des~iv~:on, all surveys deso-ibin~ the physical charact=ristics, legal limita~ons and utility locations for the site of the l~ject. 6.3 It shall be die ~esponsibility of t~e Buyer m properly indicate upon the sit~ where and how thc dwelling shall be sittmzd, ~iving lot (~.flers, elevaziom, bench marks, and other dam necessary for purl~se. 6.4 Prior lo the c, mnmel~ment of constrt~tion, Buyer shall oblain nad deliver to ConU"actor sa attorney's ce~iificate of title to ~he property, which certificate shah be in proper form, or other'proof of Buyer's ownenhip of the lnemises whieh is sa~shctory to Contractor and its counsel. 6.5 Buyer shall review fha plans and specifications submitted by Contractor and shall 81vc prompt wri~m notice to the Conuactor of any fault or defter in the said pl,n~ und spcciflcations. 6.6 Thc Buyer shall secur~ and pay for necessary easemcnts, asscrmmmts, and charses required for the constP_*_e~_'on, use or occupallGy of pm'iBanent stmctm*es or for permanent chanSe$ ~ existi~.~ facilities. 6.7 Information or service~ und=r thc Buyer's control shah be furnished by thc Buym- wi~h reas~l~ ~$ to avoid clchy in thc orderly progr~Js of work. This includus the buyerm selectimm sheet. 6.S The Buyer wDl amm~ and pay for all millli~ during commacdon, includin{ all scrvi~ f. ms. 6.9 If the Buyer elects to perform som~ work by himself, his ngent, employce~, or by l~s othor conttaGtoo, Imyea' agrees that: (a) such work will be. gin only after obmjnin~ written consent of the Constactor; (b) such work will be done in a timely and workmanlike manner; (c) if said work is not completed in a timely manner in accordance with the scbcdule of the Conu'acaor, (extends the Contractors schedule ~ ~han twice Ihe duration given for that particular activity) ~ gontr~'tor may, at its option, ~/S:d SB~8~£SBBS~:Oi ~8~9~0~9 ~qWBH NO0 ~S~:WO~ d8~:£0 O~-Z~-gF~ 90'Bt31:tcl 9t'~9~£0'[:9 ~-'~:~T e~, ZT ~nu complete said work at the expense of ~he Buyer and/or cxtent tbe dat~ of completion of the contract by thc allloimt of time de!ay caused by the l~lyef;, (d) Bltyef will b~ ~.sponsible for and wR1 hold harmless C,..,hactor for the work So done a~d for a~y work and/or materials performed by Coni~ac~or which is covered by Buyer or Buyers work; (e) Buyer will hold Contractor harmless for any work done by or conm~ted d~reetly by Buyer; (f) Buyer shall be respons~le for and he.by holds harmless and the Coatre~or as a t~'ult of Bay loss ~ by Buyer, its ~en_.ts, employees, or other oonn-aeto~ as result of loss Ofl~rsonal prol~rty or tools and ~ on tl~ job sit~; based on or c.a~ed by work that ARTICLE 7 OBLIGATIONS OF COI~. ,RACTOR 7.1 Contrecmr will provid~ aH constmctlna, supervision, lnspe~ion, labor, ma2rln~,, tools, equipment, and subcontnm~ imms n~e~s~ for th~ exe~lion and ~ompledon of the contract wort. 7.2 Conlractor will secure ~,-,q pay for building permits, fee~ and licenses. Contractor will pay all sales, use, gross rec~pts and similar taxes relaled to the contract work to bc provided by th2 COnlraOto~, which taxcs have been legally enacted at the time of execution of Ss Agreement. 7.3 The Contractor warrants to the Buyer that all mator~ls and equipmcnt incorporated into the couhact work will be new unless otherwise specified, and tlmt all concmct work will be of good quality, in 7.4 Contractor aball be r~..sponsible for the acts and omissioms of its employeea and all subcontractors ensaged by Contractor, their agents .nd employees, asd all other persons perfor~in$ any of gie work under this contract on behalf of or with tim consent of the Contractor. 7,~ Thc ComracCor at all ~mc sh.ll keep th~ premises free (~nn accumulation of wsate materials or rubbish caused by his operations. At th~ completion of the work, he shall remove all his waste materials and rubbish from and about the project smd ns well as his tools, construction cqulpmeot, machine~j and surplus malmials, and shall leave thc work b~3om cJean or its e~luiVal~t, exist as othervdse specl~ed. ARTICLE 8 CHANGE ORDERS / ADDITIONAL WOI/K 8.1 The Contractor is under no obil~tim~s to mal~ any changes, additions, or alterations in the work provided in d~c conUact docume~. Upon rensonable reques~ of the Buyer, Conlractor tony make chaaSes, addilions, or alterations, tm the C~i~-___~o_r shall not be required to do so until tho partics have executed a dm~es ia the work at tbe ~ of esr~ution of ~ chan~ ord., ual~ss n~ed to mlmrwlse. Tbe Buyer agr~ to mai2 requests concemtu~ changes, additions, or alterations in the work to the ~ and not 8.2 Any additional co~t incurred during construction due to itcnm excluded in Specificalion Sheet, Item 34, when approved ill wrJtin~ mill be paid for by the Buycf. ~I/9:d S8~8I£S008I:01 9t,8Eg~£OI9 ~]-IW~]-t NO0 b~dSR:WO~_~ ciE~:~8 888E~-Z~-BP/d LIMITED WARRANTY / CORRECTION OF WOIHC THIS CONTRACT CONTAINS ALL OF THE REPRESENTATIONS, WARRANT~Rqo AND PROMISES OF THE CONTRACTOR, NO AGENT OR REPRESENTATIVE OF THE CONTRACTOR 15 AUTHORIZED TO MAKE ANY REPRESENTATION OR PRO- MI~E ON BEHALF OF THE CONTRACTOR OTHI~ THAN THOSE CONTAII~ED HEREIn, AND THE CONTRACTOR MAKES NO ~ W~R~xbM~-ZF.,S, EXFRF.,~S OR IMPLIED. 9,1 The Contractor shah correct any work that fails to ~easonably conform to the requinnnents of the Conm~ Documents wbc~ sm;h t~ha'c to conform appears dm-ins the prof.~'ss of the Work. The provisions of this paragraph apply to work done by subcom~_~ors as well as to work done by direct employees of thc Contractor. The I Jmit~d WalTallty ~lail have ~o force and ¢ffcct until the Coatrac~ has received ~ payment of the Con.act Pries staled above. 9.2 The parties hea~ as herein set forth hereby agree to expressly fix and limit the extent of Contractors llnbility to ]~uyer, their heirs and assigns for any defective ~ma~manship and maferiaJs hi the comtmction of the said house by Contractor.ad o. ~rm~ ben,of shall be COl~'ollin_~ l)~WSeO ~ ~ ]l~IfSto in lieu of aH wan"a~_es cxpr,-.ssed or implicd by law of reasonable good wort'm,,,,~hip, mttcrials being fTee of defects and/or of residcncc bering habitable. Co.factor warrants and guarantees for thc period of one year from the datc of sub~mtial completion except as od~se herein pt~vidcd dsat all materials to bc t~urnlshed in the constn]cfion of the said house will be of Sttd~ quality and free f~om reasonable defects, will be installed and appli~l in a rmmonable and good workntanlike manlzer conditioned upon and provided that Buyer delivers to Contractor a written ]itt of all such defects within said o~ year pm-iod. Contntctor warrants that thc hoosc shnn be con~ ill aCCOFdnn_r~". With the pr0vls~oo3 of The Buildin~ F. nerl~ Conservation Act (Act 222) and the related rules, ragulalinns, and tecl~tcal enm'Sy stazidards. Thc liability of Contract~ to Buyer for dofcc~ mntcrials, workmaAship, and installation undc~ this warranty and 8uanmtee is bet~y limited to coFrection or rcplacemmtt by Con~-actor of thc said defect of wod0nanship or materials in tl~ djsc~on of Coon'actor and no other claims whatsocver shah be made upon or requix~d to be allowed by Contractor and after said one ymtr period ConUactoF is relcased from all claims except those wlticb a~ reasonable and wr~ notice of wlflch Js delivered to C.~u~oF T~jthln ~lid ~ yeaF ~3~Find. Cooc~t~tc basement floors and mas~ basement walls chip and crack from time to tltrm and lumber will sh~ and twist with no reasonable cxplanadon tbexefore costs of replacement of aid masonry work wood xnat~s a~c prohibitive wl~ thia said warra~ and ~umnt~ doe~ not apply to cracks tn basement floors or basement walls and altri**t~.oe and twisting of lmnber an~ Comyactor shell not he liable except Contzactor agrees for ox~ y~ar period to reasonably patch all such masonry cracks that appear ~thifl said one year period of which Contractor r~,~tveS wr)ttm notice within said one ycar period. W3tenev~r natural Mpography of thc said lot is disu~bed semln.~, will o(~ur ove~ a 1)eriod of t~nc; Contractor shall not be liable for any such nonst~ settling but repairs and fill flor same shall bo the liability and responsibility of Bu~e~ as well as the responsibility to car~ the rlln water from the spoutinS away from ~ walls of th~ sa~d resid~se. Buye~ shall further exercise all ~easonable diligence in discharging and reporting in writing ~o Cmmactor as work IffOgmSse~. and any deviaticms, defects in materials or workmanship and deficicncie~ in performmnce so as to avoid .mnecessary problems and expense to Contractor in conect~g same. ~T/2.:d .~gOTBT£c:ooBT:Ol gt~@~9~OT9 ~h~N~ NO(:] ~n:No~L~ dOt~:EO 000~-J_T-~)i-lU · 9.3 TI~ Co~-~tor u~i~ to th~ Buy~, to tl~ emnt ~ ao b~ ~d~, all rights und~ maaufac- 02t~r's warranties on applian~s, ~quipm~nt, fixtutr~, and conSun~r p~ucts included in the Proj~. The Contractor provides ao watraatics relating to manufa~umd or ~onsumer produc~, ARTICLI~ l0 RELEASE OF Ll~N$ Ifa Slipulation Against Liens has not been filed, the Contractor, with his rcqucst for final payment, shall deliver to thc Buyer, a complete Rclcasc of Licm arising out of this cc~ract and, if required, ~h,n furnish an affidavit that so faf as he has knowledge of infoflnation ~he Releates include all the labor and material for which a lien could be filcd; but the C, omractor my, if any subcontractor refuses to fumiah a release or r~c~ipt in fell, furnish bond satisfactory to thc Buyer, m i,,a,~,~fy Buyer against any lien. If a Slipulaflnn Against Liens has begn filed, the CcnUactor shall be under no obligation to whatsoever to furnish a Release of Mens. ARTICLE 11 PROCEEDS TO COMPLETE CONSTRUCTION AND ASSIC,.NMENT OF MORTGAGE PROCEBD$ It is agreed by thc Buye~ that the procecds of any comauct~on mortgage a~e hereby usigml, transferred and set over m thc Contractor and payable to ~id Contractor in accordan~ with thc terma of paymem as hca'in provided to be red~eed only by any pro-ram share due anolher Contractor on the Project, not a subcontractor of thc Conlractor herein. In addflion to such mortgage moneys, all other moneys required to cqual thg ~ price shall, at the option of the Contractor, be placed in cscrow with the Conuac~r's at~orll~y, mortgag~ or ~my bn.k and tl~ auyer tilters, authori~s ~ ~lx)wera m~ e~ro~ aSem to pay Cram-actor at the thne and in the amounts ~e~i~ml in this contract. ARTICLE 12 ASSIGNMENT OF CON'Ft~tCT C~-~ctor re. ryes ti~ right to assign ~ conmtct, or any pat/thereof, for and including as security Contractors obligaflom to any finnncial institution. Assi~,m~nts to any other Genend Contractor may be made with the wrimm consent of the Buyer, wi~ which conscnt shall not be reasonably withheld. This agn:emcnt nmy not be assigned by Buyer wilhout ~e w~tten consent of the 13.1 Indemnity. The Contractor a~rees to indemnify and hold the Buycr hartnless fi-om nll claims for bodily injury and property damage (other than tl~ work itself and other propet~ insured under 15.2) that may arise from the Comracmr's opcraltoas unde~ ~.A~rectaeat, 13.2 Contractor's l.lab~ty Insurance. The Contractor shall purclum~ and lmintain such insurance ns will lnmect it from claims upd_er workmen's compensation acU and other employcc bcn~t acts, from claims for damages because of bodily injury, including dgalh, and ~ clakm for damages to property which ma). ;~,'8:c~ ~I~ST~c3828T:01 °-R,8~c:~OT9 ~]"lt4]H 1'400 , ~: 7"-17-2E~_ B, 27AM ~ risc out of result from the Conm~m~'s ~"~io~ uud~ ~ Commc:, ~ suc~ operations be by it or by any subconlractor or anyone directly or indirectly employed by any of them. T~ts i~$m"anc~ shall be written for not lea~ than any lim~ of.liability required by law and shall inr. ludc ccmnctual liability insmancc as applicable m the Contractor's obtigatiom under this Agreement. 13.3 Buyer's Liability Insurance. The Buyer shall be responsible fur pur,'~-iag and maintaining his own liability iasumncc and, at his optiOn, may maintain such insurance as will promct him against chime which may arise from op~ratlom ~ this c. out'fact. 13.4 Buyer's Property Insurance. Unlcss otherwise provided, thc Buycr slrall purchase and maintain proper~ insurance in the form of Standard Form HO3 upon the entire contract work at the sits to the full insurable value thereof. In the eeent of auy loss covexed by such HO3 policy, thc Buyer shall pay any deductible under s~ch policy. This insurance shall include interests of ~ Buyer and llst the Contractor as a Loss Payee as their ia~rest may appear, and .hint! imore against the pefiis of fwe, extsnded coverage, vandalism and malicious mischief. Any insured loss is to be adjosl~l with lira Buyer and made payable to thc Buyer as trustee for the insured ns their inm~'ests may appear, subject m the mquireraents of any mortgage clause. The Buyer shall provide a copy of all policies to'the Contractor prior to the commencement of thc work. ~ne Buyer ami Contractor waive all tights agaimt each oe~er for damages caused by fire or other pm'il to tbe extent covered by iammuce provided under this paragraph. Thr Conlnm~ shall require similar waivers by subcom-actors and sub-subcontractors. ARTICT .~ 14 CONCF~ LF.D OR UNKNOWN CONDITIONS 14.1 The Cou~t Pdce is for the matsdals and labor ia consmmtion of thc comrac~ work. Th~ Buyers shall pay for any additional costs involved in providia~ extra ep.~ine~a~Ig or foundation work which may be required if the ConU'actor encounters abnormal or tmusual subtmranmn conditions du~n_.~ the course of colts~on, including, htr not limited to: (A) Cost of mnoval of any rock ia m:hrlnS excavation for foundation walls, sewage or wats~ l]~s. The cost of this work shnl! be Calc~llated by th~ ~ of t[~ work pins 8~ ~ and Profit (B) Exu-a concern block, at a ra~ of $3/Block or compaction, and Inbor necessary to ~ ti~ same for the comtnu:tion of foundation that may bc n:quimd ia excess of blueprint (C) TI~ cost of labor and martials needed m d~ or ~1 surfac~ or subsm-~ce unknown water condiOnmt fo, md dining the cotwse of construction. 14.2 Tt~ Contractor shall, before such condi~ are distud~l, notify ~ Buyer of (t) sutmurfac~ or latent pkysical conditions at the site of an unusual nature. The Buyer shall promptly investigate the condldons, and if Cc$~"actor finds that such conditions do mats..~nlly so dilTer nnd cause an iacnmse in the Conu'actor's costs, or d~ ~ r~lulred for. l~,,-~'or,--,~cg of ~ ~ of t~m work under this comract, whether or not changed as a ~mlt of meh conditions, a specific cost adjuslment shall be made and ~e contnct price adjustsd by C]m~e Ordm. 0'~'~3~ 9t'~,gE£0~:9 cS:t*'[ 00, &'[ ~ ARTICLE DI/LAY~, AND EXTENSIONS OF TIIV~ If the Contractor is delayed at any tlm~ in the progress of ~'~ cotmtmotion work by any act, failure or neglect of the Buyer or by c. hang~s ordm~d in the Project or by labor disputes, fire, onusual delay in trarmportation, adverse weatltcr ~onditiom that can not be reasonably anticipated, unavoidable casualties, or any causes beyond thc Comza~or'z control, or a delay authorized by the Buyer, tiaa the date for Substantial Completion shall be ~tonded for a twtsonablc period of ARTICL~ 16 RIGHT OF INGRESS AND EGRF~$ The Buye~ does he.by grant and caaw--y m the Corm-m:tor, its successors and assigns, full and coxni~lete fights of ing~ss, egress and regress togetbor with such or.~pan~y or possession of the premises Im~inb~m desmbed as shall be dnmnded by the Contra~or for tl~ aforesaid coml~ion. Any xv-~sal tls:mol, it is ~ is a default by the Buyer whereupon the ~ amount of th~ ~antraot pri~ shall Income immediately ~-- and payablc. ARTICLE 17 DEFAULT 17. l De~uh By Buyer. If the Buyer shall default hm'eunder prior to the be~hming of constnmtion work, Co~&ctor ~ rein ~ money pa/d by Buyer as liquidated damage~; ~d this Coh~/~'t sha/l thereul~n t~nate. If the Buyer falls to m,~e a PrO~m~ Payn~.nt to Contractor as herein provided through no fault ofthe .Conuactor, tl~ Contractor may, upon seven CO day's wfltten p. otlce to the Buyer, tenaina*- the Contract and mr~ver fxom the Buyer payment for aH work completed and for any proven loss sustained profit on the ,',~m project. 17.2 The r~n~dies ~ provided si'all b~ in addition to and not in sul~timtinn for the righ~ and mme, d~ which would otl~wise be veiled in th~ Conlra~tor, under ~1~ ~ of tbe Agreenmnt, or ollm~v~, all of which rights and rmnedi=s am spedally n=vrved by th~ Conlractor, nnd tl~ fnllure ~o exezcise tl~ remedies hm'ein shall not preclude the resort to any appropriate rmnedy, nor shall the us~ of ~ spacL%l remedies hereby provided pt'event ~ mbsequent or COn~UTOnt x~ot~ tO any other remedy which by law wonld b~ v'~__._,-a_ in d~ Contractor For t~ recovery of damages, moneys due. or mlm~wise, in the event of a breach of any of the covanants by the Buyer. ARTICLE 18 OWNI~SHIP OF MATE,RIAl, It is mutually agreed that all material delivered upon th~ said premises shall be regarded as the p~ of ~he Contractor until paid for by the ]Buyer, and shall not be rmnov~d without consmt of tbe Contramor. ~/0~ :~ SO~B~£SBB8~:OI 9~B~9~0~9 ~39W3H NO0 ~n:~o~a a~:£8 eeea-zt-~n~ · ,',?*'-tT-~B 8,28A, b'l ~ ."-N. P. I 1 ARTICLE 19 SF..PTIC SY~TF~M (IF APPLICABLE) Aider F'mal approval of the insadlation of th~ Sgpti~ sysmn by tlz Sewage Enforcement Officer, or other officer charged with thi~ chgy, the Contractor .hnll have no further rcspon$ibUJty for any maffunctions or other problems which may bo enc. ountg~red with rg~peot to the system, wheat d~_~e to design or any other cause whatsoever, except workmanship for ~ y~ar. ARTICL~ 20 POS.qF_.SSION 20.1 Prior to the closing, it shall bc thc duty of the Buyer or Ids agent to inspm:t thc house ia g~e presence of tl~ Contraotor or the Comractor's represenmtve and to give rig Coniractor at that limn a signed lamch list of any d~fic'smr..ira in wo=,tmanship or m.reriais. 20.2 As to any i~mns on the list ln~'p~ by thc Buyer Ihat are, in the reasonable Judgnnent of the C. onlzacl~, d~icienoi~s in work~ and/o~ rnatariah by the standard~ of ~omtruction relevant in at~a wh~t~ thc property is loc, ami, thc Contract~ ,ah*Il correct those defects at his cost within a reasonnble amvAIIR Of time. Th~ Co~ra~ ~ flo obligalion tO make any ~ that ar~ not included on the Buyers signgd punch liat. Thc Conlnctor's obUgation m correct such defects droll not ba grounds for defe~ the clo~ng or imposing any c~mditiora upon ti~ dosing including the e~o~w of any s,,,,,_*. On submmial completion of ~e work, Buyer .~,.n cxacu~ a Completion C. enificat~. 20.3 Umil tl~ final draw hu b~n teecivcd and executed by the Buyers and Conlractor the Buyer will refrain from occupying th~ dwr, lling or storing anything in it unless and unlil the Owner m:~ives wrimm pamission m do so from the Conirsc~or. ARTICLE 21 OENF. RAL PROVISIONS 21.1 The Contract constital~ the enih-~ agteemmg of t~ [mile, s, and it may not be chan~e,d ~xc~pt by 21.2 Sev~rnbUity. F. ech provision of this conlt-act is severable from every other provision of this Contract, and if any provision is delctmincd to be unmfoz~:abk, i~s unenfomeabUity wiU have no effect on the ~ty or validity of ar~y other provisitm. 21.3 ~ parries aga~e t~t any dispute, controversy or claim arising ,.,a,~ or in com,ncfion with this Ol~(~uml~land County, INmmylval:lia, For st~h purpoae, ea~ party horoby ~ubmits ID the pea'solm[ jurisdicliea of the C. mun of Conunea Pleas of Cumb~risnd County and a~teea gnat ~erviee of process may b~ ~:nmpl~:nl and shah be effective and binding aport th~ parties sgrvlced if mailmi by ~ mall, tnamm receipt re~. Each patty waives nny objection to ~ personal jurisdictioa of said Court and a~'ega ~aat it shall b~ barred from assertln~ any such objection. 21.4 This agreement will bc govm-ngd by the law of the Cort~mlw~alth of Pennsylvania. .:',. '7'-t7-:2~ 8:~ ~ 9~:t~I 88, .&'T 21.5 Wrilt~ nofi¢~ sh.l! I~ d~oa to ha~e t~n duly ~ed if ~livefed ~n l~rson m I~ B~y~r or, if ~o tl~ Contraotor, ~o'an officer of the ¢o~poralion. or if delivered a~ or ~nt by regL~tered or ee~ifled mail to 21.6 Wl~mv~ used in thi. Agreement, the singular ~ inch3de tl~ plutM, the plural ~ singular and the t~e of ~ ~ $~aH be appli~tbi~ to bo~ gcndem, This Agreement and all its term~ and ~ondition$ ~lull exznd tn and be binding upen the pa~ti~ hereto and IN WrrNESS WHEREOF, thc pa~fics, Jnt=nding to be l~gaHy boun~ I~-¢by. ha~ l~munto set thor hands and senls tl~ day and yenr first above writ~a. CONTRACTOR: BAR~ELLI CONSTRUe-liON, INC. By: ~' 2I/2I :d ~8~BIk'~8881:0£ g~8292~0~9 EF~qW3H NO0 uusn:w0~ d-~:£0 B~l~-L'~-gCtd >~ F:~I LES~DATAFILE~STATE DOCX74-pr a I/ajt Created: 10/04/00 01:54:03 PM R¢~4~¢d: 07/0810204:50:51 PM 7550.70 STEVEN B. WOLF, Plaintiff FARINELLI CONSTRUCTION, INC. and RON KOLVA PLUMBING and DIVERSE INSTALLATIONS Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3072 CIVIL ACTION-LAW JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: Please enter the appearance ofMARTSON DEARDORFF WILLIAMS & OTTO on behalf of Defendant, Diverse Installations. MARTSON DEARDORFF WILLIAMS & OTTO I.D. # 17837 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attomey for Defendant Diverse Installations Dated: July 9, 2002 CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent ofMartson DeardorffWilliams & Otto, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mark M. Bridge, Esquire 101 East Lancaster Avenue, Suite 304 Wayne, PA 19087 Counsel for Plaintiff Farinelli Construction, Inc. 3 Kacey Court, Suite 101 Mechanicsburg, PA 17055 Ron Kolva Plumbing 827 Pinetown Road Lewisberry, PA 17339 MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: July 9, 2002 F:kFILESkDATAFILE~STATE. DOC~74_po. 1/~t Created: 10/04/00 01:54:03 PM Revise6 07/12/02 10:47:17AM 755074 STEVENB. WOLF, Plaintiff Vo FARINELLI CONSTRUCTION, INC. and RON KOLVA PLUMBING and DIVERSE INSTALLATIONS Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3072 CIVIL ACTION-LAW JURY TRIAL DEMANDED DEFENDANT DIVERSE INSTALLATIONS' PRELIMINARY OBJECTION DEMURRER 1. In paragraph 16 (k) of the Plaintiff's Complaint, it is alleged that "Defendants breached the contract by reason of the following acts and omissions: (k) "Otherwise failing to exercise due care under these ' " c~rcumstances. 2. Said allegation fails to state a cause of action. WHEREFORE, Defendant Diverse Installations respectfully requests that paragraph 16 (k) be stricken fi.om the Complaint. MARTSON DEARDORFF WILLIAMS & OTTO Daniel K. Deardorff, Esquir~'~~ I.D. # 17837 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorney for Defendant Diverse Installations Dated: July 12, 2002 _CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent ofMartson DeardorffWilliams & Otto, hereby certify that a copy of the foregoing Preliminary Objection was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mark M. Bridge, Esquire 101 East Lancaster Avenue, Suite 304 Wayne, PA 19087 Counsel for Plaintiff Farinelli Construction, Inc. 3 Kacey Court, Suite 101 Mechanicsburg, PA 17055 Ron Kolva Plumbing 827 Pinetown Road Lewisberry, PA 17339 MARTSON DEARDORFF WILLIAMS & OTTO ,~rni J. Thurr~a ' - - Ten East High' Street Carlisle, PA 17013 (717) 243-3341 Dated: July 12, 2002 STEVEN B. WOLF Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA FARINELLI CONSTRUCTION, INC. and RON KOLVA PLUMBING and DIVERSE INSTALLATIONS : No. 02-3072 PRAECIPE FOR ENTRY OF APPEARANCE Please enter the appearance of Thomas E. Brenner, Esquire of Goldberg, Ka~i~xan & Shipman, P.C. on behalf of Farinelli Construction, Inc. GOLDBERG, KATZMAN & SHIPMAN, P.C. Thomas E. Brenner, Esquire Attorney I.D. No. 32085 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorney for Defendant Farinelli Construction Date: July 17, 2002 CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Mark M. Bridge, Esquire 101 East Lancaster Avenue Suite 304 Wayne, PA 19087 Dan Deardorf Martson, Deardorf, William & Otto Ten East High Street Carlisle, PA 17013 Ron Kolva Plumbing 827 Pinetown Road Lewisberry, PA 17339 GOLDBERG, KATZMAN & SHIPMAN, P.C Thomas E. Brenner, Esquire Date: July 17, 2002 82249.1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF, Plaintiff, VS. FARINELLI CONSTRUCTION, INC., RON KOLVA PLUMBING and DIVERSE INSTALLATIONS, Defendants. Civil Action - Law No. 2002-3072 Civil Term JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE PURSUANT TO Pa.R.C.P. 1012 TO THE PROTHONOTARY: Kindly enter the appearance of Robert A. Lerman, Esquire, and Peter D. Solymos, Esquire of Griffith, Strickler, Lerman, Solymos & Calkins, as attorneys for the Defendant, Ron Kolva Plumbing, in the above-captioned matter and mark the docket accordingly. GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKIN. S R~bert A. I~erman (/ 1 Suprem/~ Court ID No. 07490 Supreme Court ID No. 07475 Dated: July~_.___~, 2002 Attorney for the Defendant, Ron Kolva Plumbing 110 South Northern Way York, PA 17402 Telephone: (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF, Plaintiff, VS. FARINELLI CONSTRUCTION, INC., RON KOLVA PLUMBING and DIVERSE INSTALLATIONS, Defendants. Civil Action - Law No. 2002-3072 Civil Term JURY TRIAL DEMANDED ~ERTIFICATE OF SERVICE Po ]~64 an AND NOW, this ~ day of July, 2002, I, Robert A. Lerm , a member of the firm of GRXFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of the Praecipe for Entry of Appearance by United States Mail, addressed to the party or attorney of record as follows: Mark M. Bridge, Esquire 101 E. Lancaster Avenue, Suite 304 Wayne, PA 19087 (Counsel for Plaintiff) Thomas E. Brenner, Esquire 320 E. Market Street Harrisburg, PA 17101 (counsel for Defendant, Farinelli Construction, Inc.) klr/kolva-prp Daniel K. Deardorff, Esquire 10 E. High Street Carlisle, PA 17013 (Counsel for Defendant, Diverse Installations) GRIFFITH, S~KLER, LERMAN, BY~o~/~~an, S~r ~"~'~a~ ~o~fi~ ~q290 Attorney for the Defendant, Ron Kolva Plumbing 110 S. Northern Way York, PA 17402 (717) 757-7602 STEVEN B. WOLF Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 02-3072 FARINELLI CONSTRUCTION, INC. and RON KOLVA PLUMBING and DIVERSE INSTALLATIONS TO: Steven B. Wolf c/o Mark M. Bridge, Esquire 101 East Lancaster Avenue Suite 304 Wayne, PA 19087 Ron Kolva Plumbing c/o Robert Lerman, Esq. 110 South Northern Way York, PA 17402-3737 Diverse Installations c/o Dan Deardorf, Esq. Ten East High Street Carlisle, PA 17013 YOU ARE REQUIRED to plead to the within Answer With New Matter within twenty (20) days of service hereof or a default judgment may be entered against you. GOLDBERG, KATZMAN & SHIPMAN, P.C Date: By: Brenner, Esquire 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 [717] 234-4161 Attorney I.D. No. 32085 Attorney for Defendant Farinelli Construction, Inc. STEVEN B. WOLF Plaintiff FARINELLI CONSTRUCTION, INC. and RON KOLVA PLUMBING and DIVERSE INSTALLATIONS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 02-3072 ANSWER OF DEFENDANT FARINELLI CONSTRUCTION, INC. WITH NEW MATTER AND NOW, comes Defendant Farinelli Construction, Inc. by its attorneys, Goldberg, Katzman & Shipman, P.C. who state: 1. Denied. of the property. 2. Admitted. 3. 4. 5. 6. Defendants believe that Steven and Charlene Wolf are the owners Admitted. Admitted. Admitted. Denied. This paragraph states a legal conclusion to which no response is 8. 9. plumbing. necessary. In further response, this paragraph is denied pursuant to Pa.R.C.P. 1029 (e), and proof of thereof is demanded. Admitted. Admitted. Denied in part. Defendant Ron Kolva Plumbing perfoi-i~ied the "rough-in" Admitted. 11. Denied as stated. Defendant Farinelli had no role in allowing water to enter into the premises. COUNT I 12. The answers to paragraphs 1-11 are incorporated herein by reference. 13. Admitted. 14. Admitted. 15. Admitted. 16. Denied. It is denied that Defendant Farinelli breached the Contract. In further response, the remainder of the paragraph is denied pursuant to Pa.R.C.P. 1029 (e). In further response, Plaintiff has agreed to the deletion of Paragraph 16 (k) and a Stipulation will be filed of record. 17. necessary. 18. Denied. This paragraph states a legal conclusion to which no response is Denied. Defendant Farinelli did not breach the Contract. WHEREFORE, Defendant Farinelli Construction, Inc. requests that Count I of Plaintiff's Complaint be dismissed with prejudice. 19. reference. 20. COUNT II The Answers to paragraphs 1 through 18 are incorporated herein by Denied. It is denied that Defendant Farinelli was negligent. In further response, the paragraph is denied pursuant to Pa.R.C.P. 1029 (e). 21. Denied. It is denied that Plaintiff Farinelli was negligent. WHEREFORE, Defendant Farinelli Construction, Inc. requests that Count II of the Plaintiff's Complaint be dismissed with prejudice. NEW MATTER DIRECTED TO PLAINTIFF 22. Plaintiff fails to state a cause of action as to Defendant Farinelli Construction, Inc. 23. Plaintiff has failed to join an indispensable party to this action. 24. Plaintiff's claim against Defendant Farinelli Construction, Inc. is barred by Article 13.4 of the Construction Agreement as claims such as those in the Complaint have been waived by mutual agreement. WHEREFORE, Defendant Farinelli Construction, Inc. requests that the Plaintiff's Complaint be dismissed with prejudice. NEW MATTER PURSUANT TO PA. R.C.P. 2252 (D) DIRECTED TO DEFENDANTS RON KOLVA PLUMBING AND DIVERSE INSTALLATIONS 25. Defendant Farinelli incorporates the paragraphs of the Plaintiff's Complaint herein by reference. 26. The damages as alleged in the Plaintiff's Complaint arose from the conduct of Ron Kolva Plumbing and/or Diverse Installations. 27. Pursuant to the contract attached hereto, as Exhibit "A", Diverse Installations has agreed to indemnify and hold harmless, Farinelli Construction Company, Inc. from losses such as those as set forth in the Plaintiff's Complaint. WHEREFORE, Defendant Farinelli Construction, Inc. demands judgment against Defendants Ron Kolva Plumbing and Diverse Installations finding them solely liable on the Plaintiffs claim; in the alternative, finding Defendants Ron Kolva Plumbing and Diverse Installations liable over to Defendant Farinelli Construction, Inc. on the Plaintiff's Claim; in the alternative finding Defendants Ron Kolva Plumbing and Diverse Installations jointly and severally liable to Defendant Farinelli Construction on the Plaintiff's claim, or in the alternative, find Defendants Ron Kolva Plumbing and Diverse Installations liable for indemnity or contribution to Farinelli Construction on Plaintiff's claims. GOLDBERG, KATZMAN & SHIPMAN, P.C. Thomas E. Brenner, Esquire Attorney I.D. No. 32085 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorney for Defendant Farinelli Construction, Inc. Date: VERIFICATION I, ~D~c,n Fa:~r~z:I~, verify that I am an authorized representative of Farinelli Construction, Inc., that I have read the foregoing Answer and hereby afl-ann that it is true and correct to the best of my personal knowledge, or infoi-mafion and belief. This Verification and statement is made subject to the penalties of lB Pa.C.S. §4904 relating to unsworn falsification to authorities; I verify that all the statements made in the foregoing are true and correct and that false statements may subject me to the penalties of lB Pa. C.S. §4904. FARINELLI CONSTRUCTION, 1NC. By: Diverse Installations FAX NO. : ~-~-'~ ~'~ ~ur4 Feb. 25 1999 07:i4AM Pi This ~n~ract date<l February ~,4, l~J~ I~¥ and b-:tween FarlneIli C~nstfu-~!on. Inc., of ~ K~ce¥ Cgurt, $~ite lO1, Mechanicsbur~, PA 1 ?0~, hereinafter referre~ to as 'Far~nelli" a~ ~e following, Di~rse InStal~, p. O. ~x 1. ~ar~..ille, PA 175~, h~e~er ref~d to as "Sub~ntra~0r'. 1. ~:. F~Ui aha 5u~ont~a~or ~ ackn~l~e t~t Subcon~ra~or is an ~naep~d~ ~ra~or ~e h~ relatJ~lp with FarinellL end ~s n~ an employ~ For each job bid, S~c~t~or wilt s~mit a separate propo~l bas~ on pl~s a~ sP~ications suppli~ Dy Far,ne:If an~ SuOcontr~or will also su~m~t an invoice for ~ job completed. Su~onb-a~ ;s to furni~ at h~ own expen~ all labor, ~axes, t~ls, i~ura~ee, SuPe~ision, transpor~tion, and m~er~al (if ~GSS&~) r~uired to c~p~te ~e WOrk in aC~r~ce with h~s propel ~ae~. ~bcontraetor a~ that at his own ~t and expense ~ ~ail ~oeure ~d maintain all insur~ r~r~ by ~e law in the ~tate or ~nnsxIvania for hi--if or any ~ployee of Su~onlra~or. Subcontra~or sh~l grov~de e Ce~Eic~e ~ Insurance to Farinelli. If Workm~'s Compensation i= applicable SUbcOntr~ agr~ ~ pay all pr~iums reoulre~ as :~y come due ~ Subc~tra~of hereby indemnifies and ~es harmless Far,haiti from alt ~oss, thefts, c~ts or ~e~ge on a~ount of injury to ~r~n Or ~O~r[y occu;ring in the performance of this Contract. I~et~ wi~ any ~d ell atter~s' fees ineue~ ~ Fafinelli on account ther~f. In w~tness whereof, the parties ttave hereunto Set their hand and seals ~e day and year fimt above written. Taxpayer I.D.# or Fafirtelfi Corlstruetion, /nc. Subcontractor SOCial $~urity II~ CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Mark M. Bridge, Esquire 101 East Lancaster Avenue Suite 304 Wayne, PA 19087 Dan Deardorf, Esquire Martson, Deardorf, William & Otto Ten East High Street Carlisle, PA 17013 Robert Lerman, Esquire Griffith, Strickler, Lerman Solymos & Calkins 110 South Northern Way York, PA 17402-3737 Date: 82415.1 GOLDBERG, KATZMAN & SHIPMAN, P.C BY: ~_~a~ _ Thomas E. Brenner, Esquire Mark M. Bridge, Esquire Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19087 Telephone (610) 902-0150 Facsimile (610) 902-0152 Attorney for Plaintiff, Steven B. Wolf IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION STEVEN B. WOLF : Plaintiff : NO. t~ ~-~ ..~-7~,. VS. : : FARINELLI CONSTRUCTION, INC. : and : RON KOLVA PLUMBING : and : DIVERSE INSTALLATIONS : Defendants : PLAINTIFFS' ANSWER TO NEW MATTER FILED BY DEFENDANT FARINELLI CONSTRUCTION, INC Plaintiffs hereby file their Reply to thc Defendant, Farinclli Construction, Inc., New Matter, as follows: 22-24. Denied, as these paragraphs of New Matter are conclusions of law to which no response is required. WHEREFORE the plaintiff Steven B. Wolf respectfully demands judgment against defendants, for damages in an amount of Eighty Thousand Nine Hundred Forty Dollars and Ninety-Seven Cents ($80,940.97) plus costs of suit, attorney's fees, interest, delay damages and such further relief as the Court may deem just and appropriate. MARK M. BRIDGE, ESQUIRE, PC BY: M~' kM. Bridge, Esquire A~orneys for Plaintiff Date: July 31, 2002 SHERIFF'S RETURN - CASE NO: 2002-03072 P COMMONWEALTH OF PENNSYLVANIA: COI/NTY OF CUMBERLAND WOLF STEVEN B VS FARINELLI CONSTRUCTION ET AL REGULAR DAWN KELL , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to says, the within COMPLAINT & NOTICE was served upon FARINELLI CONSTRUCITON INC the DEFENDANT , at 0940:00 HOURS, on the 8th day of July at 3 KACEY COURT SUITE 101 , 2002 MECHANICSBURG, PA 17055 DON FARINELLI, OWNER a true and attested copy of by handing to COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 7.59 Affidavit .00 Surcharge 10.00 .0O 35.59 Sworn and Subscribed to before me this ~z--~q day of ~x~ ~ ~-D~I~ A.D. ~Pr'othonotary So Answers: R. Thomas Kline 07/26/2002 MARK BRIDGE By: Deput~ Sheriff SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2002-03072 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CLTMBERLAND WOLF STEVEN B VS FARINELLI CONSTRUCTION ET AL R. Thomas Kline duly sworn according to law, and inquiry for the within named DEFENDANT RON KOLVA PLI/MBING but was unable to locate Him deputized the sheriff of YORK serve , Sheriff or Deputy Sheriff who being says, that he made a diligent search and in his bailiwick. County, the within COMPLAINT & NOTICE , to wit: He therefore Pennsylvania, to On July 26th , 2002 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing 6.00 Out of County 9.00 Surcharge 10.00 Dep York County 41.90 .00 66.90 oo/oo/oooo MARK BRIDGE So answers~~ ~ - ~/ R. Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this ~ day of ~ ~2~ A.D. --t ! Prothonotary ' SHFRIFF'S OFFIC[- 50 NORTH DUKE STREET, P.O. BOX 83480, LANCASTER, PENNSYLVANIA 17608-3480 · (717) 299-8200 SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT OF RETURN PLAINTIFF/S/ Steven B. Wolf 3 DEFENDANT/rS/ SERVE Farinelli Construction, Inc et al NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC., TO BE SERVED. Diverse Installations 6 ADDRESS {Stree{ or RFD, ARartrnent NO,, City, Boro, Twp~ State and ZIP Code) PLEASE TYPE DO NOT DETACH ANY COpIES~ 2 COURTNUMBER 02-3072 civil 4 TYPE OF WRIT OR COMPLAINT Notice and Cc~nplaint AT 260 School House Road Quarryville, PA 17566 7 INDICATE UNUSUAL SERVICE [] DEPUTIZE [] OTHER ~ Now, Lancas~er 20 ~ , I, SHERIFF OF~II~ COUNTY, PA., do her_.ebJLdep, i~tize the Sheriff of County to execute this Writ a~~r{ thereof acc .~p~,. to law. This deputation being made at the request and risk of the plaintiff. ~ ~,.~,~,~..~.¢~=~ ?.,¢.~.. ,, 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: C~nberl~nd ~ NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching a~ly property under I t0 TELEPHONE NUMBER 11 DATE MARK BRIDGE ES(~ (610) 902-0150 6/26/02 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed) CUMBERLAND CO SHERIFF'S OFFICE - SPACE BELOW FOR USE OF SHERIFF ONLY -- DO NOT WRITE BELOW THIS LINE 13. I acknowledge receipt of he wr I ~ or complaint as indicated above. ~ NAME of Authorized LCSO Deputy or Clerk 14 Date Received t 5 Expiration/Hearing date ANNETTE WALTON 717-295-3609 7/8/02 7/26/02 16 I hereby CERTIFY and RETURN hal I [] have personally served, ave legal evidence o service as shown in "Remarks", [] have executed as shown in "Remarks"'thewrit°rc°mplaintdescrbed°ntheindividual, co'~li~'hpany, corporation etc ,a headdressshownaboveoronlheindividual, company, cor- poration, etc at the address inserted below by handing a TRUE and ATTESTED COPY thereof 17 []1 hereby certilyand return a NOT FOUND becauselam unable tolocate the individual, company, corporation, etc., named above (See remarks below) 18 Name and title of individual served (if not shown above) (Relationship to Defen~nt) · .TE~Jk}IFE~, L. ~CL. AV,,GHLI~ ('¢[¢~kT'Pdb/) l'~. []NoSe~ice See Remarks ~elow (No. 3~ 20. Addressof whereserved (completeonlyifdi e en hanshownabove) (StreetorRFD,ApartmentNo ,City, Boro, Twp /21 Date of Servi, ~ State and Zip Code) 22. Time 23 ATTEMPTS ate Miles DeR. Int Date Miles Oep nt Date Miles De .Int, . . 24 Advance Costs Dial Costs ~ Oep. Int. · ~ 29 COST DUE OR REFUND 30. REMARKS: q S~_~ ~----~,,j~ 1. WHITE - Issuing Authority 2. PINK - Attorney 3, CANARY - Sheriff's Office BLUE - Sheriff's Office YORKTOWNE BUSINESS FOMRS · (717) 225-0363 * FAX 17~7) 225-0367 COUNTY OF YORK OFFICE OF THE SHERIFF 28 EAST MARKET ST., YORK, PA 17401 SERVICE CALL (717) 771-9601 SHERIFF SERVICE PROCESS RECEIPT and AFFIDAVIT OF RETURN 1 PLAINTiFF/S/ Steven B. Wolf 3. DEFENDANT/S/ Farinelli Construction, Inc. et al SERVE INSTRUCTIONS PLEASE TYPE ONLY LINE I THRU 12 DO NOT DETACH ANY COPIES 2 COURT NUMBER 02-3072 civil 4. TYPE OF WRIT OR COMPLAINT Notice & Cc~plaint AT 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD. 6. ADDRESS (S i NEb I OR RFC WITH BOX NUMBER, APT. NO., CITY,, ECHO, TWA, STATE AND ZiP CODE) Ron Kolva Plumbing 827 Pinetown Road Lewisberry, PA 17339 7. INDICATE SERVICE: Q PERSONAL t3. PERSON IN CHARGE ~tCDEPUTIZE f~ _~R~'F~i~L ~.11ST CLASS MAIL LJ POSTED Q OTHER NOW July 2 20 02 I, SHERIFF OF '.~_.. COUNTY, PA, do hereby deputize the sheriff of YOrK ' COUNTY to execute this Writ an~d. j3~k.e~.C~urn thereof.,?.C.,e~. 'rig to law. This deputization being made at the request and risk of the plaintiff. _~ S'/-~'¢- ~.-*--~-,---~ .,,.~'~/,~¢"__~., ~ / -STHE~F OF: ~ ~O~T~ 8. S~,~ INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: C~nberland NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any pnopert~ under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any properly before sheriffs sale thereof 9 TYPEN EandADDRESSofA~q'ORNEY/ORIGINATORandSIGNATURE 10 TELEPHONE NUMBER 11 DATEFILED ~M~K M. BRIDGE 101 E. LANCASTER AVE. STE 304 WAYNE, PA 19087 610-902-0150 6-26-02 12 SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed) CUMBERLAND CO. SHERIFF SPACE BELOW FOR USE OF THE SHERIFF -- DO NOT WRITE BELOW THIS LINE 13 I acknowledge receipt of the writ 14 D ATE RECEIVED 15. Expiration/Hearing Date or complaint as indicated above /~ AHRENS / 7-3-02 7-26-02 16. H,..~gER~: PERSONAL~'~t' RESIDENCE( ) POSTED( ) POE(~,'~ SHEHIFF'SOFF~CE( ) OTHER SEE REMARKS BELOW 17 ~ ~herebycer~yan~`retumaN~TF~UN~because~/m~*J~i~t~catetheindivIdua~c~mpany~etc.nameab~ve.(~eeremarksbe~w.) , · , ~L~' ~.~ME AND TI~ OF ~.¥1DEIAL SERVED / LIST/~DF~ES.:~ERE4~ NOT SI¢O~f4~ABOVE (Re~tionship to Defendant 19 Da/e~f~ervice 20. ~me o Servi~4~ e Ti M es I Date ~ es In Date LTi~e Date Time Miles Int. Date Time iles Int. Date ~'me Miles t 23 Advance75.00Costs 2418.00Service Costs 34. Foreign County Costs I 35 Advance Costs 41 AFFIRMED and subscribed to before me this 42. day of ,Jill ¥ 10 SSUING AUTHORITY AND TITLE 28. SubTotal 30 Notary 31 39.90 2.00 38, Mileage/Posted/Not Found 39 Total Costs I 40. Costs Due or Refund 47. dA~E J 7-10-02 49. DATE 51. DATE RECEIVED 1 WHITE - Issuing Authority 2. PINK- Attomey 3 CANARY SherifFs Office 4. BLUE - Shedffs Office IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF Plaintiff Vo FARINELLI CONSTRUCTION, INC. RON KOLVA PLUMBING and DIVERSE INSTALLATIONS Defendants and INTEGRA PAINTING INCORPORATED Additional Defendant CIVIL ACTION - LAW No. 2002-3072 Civil Term JURY TRIAL DEMANDED TO: Additional Defendant INTEGRA PAINTING INCORPORATED c/o Mr. Shawn Mehok 281 Hoy Road Carlisle, PA 17013 PRAECIPE FOR ISSUANCE OF A WRIT TO JOIN AN ADDITIONAL DEFENDANT NOT ALREADY A PARTY TO THEPROTHONOTARY: Kindly issue a writ to join INTEGRA PAINTING CONTRACTOR as an Additional Defendant in this action. Date: September 6, 2002 Respectfully, BY: GRIFFITH, STRIC/I~ER, LERMAN, SO~r-~OS e C,~L, KINS t ,//:/ ..... Peter D.~§o1' ~s, Esquire Supreme Cfi ID No. 07475 110 South Nt rthem Way York, PA 17402 (717) 757-7602 Attorney for Defendant, Ron Kolva Plumbing IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF Plaintiff Vo FARINELLI CONSTRUCTION, INC. RON KOLVA PLUMBING and DIVERSE INSTALLATIONS and Defendants INTEGRA PAINTING INCORPORATED Additional Defendant CIVIL ACTION - LAW No. 2002-3072 Civil Term JURY TRIAL DEMANDED WRIT JOINING ADDITIONAL DEFENDANT NOT ALREADY A PARTY TO: TO: Additional Defendant INTEGRA PAINTING INCORPORATED c/o Mr. Shawn Mehok 281 Hoy Road Carlisle, PA 17013 You are notified that Ron Kolva Plumbing has joined you as an additional defendant in this action, which you are required to defend. Date: September 6, 2002 (Seal of Court) Prothonotary IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF Plaintiff Vo FARINELLI CONSTRUCTION, INC. RON KOLVA PLUMBING and DIVERSE INSTALLATIONS and Defendants INTEGRA PAINTING INCORPORATED Additional Defendant CIVIL ACTION - LAW No. 2002-3072 Civil Term JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this~)~ day of~ ~0~02, I, Peter D. Solymos, Esquire, a member of the firm of GRIFFITH, STRICKLER, LL6~R1VIAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of the Praecipe for Issuance of a Writ to Join an Additional Defendant Not Already a Party and Writ Joining Additional Defendant Not Already a Party by United States Mail, addressed to the party or attorney of record as follows: Mark Bridge, Esquire 101 East Lancaster Avenue Suite 304 Wayne, PA 19087 (Attorney for Plaintiff, Steven B. Wolf') Dan Deardorf, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Harrisburg, PA 17108-1268 Diverse Installations) Thomas E. Brenner, Esquire Goldberg Katzman & Shipman, PC 320 Market Street Strawberry Square (Attorney for Defendant (Attorney for Defendant, Farinelli Construction, Inc.) GRI FFITH~TRICKLERr~LERMAN, ?eter'D. Sol/~,m's~Esquire Supreme C~rt ID No. 07475 110 South l~orthem Way York, PA 17402 (717) 757-7602 Attorney for Defendant, Ron Kolva Plumbing ' · F:~lLESkDATAFILE~TATEDOCk74-sti l/ajt Crcated: I0/04/00 0i:54:03 PM Revised:' 07/23/02 09:~6:22 AM 755O74 STEVEN B. WOLF, Plaintiff FARINELLI CONSTRUCTION, INC. and RON KOLVA PLUMBING and DIVERSE INSTALLATIONS Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3072 CIVIL ACTION-LAW JURY TRIAL DEMANDED Complaint. Complaint. STIPULATION 1. Plaintiff has filed a Complaint against various Defendants including Defendant Diverse Installations. 2. On July 12, 2002, Defendant Diverse Installations filed a Preliminary Objection in the nature of a Demurrer alleging that paragraph 16 (k) of the Plaintiff's Complaint fails to state a cause of action. Defendant Diverse Installations requested that paragraph 16 (k) be stricken from the Plaintiff is agreeable that paragraph 16 (k) of the Complaint be stricken from the WHEREFORE, the parties agree that paragraph 16 (k) of the Complaint shall be stricken. gY~l Marjt/M~ Bridge, Esquire 101 East Lancaster Ave, Suite304 Wayne, PA 19087 Attomey for Plaintiff Daniel K. Deardorff, Esquire Ten East High Street Carlisle, PA 17013 Attorney for Defendant Diverse Installations Dated: September 10, 2002 CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent ofMartson DeardorffWilliams & Otto, hereby certify that a copy of the foregoing Stipulation was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mark M. Bridge, Esquire 101 East Lancaster Avenue, Suite 304 Wayne, PA 19087 Counsel for Plaintiff Thomas E. Brenner, Esquire GOLDBERG KATZMAN & SHIPMAN, P.C. 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Counsel for Farinelli Construction, Inc. Robert A. Leman, Esquire LAW OFFICES OF GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS 110 South Northern Way York, PA 17402 Counsel for Ron Kolva Plumbing MARTSON DEARDORFF WILLIAMS & OTTO By(~(~. ~. ~ A~rni J. Thu~hrna Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: September 10, 2002 F: ~FILES~DATAFILE~STATE. DOC\74.r ep I/ajt Created: 10/04/0001:54:03 PM ReUsed: 08/01/02 09:25:12 AM 7550.74 STEVEN B. WOLF, Plaintiff FARINELLI CONSTRUCTION, INC. and RON KOLVA PLUMBING and DIVERSE INSTALLATIONS Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3072 CIVIL ACTION-LAW JURY TRIAL DEMANDED REPLY OF DEFENDANT DIVERSE INSTALLATIONS TO NEW MATTER OF DEFENDANT FARINELLI CONSTRUCTION, INC, 25. Defendant Diverse Installations incorporates the paragraphs of its Answer to Plaintiff's Complaint herein by reference. 26. It is denied that Defendant Diverse Installations caused the Plaintiff's damages. The Answer with New Matter of Defendant Diverse Installations is incorporated herein by reference. 27. This averment sets forth a legal conclusion to which no reply is necessary. If reply is necessary, the contract attached as Exhibit "A" speaks for itself. WHEREFORE, Defendant Diverse Installations demands judgment in its favor against Plaintiff and the other Defendants. MARTSON DEARDORFF WILLIAMS & OTTO Daniel K. Deardorff, ~squir~ 6t~ I. D. No. 17837 Ten East High Street Carlisle, PA 17013 (717) 243~3341 Date;~t~L lOt ;31J)O ~ Attorneys for Defendant Diverse Installations VERIFICATION The foregoing Reply of Defendant Diverse Installations to New Matter of Defendant Farinelli Construction, Inc. is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities, which provides that ifI make knowingly false averments, I may be subject to criminal penalties. ,.~ECF_IVEL $£? 04 2002 CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent ofMartson DeardorffWilliams & Otto, hereby certify that a copy of the foregoing Reply to New Matter was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mark M. Bridge, Esquire I01 East Lancaster Avenue, Suite 304 Wayne, PA 19087 Counsel for Plaintiff Thomas E. Brenner, Esquire GOLDBERG KATZMAN & SHIPMAN, P.C. 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Counsel for Farinelli Construction, Inc. Robert A. Lerman, Esquire LAW OFFICES OF GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS 110 South Northern Way York, PA 17402 Counsel for Ron Kolva Plumbing Dated: MARTSON DEARDORFF WILLIAMS & OTTO BYA~i J.~T~ ~ Ten East High Street Carlisle, PA 17013 (717) 243-3341 F:~FILES~DATAFILE~TATE DOCX74 -aris I/ajt Created: 10/04/0001:54:03 PM Revised: 08/01/02 10:09:10 AM 7550.74 STEVEN B. WOLF, Plaintiff V. FARINELLI CONSTRUCTION, INC. and RON KOLVA PLUMBING and DIVERSE INSTALLATIONS Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 02-3072 : CIVIL ACTION-LAW : JURY TRIAL DEMANDED ANSWER OF DEFENDANT DIVERSE INSTALLATIONS WITH NEW MATTER TO PLAINTIFF'S COMPLAINT TO: STEVEN B. WOLF and his attorney, MARK M. BRIDGE ESQUIRE AND RON KOLVA PLUMBING and their attorney, ROBERT LERMAN, ESQUIRE FARNIELLI CONSTRUCTION and their attorney, THOMAS E. BRENNER, ESQUIRE YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. AND NOW, comes Defendant Diverse Installations, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO who state: property. 2-4. 5. 6. Denied. Defendant believes that Steven and Charlene Wolf are the owners of the Admitted. Admitted based upon information received. Denied. This paragraph states a legal conclusion to which no response is necessary. In further response, this paragraph is denied pursuant to Pa. R.C.P. 1029 (e), and proof thereof is demanded. 7-8. Admitted. 9. Denied in part. Defendant Ron Kolva Plumbing performed the "rough in" plumbing, and Defendant Diverse Installations had no involvement whatsoever with the plumbing services or plumbing system. 10. Admitted. 11. Denied as stated. Defendant Diverse Installations had no role in allowing water to enter into the premises. When Diverse Installations noticed that someone had turned on the water inside the building, it turned the water valve off. COUNTI 12. The answers to paragraphs 1 through 11 are incorporated herein by reference. 13-15. Admitted. 16. Denied. It is denied that Defendant Diverse Installations breached the contract. In further response, Defendant Diverse Installations had no involvement with the plumbing system or services. In further response, Plaintiff has agreed to the deletion of paragraph 16 (k) and a Stipulation will be filed of record. 17. Denied. This paragraph states a legal conclusion to which no response is necessary. 18. Denied. Defendant Diverse Installations did not breach the contract. WHEREFORE, Defendant Diverse Installations requests that Count I of Plaintiff's Complaint be dismissed with prejudice. COUNT II 19. The Answers to paragraphs 1 through 18 are incorporated herein by reference. 20. Denied. It is denied that Defendant Diverse Installations was negligent. In further response, Defendant Diverse Installations had no involvement with the plumbing services or system and once Diverse Installations noticed that someone had turned on the water in th building, it turned the water valve off. 21. Denied. It is denied that Defendant Diverse Installations was negligent. WHEREFORE, Defendant Diverse Installations, Inc. requests that Count II of the Plaintiff's Complaint be dismissed with prejudice. NEW MATTER DIRECTED TO PLAINTIFF 22. 23. Plaintiff fails to state a cause of action as to Defendant Diverse Installations. Plaintiff has filed to join an indispensable part to this action. 24. Plaintiff's claim against Defendant Diverse Installations may be barred by the Statute of Limitations. 25. Some other person or party turned on the water in the building and the water valve was turned off once this was noticed by Diverse Installations. WHEREFORE, Defendant Diverse Installations requests that Plaintiff's Complaint be dismissed with prejudice. NEW MATTER PURSUANT TO PA. R.C.P. 2252 (D) DIRECTED TO DEFENDANTS RON KOLVA PLUMBING AND FARINELLI CONSTRUCTION, INC 26. Defendant Diverse Installations incorporates the paragraphs of the Plaintiff' s Complaint against the other Defendants, herein by reference. 27. The damages as alleged in the Plaintiff's Complaint arose fzom the conduct ofRon Kolva Plumbing and/or Farinelli Construction, Inc. WHEREFORE, Defendant Diverse Installations demands Judgement against Defendants Ron Kolva Plumbing and Farinelli Construction, Inc. finding them solely liable on the Plaintiff's claim; in the alternative, finding Defendant Ron Kolva Plumbing and Farinelli Construction Inc., liable over to Defendant Diverse Installations on the Plaintiff' s claim; in the alternative finding Defendants Ron Kolva Plumbing and Farinelli Construction, Inc., jointly and severally liable to Defendant Diverse Installations on the Plaintiff's claim; or in the alternative, find Defendants Ron Kolva Plumbing and Farinelli Construction, Inc., liable for indemnity or contribution to Diverse Installations on Plaintiff's claim. MARTSON DEARDORFF WILLIAMS & OTTO B Y Dani~el K.~D eard{"~r ff, Esquire I. D. No. 17837 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Diverse Installations VERIFICATION The foregoing Answer is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities, which provides that ifI make knowingly false averments, I may be subject to criminal penalties. Diverse Installations F:~FI LES~DATAFILE~STATE.DOC~74_ans. 1 ,4ECEIVI~L CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent ofMartson DeardorffWilliams & Otto, hereby certify that a copy of the foregoing Answer was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mark M. Bridge, Esquire 101 East Lancaster Avenue, Suite 304 Wayne, PA 19087 Counsel for Plaintiff Thomas E. Brenner, Esquire GOLDBERG KATZMAN & SHIPMAN, P.C. 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Counsel for Farinelli Construction, Inc. Robert A. Leman, Esquire LAW OFFICES OF GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS 110 South Northern Way York, PA 17402 Counsel for Ron Kolva Plumbing Dated: MARTSON DEARDORFF WILLIAMS & OTTO A~i J. T~nfia' ' ' Ten East High Street Carlisle, PA 17013 (717) 243-3341 Thomas E. Brenner, Esquire GOLDBERG, KATZMAN & SHIPMAN, P.C. P.O. Box 1268 Harrisburg, PA 17108-1268 Attorney I.D. No: 32085 Attorney for Defe~d_n_nt Farinelli Construction, Inc. STEVEN B. WOLF Plaintiff Vo FAKINELLI CONSTRUCTION, INC. and RON KOLVA PLUMBING and DIVERSE INSTALLATIONS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA No. 02-3072 REPLY OF DEFENDANT FAR1NEI,I,I (~ONSTRUCTION. INC. TO NEW MATTER OF DEFENDANT DIVERSE INSTALLATIONS AND NOW, comes Defendant Farinelli Construction, Inc. by its attorneys, Ooldberg, Kataman & Shipman, P.C. who state: 26. Denied. The answer of Defendant Farinelli Construction, Inc. to the Plaintiffs' Complaint, is incorporated herein by reference. 27. Denied. This paragraph states a legal conclusion to which no response is necessary. WHEREFORE, Defendant Farinelli Construction, Inc. requests that the New Matter of Defendant Diverse Installations be dismissed with prejudice. GOLDBERG, KATZMAN & SHIPMAN, P.C. ---t-aomas E. Brenner, Esq ' e Attorney I.D. No. 32085 320 Market Street P.O. Box 1268 Harrisburg PA 17108-1268 (717) 234-4161 Attorney for Defendant Farinelli Construction, Inc. Date: ~/i ~//~) ~-~ 84810.1 VERIFICATION I, Thomas E. Brenner, Esquire, hereby acknowledge that I am the Attorney for Defendant Farinelli Construction, Inc.; that I have read the foregoing Reply to New Matter; that there are no new facts of record contained in the within Reply to New Matter and that the facts stated therein are tree and correct to the best of my knowledge, information, and belief. I understand that any false statements herein are made subject to penalties of 18 Pa.C.S. §4904, relating to unswom falsification to authorities. CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Mark M. Bridge, Esquire 101 East Lancaster Avenue Suite 304 Wayne, PA 19087 Dan Deardorf, Esquire Martson, Deardorf; William & Otto Ten East High Street Carlisle, PA 17013 Robert Lei-man: Esquire Griffith, Stfickler, L~,man Solymos & Calkins 110 South Northern Way York, PA 17402-3737 Date: GOLDBERG, KATZMAN & SHIPMAN, P.C By:~~'~ Thomas E. Brenner, Esqnire Mark M. Bridge, Esquire Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19087 Telephone (610) 902-0150 Facsimile (610) 902-0152 Attorney for Plaintiff, Steven B. Wolf IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION STEVEN B. WOLF VS. Plaintiff FARINELLI CONSTRUCTION, INC. and RON KOLVA PLUMBING and DIVERSE INSTALLATIONS Defendants : NO. 02-3072 _. PLAINTIFFS' ANSWER TO NEW MATTER FILED BY DEFENDANT DIVERSE INSTALLATIONS Plaintiffs hereby file their Reply to the Defendant, Diverse Installations, New Matter, as follows: 22-25. Denied, as these paragraphs of New Matter are conclusions of law to which no response is required. WHEREFORE the plaintiff Steven 13. Wolf respectfully demands judgment against defendants, for damages in an amount of Eighty Thousand Nine Hundred Forty Dollars and Ninety-Seven Cents ($80,940.97) plus costs of suit, attorney's fees, interest, delay damages and such further relief as the Court may deem just and appropriate. MARK M. BRIDGE, ESQUIRE, PC BY: ~rkM. Bridge, Esquire Attorneys for Plaintiff Date: September 16, 2002 SHERIFF'S CASE NO: 2002-03072 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND RETURN - NOT FOUND WOLF STEVEN B VS FARINELLI CONSTRUCTION ET AL R. Thomas Kline ,Sheriff or Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, ADD'L DEFENDANT INTEGRA PAINTING INCORPORATED but was unable to locate Them in his bailiwick. He therefore returns the WRIT TO ADD'L DEFEN. , NOT FOUND , as to the within named ADD'L DEFENDANT, INTEGRA PAINTING INCORPORATED ALSO ATTEMPTED SERVICE AT 427 HOGESTOWN ROAD MECHA_NICSBURG Sheriff's Costs: Docketing 18.00 Service 10.35 Not Found 5.00 Surcharge 10.00 .00 43.35 So answers ~-~ -~r R/ Thomas ~li~e~ Sheriff of cumberland County GRIFFITH STRICKLER LERMAN SOLY 10/01/2002 Sworn and subscribed to before me this '7~ day of ~,~ ~3~ A.D. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF Plaintiff FARINELLI CONSTRUCTION, INC. RON KOLVA PLUMBING and DIVERSE INSTALLATIONS Defendants CIVIL ACTION - LAW No. 2002-3072 Civil Term JURY TRIAL DEMANDED and INTEGRA PAINTING INCORPORATED Additional Defendant WRIT JOINING ADDITIONAL DEFENDANT NOT ALREADY A PARTY TO: TO: Additional Defendant INTEGRA PAINTING INCORPORATED c/o Mr. Shawn Mehok 281 Hoy Road Carlisle, PA 17013 You are notified that Ron Kolva Plumbing has joined you as an additional defendant in this action, which you are required to defend. Date: September 6, 2002 (Seal of Court) Prothonotary IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF Plaintiff FARINELLI CONSTRUCTION, INC. RON KOLVA PLUMBING and DIVERSE INSTALLATIONS Defendants mad INTEGRA PAINTING INCORPORATED Additional Defendant CIVIL ACTION - LAW No. 2002-3072 Civil Term JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, thi~)L/~ day ofx/~l~/,/~-~2, I, Peter D. Sotymos, Esquire, a member of the firm of GRIFFITH, STRI~-~ER, LE~R1VIAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of the Praecipe for Issuance of a Writ to Join an Additional Defendant Not Already a Party and Writ Joining Additional Defendant Not Already a Party by United States Mail, addressed to the party or attorney of record as follows: Mark Bridge, Esquire 101 East Lancaster Avenue Suite 304 Wayne, PA 19087 (Attorney for Plaintiff, Steven B. Wolf) Dan Deardorf, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Harrisburg, PA 17108-1268 Diverse Installations) Thomas E. Brenner, Esquire Goldberg Katzman & Shipman, PC 320 Market Street Strawberry Square (Attorney for Defendant (Attorney for Defendant, Farinelli Construction, inc.) GRI FFI TH.~TPd CKLER3LERMAN, BY: ~ ~~ulre lCeterlD. Sol~hos, ~1' Supreme Court ID No. 07475 110 South ]~orthern Way York, PA 17402 (717) 757-7602 Attorney for Defendant, Ron Kolva Plumbing IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF : Plaintiff : V. : CIVIL ACTION - LAW No. 2002-3072 Civil Term FARINELLI CONSTRUCTION, INC. RON KOLVA PLUMBING and DIVERSE INSTALLATIONS Defendants JURY TRlAL DEMANDED and INTEGRA PAINTING INCORPORATED Additional Defendant PRAECIPE TO REISSUE WRIT Please reissue the Writ to Join an Additional Defendant Not Already a Party and Writ Joining Additional Defendant Not Already a Party regarding the above-captioned matter. GRIFFITH, ~'~ER, LE~d}I'IAN, SO]~Y~ & C L S BY: ~ P~ter'D :/~a~ly~no/6, Esquire Shpremcg Cout[t/ID No. 07475 110 South Nol~hem Way York, PA 17402 (717) 757-7602 Attorney for Defendant, Ron Kolva Plumbing IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF : Plaintiff : V. : CIVIL ACTION - LAW No. 2002-3072 Civil Term FARINELLI CONSTRUCTION, INC. RON KOLVA PLUMBING and DIVERSE INSTALLATIONS Defendants and INTEGRA PA1NTING INCORPORATED Additional Defendant URY TRIAL DEMANDED CERTIFICATE OF SERVICE mber of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of the Praecipe to Reinstate Writ to Join an Additional Defendant Not Already a Party and Writ Joining Additional Defendant Not Already a Party by United States Mail, addressed to the party or attorney of record as follows: Mark Bridge, Esquire 101 East Lancaster Avenue Suite 304 Wayne, PA 19087 (Attorney for Plaintiff, Steven B. Wolf) Dan Deardorf, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Harrisburg, PA 17108-1268 Diverse Installations) Thomas E. Brenner, Esquire Goldberg Katzman & Shipman, PC 320 Market Street Strawberry Square (Attorney for Defendant (Attorney for Defendant, Farinelli Construction, Inc.) GRIFFITH~gWRIEJKLER, LERM,5~I, soLvM. Peter D. ~Esqx~r: Supreme Cou~ ~ No. 07475 110 South No,hem Way York, PA 17402 (717) 757-7602 A~omey for Defendant, Ron Kolva Plumbing SHERIFP'S CASE NO: 2002 03072 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WOLF STEVEN B VS FARINELLI CONSTRUCTION ET AL RETURN - REGULAR RICHARD SMITH , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within WRIT TO ADD'L DEFEN. was served upon INTEGRA PAINTING INCORPORATED the ADD'L DEPENDA/qT, at 0845:00 HOURS, at 281 HOY ROAD on the 31st day of October 2002 CARLISLE, PA 17013 by handing to JIM DYMSKI, PARTNER a true and attested copy of WRIT TO ADD'L DEFEN. together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 3.45 Affidavit .00 Surcharge 10.00 .00 31.45 Sworn and Subscribed to before me this g~ day of /P~b~hondtary ~ So Answers R. Thomas Kline ii/0i/2002 GRIFFITHBy: S~~ERMAN SOLY /.~ D~put~ Sheriff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF Plaintiff Vo FARINELLI CONSTRUCTION, INC. RON KOLVA PLUMBING and DIVERSE INSTALLATIONS Defendants CIVIL ACTION - LAW No. 2002-3072 Civil Term JURY TRIPd_, DEMANDED SUGGESTION OF SUCCESSION AND NOW, this [ ~'-day of March, 2003, it is suggested of record that the Defendant, Ronald E. Kolva, died on September 12, 2002, in the County of York, leaving his wife, Bette Lou Kolva as the Executrix of his estate. Therefore, Bette Lou Kolva, as the Executrix of the Estate of Ronald E. Kolva, should be substituted as the Defendant in this action, and the caption of the action changed to read "Bette Lou Kolva, Executrix of the Estate of Ronald E. Kolva, Deceased." BY: GRIFFITH, STRICKLER, LEJ?e)MAN, S O~S' ~"/~/( ~-/&C A~ Peter D. ffolymos~' ,squire Supreme Court rl~ No. 07475 110 South Northern Way York, PA 17402 (717) 757..7602 Attorney for Defendant, Ron Kolwa Plumbing IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF Plaintiff FARINELLI CONSTRUCTION, INC. RON KOLVA PLUMBING and DIVERSE INSTALLATIONS Defendants CIVIL ACTION - LAW No. 2002-3072 Civil Term JURY Tm. AL DEMANDED CERTIFICATE OF SERVICE AND NOW, this /~ay of March, 2003, I, Peter D. Solymos, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of the foregoing Suggestion of Succession, by United States Mail, addressed to the party or attorney of record as follows: Mark Bridge, Esquire 101 East Lancaster Avenue Suite 304 Wayne, PA 19087 (Attorney for Plaintiff, Steven B. Wolf) Dan Deardorf, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Harrisburg, PA 17108-1268 (Attorney fix Defendant, Diverse Installations) Thomas E. Brenner, Esquire Goldberg Katzman & Shipman, PC 320 Market Street Strawberry Square (Attorney for Defendant (Attorney for Defendant, Farinelli Construction, Inc.) Integra Painting Incorporated c/o Mr. Shawn Mehok 281 Hoy Road Carlisle, PA 17013 GRIFFITH,.>B.~RICKLER, I/)EKI~AN, Peter D. ~,,>lym~t/Esquire Supreme Court~ No. 07475 110 South Northern Way York, PA 17402 (717) 757-.7602 Attorney fbr Defendant, Ron Kolva Plumbing VERIFICATION I verify that the foregoing facts are true and correct, upon my personal knowledge or information and belief. This verification is made subject to the penalties of 18 Pa.C.S. §4904, relating to unswom falsification to authorities. DATE: I BY: BETrY Lb~-KOL~A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF : Plaintiff : FARINELLI CONSTRUCTION, INC., and: DWERSE INSTALLATIONS, and : BETTE LOU KOLVA, as Executrix of the : Estate of Ronald E. Kolva, Deceased, : Defendants : CIVIL ACTION - LAW No. 2002-3072 Civil Term JURY TRIAL DEMANDED TO: Plaintiff, STEVEN B. WOLF c/o Mark M. Bridge, Esquire 101 East Lancaster Avenue Suite 304 Wayne, PA 19087 NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. BY: GRIFFITH, STRICKLER, LERMAN, /~~~ff_~~LYMOS & CALKINS ~'te3 D. So~ymos, ~/squire Supreme Court ID No. 07475 110 South Northern Way York, PA 1.7402 (717) 757-7602 Attorney for Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF : Plaintiff : We FARINELLI CONSTRUCTION, INC., and DIVERSE INSTALLATIONS, and BETTE LOU KOLVA, as Executrix of the Estate ofRonald E. Kolva, Deceased, Defendants CIVIL ACTION - LAW No. 2002-3072 Civil Term JURY TRIAL DEMANDED TO: Defendant, FARINELLI CONSTRUCTION, INC. c/o Thomas E. Brenner, Esquire Goldberg Katzman & Shipman, PC 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed New Matter and Cross- Claims within twenty (20) days from service hereof or a judgment may be entered against you. BY: GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS ]~(er b~- S~lyrffos, E~o~Ire Supreme Court ID NO'. 07475 1 l0 South Northern Way York, PA 17402 (717) 757-7602 Attorney for Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF . Plaintiff · Mo FARINELLI CONSTRUCTION, INC., and · DIVERSE INSTALLATIONS, and · BETTE LOU KOLVA, as Executrix of the · Estate of Ronald E. Kolva, Deceased, · Defendants · CIVIL ACTION - LAW No. 2002-3072 Civil Term JURY TRIAL DEMANDED TO: Defendant, DIVERSE INSTALLATIONS c/o Dan Deardorf, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed New Matter and Cross- Claims within twenty (20) days firom service hereof or a judgment may be entered against you. BY: GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS ;~;e~m 'e S~°~ ~Y~i~ E;oq. ~[r~7475 110 South No.em Way York, PA 17402 (717) 757-7602 A~omey for Defendant, Bede Lou Kolva, ~ Execu~x of the Estate ofRonald E. Kolva, Deceased IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF : Plaintiff : V. ; FARINELLI CONSTRUCTION, INC., and: DIVERSE INSTALLATIONS, and : BETTE LOU KOLVA, as Executrix of the : Estate ofRonald E. Kolva, Deceased, : Defendants : CIVIL ACTION - LAW No. 2002-3072 Civil Term JURY TRIAL DEMANDED ANSWER OF DEFENDANT, BETTE LOU KOLVA, AS EXECUTRIX OF THE ESTATE OF RONALD E. KOLVA, DECEASED, TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND CROSS CLAIME AND NOW, comes the Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, by her attorneys, Peter D. Solymos, and Griffith, Strickler, Lerman, Solymos & Calkins, and files the following Answer, New Matter and Cross-Claims to Plaintiffs Complaint: 1. Upon information and belief, admitted in part and denied in part. It is admitted that Plaintiff, Steven B. Wolf, at all relevant times, was a Pennsylvania resident. It is admitted that Plaintiff, Steven B. Wolf is one of the owners of certain real and personal property located at ll Emlyn Lane, Mechanicsburg, PA 17055-8017. It is denied that he is the sole owner of the property as answering Defendant believes that Steven B. Wolf and Charlene Wolf are the joint owners of the property at all times relevant. 3. 4. authorized to conduct business Admitted upon information and belief. Admitted upon information and belief. Denied. It is denied that Defendant, Ron Kolva Plumbing is a corporation and regularly conducting business in Pennsylvania from its principal place of business located at 827 Pinetown Road, Lewisberry, Pennsylvania 17339. On the contrary, Defendant, Ron Kolva Plumbing was a sole proprietorship regularly conducting business in Pennsylvania from its principal place of business located at 827 Pinetown Road, Lewisberry, Pennsylvania 17339. 5. Upon information and belief, admitted, but qualified to state that on or about September 28, 1999, Plaintiff and Charlene Wolf entered into a contract with Defendant, Farinelli, for the purpose of constructing a home on buyer's lot number 46 in the Lindenwood Development on Emlyn Lane in Mechanicsburg, Pennsylvania. See a true and correct copy of the contract attached to Plaintiff's Complaint and marked as Exhibit "A". 6. Denied. After reasonable investigation, ~aswering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph number 6 of Plaintiff's Complaint, and same are denied and strict proof thereof is hereby demanded. 7. Denied. The allegations set forth in paragraph constitute a conclusion of law to which no response is required. required, after reasonable investigation, answering Defendant 7 of Plaintiff's Complaint To the extent a response is is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph number 7 of Plaintiff's Complaint, and same are denied and strict proof thereof is hereby demanded. 8. Denied. The allegations set forth in paragraph 8 of Plaintiff's Complaint constitute a conclusion of law to which no response is required. To the extent a response is required, after reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph number 8 of Plaintiff's Complaint, and same are denied and strict proof thereof is hereby demanded. 9. Answering Defendant is unable to admit or deny the allegations contained in paragraph 9 of Plaintiff's Complaint inasmuch as said allegations are not specific to one Defendant. By way of further answer, it is averred upon information and belief that Answering Defendant's decedent performed "rough in plumbing" and installed certain piping and certain fixtures and that such work performed by Answering Defendant's decedent was performed in a good, proper, and workmanlike manner, prior to July 1, 2000. 10. Admitted upon information and belief. 11. Answering Defendant is unable to admit or deny the allegations contained in paragraph 11 of Plaintiff's Complaint inasmuch as said allegations are not specific to one Defendant. By way of further answer, it is denied that Answering Defendant's decedent allowed water to enter the building located on the premises, causing considerable and substantial damage thereto in the amount of $80,940.97. On the contrary, it is averred that at all times relevant, Answering Defendant's decedent acted carefully, properly, prudently and performed all work in a good, proper and workmanlike manner. COUNT I BREACH OF CONTRACT 12. The allegations set forth in 1 through 11, inclusive, of the foregoing Answer of Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, to Plaintiff's Complaint, are incorporated herein by reference as if fully set forth at length. 13. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the troth of the allegations set forth in paragraph no. 13 of Plaintiff's Complaint, and same are denied and strict proof thereof is hereby demanded. By way of further answer, the obligations of Defendant Farinelli are embodied in a written contract dated September 28, 1999, a copy of which is attached to PlaintiWs Complaint as Exhibit "A", which document speaks for itself. 14. Denied. It is denied that Answering Defendant's decedent was subcontracted for the installation, maintenance, service, and repair of the plumbing system. The remaining allegations contained in paragraph 14 of Plaintiff's Complaint constitute a conclusion of law to which no response is required. By way of further answer, Answering Defendant's decedent verbally contracted with Defendant, Farinelli Construction, Inc. to install the plumbing system as Plaintiff's home was being constructed, which work was not complete at the time of the alleged incident. 15. Denied. To the extent the allegations contained in paragraph 15 of Plaintiff's Complaint constitute a conclusion of law, no response is required. To the extent a response is required, it is admitted that Defendant, Farinelli Construction, Inc., subcontracted with Defendant Diverse Installations for certain masonry work. 16. Denied. It is denied that Answering Defendant's decedent breached his subcontract with Defendant, Farinelli Construction, Inc. by reason of the following acts and omissions: ao failing to adequately install the plumbing system in a safe and workmanlike manner; b. failing to service the plumbing system in a safe and workmanlike manner; c. failing to repair the plumbing system in a safe and workmanlike manner; d. failing to maintain the plumbing system in a safe and workmanlike manner; eo failing to install the plumbing system in accordance with specific installation instructions; failing to adhere to and follow national standards with regard to the plumbing system; failing to warn Plaintiff of the danger inherent to follow national safety standards; failing to properly train and/or supervise their employees prior to the installation, service, maintenance, repair or utilization of the plumbing system; failing to employ adequately and appropriately trained personnel prior to the installation, service, maintenance of repair of the plumbing system; and failing to properly and adequately communicate safety standards concerning the use of the plumbing system by and between all contractor personnel on the premises. On the contrary, it is averred upon information and belief, that the work performed by Answering Defendant's decedent was done in a safe, careful, proper, prudent and workmanlike manner. By way of further answer, Answering Defendant believes, and therefore avers, that Plaintiff has withdrawn subparagraph (k) of his paragraph 16 by stipulation. 17. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph number 17 of Plaintiff's Complaint, and same are denied and strict proof thereof is hereby demanded. 18. Denied. Upon information and belief, it is denied that the damages sustained by Plaintiff were the proximate result of Answering Defendant's decedent's breach of contract and strict proof thereof is demanded. WHEREFORE, Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, demands judgment in her favor and against the Plaintiff, together with costs of suit. COUNT I1 NEGLIGENCE 19. The allegations set forth in paragraphs 1 through 18, inclusive, of the foregoing Answer of Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, to Plaintiff's Complaint, are incorporated herein by reference as if fully set forth at length. 20. Denied. Upon information and belief, it is denied that Answering Defendant's decedent, Ron Kolva Plumbing, was negligent in the performance of his duties upon Plaintiff's premises, by reason of the following acts and omissions: ao bo failing to utilize acceptable industry standards with regards to safety when installing and maintaining a plumbing system; failing to properly and adequately cap all open lines which were part of the plumbing system; C° failing to ensure that all open lines were capped; failing to ensure that all open lines were capped prior to utilizing the plumbing system; e° failing to notify Plaintiff and/or all contractor personnel on the premises of the existence of uncapped lines in the plumbing system; failing to notify Plaintiff and/or all contractor personnel concerning the appropriate safety procedures necessary when using the plumbing system which contained uncapped lines; go failing to ensure proper safety procedures were developed and implemented concerning the use of the plumbing system which contained uncapped lines; failing to mitigate the flow of water throughout the premises; failing to notify Plaintiff and/or all contractor personnel conceming the flow of water throughout the premises; and failing to properly train and supervise his agents, servants or employees in the proper manner of installing, maintaining and using the plumbing system. On the contrary, upon information and belief, it is averred that all worked performed by Answering Defendant's decedent was performed in a safe, proper, prudent, and workmanlike 21. Denied. Upon information and belief, it is denied that as a direct and proximate result of Answering Defendant's decedent's negligence, Plaintiff was caused to suffer substantial damages as set forth, and strict proof thereof is therefore demanded at the time of trial. WHEREFORE, Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, demands judgment in her favor and against the Plaintiff, together with costs of suit. By way of further answer, Answering Defendant asserts the following: NEW MATTER 22. Answering Defendant's responses to paragraphs 1 through 21, inclusive, of Plaintiff's Complaint, as set forth hereinabove, are incorporated herein by reference, as if fully set forth at length. 23. Plaintiff's Complaint against Answering Defendant's decedent fails to state a cause of action upon which relief can be granted. 24. Plaintiff's Complaint may be barred by applicable statutes of limitations. 25. Plaintiff's claims may be barred and/or limited by the doctrines of Res Judicata and/or Collateral Estoppel. 26. Plaintiff's alleged injuries and damages were caused solely and directly as the result of the activities and/or conduct and/or omissions on the part of individuals or entities other than Answering Defendant's decedent, over whom Answering Defendant's decedent had no responsibility or right of control, including but not limited to Fafinelli Construction, Inc., Diverse Installations, and Integra Painting, and/or the Plaintinff. 27. At all times relevant, no agency, principal/agent, master/servant, or employer/employee relationship existed between Answering Defendant's decedent and Diverse Installations. 28. At all times relevant, Diverse Installations was an independent contractor, hired and retained by Defendant, Farinelli Construction, Inc., not subject to the right of supervision, direction, or right of control by Answering Defendant's decedent. 29. At all times relevant, Diverse Installations was an independent contractor, not subject to the right of supervision, direction, or right of control by Answering Defendant's decedent. 30. At all times relevant, Answering Defendant's decedent was not liable for the alleged acts or omissions of Defendant, Diverse Installations. 31. At all times relevant, Answering Defendant's decedent exercised reasonable, prudent, and due care. 32. All work performed by Answering Defendant's decedent on or before July 1, 2000, was performed in a safe, careful, proper, prudent, and workmanlike manner. 33. Plaintiff's claims may be barred by the doctrine of superceding and/or intervening cause. 34. Plaintiff may have failed to mitigate his damages. 35. To the extent it is determined that Answering Defendant's decedent owed any duties or responsibilities to the Plaintiff, Answering Defendant's decedent fulfilled any and all such duties and responsibilities determined to be owed to the Plaintiff or persons in the position of the Plaintiff as required by law. WHEREFORE, Answering Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, demands judgment in her favor and against the Plaintiff, together with costs of suit. NEW MATTER IN THE NATURE OF A CROSSCLAIM PURSUANT TO PA.R.C.P. 2252(d) Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased v. Farinelli Construction, Inc 35. Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, incorporates herein by reference, and without admission or denial, Plaintiff's allegations against the other Defendants for the sole and limited purpose of stating a crossclaim for contribution and/or indemnity in the event Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, is found liable to the Plaintiff, all such liability being expressly denied. 36. Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, incorporates herein by reference her Answer and New Matter to Plaintiff's Complaint as hereinabove set forth. 37. If the incident as alleged in Plaintiff's Complaint is proven at trial, then Defendant, Fafinelli Construction, Inc., is solely liable to the Plaintiff. 38. In the altemative, if the incident described in Plaintiff's Complaint is proven at the time of trial, Defendant, Farinelli Construction, Inc., is jointly and/or severally liable to Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, or liable over to Defendant, Bette Lou Kolva, as Executrix of the Estate ofRonald E. Kolva, Deceased, for the claims of Plaintiff, the liability of Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, being expressly denied. 39. If Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, is found liable to Plaintiff, all such liability being expressly denied, her liability is secondary and passive to the liability of Defendant, Farinelli Construction, Inc., whose liability is primary and active. 40. Answering Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, is not liable or responsible for the alleged acts or omissions of independent contractor, Farinelli Construction, Inc., and strict proof of such allegations as outlined in Plaintiff's Complaint are hereby demanded. 41. Answering Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, is informed and therefore avers that Defendant, Farinelli Contraction, Inc. was the General Contractor with regard to the construction of the Plaintiff's home, and as such General Contractor, Farinelli Construction, Inc. was responsible for the hiring of Diverse Installations and other sub-contractors or independent contractors who were working on this project, and furthermore was responsible and therefore had the duty to supervise, oversee, direct and control any and all work performed by any subcontractors or independent contractors, including that of Diverse Installations, and to ensure that same was performed in a safe, careful, proper, prudent, and workmanlike manner. 42. In addition, pursuant to paragraph 7.4 of Plaintiff's contract with Defendant, Farinelli Construction, Inc., a copy of which was attached to Plaintiff's Complaint as Exhibit "A", "contractor shall be responsible for the acts and omissions of its employees and all subcontractors engaged by contractor, their agents and employees, and all other persons performing any of the work under this contract on behalf of or with the consent of the contractor." WHEREFORE, Answering Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, demands judgment in her favor against Defendant, Farinelli Construction, Inc., for any sums which may be adjudged against her and in favor of the Plaintiff, or, in the alternative, demands judgment against Defendant, Farinelli Construction, Inc., for contribution and/or indemnification for the appropriate part of the amount of damages and costs awarded to Plaintiff, if any. NEW MATTER IN THE NATURE OF A CROSSCLAIM PURSUANT TO PA.R.C.P. 2252(d) Bette Lou Kolva~ as Executrix of the Estate of Ronald E. Kolva~ Deceased v. Diverse Installations 43. Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, incorporates herein by reference, and without admission or denial, Plaintiff's allegations against the other Defendants for the sole and limited purpose of stating a crossclaim for contribution and/or indemnity in the event Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, is found liable to the Plaintiff, all such liability being expressly denied. 44. Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, incorporates herein by reference her Answer and New Matter to Plaintiff's Complaint as hereinabove set forth. 45. If the incident as alleged in Plaintiff's Complaint is proven at trial, then Defendant, Diverse Installations, is solely liable to the Plaintiff. 46. At all times relevant, Defendant, Diverse Installations, was solely responsible for its employees, and to ensure that at all times said employees conducted their work in a careful, proper, prudent, and workmanlike manner which is the subject of Plaintiff's Complaint, and said Defendant, Diverse Installations' employees and the performance of their duties, and the manner in which they carded out their duties at the worksite were in no way subject to control or the fight of control by or on behalf of Answering Defendant's decedent. 47. In the alternative, if the incident described in Plaintiff's Complaint is proven at the time of trial, Defendant, Diverse Installations, is jointly and/or severally liable to Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, or liable over to Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, for the claims of Plaintiff, the liability of Answering Defendant's decedent, being expressly denied. 48. If Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, is found liable to Plaintiff, all such liability being expressly denied, her liability is secondary and passive to the liability of Defendant, Diverse Installations. 49. Answering Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, is not liable or responsible for the alleged acts or omissions of independent contractor, Diverse Installations, and strict proof of such allegations as outlined in Plaintiff's Complaint is hereby demanded. WHEREFORE, Answering Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald A. Kolva, deceased, demands judgment in her favor against Defendant, Diverse Installations, for any sums which may be adjudged against her and in favor of the Plaintiff, or, in the alternative, demands judgment against Defendant, Diverse Installations, for contribution and/or indemnification for the appropriate part of the amount of damages and costs awarded to Plaintiff, if any. GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS Supreme Court ID No. 07475 110 South Northern Way York, PA 17402 (717) 757-7602 Attorney for Defendant, Bette Lou Kolva, as Executrix of the Estate ofRonald E. Kolva, Deceased IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF : Plaintiff : Vo FARINELLI CONSTRUCTION, INC., and DIVERSE INSTALLATIONS, and BETTE LOU KOLVA, as Executrix of the Estate ofRonald E. Kolva, Deceased, Defendants CIVIL ACTION - LAW No. 2002-3072 Civil Term JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this/~)__~ay of March, 2003, I, Peter D. Solymos, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALK1NS, hereby certify that I have this date served a copy of the Answer and New Matter of Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, to Plaintiffs Complaint by United States Mail, addressed to the party or attorney of record as follows: Mark Bridge, Esquire 101 East Lancaster Avenue Suite 304 Wayne, PA 19087 (Attorney for Plaintiff, Steven B. Wolf) Dan Deardorf, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Harrisburg, PA 17108-1268 (Attorney for Defendant, Diverse Installations) Thomas E. Brenner, Esquire Goldberg Katzman & Shipman, PC 320 Market Street Strawberry Square (Attorney for Defendant (Attorney for Defendant, Farinelli Construction, Inc.) Shawn Mehok Integra Painting, Inc. 281 Hoy Road Carlisle, PA 17013 GRIFFITH, STRICKLER, LERMAN, 1}o{~Ib~olymo~, gsq~r~/' Supreme Court ID No. 017~75 110 South Northern Way York, PA 17402 (717) 757-7602 Attorney tbr Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased VERIFICATION I, Bette L. Kolva, verify that I am the Personal Representative of the Estate of Ronald E. Kolva, Defendant in the foregoing action, and that the attached Answer/New Matter to Plaintiff's Complaint are based upon the information which has been gathered by me, my counsel and/or others on my behalf in preparation of the defense of this lawsuit. The language of the Answer/New Matter is that of counsel and is not mine. I have read the Answer/New Matter, and to the extent that it is based upon information which was have given to counsel, it is true and correct to the best of my knowledge, information and belief. I understand that intentional false statements herein are made subject to the penalties of 18 Pa.C.S. fi4904 relating to unswom falsifications made to authorities. DATE: e~" //- ~ BY: I STEVEN B. WOLF Plaintiff Vo FARINELLI CONSTRUCTION, INC. and RON KOLVA PLUMBING and DIVERSE INSTALLATIONS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA · No. 02-3072 : .. : .. REPLY OF DEFENDANT FARINELLI CONSTRUCTION, INC. TO THE NEW MATTER AND CROSSCLAIM OF BETTY LOU KOLVA, EXECUTRIX OF THE ESTATE OF RONALD E. KOLVA 22. Objection. This paragraph violates the Pennsylvania Rules of Civil Procedure by incorporating 21 paragraphs into a single paragraph. To the extent a response is deemed necessary, the paragraph is denied. 23. - 25. These paragraphs are directed to another party and no response is required by Defendant Farinelli Construction, Inc. 26. Denied. This paragraph states a legal conclusion to which no response is necessaoy. 27. - 35. These paragraphs are directed to another party and no response is required by Defendant Farinelli Construction, Inc. WHEREFORE, Defendant Farinelli Construction, Inc. requests that the New Matter of Defendant Betty Lou Kolva, Executrix of the Estate of Ronald E. KolVa, be dismissed with prejudice. CROSSCLAIM 35. The Answer of Defendant Farinelli to the Plaintiff's Complaint is incorporated herein by reference. 36. The Reply to New Matter of Defendant F arinelli Construction, Inc. is incorporated herein by reference. 37. Denied. This paragraph states a legal conclusion to which no response is necessary. 38. Denied. This paragraph states a legal conclusion to which no response is necessary. 39. Denied. This paragraph states a legal conclusion to which no response is necessary. 40. Denied. This paragraph states a legal conclusion to which no response is necessary. 41. Denied. This paragraph states a legal conclusion to which no response is necessary. 42. Denied. The document speaks for itself. WHEREFORE, Defendant Farinelli Construction, Inc. requests that the Crossclaim of Defendant Betty Lou Kolva, Executrix of the Estate of Ronald E. Kolva be dismissed with prejudice. 43. - 49. These paragraphs are addressed to other parties and no response is required by Farinelli Construction, Inc. Date: GOLDBERG, KATZMAN & SHIPMAN, P.C. Thomas E. Brenner- I.D. No. 32085 P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Defendant Farinelli Construction, Inc. VERIFICATION I, Thomas E. Brenner, Esquire, hereby acknowledge that I am the Attorney for Defendant Farinelli Construction, Inc.; that I have read the foregoing Reply to New Matter; that there are no new facts of record contained in the within Reply to New Matter and that the facts stated therein are true and correct to the best of my knowledge, information, and belief. I understand that any false statements herein are made subject to penalties of 18 Pa.C.S. §4904, relating to unswom falsification to authorities. Thomas E. Brenner, Esquire Date: CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg. Pennsylvania and addressed as follows: Mark M. Bridge, Esquire 101 East Lancaster Avenue Suite 3O4 Wayne, PA 19087 Peter Solymos, Esquire Crriffith, Strickler, Lcnnan, Solymos & Calkins 110 South Northern Way York, PA 17402 Dan Deardorf, Esq. Martson, Deardorf, William & Otto Ten East High Street Carlisle, PA 17013 Date: GOLDBERG, KATZMAN & SHIPMAN, P.C BY:~~) Thomas E. Brenner, Esquire 93225.1 F:\FILES~DATAFILE\Stale7550~Docmnems\74.rep2/ajt Created: 10/04/00 01:54:03 PM Revised: 03/25/03 11:56:45 AM 755074 STEVEN B. WOLF, Plaintiff Vo FARINELLI CONSTRUCTION, INC. and DIVERSE INSTALLATIONS and BETTE LOU KOLVA, as Executrix of the Estate of Ronald E. Kolva, Deceased, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3072 CIVIL ACTION-LAW JURY TRIAL DEMANDED DEFENDANT DIVERSE INSTALLATIONS' REPLY TO NEW MATTER AND CROSSCLAIMS OF DEFENDANT BETTE LOU KOLVA AND NOW, comes the Defendant Diverse Installations,. by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and files the following Reply to New Matter and Crossclaims of Defendant Bette Lou Kolva: 22-35. Denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. WHEREFORE, Defendant Diverse Installations demands judgment in its favor against Plaintiff and the other Defendants. NEW MATTER IN THE NATURE OF A CROSSCLAIM PURSUANT TO PA. R.C.P. 2252 (d) Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased v. Farinelli Construction, Inc. 35-42. Not applicable to Defendant Diverse Installations. NEW MATTER IN THE NATURE OF A CROSSCLAIM PURSUANT TO PA. R.C.P. 2252 (d) Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased v. Diverse Installations 43-49. Denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. WHEREFORE, Defendant Diverse Installations demands judgment in its favor against Plaintiff and the other Defendants. MARTSON DEARDORFF WILLIAMS & OTTO Daniel K. Deardorff, Esqtlif~ I. D. No. 17837 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: March 26, 2003 Attorneys for Defendant Diverse Installations VERIFICATION Daniel K. Deardorff, Esquire, of the firm of MARTSON DEARDORFF WILLIAMS & OTTO, attorneys for Diverse Installations in the within action, certifies that the statements made in the foregoing Defendant Diverse Installations' Reply to New Matter and Crossclaims of Defendant Bette Lou Kolva are true and correct to the best of his knowledge, information and belief. He understands that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Daniel K. Deardorff F:~FILES~DATAFILE~t ate7550~,Documents\74.rep2 CERTIFICATE OF SERVICE I, Ami J. Thumma, an authorized agent of Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Defendant Diverse Installations' Reply to New Matter and Crossclaims of Defendant Bette Lou Kolva was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mark M. Bridge, Esquire 101 East Lancaster Avenue, Suite 304 Wayne, PA 19087 Counsel for Plaintiff Thomas E. Brenner, Esquire GOLDBERG KATZMAN & SHIPMAN, P.C. 320 Market Street Strawberry Square P.O. Box 1268 Hamsburg, PA 17108-1268 Counsel for Farinelli Construction, Inc. Peter D. Solymos, Esquire LAW OFFICES OF GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS 110 South Northern Way York, PA 17402 Counsel for Ron Kolva Plumbing Shawn Mehok INTEGRA PAINTING, INC. 281 Hoy Road Carlisle, PA 17013 MARTSON DEARDORFF WILLIAMS & OTTO Ar~i J. Th~mr~ ~' Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: March 25, 2003 Mark M. Bridge, Esquire Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19087 Telephone (610) 902-0150 Facsimile (610) 902-0152 Attorney for Plaintiff, Steven B. Wolf IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CML ACTION STEVEN B. WOLF VS. Plaintiff : NO. 02-3072 FARINELLI CONSTRUCTION, INC. and RON KOLVA PLUMBING and DIVERSE INSTALLATIONS Defendants PLAINTIFFS' ANSWER TO NEW MATTER FILED BY DEFENDANT RON KOLVA PLUMBING Plaintiffs hereby file their Reply to thc Defendant, Ron iKolva Plumbing, New Matter, as follows: 22-35. Denied, as these paragraphs of New Matter are conclusions of law to which no response is required. WHEREFORE thc plaintiff Steven B. Wolf respectfully demands judgment against defendants, for damages in an amount of Eighty Thousand Nine Hundred Forty Dollars and Ninety-Seven Cents ($80,940.97) plus costs of suit, attorney's f~es, interest, delay damages and such further relief as thc Court may deem just and appropriate. MARK M. BRIDGE, ESQUIRE, PC B ~larkY"~'~ ~ ' M. Bridge, Esquire Attorneys for Plaintiff Date: March 24, 2003 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Pl~;$e ]ist the within matter for the next Az~3~ent Cou~t. CAPTION OF CASE (entire caption must be stated in ~ll 1 ) Steven B. Wolf (Plaintiff) Farinelli Construction, Inc., Ron Kolva Plumbing and Diverse Installations and Integra Painting Incorporated (Additional Defendant) ( Deferment ) NO. 2002-3072 Civil 2002 19 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's d~r to cu,~l~int, etc.): Motion of Summary Judgment of Defendant Farinelli Construction 2. Identify counsel who wi ] l argue case: (a) for plm~tiff: Mark M. Bridge, Esq. 101 East Lancaster Ay Ac]dress: Suite 304, Wayne, PA (b) for defen~mnt: Thomas E. Brenner, Esq. (Atty. for Farinelli Construction) A~ldress: P.O. Box 1268 Harrisburg, PA 17108-1268 Peter Solymos, Esq. Dan Deardorf, Esq. 110 South Northern Way Ten East High Street Y~ 17~02 Carlisle, PA 17013 I will not~y partm in writingwithin tw~dmys that this case bas been limt~ for~t. 4. Argt~nant Court Date: Thomas E. Brenner Goldberg, Katzman & Shipman, P.C. 320 Market Street, Strawberry Square, P.O. Box 1268 Harrisburg, PA 17108-1268 Attorney I.D. No. 32085 (717) 234-4161 STEVEN B. WOLF Plaintiff Vo FARINELLI CONSTKUCTION, INC. RON KOLVA PLUMBING and DIVERSE INSTALLATIONS Defendants and INTEGRA PAINTING INCORPORATED Additional Defendant IN THE COUKT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA NO. 2002-3072 Civil Term MOTION FOR SUMMARY JUDGMENT OF DEFENDANT FARINELLI CONSTRUCTION AND NOW, comes Farinelli Construction, Inc., by its attorneys, Goldberg, Katzman & Shipman, P.C. who states: 1. Plaintiff, Steven B. Wolf, commenced this action by filing a Complaint on or about June 26, 2002 alleging breach of contract and negligence against ali defendants (Exhibit "A"). 2. This matter arises out ora construction contract that was entered into by Plaintiff and Farinelli Construction on September 29, 1999 (Exhibit "B", ¶ 5). 3. The contract procured Defendant Farinelli Construction's services as general contractor in constructing a house on Plaintiff's lot in the Lindenwood Development on Emlyn Lane in Mechanicsburg, Pennsylvania (Id.). 4. Paragraph 13.4 of the contract provides, "The Buyer and Contractor waive all fights against each other for damages caused by fire or other peril to the extent covered by insurance provided under this paragraph." I(I(~.). 5. The term "to the extent covered by insurance provided under this paragraph" refers to an insurance policy Plaintiffwas required to obtain protecting the entire project from "the perils of fire, extended coverage, vandalism and malicious mischief." ~_<!.). 6. Plaintiff, in accordance with the agreement, procured such insurance from United Sendces Automobile Association (hereinafter "USAA"). 7. Farinelli formed a sub-contract with Defendant Ron Kolva Plumbing to install the plumbing system for the project (Exhibit "D", ¶ 14). 8. Farinelli formed a sub-contract with Defendant Diverse Installations to perform the necessary masonry work for the project (Exhibit "E"). 9. Farinelli also formed a sub-contract with Defendant Integra Painting Incorporation for painting of the home. (See Shawn Mehok Depo., p. 8). 10. On or about July 1, 2000 the main water valve for the house was wrongly turned on and water flowed through the uncapped plumbing system resulting in water damage throughout the home (Exhibit "F"). 11. The only subcontractors present at the work site on the morning of July 1, 2000 were Diverse Installations (See Roger A. McLaughiin Jr. Depo., pp. 20, 26), and Integra Painting ($e~ Shawn Mehok Depo., p. 21). 12. The cost of repairing the damage caused by the flood totaled $80,940.97 and was covered by Plaintiff's insurance policy with USAA (Exhibit "G"). 2 13. Pennsylvania Rules of Civil Procedure, 1035.2 (2) states: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for sunnnary judgment in whole or in part as a matter of law if, aRer the completion of discovery relevant to the motion, including the production of expert reports, and an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. 14. When presented with a motion for summary judgment, the moving party is entitled to judgment as a matter of law, when the facts on the record, viewed in a light most favorable to the non-moving party, indicate that no genuine issues of material fact exists. Kelly v. Nationwide Ins. Co., 414 Pa. Super. 6, 9-10, 606 A.2d. 470, 471 (1992) 15. The right to subrogation may be waived by contract. Davis v. Gerstenslager Co.. 302 F. Supp. 742, 744 (W.D. Pa. 1969). 16. A property owner may not bring a claim against an allegedly negligent general contractor to recoup the cost of damage done to a project when the construction contract between the two parties included a waiver of subrogation clause and the costs were covered by Plaint'd~'s insurance. See Penn Ave. Place Assocs,. L.P.v. Century Steel Erectors. Inc., 2002 Pa. Super. 133,798 A.2d 256 (2002). 17. The issue of negligence is moot because the waiver of subrogation rights clause precludes aH a~ions for damages caused by peril. See id. 18. As there is no dispute as to the facts material to the issue at bar, and the law clearly precludes Plainfdf f~om bringing the present action against Defendant Farinelli, it is respectfully submitted Farinelli is entitled to summa~ judgment. WItEREFORE, Defendant Farinelll Construction respectfully requests that this Honorable Court grant its motion for Summary Judgment. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. By: ~ ~ "' Thomas E. Brenner, Esquire Attorney I.D. No. 32085 320 Market Street, Strawbeny Square Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Defendant, Farinelli Construction, Inc. 4 Mark M. Bridge, Esquire Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19087 Telephone (610) 902-0150 Facsimile (610) 902-0152 Attorney for Plaintiff, Steven B. Wolf IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION STEVEN B. WOLF VS. NOTICE TO DEFEND FARINELLI CONSTRUCTION, INC. and RON KOLVA PLUMBING and DIVERSE INSTALLATIONS Defendants NOTICE ~ ' AVISO You have been sued in court. If you wish to defend against thc claims set forth in the following pagas, you must take action within twenty (20) days aAer this Complaint and Notice are served, by entering a written appearance . personally or by an attorney and filing in writing with thc court your defenses or objections to the claims set forth against you. You arc 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 thc Complaint or for any other claim or relieTrcquested by the plaintifl~ You may lose money or property or other rights important to you. You should take tMs 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 gdt legal help. Lavo'er Referral Service 4a' Floor Cumberland County Courthouse Carlisle, PA 17013 Telephone (717) 240-6200 Le hah demandado a usted en la corte. Si usted quierer defenderse de estas demandas expuestas en las paginas siguientas, usted fiene viente (20) dias de plazo al partir de la feaha de la demands y la notificaeion, Haae falta asentar una comparencia eserita o en persona o con un abogado y entregar a la corte en forms escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado qua si usted no se defiende, la corte toraara madidas y puede continuar la demanda en contra suya sin previo aviso o notifiaaclon. Ademas, la corte puede decidir a favor del demandante y requiere qua asted campla con todas las provisiones de asta demands. Usted puede dinero o sus propiedadas u otros derechos importantes para usted. Lleva esta demands a ua abotgado immedlatamente. SI no tiene abogado o si ao tiene el dinero sufficiente de pagar mi servicio. Vaya en perosna o llama por telefono a la oficlna cuya direccion se encuent¢a escrita abajo para averiguar donde se puede sonsequlr asistencta legal. Lawyer Referral Servic~ 4~' Floor Cumberland County Courthouse Carlisle, PA 17013 Telephone (717) 240-6200 TRUE COPY FROM RECORD Im T~aony whec~of, I h~re unto s~t {ny hand Mark M. Bridge, Esquire Attorney ID No,: 34477 1~1 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19057 Telephone (610) 902-0150 Facsimile (610) 902-0152 NOTICE TO PLEAD To the Defendant: You are hereby notified to answer or otherwise plead to the enclosed Complaint within twenty (20) days from the service hereof or a default judgment ~ ~arkentered against you. M. Bridge, E$?uire Attorney for Plaintiff, Industrial Risk Insurers as subrogee of The Rouse Company IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION STEVEN B. WOLF 11 Emlyn Lane Mechanicsburg, PA 17055-8017 Plaintiffs VS. FARINELLI CONSTRUCTION, INC. 3 Kacey Court, Suite 101 Mechanicsburg, PA 17055 and : RON KOLVA PLUMBING : 827 Pinetown Road : Lewisbcrry, PA 17339 : and : DIVERSE INSTALLATIONS : 260 School House Road : Quar.ryville, PA 17566 : Defendants : ., . : : COMPLAINT WITH DEMAND FOR JURY TRIAL : Plaintiff, Steven B. Wolf as and for its complaint with jury trial demanded against defendants, hereby respectfully allege as follows: 1. At all relevant times, plaintiff, Steven B. Wolf (hereafter "Wolf"), was a Pennsylvania resident and the owner of certain real and personal property located at 11 Emlyn Lane, Mechanicsburg, PA, 17055-8017 (hereinafter "premises"). 2. Defendant, Farinelli Construction, Inc., (hereinafter "Farinelli") upon information and belief, is a corporation authorized to conduct business and regularly conducting business in Pennsylvania from its principal place of business, located at 3 Kacey Court, Suite 101, Mechanicsburg, PA, 17055. 3. Defendant, Diverse Installations, (hereinafter "Diverse.") upon information and belief, is a corporation authorized to conduct business and regularly conducting business in Peansylvania from its principal place of business, located at 260 School House Road, Quarryville, PA, 17566. 4. Defendant, Ron Kolva Plumbing, (hereinafter "Kolva") upon information and belief, is a corporation authorized to conduct business and regularly conducting business in Pennsylvania from its principal place of business, located at 827 Pinetown Road, Lewisberry, PA, 17339. 5. On or about September 28, 1999 Plaintiff entered into a building construction contract with defendant Farinelli for the purpose of constructing a home on Buyer's lot Number 46 in the Lindenwood Development on Emlyn Lane in Mechanicsburg, Pennsylvania. A true and correct copy of this contract is attached hereto as Exhibit "A". 6. Plaintiff fully executed the terms and conditions of the contract and complied with all applicable payment requirements during the course of the contract. 7. As part of the overall general construction contract, Defendant, Diverse Installations, was hired as a subcontractor for the purpose of providing masonry services. Plaintiff was an intended third-party beneficiary of this sub-contract. Plaintiff is not in possession of the aforementioned sub-contract which is in the care custody and control of Defendant. Consequently, Plaintiff is unable to attach same to this pleading. 8. As part of an overall general construction contract, Defendant, Ron Kolva Plumbing, was hired as a subcontractor for the purpose of providing plumbing services. Plaintiff was an intended third-party beneficiary of this sub-contract. Plaintiff is not in possession of the aforementioned sub-contract which is in the care custody and control of Defendant. Consequently, Plaintiff is unable to attach same to this pleading. 9. On or prior to July 1, 2000, defendant performed the plumbing "rough-in" and installed piping and fixtures to the premises. 10. On or about to July 1, 2000, defendant Diverse, was present at the premises to conduct their work as a masonry sub-contractor. ~ 11. On or about July 1, 2000, during the performance of the aforementioned contract, _ defendants allowed water to enter the building located on the premises causing considerable and substantial damage thereto in the amount of $80,940.97. COUNT I BREACH OF CONTRACT 12. Plaintiff repeats and realleges all prior paragraphs of this Complaint as if more fully set forth herein. 13. Upon information and belief, Defendant, Farinelli was contracted for the overall construction of the premises. 14. Upon information and belief, Defendant, Kolva was subcontracted for the installation, maintenance, service and repair of the plumbing system. Plaintiff was an intended third-party beneficiary of this contract. 15. Upon information and belief, Defendant, Diverse was subcontracted for the installation, maintenance, service and repair of the masonry system. Plaintiff was an intended third-party beneficiary of this contract. 16. Defendants, breached the contract by reason of the following acts and omissi.ons: a. failing to adequately install the plumbing system in a safe and workmanlike manner; b. failing to service the plumbing system in a safe and Workmanlike manner; c. failing to repair the plumbing system in a safe and workmanlike manner; d. failing to maintain the plumbing system in a safe and workmanlike manner; e. failing to install the plumbing system in accordance with specific installation instructions; f. failing to adhere to and follow national standards with regard to the installation of the plumbing system; g. failing to warn Plaintiff of the danger inherent in failing to follow national safety standards; h. failing to properly train and/or supervise their employees prior to the installation, service, maintenance, repair or utilization of the plumbing system; i. failing to employ adequately and appropriately trained personnel prior to the installation, service, maintenance or repair of the plumbing system; j. failing to properly and adequately communicate safety standards concerning the use of the plumbing system by and between all contractor personnel on the premises; k. Otherwise failing to exercise due care under the cimumstances. 17. Plaintiffperformed the terms of the contract, and paid all relevant fees. 18. The damages sustained by plaintiff were the proximate result of defendants' breach of contract. WHEREFORE the plaintiff Steven B. Wolf respectfully demands judgment against defendants, for damages in an amount of Eighty Thousand Nine Hundred Forty Dollars and Ninety-Seven Cents ($80,940.97) plus costs of suit, attorney's fees, interest, delay damages and such further relief as the Court may deem just and appropriate. COUNT II Negligence 19. Plaintiff repeats and realleges all prior paragraphs of this Complaint as if more fully set forth herein. 20. Defendants, were negligent in the performance of its duties upon plaintiff's premises, by reason of the following acts and omissions: a. failing to utilize acceptable industry standards with regards to safety when installing and maintaining a plumbing system; b. failing to properly and adequately cap all open lines which were part of the plumbing system; c. failing to ensure that all open lines were capped; d. failing to insure that all open lines were capped prior to utilizing the plumbing system; e. failing to notify Plaintiff and/or all contractor personnel on the premises of the existence of uncapped lines in the plumbing system; f. failing to notify Plaintiff and/or all contractor personnel concerning the appropriate safety procedures necessary when using the plumbing system which contained uncapped lines; g. failing in insure proper safety procedures were developed and implemented concerning the use of the plumbing system which contained uncapped lines; h. failing to mitigate the flow of water throughout the premises; i. failing to notify Plaintiff and/or all contractor personnel concerning the flow of water throughout the premises; j. failing to properly train and supervise their agents, servants or employees in the proper manner of installing, maintaining and using the plumbing system. 21. As a direct and proximate result of the defendants~ negligence, plaintiff was caused to suffer substantial damages as set forth herein. WHEREFORE the ptaintiffdemands judgment against defendants, for damages in an amount of Eighty Thousand Nine Hundred Forty Dollars and Ninety-Seven Cents ($80,940,97) plus costs of suit, attomey's fees, interest, delay damages and such further relief as the Court may deem just and appropriate. iv:~a, rlRIDGE ESQUIRE, P.C. M Bridge, Esquire Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19087 Telephone: (610) 902-0150 Facsimile: (610) 902-0152 Attorney for Plaintiff, Steven B. Wolf Date: June 25, 2002 VERIFICATION I, Mark M. Bridge, Esquire, am an attorney at law in the Commonwealth of Pennsylvania, and serve as legal counsel to Plaintiff, Steven B. Wolf, I am duly authorized to take this verification on behalf of my clients. By and through their legal counsel, Plaintiff, Steven B. Wolf, makes this verification that the facts set forth in the foregoing document are true and correct based upon reasonable inquiry and investigation. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa CSA Section 4904, relating to unsworn falsification to authorities. Date: June 25, 2002 ~ M. Bridge, Esquire Attorney for Plaintiff, Steven B. Wolf 7-17-200 10:42A~ FROM FARINELL1 CONSTRUCTION, INC. CONSTRUCTION AGREEMENT THIS AGREEMENT made this 2-~ day of BETWEEN the Contractor: Farinelli Construction, Inc, 3 Kacey Court Suite 301 Mechanicsburg PA 17055 (hereinafter referred to as "CONTRACTOR") and the BUYER: Steven B. and Charlene Wolf 704 Sun Haven Circle Mechanicsburg, PA 17055 (hereinafter referred to as "BUYER") WITNESSETB That in consideration of the mutual covenants and agreements herein contained, the parties agree to the following terms and conditions: ARTICLE 1 TH.E CONTRACT DOCUMENTS l. l The Contract Documents, which constitute the entire agreement between the Buyer and Contractor, consist of the following documents: (A) TI-ds Agreement. (B) Architectural Drawings dated 6/21/99~ Contractor Specification Sheet Dated 9/21/99. (D) Future change orders executed by the Buyer and Contractor. In the event of an inconsistency between this Agreement and any other Contract Document, the terms of this Agreement shall be binding. In the event of an inconsistaney between the Drawings and the Contractors Specification Sheet, The Specifications will govern. 1.2 Contract Work, The Contractor agrees to furnish all the material and labor necessary for the construction of a new single family residence on Buyers lot//46 in the Lindeawood Development, Emlyn Lane, Mechanicsburg, Pennsylvania sometimes herein referred to as "Project". 1.3 Building Dimensions. Building Dimensions Are Approximate. The Buyer acknowledges that in the course of construction of the house and improvements on the lined, certain minor changes or deviations may result in a variation of the dimensions of the house. ARTICLE 2 CONTRACT PRICE Buyer shall pay to the Contractor the sum of Nine Hundred Seventeen Thousand Dollars, in strict accordance with Article'3 hereinbelow, and subject to additions and/or deductions by change order as provided in Article 8 et' this Contract, 7-17--200 FROM ARTICLE 3 PAYMENTS 3,1 Buyer has paid the down payment to the Contractor and the balance shall be paid in installments payable pursuant to Section 3,2 Down Payment (5 %) Progress Payments Contract Price $ 45,000 $ 872,000 $ 917,000 3.2 Buyer agrees to make progress payments on account of the Contract Price based upon written applications for payment submitted to Buyer at the followLn.g times or as mutually agreed upon between the Buyers lending institution and the Contractor prior to starting the Project: (2 draws would be combined for a total of 6 disbursements). Draw #1 10% $ 87,200 Foundation complete. Draw//2 25 % $ 218,000 House framed, roof sheathed, exterior windows and doors set Draw #3 15 % $130,800 Rough-ins complete, insulation and drywall installed, roof shingled. Draw #4 10% $ 87,200 Exterior house finish complete. Draw #5 15% $130,800 Interior doors, trim, cabinets, and appliances complete, water/sewage systems operational. Draw #6 10% $ 87,200 Heat completely hastalled and operational. Draw #7 10% $ 87,200 Draw #8 5 % $ 43,600 Flooring, paint, light fixtures, and plumbing fixtures complete. Final: 100% complete. Total Progress Payments $ 872,000 ARTICLE 4 FINAL PAYMENT 4.1 Final paymem constituting the unpaid balance of the Contract price as adjusted by Change Orders shall be due and payable when the Project is delivered to the Buyer, substantially complete. 4.2 The making of final payment shall constitute a waiver of all claims by the Buyer except those arising from (1) unsettled liens, (2) faulty or defective work appearing within one (1) year after Substantial Completion, or (3) failure of the work to comply with the requirements of thc Contract Documents. "'0 FROM P-~ ARTICLE 5 TIME OF COMMENCEMENT AND SUBSTANTIAL COMPLETION 5.1 The work to be performed under this Contract shall be commenced on or about October 25, 1999 or thirty (30) days after the date Buyer fulfilled all obligations required by Article 6 of this Contract, and except as otherwise provided or permitted by the Contract, shall be substantially completed on or about June 30, 2000. 5.2 The Date of Substantial Completion of the Prqject is the date when construction is sufficiently completed in accordance with the Plans and Specifications so the Buyer can occupy the Project. Warranties called for by this Agreement shall commence on the Date of Substantial Completion of the construction work. ARTICLE 6 INFORMATION AND SERVICES REQUIRED OF THE BUYER 6.1 The Buyer shall, at the request of the Contractor, furnish to the Contractor reasonable evidence that the Buyer has made financial arrangements to fulfill his obligations under the Contract. Unless such reasonable evidence is furnished, the Contractor is not required to commence the work, 6.2 The Buyer shall furnish a legal description, all surveys describing the physical characteristics, legal limitations and utility locations for the site of the Project. 6.3 It shall be the responsibility of the Buyer to properly indicate upon the site where and how the dwelling shall be situated, giving lot corners, elevations, bench marks, and other data necessary for purpose. 6.4 Prior to the commencement of construction, Buyer shall obtain and deliver to Contractor an attorney's certificate of title to the property, which certificate shall be in proper form, or other proof of Buyer's ownership of the premises which is satisfactory to Contractor and its counsel. 6.5 Buyer shall review the plans and specifications submitted by Contractor and shall give prompt written notice to the Contractor of any fault or detect in the said plans and specifications. 6.6 The Buyer shall secure and pay for necessary easements, assessments, and charges required for the construction, use or occupancy of permanent structures or for permanent changes in existing facilities. 6.7 Information or services under the Buyer's control shall be furnished by the Buyer with reasonable promptness to avoid delay in the orderly progress ct' work. This includes the buyers selection sheet. 6.8 The Buyer will arrange and pay for all utilities during construction, including all service fees. 6.9 If the Buyer elects to perform some work by himself, his agent, employees, or by his other contractors, buyer agrees that: (a) such work will begin only after obtaining written consent of the Contractor; (b) such work will be done in a timely and workmanlike manner; (e) il' said work is not completed in a timely manner in accordance with the schedule of the Contractor, (extends the Contractors schedule more than twice the duration given for that particular activity) the contractor may, at its option . 7-17-288 10:~AM FROM .compiete said work at the expense of the Buyer and/or extent the date of completion of the contract by the 'amount of time delay caused by the Buy,r; (d) Buyer will be responsible for and will hold harmless Contractor for the work so done and for any work and/or materials performed by Contractor which is covered by Buyer or Buyers work; (e) Buyer will hold Contractor harmless for any work done by or contracted directly by Buyer: (t) Buyer shall be responsible for and hereby holds harmless and indemnifies the Contractor as a result of any loss experienced by Buyer, its agents, employees, or other contractors as a result of loss of personal property or tools and equipment on the job site; based on or caused by work that the Buyer has elected to perform himself. ARTICLE 7 OBLIGATIONS OF CONTRACTOR 7~ 1 Contractor will provide all construction, supervision, inspection, labor, materials, tools, equipment, and subcontracted items necessary ~br the execution and completion of the contract work. 7.2 Contractor will secure and pay for building permits, fees and licenses. Contractor will pay all sales, use, gross receipts and similar taxes related to the contract work to be provided by the Contractor, which taxes have been legally enacted at the time of execution of this Agreement. 7.3 The Contractor warrants to the Buyer that all materials and equipment incorporated into the contract work will be new unless otherwise specified, and that all contract work will be of good quality, in conformance with the contract documents. 7.4 Contractor shall be responsible for the acts and omissions of its employees and all subcontractors engaged by Contractor, their agents and employees, and all other persons performing any of the work under this contract on behalf of or with the consent of the Con~ractor. 7.5 The Contractor at all time shall keep the premises free from accumulation of waste materials or rubbish caused by his operations. At the completion of the work, he shall remove all his waste materials and rubbish from and about the project and as well as his tools, construction equipment, machinery and surplus materials, and shall leave the work broom clean or its equivalent, except as otherwise specified. ARTICLE 8 CHANGE ORDERS / ADDITIONAL WORK 8. l The Comractor is under no obligations to make any changes, additions, or alterations in the work provided in the contract documents. Upon reasonable request of the Buyer, Contractor may make changes, additions, or alterations, but the Contractor shall not be required to do so until the parties have executed a written change order, which will become part of this contract, and the Buyer has paid the Contractor for changes in the work at the time of execution of the change order, unless agreed to otherwise. The Buyer agrees to make requests concerning changes, additions, or alterations in the work to the Contractor and not to the workers, including subcontractors on the job. 8.2 Any additional cost incurred during construction due to items excluded in Specification Sheet, Item 34, whela, approved in writing Will be paid for by the Buyer. 7-17--20~ I~:~AM FROM P. 7 ARTICLE 9 LIMITED WARRANTY / CORRECTION OF WORK THIS CONTRACT CONTAINS ALL OF THE REPRESENTATIONS, WARRANTIES, AND PROMISES OF THE CONTRACTOR, NO AGENT OR REPRESENTATIVE OF THE CONTRACTOR IS AUTHORIZED TO MAKE ANY REPRESENTATION OR PRO~ MISE ON BEHALF OF THE CONTRACTOR OTHER THAN THOSE CONTAINED HEREIN, AND THE CONTRACTOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED. 9.1 The Contractor shall correct any work that falls to reasonably conform to the requirements of the Contract Documents where such failure to conform appears during the progress of the Work. The provisions of this paragraph apply to work done by subcontractors as well as to work done by direct employees of the Contractor. The Limited Warranty shall have no force and effect until the Con(xactor has received full payment of the Contract Price stated above. 9.2 The parties hereto as herein set forth hereby agree to expressly fLX and limit the extent of Contractors liability to Buyer, their heirs and assigns for any defective workmanship and materials in the construction of the said house by Contractor and the terms hereof shall be controlling between the parties hereto in lieu of all warranties expressed or hnplied by law of reasonable good workmanship, materials being free of defects and/or of residence being habitable. Contractor warrants and guarantees for the period of one year l?om the date of substantial completion except as otherwise herein provided that all materials to be furnished in the construction of the said house will be of standard quality and free from reasonable defects, will be installed and applied in a reasonable and good workmanlike manner conditioned upon and provided that Buyer delivers to Contractor a written list of all such defeck~ within said one year period. Contractor warrants *~hat the house shall be constructed in accordance with the provisions of The Building Energy Conservation Act (Act 222) and the related roles, regulations, and technical energy standards. The liability of Contractor to Buyer for defective materials, workmanship, and installation under this warranty and guarantee is hereby limited to the correction or replacement by Contractor of the said defect of workmanship or materials in th~ discretion of Contractor and no other claims whatsoever shall be made upon or required to be allowed by Contractor and after said one year period Contractor is released from all claims exc~pt those which are reasonable and written notice of which is delivered ro Contractor within said one year period. Concrete basement floors and masonry basement walls chip and crack from time to time and lumber will shrink and twist with no reasonable explanation therefore costs of replacement of said masonry work and wood materials are prohibitive wherefore this said warranty and guarantee does not apply to cracks in basement floors or basement walls and shrinkage and twisdng of lumber and Contractor shall not be liable or obligated to Buyer therefore with any and all claims therefor being released and waived by Buyers except Contractor agrees fbr one year period to reasonably patch all such masonry cracks that appear within said one year period of which Contractor receives written notice within said one year period. Whenever natural topography of the said lot is disturbed settling will occur over a period of time; Contractor shall not be liable for any such nonstructural settling but repairs and fill for same shall be the liability and responsibility of-' Buyer as well as the responsibility to carry the rain water from the spouting away from the walls of the said residence. Buyer shall further exercise all reasonable diligence in discharging and reporting in writing to Contractor as work progresses, and any deviations, defects in materials or workmanship and deficiencies in performance so as to avoid unnecessary problems and expense to Contractor in correcting same. 7-17-2B0 10:4BAM FROM P. 8 9.3 The Contractor assigns to the Buyer, to the extent they can be assigned, all rights under manufac- -tutor's warranties on appliances, equipment, fixtures, and consumer products included in the Project. The Contractor provides no warranties relating to manufactured or consumer products. ARTICLE 10 RELEASE OF LIENS If a Stipulation Against Liens has not been filed, the Contractor, with his request for final payment, shall deliver to the Buyer, a complete Release of Liens arising out of this contract and, if required, shall furnish an affidavit that so far as he has knowledge or informatinn the Releases include all the labor and material for which a lien could be filed; but the Contractor may, if any subcontractor refuses to furnish a release or receipt in ~ull, furnish bond satisfactory to the Buyer, to indemni~ Buyer against any lien. If a Stipulation Against Liens has been filed, the Contractor shall be under no obligation to whatsoever to furnish a Release of Liens. ARTICLE 11 PROCEEDS TO COMPLETE CONSTRUCTION AND ASSIGNMENT OF MORTGAGE PR(~CEEDS It is agreed by the Buyer that the proceeds of any construction mortgage are hereby assigned, transferred and set over to the Contractor and payable to said Contractor in accordance with the terms of payment as herein provided to be reduced only by any pro-rata share due another Contractor on the Project, not a subcontractor of the Contractor herein. In addition to such mortgage moneys, all other moneys required to equal the purchase price shall, at the option of the Contractor, be placed in escrow with the Contractor's attorney, mortgagee or any bmnk and ',he Buyer directs, authorizes and empowers such escrow agent to pay Contractor at the rime and in the amounts specified in this contract. ARTICLE 12 ASSIGNMENT OF CONTRACT Contractor reserves the right to assign this contract, or any part thereof, for and including as security for Contractors obligations to any financial institution. Assignments to any other General Contractor may be made with the written consent of the Buyer, with which consent shall not be reasonably withheld. This agreement may not be assigned by Buyer without the written consent of the Contractor. ARTICLE 13 INSURANCE 13.1 Inderrmity. The Contractor agrees to indemnify and hold the Buyer harmless from all claims for bodily injury and property darn~ge (other than the work itself and other property insured under paragraph [5.2) that may arise from the Contractor's operations under this Agreement. 13.2 Contractor's Liability Insurance. The Contractor shall purchase and maintain such insurance as will protect it from claims under workmen's compensation acts and other employee benefit acts, from claims for damages because of bodily injury, including death, and from claims for damages to property which may 0 FIRE POLICY PACKET PA~ 1 MAIL MACH- I USA.z% 00300 82 06 80A EFFECTIVE: 10-25-99 TO: 10-25-00 STEVENB WOLF 704 EUNHAVENCIR MECHANICSBURG PA 17055-7509 Dear Mr. Wolf: ~tlont. pleate ¢~1 ua e ~l n~ber ehown bel~. Attache0 ara your policy 0ocumentl and other Information you ely find helpful conoerning your Inlurlnce ~veragel and premium& Pl~aae taka i few minutes to review them, eno t~sn file th~m with your policy re=erda. Bevgrlev J. McCiure Senlor Vice Presiden= Northeast & Overseas Region E~PORTANT MESSAGES THIS IS NOT A BLL, Any prmmlum ;herge or return for thle polley will be rafleoted on yOUr next regular monthly Itnteraent. FOR U.S. C~LLLB: Policy 8ervlee 1-800-B31oBI11. Clllme I-GOO-g31-8222. Think you for letting um llr¥l yOU, Wl mppreollte your bulinell, PAG~ U~AA 00300 SZ 06 CONTENTS CONTRACT, DECLARATION.%, ENDORSEMENTS POl'm # Title INFORMATION/EXPL.ANATION Form # Title DP-D DP- END DWELLING POL DEC. ENDORSElVLENT DECIJ%RAT ION$ UN]*Tf;D S~RVIC~$ AUTOH0~[L~ ASSOCIATION eeO0 Pr~d~rl~k~ur~ RO~ - 5~ ~tonlo, T~x, 75288 D~LLING POLICY T~S ~ND~D O~ilrltion8 mPll~# iii Pri~ O~l~rltionl, if InY. EFFECTIV~ 10-25-99 Inwurmd'. N. mm Ind MiIIInM AddrewB STEVEN B WOLF 7D4 SUNHAV~N MECHANICSBURG PA 17055-7509 Pulley Numblr 00:300 82 06 80A PAGE 3 ID. iCY PERIOD: 12;D! A.M. Stindlrd Tirol it thn Dmmorlbod kooatlon 10-25-99 To 10-2~-00 1 Yoar Deelrlbed L~ltlon: 46 ~IV~YN Z~ ~C'~ICSBLT~G, C'~%~ERZJ~D, PA 17055-0000 LABGII Del.rlpt}Ort: SEE ATTACHED DP-END Thla ineurenue apple# to the Dueuribed Lo~itiOll, Cov~ege for ~hi;h e Limit of Liability il ihowfi ifld Perill Ineured Agiinlt which e Premium il et~ted, PERILS FIRE OR EXTENDED SPECIAL PREMIUM $449.71 $163.49 $263.40 TOTAL ADDITZONA~ FK~MZUM NONE ~VIS~D $852.42 COY. r-giB Limit of Lllblllt¥ A. D'v~ ~,Z, INC~ $917,000 In =ill of ~1 ~nder ~il policy ~ eowr only ~lt part of ~l loll Offr ~1 dlduetible Itltld. m' ~ ~O ~ 500 D~TIB~h ~l,000 ~rm ~ E~orllmeW m~l I p~t of ~ll policy it tirol of IIIUl: DP 00 03 (07-88); DP PA (01-96); DP 02 03 (07-88); DP 04 70 (07-86); DP-978PA (01-96) ~-UC3A (05-99); IL 09 ~0 (0~-8~); $FP-Z MORTGAGEE YULTON ~AN~ ITS SUCCESSORS AND/OR ASSIGNS C/O AJv~RZTRAC, PO BOX 5762 CINCINNATI, OH 45201-5762 LOAN NU~ER: II~02§1362360 In WITNESS WHEREOF, thai poli~y ii lignld on I0-29-99 DP-D Ed, 1-58 CAROLYN SMITH FARINELLI CONSTRUCTION FTom' ROSEMARY RENDON USAA Comments: If you have any problems with this transmission, please call sender. CONFIDENTIALITY NOTICE - The information contained in this facsimile transmission is CONFIDENTIAL. if you are not the intended recipient, please notify the sender immediately by telephone. ANYONE OTHER THAN THE INTENDED RECIPIENT IS PROHIBITED FROM READING, COPYING OR DISTRIBUTING THIS TRANSMISSION. $$00 Fredericksburg Rd. $anAmonio, Texa~?8288 (800) 531-8111 SanAntonio 498-811t Policy Sewice Fax number (800) 531-8877 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF Plaintiff FARINELLI CONSTRUCTION, INC., and DIVERSE INSTALLATIONS, and BETTE LOU KOLVA, as Executrix of the Estate of Ronald E. Kolva, Deceased, Defendants CIVIL ACTION - LAW No. 2002-3072 Civil Term JURY TRIAL DEMANDED ANSWER OF DEFENDANT~ BETTE LOU KOLVA, AS EXECUTRIX OF THE ESTATE OF RONALD E. KOLVA, DECEASED~ TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND CROSS CLAIMS AND NOW, comes the Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, by her attorneys, Peter D. Solymos, and Griffith, Strickler, Lerman, Solymos & Calkins, and files the following Answer, New Matter and Cross-Claims to Plaintiffs Complaint: 1. Upon information and belief, admitted in part and denied in part. It is admitted that Plaintiff, Steven B. Wolf, at all relevant times, was a Pennsylvania resident. It is admitted that Plaintiff, Steven B. Wolf is one of the owners of certain real and personal property located at 11 Emlyn Lane, Mechanicsburg, PA 17055-8017. It is denied that he is the sole owner of the property as m~swering Defendant believes that Steven B. Wolf and Charlene Wolf are the joint owners of the property at all times relevant. 2. Admitted upon information and belief. 3. Admitted upon information and belief. 4. Denied. It is denied that Defendant, Ron Kolva Plumbing is a corporation authorized to conduct business and regularly conducting business in Pennsylvania from its principal place of business located at 827 Pinetown Road, Lewisberry, Pennsylvania 17339. On the contrary, Defendant, Ron Kolva Plumbing was a sole proprietorstfip regularly conducting business in Pennsylvania from its principal place of business located at 827 Pinetown Road, Lewisberry, Pem~sylvania 17339. 5. Upon information and belief, admitted, but qualified to state that on or about September 28, 1999, Plaintiff and Charlene Wolf entered into a contract with Defendm~t, Fafinelli, for the purpose of constructing a home on buyer's lot number 46 in the Lindenwood Development on Emlyn Lane in Mechanicsburg, Pe~msylvania. See a true and correct copy of the contract attached to Plaintiff's Complaint and marked as Exhibit "A". 6. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph number 6 of Plaintiff's Complaint, and same are denied and strict proof thereof is hereby demanded. 7. Denied. The allegations set forth in paragraph 7 of Plaintiff's Complaint constitute a conclusion of law to which no response is required. To the extent a response is required, after reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the troth of the allegations set forth in paragraph number 7 of Plaintiff's Complaint, and same are defiled and strict proof thereof is hereby demanded. 8. Denied. The allegations set forth in paragraph 8 of Plaintiff's Complaint constitute a conclusion of law to which no response is required. To the extent a response is required, after reasonable investigation, answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph number 8 of PlaintifFs Complaint, and same are denied and strict proof thereof is hereby demanded. 9. Answering Defendant is unable to admit or deny the allegations contained in paragraph 9 of Plaintiff's Complaint inasmuch as said allegations are not specific to one Defendant. By way of further answer, it is averred upon information and belief that Answering Defendant's decedent performed "rough in plumb/rig" and installed certain piping and certain fixtures and that such work performed by Answering Defendant's decedent was performed in a good, proper, and workmanlike manner, prior to July 1, 2000. 10. Admitted upon information and belief. 11. Answering Defendant is unable to admit or deny the allegations contained in paragraph 11 of Plaintiff's Complaint inasmuch as said allegations are not specific to one Defendant. By way of further answer, it is den/ed that Answering Defendant's decedent allowed water to enter the building located on the premises, causing considerable and substantial damage thereto in the amount of $80,940.97. On the contrary, it is averred that at all times relevant, Answering Defendant's decedent acted carefully, properly, prudently and performed all work in a good, proper and workananlike manner. COUNT I BREACH OF CONTRACT 12. The allegations set forth in 1 through 11, inclusive, of the foregoing Answer of Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, to Plaintiff's Complaint, are incorporated herein by reference as if fully set forth at length. 13. Den/ed. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph no. 13 of Plaintiffs Complaint, and san~e are denied and strict proof thereof is hereby demanded. By way of further answer, the obligations of Defendant Fadnelli are embodied in a written contract dated September 28, 1999, a copy of which is attached to Plaintiffs Complaint as Exhibit "A", which document speaks for itself. 14. Denied. It is denied that Answering Defendant's decedent was subcontracted for the installation, maintenance, service, and repair of the plumbing system. The remaining allegations contained in paragraph t4 of Plaintiffs Complaint constitute a conclusion of law to which no response is required. By way of further answer, Answering Defendant's decedent verbally contracted with Defendant, Farinelli Construction, Inc. to install the plumbing system as Plaintiffs home was being constructed, which work was not complete at the time of the alleged incident. 15. Denied. To the extent the allegations contained in paragraph 15 of Plaintiffs Complaint constitute a conclusion of law, no response is required. To the extent a response is required, it is admitted that Defendant, Farinelli Construction, Inc., subcontracted with Defendant Diverse Installations for certain masonry work. 16. Denied. It is denied that Answering Defendant's decedent breached his subcontract with Defendant, Farinelli Construction, Inc. by reason of the following acts and omissions: failing to adequately install the plumbing system in a safe and worlauanlike manner; failing to service the plumbing system in a safe and workmanlike manner; failing to repair the plumbing system in a safe and workmanlike manner; failing to maintain the plumbing system in a safe and workmanlike mariner; e. failing to install the plumbing system in accordance with specific installation instructions; f. failing to adhere to and follow national standards with regard to the plumbing system; g. failing to warn Plaintiff of the danger inherent to follow national safety standards; h. failing to properly train and/or supervise their employees prior to the installation, service, maintenance, repair or utilization of the plumbing system; i. failing to employ adequately and appropriately trained personnel prior to the installation, service, maintenance of repair of the plumbing system; and j. failing to properly and adequately communicate safety standards concerning the use of the plumbing system by and between all contractor personnel on the premises. On the contrary, it is averred upon information and belief, that the work performed by Answer/ng Defendant's decedent was done in a safe, careful, proper, prudent and workmanlike manner. By way of further answer, Answering Defendant believes, and therefore avers, that Plaintiff has withdrawn subparagraph (k) of his paragraph 16 by stipulation. 17. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the troth of the allegations set forth in paragraph number 17 of Plaintiff's Complaint, and same are denied and strict proof thereof is hereby demanded. 18. Denied. Upon information and belief, it is denied that the damages sustained by Plaintiff were the proximate result of Answering Defendant's decedent's breach of contract and strict proof thereof is demanded. WHEREFORE, Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, demands judgment in her favor and against the Plaintiff, together with costs of suit. COUNT II NEGLIGENCE 19. The allegations set forth in paragraphs 1 through 18, inclusive, of the foregoing Answer of Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, to Plaintiff's Complaint, are incorporated herein by reference as if fully set forth at length. 20. Denied. Upon information and belief, it is denied that Answering Defendant's decedent, Ron Kolva Plumbing, was negligent in the performance of his duties upon Plaintiff's premises, by reason of the follow'rog acts and omissions: a. failing to utilize acceptable industry standards with regards to safety when installing and maintaining a plumbing system; b. failing to properly and adequately cap all open lines which were part of the plumbing system; c. failing to ensure that all open lines were capped; d. failing to ensure that all open lines were capped prior to utilizing the plumbing system; e. failing to notify Plaintiff and/or all contractor personnel on the premises of the existence ofnncapped lines in the plumbing system; f. failing to notify Plaintiff and/or all contractor personnel concerning the appropriate safety procedures necessary when using the plumbing system which contained uncapped lines; g. failing to ensure proper safety procedures were developed and implemented concerning the use of the plumbing system which contained uncapped lines; h. failing to mitigate the flow of water throughout the premises; i. failing to notify Plaintiff and/or all contractor personnel concerning the flow of water throughout the premises; and j. failing to properly train and supervise Iris agents, servants or employees in the proper mariner of installing, maintaining and using the plumbing system. On the contrary, upon information and belief, it is averred that all worked performed by Answering Defendant's decedent was performed in a safe, proper, prudent, and workmanlike manner. 21. Denied. Upon information and belief, it is denied that as a direct and proximate result of Answering Defendant's decedent's negligence, Plaintiff was caused to suffer substantial damages as set forth, and strict proof thereof is therefore demanded at the time of trial. WHEREFORE, Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, demands judgment in her favor and against the Plaintiff, together with costs of suit. By way of further answer, Answering Defendant asserts the following: NEW MATTER 22. Answering Defendant's responses to paragraphs 1 through 21, inclusive, of Plaintiffs Complaint, as set forth hereinabove, are incorporated herein by reference, as if fully set forth at length. 23. Plaintiff's Complaint against Answering Defendant's decedent fails to state a cause of action upon wlfich relief can be granted. 24. Plaintiffs Complaint may be barred by applicable statutes of limitations. 25. Plaintiff's claims may be barred and/or limited by the doctrines of Res Judicata and/or Collateral Estoppel. 26. Plaintiff's alleged injuries and damages were caused solely m~d directly as the result of the activities and/or conduct and/or omissions on the part of individuals or entities other than Answering Defendant's decedent, over whom Answering Defendant's decedent had no responsibility or right of control, including but not limited to Farinelli Constraction, Inc., Diverse Installations, and Integra Painting, and/or the Plaintinff. 27. At all times relevant, no agency, principal/agent, master/servant, or employer/employee relationship existed between Answering Defendant's decedent and Diverse Installations. 28. At all times relevant, Diverse Installations was an independent contractor, hired and retained by Defendant, Farinelli Construction, Inc., not subject to the right of supervision, direction, or right of control by Answering Defendant's decedent. 29. At all times relevant, Diverse Installations was an independent contractor, not subject to the right of supervision, direction, or right of control by Answering Defendant's decedent. 30. At all times relevant, Answering Defendant's decedent was not liable for the alleged acts or omissions of Defendant, Diverse Installations. 31. At all times relevant, Answering Defendant's decedent exercised reasonable, prudent, and due care. 32. All work performed by Answering Defendant's decedent on or before July 1, 2000, was performed in a safe, careful, proper, prudent, and workananlike manner. 33. Plaintiff's claims may be barred by the doctrine of superceding and/or intervening cause. 34. Plaintiffmay have failed to mitigate his dmnages. 35. To the extent it is determined that Answering Defendant's decedent owed any duties or responsibilities to the Plaintiff, Answering Defendant's decedent fulfilled any and all such duties and responsibilities determined to be owed to the Plaintiff or persons in the position of the Plaintiff as required by law. WHEREFORE, Answering Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, demands judgment in her favor and against the Plaintiff, together with costs of suit. NEW MATTER IN THE NATURE OF A CROSSCLAIM PURSUANT TO PA.R.C.P. 2252(d) Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased v. Farinelli Construction, Inc. 35. Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, incorporates herein by reference, and without admission or denial, Plaintiffs allegations against the other Defendants for the sole and limited purpose of stating a crossclaim for contribution and/or indemnity in the event Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, is found liable to the Plaintiff, all such liability being expressly denied. 36. Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, incorporates herein by reference her Answer and New Matter to Plaintiff's Complaint as hereinabove set forth. 37. If the incident as alleged in Plaintiffs Complaint is proven at trial, then Defendant, Farinelli Construction, Inc., is solely liable to the Plaintiff. 38. In the alternative, if the incident described in Plaintiff's Complaint is proven at the time of trial, Defendant, Farinelli Construct/on, Inc., is jointly and/or severally liable to Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, or liable over to Defendant, Belle Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, for the claims of Plaintiff, the liability of Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, being expressly denied. 39. If Defendant, Belle Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, is found liable to Plaintiff, all such liability being expressly denied, her liability is secondary and passive to the liability of Defendant, Farinelli Construction, Inc., whose liability is pr/mary and active. 40. Answering Defendant, Belle Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, is not liable or responsible for the alleged acts or omissions of independent contractor, Farinelli Construction, Inc., and strict proof of such allegations as outlined in Plaintiff's Complaint are hereby demanded. 41. Answering Defendant, Belle Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, is informed and therefore avers that Defendant, Farinelli Contraction, Inc. was the General Contractor with regard to the construction of the Plaintiffs home, and as such General Contractor, Farinelli Construction, Inc. was responsible for the hiring of Diverse Installations and other sub-contractors or independent contractors who were working on this project, and furthermore was responsible and therefore had the duty to supervise, oversee, direct and control any and all work performed by any subcontractors or independent contractors, including that of Diverse Installations, and to ensure that same was performed in a safe, careful, proper, prudent, and workmanlike mariner. 42. In addition, pursuant to paragraph 7.4 of Plaintiffs contract with Defendant, Farinelli Construction, Inc., a copy of which was attached to Plaintiffs Complaint as Exhibit "A", "contractor shall be responsible for the acts and omissions of its employees and all subcontractors engaged by contractor, their agents and employees, and all other persons performing any of the work under this contract on behalf of or with the consent of the contractor." WHEREFORE, Answering Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, demands judgment in her favor against Defendant, Farinelli Construction, Inc., for any sums wl'fich may be adjudged against her and in favor of the Plaintiff, or, in the alternative, demands judg~nent against Defendant, Farinelli Construction, Inc., for contribution and/or indemnification for the appropriate part of the amount of damages and costs awarded to Plaintiff, if any. NEW MATTER IN THE NATURE OF A CROSSCLAIM PURSUANT TO PA.R.C.P. 2252(d) Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased v. Diverse Installations 43. Defendant, Bette Lou Kolva, as Execua'ix of the Estate of Ronald E. Kolva, Deceased, incorporates herein by reference, and without admission or denial, PlaintifFs allegations against the other Defendants for the sole and limited purpose of stating a crossclaim for contribution and/or indemnity in the event Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, is found liable to the Plah~tiff, all such liability being expressly denied. 44. Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, incorporates herein by reference her Answer and New Matter to PlaintifFs Complaint as hereinabove set forth. 45. If the incident as alleged in Plaintiffs Complaint is proven at trial, then Defendant, Diverse Installations, is solely liable to the Plaintiff. 46. At all times relevant, Defendant, Diverse Installations, was solely responsible for its employees, and to ensure that at all times said employees conducted their work in a careful, proper, prudent, and workmanlike manner which is the subject of Plaintiff's Complaint, and said Defendant, Diverse Installations' employees and the performance of their duties, and the maturer in which they carried out their duties at the worksite were in no way subject to control or the right of control by or on behalf of Answering Defendant's decedent. 47. In the alternative, if the incident described in Plaintiff's Complaint is proven at the time of trial, Defendant, Diverse Installations, is jointly and/or severally liable to Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, or liable over to Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, for the claims of Plaintiff, the liability of.Answering Defendant's decedent, being expressly denied. 48. If Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, is found liable to Plaintiff, all such liability being expressly denied, her liability is secondary and passive to the liability of Defendant, Diverse Installations. 49. Answering Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, is not liable or responsible for the alleged acts or omissions of independent contractor, Diverse Installations, and strict proof of such allegations as outlined in Plaintiff's Complaint is hereby demanded. WHEREFORE, Answering Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald A. Kolva, deceased, demands judgment in her favor against Defendant, Diverse Installations, for any sums which may be adjudged against her and in favor of the Plaintiff, or, in the alternative, demands judgment against Defendant, Diverse Installations, for contr/bution and/or indenmification for the appropriate part of the amount of damages and costs awarded to Plaintiff, if any. GRIFFITH, STPdCKLER, LERMAN, SOLYMOS & CALK/NS Supreme Court ID No. 07 75 110 South Northern Way York, PA 17402 (717) 757-7602 Attorney for Defendant, Bette Lou Kolva, as Executrix of the Estate ofRonald E. Kolva, Deceased IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF Plaintiff V. : FARINELLI CONSTRUCTION, INC., and: DIVERSE INSTALLATIONS, and : BETTE LOU KOLVA, as Executrix of the : Estate of Ronald E. Kolva, Deceased, : Defendants : CIVIL ACTION - LAW No. 2002-3072 Civil Term JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this/j~_~ay of March, 2003, I, Peter D. Solymos, Esquire, a member of the firm of G1LI]?FITH, STRICKLER, LERMAN, SOLYMO8 & CALKINS, hereby certify that I have this date served a copy of the Answer and New Matter of Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E, Kolva, to Plaintiff's Complaint by United States Mail, addressed to the party or attorney of record as follows: Mark Bridge, Esquire 101 East Lancaster Avenue Suite 304 Wayne, PA 19087 (Attorney for Plaintiff, Steven B. Wolf) Dan Deardorf, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Harrisburg, PA 17108-1268 (Attorney for Defendant, Diverse Installations) Thomas E. Brermer, Esquire Goldberg Katzman & Shipman, PC 320 Market Street Strawberry Square (Attorney for Defendant (Attorney for Defendant, Farinelli Construction, Inc.) Shawn Mehok Integra Painting, Inc. 281 Hoy Road Carlisle, PA 17013 GRIFFITH, STRICKLER, LERMAN, BY: l~of~ DT. Solymc~, l~sq~ir~/' Supreme Court ID No. 017475 110 South Northern Way York, PA 17402 (717) 757-7602 Attorney for Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased VERIFICATION I, Bette L. Kolva, verify that I am the Personal Representative of the Estate of Ronald E. Kotva, Defendant in the foregoing action, and that the attached Answer/New Matter to Plaintiff's Complaint are based upon the information which has been gathered by me, my counsel and/or others on my behalf in preparation of the defense of tlfis lawsuit. The language of the Answer/New Matter is that of counsel and is not mine. I have read the Answer/New Matter, and to lhe extent that it is based upon information which was have given to counsel, it is tree and correct to the best of my knowledge, information and belief. I understand that intentional false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsifications made to authorities. DATE: 4- //' ~ BY: BETTE L. KOLVA / FRO~ : DiverS~ Ins'~allationS FAX NO. : Feb, 25 1999 0?:14AM P1 CONTRACT ]'his ~n~oct d~t~l F~b~u~ry ~. ~99~ by ~e b'~en F~nn~lli ~n~on. l~c. ~ ~ K~ ~, ~ui~ ]~], Me~anlcsbur~, PA 170~, ~er~Jn~fter ~e~r~ to as 'Farmelli' ar~ ~e to~low~ng, Diverse Ins~l~ti~s, P, O, Box ~ar~.'ille, PA ] 75~, h~eeffer refaced to as "Sub.hi,actor'. 1. Jnd~ent ~[. Fari~ll) ~nO 5u~Ont~a~or ~ acknowl~e t~at Subcgnlracto~ ~s an ~n~rector in h~ relationship with F~dn~lE end ~S n~ an employee Fo~ each job bid, S~cont~clor will submit a separale propo~l bas~ on pl~ns and sp~EicatJons supph~ by Farl~.lf ~ff S~bcontra~or will a~so submit an invoice for ~ jab comPle{ed. Su~or~b'ador :s to furni~ at his o~ expen~ alt labor, ;'axes, t~ls, i~ur~nce, supe~ision, transpor~tion, and material (if n~essa~) r~uJred to c~p~te the work Jn accordance with his pro~l 2. JoJ~, 8ub~ntrac~or agrees t~at at his own ~t and expense ~ shail procure end malntain all insur~ r~ulr~ by ~e law in the ~tate or Pennsylvania for hi--If 0r any employee o* Su~gnlra~or. Subcontra~or sh~l ~rov~de e Ce~icete ~ insurance to FarineNi. If Wor~m~'s Com~enseIIon is applicable agr~ ~ pay all p~emiums re~ulrea as [~y come due on a~ount of injury to ~r~n Or proper[~ oc=U~;ng [n the performance o[ thi~ ContracJ. t~et~r w~ any and all 8tiorm~s' fees incu~d ~, Fafinelli on account ther~f. whereof, the perlies have here,Jnt0 $~t lheJr hand arid seals ~e day and year fimt a~:~ve writ'ten. Fafirlelli Co~$b-uCtion, Inc. $~Jbcon~ra~or Taxpayer I.D.# or $ocml Security # USAA° 9800 Fredericksburg Rd., San Antonio, TX 78288 USAA MEMBER: USAA MEMBER #: DATE OF LOSS: Steven Wolf 3008206 7/01/00 DWELLING: Water damage loss. This is a Builders Risk Policy. The contract was for $917,000. The building was four weeks away from completion. It is believed the mason contractor used a part time employee who turned the water on improperly. This allowed the water to flow throughout the house as the plumbing fixtures were not installed yet. The plumber, mason and general contractors have all been placed on notice and their insurance companies have made inspections. No one has accepted liability at this time. Don Hemler has reached an~agreed price with the builder. We are requesting authority based on the agreed price with the Builder along with the emergency services bill from Tuckey Restoration. Roger Quisenberry 6-t251 UNITED SERVICES AUTOMOBILE ASSOCIATION 9800 Fredericksburg Road, San Antonio,TX 78288 STATE AUTO INSURANCE GROUP ATTN: DON POLINSKY P. O. BOX 2006 MECHANICSBURG PA 17055 August 27, 2001 Policyholder: Steven B. Wolf Reference Number: 3008206-80A-9-7643 Date-Of Loss: July 1, 2000 Loss Location: Mechanicsburg, Pennsylvania USAA Tax ID Number: 74-0959140 Your Policyholder: Diverse Installations Your Reference Number: SOC-9550368 Dear Mr. Polinsky: Our insured has submitted a claim for water damage to his home. We have reimbursed our insured for damages sustained as a result of the above loss. Our investigation reveals that your insured is responsible. Therefore, we are seeking full reimbursement from you. This is to notify you of our subrogation interests and to that you not make any settlements on this claim without protecting our recovery rights. request Our claim Dayments are documented below: Property Amount Paid Insured's Deductible 79,940.97 1,000.00 Total Subrogation Demand $ 80,940.97 Please forward your check for the above amount payable to USAA as subrogee of our Dolicyholder. Also, Dlease show the reference number above on your check. Remit Payment To: USAA ATTN: Insurance Claims P.O. Box 33490 San Antonio, TX 78265-3490 CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Mark M. Bridge, Esquire 101 East Lancaster Avenue Suite 304 Wayne, PA 19087 Peter Solymos, Esquire Grifflth, Striclder, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 Dan Deardoff; Esq. Martson, Deardorf, William & Otto Ten East High Street Carlisle, PA 17013 Date: GOLDBERG, KATZMAN & SHIPMAN, P.C Thomas E. Brenner, Esquire 93225.1 4 STEVEN B. WOLF, Plaintiff FARINELLI CONSTRUCTION, INC. RON KOLVA PLUMBING and DIVERSE INSTALLATIONS, Defendants INTEGRA pAINTING INCORPORATED, Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3072 -CIVIL ACTION LAW JURY TRIAL DEMANDED DEFENDANT DIVERSE INSTALLATIONS' RESPONSE pURSUANT TO RULE 1035.3 TO MOTION FOR SUMMARY JUDGEMENT OF DEFENDANT FARINELLI CONSTRUCTION, INC. AND NOW, comes Defendant Diverse Installations, by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, who responds to the Motion for Summary Judgment as follows: 1. Admitted that said Complaint was filed, but in addition a Stipulation was filed on September 10, 2002, striking paragraph 16(k) from the Complaint. 2-3. Admitted. 4. It is admitted that Paragraph 13.4 of the contract so provides, but in addition it is averred that said provision in the contract also applies to the subcontractors. 5. The answer to paragraph 4 is incorporated herein by reference. 6-9. Admitted. 10. Denied as stated. After reasonable investigation, Defendant Diverse Installations is without sufficient knowledge or information to admit or deny said averment. Proof thereof is demanded. In addition, the Plaintiff's Complaint does not make any allegation that the main water valve for the house was wrongly turned on. 11. Admitted. In addition, it is possible that other persons such as neighbors or trespassers could have been present at the work site on the morning of July 1, 2000. 12. Denied as stated. After reasonable investigation, Defendant is without sufficient information to admit or deny. 13-18. Conclusions of law are averred to which no response is necessary. WHEREFORE, Defendant Diverse Installations respectfully requests that the Motion for .... it would be granted to all Summary Judgment of Defendant Fannelh Construction be denied unless Defendants, including Defendant Diverse Installations. NEW MATTER 19. paragraph 13.4 of the contract between Plaintiffand Defendant Farinelli Construction would apply to the subcontractors as well, including Defendant Diverse Installations, because Diverse Installations was brought on to the j ob by the general contractor to perform work under and pursuant to the contract between Plaintiff and Defendant Farinelli Construction. 20. The Plaintiffs Complaint against Defendant Diverse Installations fails to set forth a cause of action against it. 21. The Plaintiff s Complaint against Defendant Diverse Installations does not allege that Defendant Diverse Installations wrongfully, accidentally or improperly turned on the main water valve for the house which resulted in water damage to the house. 22. The Plaintiff s Complaint does not include Charlene Wolf as a party Plaintiff. 23. Charlene Wolf was the co-owner of the property involved in this case and co-signor of the contract between Plaintiff and Defendant Farinelli Construction. 24. Charlene Wolf was an indispensable party in this case. 25. The statute of limitations has nm and Plaintiff may not amend his Complaint to allege a new cause of action. 26. Defendant Diverse Installations has filed a cross-claim against Defendant Farinelli Construction and will be prejudiced if Summary Judgment is granted as to only Defendant Farinelli Construction. WHEREFORE, Defendant Diverse Installations respectthlly requests that the Motion for Summary Judgment of Defendant Farinelli Construction be denied unless it would be granted as to all Defendants, including Defendant Diverse Installations. Date: August 15, 2003 Respectfully submitted, MARTSON DEARDORFF WILLIAMS & OTTO By~ ~ ~ ~//2, ~:r~ Darnel K. Deardorff, E~uire - ~ I. D. No. 17837 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Diverse Installations CERTIFICATE OF SERVICE_ I, Tricia D. Eckenroad, an authorized agent of Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Defendant Diverse Installations' Response Pursuant To Rule 1035.3 to Motion for Summary Judgement of Defendant Farinelli Construction, Inc. was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mark M. Bridge, Esquire 101 East Lancaster Avenue, Suite 304 Wayne, PA 19087 Counsel for Plaintiff Thomas E. Brenner, Esquire GOLDBERG KATZMAN & SHIPMAN, P.C. 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Counsel for Farinelli Construction, Inc. Peter D. Solymos, Esquire LAW OFFICES OF GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS 110 South Northern Way York, PA 17402 Counsel for Ron Kolva Plumbing Mr. Shawn Mehok INTEGRA PAINTING, INC. 281 Hoy Road Carlisle, PA 17013 MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: August 15, 2003 STEVEN B. WOLF, Plaintiff FARINELLI CONSTRUCTION, INC. : RON KOLVA PLUMBING and : DIVERSE INSTALLATIONS, : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3072 - CIVIL ACTION LAW INTEGRA PAINTING INCORPORATED, : Additional Defendant : JURY TRIAL DEMANDED DEFENDANT DIVERSE INSTALLATIONS' MOTION FOR SUMMARY JUD MENT AND NOW, comes Defendant Diverse Installations, by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, who state as follows in support of its Motion for Summary Judgment: 1. The Motion for Summary Judgment of Defendant Farinelli Construction is incorporated herein by reference for purposes of this Motion. 2. Defendant Diverse Installations is entitled to all provisions set forth in the contract between Plaintiff and the general contractor, Defendant Fadnelli Construction, Inc., because it was performing work under said contract. 3. If the general contractor, Defendant Farinelli Construction, Inc. is entitled to summary judgment on the basis of Section 13.4 of said contract, Defendant Diverse Installations is also similarly entitled to Summary Judgment. 4. In its Answer With New Matter, Defendant Diverse Installations filed a cross clmm against Defendant Farinelli Construction, Inc. 5. Accordingly, no Summary Judgment should be granted to Defendant Farinelli Construction, Inc. unless it would also be granted as to Defendant Diverse Installations. 6. In his deposition, Plaintiff Steven B. Wolf testified that one theoryin this case against Defendant Diverse Installations was that one of its employees on July 1, 2000, accidentally or improperly turned on the main water valve for the house which then permitted water to flow upstairs through the uncapped plumbing system resulting in water damage throughout the home. (Deposition of Dr. Wolf at 49-50). 7. The facts supporting this theory were never set forth in Plaintiff s Complaint against Defendant Diverse Installations. 8. Plaintiff Steven B. Wolf also testified in his deposition that his wife, Charlene Wolf, who signed the contract with Farinelli Construction, Inc. was a co-owner to the property which was damaged by the water which flowed through the uncapped plunabing system. 9. Charlene Wolf has not been set forth as a Plaintiff in this action. 10. It is believed that Charlene Wolf is an indispensable party in this action in that she is a co-owner of the damaged property and was a co-signor of the contract to have the house constructed. (Deposition of Dr. Wolf at 6-8). 11. The two year statute of limitations has run on this claim as of July 1, 2002, and Plaintiff is not allowed at this late point to amend his Complaint to allege a new cause of action against the Defendants. 12. The Complaint only alleges shortcomings with the installation, maintenance, service, and repair of the plumbing system on which Defendant Diverse Installations did not work. 13. There is no dispute as to the above facts which are material to the above issues and the law clearly provides that Defendant Diverse Installations is entitled to Summary Judgment. 14. The pleadings are closed in this case and full discovery has already taken place. 15. This case has not been scheduled for trial. WHEREFORE, Defendant Diverse Installations respectfully requests that this Honorable Court grant its Motion for Summary Judgment. Date: August 15, 2003 Respectfully submitted, By_~_ S~ON DEARI~RFF WILLIAMS & OTTO / I. D. No. 17837 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Diverse Installations CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent of Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Defendant Diverse Installatim~s' Motion for Summary Judgment was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mark M. Bridge, Esquire 101 East Lancaster Avenue, Suite 304 Wayne, PA 19087 Counsel for Plaintiff Thomas E. Brenner, Esquire GOLDBERG KATZMAN & SHIPMAN, P.C. 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Counsel for Farinelli Construction, Inc. Peter D. Solymos, Esquire LAW OFFICES OF GRIFFITH, STRICKLER, LERMP~N, SOLYMOS & CALKINS 110 South Northern Way York, PA 17402 Counsel for Ron Kolva Plumbing Mr. Shawn Mehok INTEGRA PAINTING, INC. 281 Hoy Road Carlisle, PA 17013 MARTSON DEARDORFF WILLIAMS & OTTO T'ri~ia D. Eckenroad ] Ten East High. Street Carlisle, PA 17013 (717) 243-3341 Dated: August 15, 2003 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF Plaintiff FAR1NELLI CONSTRUCTION, INC., and DIVERSE INSTALLATIONS, and BETTE LOU KOLVA, as Executrix of the Estate of Ronald E. Kolva, Deceased, Defendants INTEGRA PAINTING, INC., Additional Defendant CIVIL ACTION - LAW No. 2002-3072 Civil Term JURY TRIAL DEMANDED DEFENDANT, BETTE LOU KOLVA, AS THE EXECUTRIX OF THE ESTATE OF RONALD E. KOLVA, DECEASED, RESPONSE TO DEFENDANT, FARINELLI CONSTRUCTION, INC.'S MOTION FOR SUMMARY JUDGMENT AND NOW, comes the Defendant, Bette Lou Kolwa, as Executrix of the Estate of Ronald E. Kolva, Deceased, by and through her attorneys, Peter D. Solymos, Esquire and the law firm of Griffith, Strickler, Lerman, Solymos & Calkins, and responds to Defendant, Farinelli Construction, Inc.'s Motion for Summary Judgment as follows: 1. Admitted with qualification. It is admitted that Plaintiff commenced this action by filing a Complaint on or about June 26, 2002 alleging breach of contract and negligence against all Defendants. Further, and as qualification, a Stipulation withdrawing Paragraph 16(k) from the Complaint was filed on or about September 10, 2002. o Admitted. Admitted. Admitted with qualification. It is admitted that Paragraph 13.4 so provides. Further and as qualification, the waiver of subrogation clause contained in the contract also applies to subcontractors, including Answering Defendant. 5. Admitted. Answering Defendant incorporates herein by reference, her response to Paragraph 4, above. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Denied as stated. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to admit or deny said averment. Proof thereof is demanded. In addition, the Plaintiffs Complaint does not make any allegation that the main water valve for the house was wrongly turned on. 11. Admitted upon information and belief. 12. Denied as stated. After reasonable investiga'tion, Answering Defendant is without sufficient information to admit or deny. 13. Paragraph 13 of Defendant Farinelli's Motion for Summary Judgment is a conclusion of law to which no response is required. 14. Paragraph 14 of Defendant Farinelli's Motion for Summary Judgment is a conclusion of law to which no response is required. 15. Paragraph 15 of Defendant Farinelli's Motion for Summary Judgment is a conclusion of law to which no response is required. 16. Paragraph 16 of Defendant Farinelli's Motion for Summary Judgment is a conclusion of law to which no response is required. 17. Paragraph 17 of Defendant Farinelli's Motion for Summary Judgment is a conclusion of law to which no response is required. 18. Paragraph 18 of Defendant Farinelli's Motion for Summary Judgment is a conclusion of law to which no response is required. WHEREFORE, Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, respectfully requests that Defendant, Fafinelli Construction, Inc.'s Motion for Summary Judgment be denied unless if this Court does grant said Motion, that summary judgment also be granted as to Answering Defendant. NEW MATTER 19. Paragraph 7.4 of the contract between Plaintiff and Defendant, Fafinelli Construction, Inc., states that the Contractor, Farinelli Construction, Inc., "shall be responsible for the acts and omissions of its employees and all subcontractors engaged by Contractor... "which includes, Ron Kolva Plumbing. 20. Paragraph 9.1 of the Contract between Plaintiff and Defendant, Fafinelli Construction, Inc., states that the contractor, Fafinelli Construction, Inc., "shall correct any work that fails to reasonably conform to the requirements of the contract documents where such failure to conform appears during the progress of the work. The provisions of this paragraph apply to work done by subcontractors..." which includes, Ron Kolva Plumbing. 21. Paragraph 13.2 of the contract between Plaintiff and Defendant, Farinelli Construction, Inc., states that the contractor, Farinelli Construction, Inc., "shall purchase and maintain such insurances as will protect it from claims.., for damages to property which may rise out of result from the contractor's operation under this contract, whether such operations be by it or by any subcontractor..." which includes Ron Kolva Plumbing. 22. Paragraph 13.4 of the contract between Plaintiff and Defendant, Farinelli Construction, Inc., would apply to the subcontractors as well, including Ron Kolva Plumbing because Ron Kolva Plumbing was brought on to the job by the general contractor to perform work under and pursuant to the contract between Plaintiff and Defendant, Farinelli Construction, Inc. 23. The Plaintiffs Complaint against Ron Kolva Plumbing fails to set forth a cause of action against it. 24. The Plaintiffs Complaint against Ron Kolva Plumbing does not allege that it wrongfully, accidentally, or improperly turned on the main water valve for the house which allegedly resulted in water damage to the house. The Plaintiffs Complaint does not include Charlene Wolf as a party 25. Plaintiff. 26. Charlene Wolf was the co-owner of the property involved in this case and co-signor of the contract between Plaintiff and Defendant Farinelli Construction. 27. Charlene Wolf was an indispensable party in this case. 28. The statute of limitations has run and Plaintiff may not amend his Complaint to allege a new cause of action. 29. Defendant, Bette Lou Kolva, as Executrix of the Estate ofRonald E. Kolva, deceased, has filed cross-claims against Defendants Farinelli Construction, Inc. and Diverse Installations, and will be prejudiced if Summary Judgment is granted as to only Defendant Farinelli Construction, Inc. WHEREFORE, Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, respectfully requests that Defendant, Farinelli Construction, Inc.'s Motion for Summary Judgment be denied unless irt]his Court does grant said Motion, that summary judgment also be granted as to Answering Defendant. Respectfully submitted, by: GRIFFITH, STRICKLER, LERMAN, SOLYMOS & C~LKiNS / D SOL Court I.D. Noq: 07475 110 S. Northern Way York, PA 17402 717-757-7602 Attorneys for Defendant, Bette Lou Kolva, as Executrix of the Estate of RonaM E. Kolva IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY~ PENNSYLVANIA STEVEN B. WOLF : Plaintiff : . v. FARINELLI CONSTRUCTION, INC., and : DIVERSE INSTALLATIONS, and BETTE LOU KOLVA, as Executrix of the Estate of Ronald E. Kolva, Deceased, Defendants INTEGRA PAINTING, INC., Additional Defendant CIVIL ACTION - LAW No. 2002-3072 Civil Term JURY TRIAL DEMANDED CERTIFIC/ATE OF SERVIC_E_E AND NOW, this ~/2J day o~~, 2003, I, Peter D. Sol,os, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of the Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, deceased, Response to Defendant, Farinelli Construction, Inc~s Motion for Summary Judgment by United States Mail, addressed to the party or attorney of record as follows: Mark Bridge, Esquire 101 East Lancaster Avenue Suite 304 Wayne, PA 19087 (Attorney for Plaintiff, Steven B. Wolf) Daniel Deardorf, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Harrisburg, PA 17108-1268 (Attorney far Defendant, Diverse Installations) Thomas E. Brenner, Esquire Goldberg Katzman & Shipman, PC 320 Market Street Strawberry Square (Attorney for Defendant (Attorney for Defendant, Farinelli Const~ction, Inc.) Shawn Mehok Integra Pafllting, Inc. 201 Hoy Road Carlisle, PA 17013 by: GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CAEKINS eET~ffi~ 1~. soLyMos, ESQUIRE Court I.D. No.: c0~4;/5 110 S. Northern Way York, PA 17402 717-757-7602 Attorneys for Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva pds/dmf/kolva/kolvaresp-2 farsm4sj PRAECIPE FOR LISTING CASE FOR ARGUMENT (Most be tTpewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Pl-~e listthewithinmatterforthe~tArg~nentCourt. CAPTION OF CASE (entire captionmustbestatedinfull) Steven B. Wolf ( p1 zl ntiff) iarinelli Construction, Inc., Ron Kolva Plumbing and Diverse Installations and Integra Painting Incorporated (Additional Defendant) ( Defelvt~nt ) ~,:,,~._ ~-~ ~, 3072 civil 2002 19 1. State matter to be argued (i.e., plaintiff's motion for ne~ trla], def~t's demu~a~-c to cui~laint, etc. ): Motion for Sll~ Judgment of Defendant iarinelli ~onstruction 2. Identify counsel who will arcjue case: (a) for plaintiff: Mark M. Bridge, Esq. ;%~d~ss: 101 East Lancaster Ave., Suite 304, Wayne, PA e (b) for deferment: Thomas E. Brenner, Esq. (Atty. for Farinelli Construction) so~r~ss,: P.O. Box 1268, Harrisburg,, PA 17108-1268 Peter Esq. Dan Daardorf, Esq. 110 South Northern Way Ten East [Ltgh Street York, PA 17402 Carlisle, PA 17013 I wi 11 notify al l parties in writing within t.~ days that this ~e has been ]isted for arg~rm~t. 4. ~t Court Date: 11/17/03 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and su~nitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please ]~stthewithinmatterforthenextArg~nentCourt- CAPTION OF CASE (entire caption must be stated in ~H]) Steven B. Wolf, ( P! ai ntiff) Farinelli Construction, Inc., Ron Kolva Plumbing and Diverse Installations and Integra Painting Incorporated (Additional Defendant) ( Defemdmnt ) NO. 02-3072 CivJJt ~ 2002 State matter robe argued (i.e., plaJ_ntiff's ,~tion for new tr~], defer~mnt's d~m,urrer to cu,~]mint, etc.): Motion for Summary Judgment of Defendant Diverse Installations 2. Identify counsel who w~]] argue case: (a) for p!mintiff: Mark M. Bridge, Esquire ;u~ress: 101 East Lancaster Ave.~ Suite 304, Wayne, PA 19087 (b) for defemdmnt: Daniel K. Deardorff, Esquire ~%'~ress: Ten East High Street, Carlisle, PA 17013 Peter Solymos, Esquire Thomas E. Brenner, Esquire 110 S. Northern Way, York, PA 17402 P.O. Box 1268, Harrisburg, PA 17108 I w~l] noti-fAr ali parties in writing within t~odays that this case has been listed for arg~nent. 4. ~t Court Date: October 22, 2003 Date(J: September 10, 2003 Attorney for Defendant Diverse Installations AMENDED PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted ~Ln duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: pl~-~e ] i st the within matter for the next Argt~w-nt Court. CAPTION OF CASE (enti=e caption must be stated in fu]] ) Steven B. Wolf ( pi alntiff) Farinellt Construction, Inc., Ron Kolva Pl,~hing and Diverse Installations and Integra Painting Incorporated (Additional Defendant) ( Defem~ant ) {~o. -Z. CCC-3072 civil ?o07 19 State matter to be argued (i.e., p!~intiff's motion for new trial, defew%nt's d~uzxer to c~,~l~int, etc.): Motion for S,-~-ry Jud~nent of Defendant Farinelli Construction 2. Identify counsel who All argue case: e (a) f~r pi ~intiff: ~ess: Mark M. Bridge, Esq. 101 East Lancaster Ave., Suite 304 Wayne, PA (b) for defendant: Thomas E. Brenner, Esq. (Atty. for Farinelli Construction) N~ess: P.O. Box 1268, Harrisburg, PA 17108-1268 Peter Sol,mos, Esq. Dan Deardorff, Esq. 110 South Northern Way Ten East: High Street York, PA 17402 Carlisle, PA 17013 I~ll notify all parties in writingwithin two days that thJ~ ~ehas been listed f~rarc3~a~mat- 4. Argun~-nt Court Date: 10/22/03 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF : Plaintiff : V. FARINELLI CONSTRUCTION, INC., and DIVERSE INSTALLATIONS, and BETTE LOU KOLVA, as Executrix of the Estate of Ronald E. Kolva, Deceased, Defendants V. INTEGRA PAINTING, 1NC., : Additional Defendant : CIVIL ACTION - LAW No. 2002-3072 Civil Term JURY TRIAL DEMANDED DEFENDANT, BETTE LOU KOLVA, AS THE EXECUTRIX OF THE ESTATE OF RONALD E. KOLVA PLUMBING'S RESPONSE PURSUANT TO DEFENDANT, DIVERSE INSTALLATIONS' MOTION FOR SUMMARY JUDGMENT AND NOW, comes the Defendant, Bette Lou Kolw~, as Executrix of the Estate of Ronald E. Kolva, by and through her attorneys, Peter D. Solymos, Esquire and the Law Firm of Griffith, Strickler, Lerman, Solymos & Calkins, and responds to Defendant, Diverse Installations' Motion for Summary Judgment as follows: 1. Paragraph 1 of Diverse Installations' Motion for Summary Judgment is an inclusion paragraph to which no response is required. 2. Paragraph 2 of Defendant's Motion for Summary Judgment constitutes a conclusion of law to which no response is required. 3. Paragraph 3 of Defendant's Motion for Summary Judgment constitutes a conclusion of law to which no response is required. 4. Admitted. 5. Paragraph 5 of Defendant's Motion for Summary Judgment constitutes a conclusion of law to which no response is required. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Paragraph 10 of Defendant's Motion for Summary Judgment constitutes a conclusion of law to which no response is required. 11. Paragraph 11 of Defendant's Motion for Summary Judgment constitutes a conclusion of law to which no response is required. 12. Paragraph 12 of Defendant's Motion for Summary Judgment relates to a written document which speaks for itself. 13. Paragraph 13 of Defendant's Motion for Summary Judgment constitutes a conclusion of law to which no response is required. 14. Admitted. 15. Admitted. WHEREFORE, Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, respectfully requests that Defendant, Diverse Installations' Motion for Summary Judgment be denied unless if this Court does grant said Motion that summary judgment also be granted as to Answering Defendant. Respectfully submitted, by: GRIFFITH, STRICKLER, LERMAN, SOLYMOS ~)CALKINS PETER D. SOl. MOS, ESQUIRE Court I.D. No.: 07475 110 S. Northern Way York, PA 17402 717-757-7602 Attorneys for Defendant, Bette Lou Kolva, as Executrix for the Estate of Ronald E. Kolva IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF Plaintiff FAR1NELLI CONSTRUCTION, INC., and DIVERSE INSTALLATIONS, and BETTE LOU KOLVA, as Executrix of the Estate of Ronald E. Kolva, Deceased, Defendants CIVIL ACTION - LAW No. 2002-3072 Civil Term JURY TRIAL DEMANDED INTEGRA PAINTING, INC., Additional Defendant · C.__ERTIFIIffATE OF SERVICE ^~ Now, this/0 '~ay of.C-f¢~b(~003, x, Peter D. Solymos, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERIVIAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of the Defendant, Bette Lou Kolva, as Executrix for the Estate of Ronald E. Kolva's Response to Defendant, Diverse Installations' Motion for Summary Judgment by United States Mail, addressed to the party or attorney of record as follows: Mark Bridge, Esquire 101 East Lancaster Avenue Suite 304 Wayne, PA 19087 (Attorney for Plaintiff, Steven B. Wolf) Daniel Dem'dorf, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Hamsburg, PA 17108-1268 (Attorney for Defendant, Diverse Installations) Thomas E. Brenner, Esquire Goldberg Katzman & Shipman, PC 320 Market Street Strawberry Square (Attorney for Defendant (Attorney for Defendant, Farinelli Construction, Inc.) Shawn Mehok Integra Painting, Inc. 201 Hoy Road Carlisle, PA 17013 by: GRIFFITH, STRICKLER, LERMAN, SOLYMOS/fl~,/ALKINS PETEP~ D. S~MOS, ESQUIRE Court I.D. No.: 07475 110 S. Northern Way York, PA 17402 717-757-7602 Attorneys for Defendant, Bette Lou I(olva, as Executrix for the Estate of RonaM E. Kolva pds/dmf/kolva/kolvaresp-2divsm4sj Mark M. Bridge, Esquire Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19087 Telephone (610) 902-0150 Facsimile (610) 902-0152 Attorney for Plaintiff, Steven Wolf STEVEN B. WOLF Plaintiff VS. FARINELLI CONSTRUCTION, INC.; RON KOLVA PLUMBING and DIVERSE INSTALLATIONS, Defendants VS. INTEGRA PAINTING INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA No.: 2002-3072 Civil Term PLAINTIFF'S RESPONSE TO SUMMARY JUDGMENT MOTION OF DEFENDANT FARINELLI CONSTRUCTION Plaintiff, Stcven Wolf, by and through his attorneys, Mark M. Bridge, Esquire, PC, states as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted in part, denied in part. Moving party has failed to recite the entire language of the stated clause, which must be read in its entirety to obtain its proper and intended meaning. 5. Denied. The express language of the clause indicates that in executing the contract, plaintiff and defendant intended to refer to an HO-3 form, which is not defined therein, that will list the "Contractor as a loss payee as their interest may appear" as required in the subject clause. As such, plaintiff denies that the subject clause intends to refer a homeowner's policy maimained by plaintiff with USAA. Moreover, the Dwelling Policy Response to SJ Motion, Page 2 Declaration Page, attached as Exhibit "C" does not list an HO-3 Form as part of the contract of insurance. Finally, the Exhibit "F" referenced demonstrates that "this is a Builder's Risk Policy" as noted by the USAA adjuster. Plaintiff furthermore submits that the interpretation of the instant clause in the manner soul~t by Fahnelli in this motion is inconsistent with the balance of the contractual requirements of the Contract, including Farinelli's obligations in: ¶ 13.2- to purchase and maintain insurance for property damage claims. 6. Denied. Please refer to ¶ 5, herein. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted in part, denied in part. It is admitted that one element in the cause of the loss was the main water valve being turned on. However, plaintiff's Complaint lists the following clauses in sub ¶ which caused or contributed to the loss: a. failing to utilize acceptable industry standards with regards to safety when installing and maintaining a plumbing system; b. failing to properly and adequately cap all open lines which were part of the plumbing system; c. failing to ensure that all open lines were capped; d. failing to insure that all open lines were capped prior to utilizing the plumbing system; e. failing to notify Plaintiff and/or all contractor personnel on the premises of the existence of uncapped lines in the plumbing system; f. failing to notify Plaintiff and/or all contractor personnel concerning the appropriate safety procedures necessary when using the plumbing system which contained uncapped lines; g. failing in insure proper safety procedures were developed and implemented concerning the use of the plumbing system which contained uncapped lines; Response to SJ Motion, Page 3 h. failing to mitigate the flow of water throughout the premises; i. failing to notify Plaintiff and/or all contractor personnel concerning the flow of water throughout the premises; j. failing to properly train and supervise their agents, servants or employees in the proper manner of installing, maintaining and using the plumbing system. While various paragraphs contained therein refer directly or indirectly to the act of turning the water on, all of the foregoing, were material causes of the loss. 11. Admitted. 12. Admitted. 13. Admitted. 14. Admitted. 15. Admitted. However, the stated clause does not use the term "subrogation" and is indeed not a "waiver of subrogation." As such the case cited is irrelevant. 16. Admitted, in part. Denied in part. It is admitted that the cited case states a general proposition of law. However, the case is clearly distingmshable from the instant contract and matter. 17. Denied. 18. Denied. To the contrary, the intentions of the party in entering into the clause are not clear, the issue is not identical or even arguably similar to the cases cited, and defendant, Farinelli is not entitled to summary judgment as a matter of law on the negligence claims. Moreover, even if summary judgment were appropriate on the negligence claims, plaintiff maintains that such conduct was also in breach of contract which is not the subject of the instant motion. Response to SJ Motion, Page 4 WHEREFORE the plaintiff request that this Honorable C, ourt deny the Summary Judgment Motion of Defendant, Farinelli Construction. MARK M. BRIDGE, ESQ., PC Mark M. Bridge Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19087 Telephone (610) 902-0150 Facsimile (610) 902-0152 Attorney for Plaintiff, Steven Wolf Dated: September 13, 2003 Response to SJ Motion, Page 5 VERIFICATION I, Mark M. Bridge, Esquire, am an attorney at law in the Commonwealth of Pennsylvania, and serve as legal counsel to Plaintiff, Steven B. Wolf, I am duly authorized to take this verification on behalf of my clients. By and through their legal counsel, Plaintiff, Steven B. Wolf, makes this verification that the facts set forth in the foregoing document are true and correct based upon reasonable inquiry and investigation. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa CSA Section 4904, r~lg t~ unsworn falsification to authorities. Date: September 13, 2003 Mark M. Bridge, Esquire Attorney for Plaintiff, Steven B. Wolf Mark M. Bridge, Esquire Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19087 Telephone (610) 902-0150 Facsimile (610) 902-0152 Attorney for Plaintiff, Steven Wolf STEVEN B. WOLF Plaintiff VS. FARINELLI CONSTRUCTION, INC.; RON KOLVA PLUMBING and DIVERSE INSTALLATIONS, Defendants VS. INTEGRA PAINTING INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA No.: 2002-3072 Civil Term PLAINTIFF'S RESPONSE TO SUMMARY JUDGMENT MOTION OF DEFENDANT DIVERSE INSTAI,LATIONS Plaintiff, Steven Wolf, by and through his attorneys, Ma~'k M, Bridge, Esquire, PC, states as follows: 1. Plaintiffrepeats and re-alleges each allegation of his Response to the Farinelli Construction Summary Judgment Motion as if set forth fully herein. 2. Denied. To the contrary, Diverse Installations is not a pa~y to the subject contract, and the express language and provisions of the clause relied upon by Farinelli in its Motion does not extend to Diverse or any other sub-contractor. The subject clause in fact states only that "The Buyer and Contractor (previously defined in the contract as Wolf and Farinelli) waive all rights against each other for damages caused by fire or other peril to the extent covered by insurance provided under this para~'aph." The clause continues: "The Contractor shall required similar waivers by subcontractors and sub- subcontractors." However, attached as Exhibit "E' is the Farinelli-Diverse Installations contract, which does not contain any waiver as required in the Wolf-Farinelli contract, Response to SJ Motion, Page 2 does not refer to the Wolf project, and in fact, does not contain any waiver of "subrogation" or liability whatsoever. To the contrary, Diverse agrees in: ¶ 1 to its identification completely as an independent contractor; 'I 2, to obtain its own insurance only for the benefit of Diverse and its own employees; and, ¶ 3, agrees to hold harmless and indemnify Farinelli for "all loss, thefts, costs or damage on account of injury to person or property occurring in the performance of the contract." It does not mention this project, or the plaintiff herein. Accordingly, the defendant Diverse cannot in any manner claim shelter from liability due to the Wolf-Farinelli contract. 3. Denied for the reasons stated herein. 4. Admitted. 5. Denied. The liability of Farinelli and Diverse are separate and independent to plaintiff. 6. Admitted. 7. Denied. To the contrary, plaintiffhas alleged in sub ¶ the following factual claims which caused or contributed to the loss: a. failing to utilize acceptable industry standards with regards to safety when installing and maintaining a plumbing system; b. failing to properly and adequately cap all ,open lines which were part of the plumbing system; c. failing to ensure that all open lines were capped; d. failing to insure that all open lines were capped prior to utilizing the plumbing system; e. failing to notify Plaintiff and/or all contractor personnel on the premises of the existence of uncapped lines in the plurnbing system; f. failing to notify Plaintiff and/or all contractor personnel concerning the appropriate safety procedures necessary when using the plumbing system which contained tmcapped lines; g. failing in insure proper safety procedures were developed and implemented concerning the use of the plumbing system which contained uncapped lines; h. failing to mitigate the flow of water throughout the premises; Response to SJ Motion, Page 3 i. failing to notify Plaintiff and/or all contractor personnel concerning the flow of water throughout the premises; j. failing to properly train and supervise their agents, servants or employees in the proper manner of installing, maintaining and using the plumbing system. These claims are not exclusive, but indeed are cumulative, and all are applicable against Diverse and all other defendants. Moreover, the foregoing, directly or by implication include the subject claim. 8. Denied, as set forth herein. 9. Admitted. 10. Denied. To the contrary, plaintiff Steven Wolf is an owner of the subject property, and is entitled to pursue such claims in his own name. Denied also as a legal conclusion. 11. Denied as a legal conclusion. Moreover, the two year statute of limitations, does not bar the contract action, nor does it absolutely bar amendments to the Complaint against Defendants timely served with the Complaint. 12. Denied, as a complete misstatement of the allegations against the defendants, which are set forth above. Denied. To the contrary, defendant is not entitled to summary judgment as a matter of 13. law. 14. 15. Admitted. Admitted. WHEREFORE the plaintiff request that thisHonorable Court' deny the Summary Judgment Motion of Defendant, Diverse Installations. M. BRIDGE, ESQ., PC By: Mark M. Bridge Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19087 Telephone (610) 902-0150 Facsimile (610) 902-0152 Attorney for Plaintiff, Steven Wolf Dated: September 13, 2003 Response to SJ Motion, Page 4 VERIFICATION I, Mark M. Bridge, Esquire, am an attorney itt law in the Commonwealth of Pennsylvania, and serve as legal counsel to Plaintiff, Steven B. Wolf, I am duly authorized to take this verification on behalf of my clients. By and through their legal counsel, Plaintiff, Steven B. Wolf, makes this verification that the facts set forth in the foregoing document are true and correct based upon reasonable inquiry and investigation. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa CSA Section 4904, ~o falsification to authorities. Date: September 13, 2003 Marl&M. Bridge,~squire Attorney for Plaintiff, Steven B. Wolf Mark M. Bridge, Esquire Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19087 Telephone (610) 902-0150 Facsimile (610) 902-0152 Attorney for Plaintiff, Steven Wolf STEVEN B. WOLF Plaintiff VS. FARINELLI CONSTRUCTION, INC.; RON KOLVA PLUMBING and DIVERSE INSTALLATIONS, Defendants VS. INTEGRA PAINTING INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA No.: 2002-3072 Civil Term PLAINTIFF'S RESPONSE TO NEW MATTER TO SUMMARY JUDGMENT MOTION OF DEFENDANT FARINELLI BY DEFENDANT DIVERSE INSTALLATIONS Plaintiff, Stcven Wolf, by and through his attorneys, Mark M. Bridge, Esquire, PC, states as follows: 19. Denied. To the contrary, the ¶ 13.4 expressly states only that "The Buyer and Contractor (previously defined in the contract as Wolf and Farinelli) waive all rights against each other for damages caused by fire or other peril to the extent covered by insurance provided under this paragraph." The clause continues: "The Contractor shall required similar waivers by subcontractors and sub-subcontractors." However, attached as Exhibit "E" is the Fadnelli-Diverse Installations contract, which does not contain any waiver as required in thc Wolf-Farinelli contract, does not refer to the Wolf project, and in fact, does not contain any waiver of "subrogation" or liability whatsoever. To the contrary, Diverse agrees in: ~ 1 to its identification completely as an independent contractor; ¶ 2, to obtain its own insurance only for the benefit of Diverse and its own employees; and, ¶ 3, agrees to hold harmless and indemnify Farinelli for "all loss, thefts, costs or damage on Response to SJ Motion, Page 2 account of injury to person or property occun'ing in the performance of the contract." It does not mention this project, or the plaintiff herein. Accordingly, the defendant Diverse cannot in any manner claim shelter fi.om liability due to the Wolf-Farinelli contract. 20. Denied. 21. Denied. To the contrary, plaintiffhas alleged in sub ¶ the following factual claims which caused or contributed to the loss: a. failing to utilize acceptable industry standards with regards to safety when installing and maintaining a plumbing system; b. failing to properly and adequately cap all open lines which were part of the plumbing system; c. failing to ensure that all open lines were capped; d. failing to insure that all open lines were capped prior to utilizing the plumbing system; e. failing to notify Plaintiff and/or all contractor personnel on the premises of the existence of uncapped lines in the plumbing system; f. failing to notify Plaintiff and/or all contractor personnel concerning the appropriate safety procedures necessary when using the plumbing system which contained uncapped lines; g. failing in insure proper safety procedures were developed and implemented concerning the use of the plumbing system which contained uncapped lines; h. failing to mitigate the flow of water throughout the premises; i. failing to notify Plaintiff and/or all contractor personnel concerning the flow of water throughout the premises; j. failing to properly train and supervise their agents, servants or employees in the proper manner of installing, maintaining and using the plumbing system. These claims are not exclusive, but indeed are cumulative, and all are applicable against Diverse and all other defendants. Moreover, the foregoing, directly or by implication include the subject claim. Response to SJ Motion, Page 3 22. Admitted. 23. Admitted. 24. Denied. To the contrary, plaintiff Steven Wolf is an owner of the subject property, and is entitled to pursue such claims in his own name. Denied also as a legal conclusion. Moreover, Diverse certainly cannot complain that a signator to a contract that itself was not a party to is not a plaintiff. 25. Denied as a legal conclusion. Moreover, the two year statute of limitations, does not bar the contract action, nor does it absolutely bar amendments to the Complaint against Defendants timely served with the Complaint. 26. Denied. No prejudice could obtain to defendant Diverse than that visited by its own negligence and breach of contract. The liability of Farinelli is completely separate and independent of the liability of Diverse. WHEREFORE the plaintiff request that this Honorable Court deny the Summary Judgment Motion of Defendant, Diverse Installations. M~B~E, ESQ., PC By: a~rk M. Bridge Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19087 Telephone (610) 902-0150 Facsimile (610) 902-0152 Attorney for Plaintiff, Steven Wolf Dated: September 13, 2003 Response to SJ Motion, Page 4 VERIFICATION I, Mark M. Bridge, Esquire, am an attorney at law in the Commonwealth of Pennsylvania, and serve as legal counsel to Plaintiff, Steven B. Wolf, I am duly authorized to take this verification on behalf of my clients. By and through their legal counsel, Plaintiff, Steven B. Wolf, makes this verification that the facts set forth in the foregoing document are true and correct based upon reasonable inquiry and investigation. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa CSA Section 4904, r~gto unsworn falsification to authorities. Date: September 13, 2003 Mari~M. Bridge, Esquire Attorney for Plaintiff, Steven B. Wolf Mark M. Bridge, Esquire Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19087 Telephone (610) 902-0150 Facsimile (610) 902-0152 Attorney for Plaintiff, Steven Wolf STEVEN B. WOLF Plaintiff VS. FARINELLI CONSTRUCTION, INC.; RON KOLVA PLUMBING and DIVERSE INSTALLATIONS, Defendants VS. INTEGRA PAINTING INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA No.: 2002-3072 Civil Term PLAINTIFF'S RESPONSE TO NEW MATTER TO SUMMARY JUDGMENT MOTION OF DEFENDANT FARINELLI BY DEFENDANT BETTE LUE KOLVA, AS THE EXECUTRIX OF THE ESTATE OF RONALD E. KOLVA Plaintiff, Steven Wolf, by and through his attorneys, Mark M. Bridge, Esquire, PC, states as follows: 19. Admitted. 20. Admitted. 21. Admitted. 22. Denied. To the contrary, the ¶ 13.4 expressly states only that "The Buyer and Contractor (previously defined in the contract as Wolf and Farinelli) waive all rights against each other for damages caused by fire or other peril to the extent covered by insurance provided under this paragraph." The clause continues: "The Contractor shall required similar waivers by subcontractors and sub-subcontractors." However, discovery reveals that Farinelli and Kolva did not in fact have a written contract, hence the work was not performed by Kolva with the waiver as required in the Wolf-Farinelli contract. Moreover, Response to SJ Motion, Page 2 the Kolva work did not expressly refer to the Wolf project, and in fact, does not contain any waiver of"subrogation" or liability whatsoever. Accordingly, the defendant Kolva cannot in any manner claim shelter from liability due to the Wolf-Fafinelli contract. 23. Denied. 24. Denied. To the contrary, plaintiff has alleged in sub ¶ the following factual claims which caused or contributed to the loss: a. failing to utilize acceptable industry standards with regards to safety when installing and maintaining a plumbing system; b. failing to properly and adequately cap all open lines which were part of the plumbing system; c. failing to ensure that all open lines were capped; d. failing to insure that all open lines were capped prior to utilizing the plumbing system; e. failing to notify Plaintiff and/or all contractor personnel on the premises of the existence of uncapped lines in the plumbing system; f. failing to notify Plaintiff and/or all contractor personnel concerning the appropriate safety procedures necessary when using the plumbing system which contained uncapped lines; g. failing in insure proper safety procedures were developed and implemented concerning the use of the plumbing system which contained uncapped lines; h. failing to mitigate the flow of water throughout the premises; i. failing to notify Plaintiff and/or all contractor personnel concerning the flow of water throughout the premises; j. failing to properly train and supervise their agents, servants or employees in the proper manner of installing, maintaining and using the plumbing system. These claims are not exclusive, but indeed are cumulative, and all are applicable against Diverse and all other defendants. Moreover, the foregoing, directly or by implication include the subject claim, and discovery does not indicate or reveal that Kolva mined on the water as alleged, Response to SJ Motion, Page 3 but that it, inter alia, failed to cap the pipes thereby allowing the water to flow. Such liability is expressly set forth in the above clauses. 25. Admitted. 26. Admitted. 27. Denied. To the contrary, plaintiff Steven Wolf is an owner of the subject property, and is entitled to pursue such claims in his own name. Denied also as a legal conclusion. Moreover, the plumber Kolva certainly cannot complain that a signator to a contract that itself was not a party to is not a plaintiff. 28. Denied as a legal conclusion. Moreover, the two year statute of limitations, does not bar the contract action, nor does it absolutely bar amendments to the Complaint against Defendants timely served with the Complaint. 29. Denied. No prejudice could obtain to defendant Kolva than that visited by its own negligence and breach of contract. The liability of Farinelli is completely separate and independent of the liability of Kolva. WHEREFORE the plaintiff request that this Honorable C, ourt deny the Summary Judgment Motion of Defendant, Kolva Plumbing. M~C~. BRIDGE, ESQ., PC By: [V,~'~---~ Mark M. Bridge Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19087 Telephone (610) 902-0150 Facsimile (610) 902-0152 Attorney for Plaintiff, Steven Wolf Dated: September 13, 2003 Response to SJ Motion, Page 4 VERIFICATION I, Mark M. Bridge, Esquire, am an attorney at law in the Commonwealth of Pennsylvania, and serve as legal counsel to Plaintiff, Steven B. Wolf, I am duly authorized to take this verification on behalf of my clients. By and through their legal counsel, Plaintiff, Steven B. Wolf, makes this verification that the facts set forth in the foregoing document are true and correct based upon reasonable inquiry and investigation. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa CSA Section 4904,~ _r 'rig to unsworn falsification~ to authorities. Date: September 13, 2003 Mark M. Bridge, Esquire Attorney for Plaintiff, Steven B. Wolf Mark M. Bridge, Esquire Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19087 Telephone (610) 902-0150 Facsimile (610) 902-0152 Attorney for Plaintiff, Steven Wolf STEVEN B. WOLF Plaintiff VS. FARINELLI CONSTRUCTION, 1NC.; RON KOLVA PLUMBING and DIVERSE INSTALLATIONS, Defendants VS. INTEGRA PAINTING INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA No.: 2002-3072 Civil Term CERTIFICATE OF SERVICE TO THE PROTHONOTARY: I, Mark M. Bridge, certify that I have this day served a tvae and correct copy of the described pleading or motion upon the opposing parties at the address listed below: Pleading or Motion served: Response to Motion for Summary Judgment of Defendant Farinelli[ Construction; Response to Summary JudgmenI Motion of Defendant, Diverse Installations; Reply to New Matter of Defendant Diverse Installations to Farinelli Summary Judgment Motion; Reply to New Matter of Defendant Kolva to Farinelli Summary Judgment Motion Opposing Party/Counsel: Thomas E. Brenner, Esquire Goldberg Katzman & Shipman, PC 320 Market Street ,(Strawberry Square) PO Box 1268 Harrisburg, PA 17'108-1268 Certificate of Service, Page 2 Mode of service: MA~. BRIDGE, ESQ., PC By: ~"~P '~''''~ l~rk M. Bridge Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19087 Telephone (610) 902-0150 Facsimile (610) 902-0152 Attorney for Plaintiff, Steven Wolf Daniel Deardorff; Esquire Marston Deardorff Williams & Otto, PC Ten East High Street Carlisle, PA 1701.3 Peter D. Solymos, Esquire Griffith Strickler Lerman Solymos & Calkins, PC 110 S. Northern Way York, PA 17402-3737 First Class Mail Dated: September 13, 2003 26. Steven B. Wolf V Farinelli Construction, Inc., Ron Kolva Plumbing and Diverse Installations V Integra Painting, Incorporated IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3072 CIVIL TERM ORDER OF COURT AND NOW, September 15, 2003, by agreement of counsel, the above-captioned matter is continued from the August 27, 2003 Argument Court list. Counsel is directed to relist the case when ready. ,A~lark M. Bridge, Esquire For the Plaintiff ~/~homas E. Brenner, Esquire ,,,l~eter Solymos, Esquire ~[~an Deardorf, Esquire For the Defendants Court Administrator By the Court, ld IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF Plaintiff FARINELLI CONSTRUCTION, INC., and DIVERSE INSTALLATIONS, and BETTE LOU KOLVA, as Executrix of the Estate of Ronald E. Kolva, Deceased, Defendants INTEGRA PAINTING, INC., Additional Defendant CIVIL ACTION - LAW No.. 2002-3072 Civil Term JURY TRIAL DEMANDED DEFENDANT, BETTE LOU KOLVA, AS THE EXECUTRIX OF THE ESTATE OF RONALD E. KOLVA, DECEASED MOTION FOR SUMMARY JUDGMENT AND NOW, comes the Defendant, Bette Lou Kolwt, as Executrix of the Estate of Ronald E. Kolva, deceased, by and through her attorneys, Peter D. Solymos, Esquire and the Law Firm of Griffith, Strickler, Lerman, Solymos & Calkins, and files this Motion for Summary Judgment as follows: 1. The Motion for Summary Judgment of Defendant, Farinelli Construction, Inc., is incorporated herein by reference for purposes of th/s Motion. 2. The Motion for Summary Judgment of Defendant, Diverse Installations, is incorporated herein by reference for purposes of this Motion. 3. Defendant, Ron Kolva Plumbing, is entitled to all provisions set forth in the contract between Plaintiff and the general contractor, Defendant, Farinelli Construction, Inc., because Defendant Ron Kolva Plumbing, was performing work under said contract. 4. If the general contractor, Defendant, Farinelli Construction, Inc., is entitled to summary judgment on the basis of Section 13.4 of the contract between Plaintiff and Defendant, Farinelli Construction, Inc., Defendant, Ron Kolva Plumbing, is also entitled to summary judgment. 5. In its Answer with New Matter, Defendant, Ron Kolva Plumbing, filed a Cross-Claim against Defendant, Farinelli Construction, Inc. 6. Therefore, no summary judgment should be granted to Defendant, Farinelli Construction, Inc., unless it would also be granted as to Defendant, Ron Kolva Plumbing. 7. Paragraph 7.4 of the contract between Plaintiff and Defendant, Farinelli Construction, Inc., states that the contractor, Farinelli Construction, Inc. "shall be responsible for the actions and admissions of its employees and all subcontractors engaged by contractor ..." which includes Defendant, Ron Kolva Plumbing. 8. Paragraph 9.1 of the contract between Plaintiff and Defendant, Farinelli Construction, Inc., states that the contractor, Farinelli Construction, Inc., "shall correct any work that fails to reasonably conform to the requirements of the contract documents where such failure to conform of peers during the progress of work. The provisions of this paragraph apply to work done by subcontractors ..." which includes, Defendant, Ron Kolva Plumbing. 9. Paragraph 13.2 of the contract between Plaintiff and Defendant, Farinelli Construction, Inc., states that the contractor, Farinelli Construction, Inc., "shall purchase and maintain such insurance as will protect it from claims ... for damages to property which may rise out of result from the Contractor's operation under this contract, whether such operations be by it or by any subcontractor ..." which, includes Defendant, Ron Kolva Plumbing. 10. Plaintiff, Steven B. Wolf, testified in his deposition that a theory in this case against Defendant, Ron Kolva Plumbing, was that on July 1, 2000 an employee of Defendant, Diverse Installations, turned on the main water valve for the house which permitted water to flow upstairs through uncapped plumbing system resulting in water damage throughout the home. (Deposition of Dr. Wolf at ,19-50) 11. The facts supporting this theory were never set forth in Plaintiffs Complaint against Defendant, Ron Kolva Plumbing. 12. Plaintiff, Steven B. Wolf, also testified in his deposition that his wife, Charlene Wolf, who signed the contract with Farinelli Construction, Inc., was the co- owner of the property that is the subject of this litigation. 13. Charlene Wolf has not been set forth as a Pl~fintiffin this action. 14. It is believed that Charlene Wolf is an indispensable party in this action, in that she is the co-owner of the damaged property and was a co-signor of the contract to have the house constructed. (Deposition of Dr. Wolf at 6-- 8) 15. The two year statute of limitations has run on this claim as of July 1, 2002, and Plaintiff is not allowed at this point to amend his Complaint to allege a new cause of action against the Defendants. 16. There is no dispute as to the above facts which are material to the above issues, and the law clearly provides that Defendant, Bette Lou Kolva, as the Executrix of the Estate ofRonald E. Kolva, deceased, is entitled to summary judgment. 17. The pleadings are closed in this case and full discovery has already taken place. WHEREFORE, Defendant, Bette Lou Kolva, as the Executrix of the Estate of Ronald E. Kolva, deceased, respectfully requests that this Honorable Court grant its Motion for Summary Judgment. Respectfully submitted, by: GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS //" ~'- ~ i "' /"' PETER r>qot/ / os, ESQUIRE Court I.D.lNo~/07475 110 S. Northern Way York, PA 17402 717-757-'7602 Attorneys for Defendant, Bette Lou Kolva, as Executrix for the Estate of RonaM E. Kolva IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF Plaintiff Vo FARINELLI CONSTRUCTION, INC., and DIVERSE INSTALLATIONS, and BETTE LOU KOLVA, as Executrix of the Estate of Ronald E. Kolva, Deceased, Defendants INTEGRA PAINTING, INC., Additional Defendant CIVIL ACTION - LAW No. 2002-3072 Civil Term JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this L~day ~4~/~ ~00'~, I, Peter D. Solymos, Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of the Defendant, Bette Lou Kolva, as Executrix for the Estate of Ronald E. Kolva, deceased's Motion for Summary Judgment by United States Mail, addressed to the party or attorney of record as follows: Mark Bridge, Esquire 101 East Lancaster Avenue Suite 304 Wayne, PA 19087 (Attorney for Plaintiff, Steven B. Wolf) Daniel Deardorf, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 Harrisburg,, PA 17108-1268 (Attorney fbr Defendant, Diverse Installations) Thomas E. Brenner, Esquire Goldberg Katzman & Shipman, PC 320 Market Street Strawberry Square (Attorney for Defendant (Attorney for Defendant, Farinelli Construction, Inc.) Shawn Mehok Integra Painting, Inc. 201 Hoy Road Carlisle, PA 17013 by: GRIFFITH, STRICKLER, LERMAN, SOLYMOS ~/~ALKINS PETER D. sOL~YMOS, ESQUIRE Court I.D. No.: 07475 110 S. Northern Way York, PA 17402 717-757-7602 Attorneys.for Defendant, Bette Lou Kolva, as Executrix for the Estate of Ronald E. Kolva pds/dm f/kolva/kolva-m4sj Mark M. Bridge, Esquire Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19087 Telephone (610) 902-0150 Facsimile (610) 902-0152 Attorney for Plaintiff, Stevcn Wolf STEVEN B. WOLF Plaintiff VS. FARINELLI CONSTRUCTION, INC.; RON KOLVA PLUMBING and DIVERSE INSTALLATIONS, Defendants VS. INTEGRA PAINTING INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA No.: 2002-3072 Civil Term CERTIFICATE OF SERVICE TO THE PROTHONOTARY: I, Mark M. Bridge, certify that I have this day served a true and correct copy of the described pleading or motion upon the opposing parties at the address listed below: Pleading or Motion served: Response to Motion for Summary Judgment of Defendant Kolva Opposing Party/Counsel: Thomas E. Brenner, Esquire Goldberg Katzman & Shipman, PC 320 Market Street (Strawberry Square) PO Box 1268 Harrisburg, PA 17108-1268 Daniel Deardorff, Esquire Marston Deardorff Williams & Otto, PC Ten East High Street Carlisle, PA 17013 Peter D. Solymos, Esquire Griffith Strickler Lerman Solymos & Calkins, PC 110 S. Northern Way York, PA 17402-3737 Certificate of Service, Page 2 Mode of service: First Class Mail DGE, ESQ., PC · Bridge Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19087 Telephone (610) 902-0150 Facsimile (610) 902-0152 Attorney for Plaintiff, Steven Wolf Dated: September 23, 2003 Mark M. Bridge, Esquire Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19087 Telephone (610) 902-0150 Facsimile (610) 902-0152 Attorney for Plaintiff, Steven Wolf STEVEN B. WOLF Plaintiff VS. FARINELLI CONSTRUCTION, INC.; RON KOLVA PLUMBING and DIVERSE INSTALLATIONS, Defendants VS. INTEGRA PAINTING INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA No.: 2002-3072 Civil Term PLAINTIFF'S RESPONSE TO SUMMARY JUDGMENT MOTION OF DEFENDANT BETTE LUE KOLVA, AS THE EXECUTRIX OF THE ESTATE OF RONALD E. KOLVA Plaintiff, Steven Wolf, by and through his attorneys, M~'k M. Bridge, Esquire, PC, states as follows: 1. Plaintiff repeats and re-aileges each response to the cited Motion, as if set forth more fully herein. 2. Plaintiff repeats and re-alleges each response to the cited Motion, as if set forth more fully herein. 3. Denied as a conclusion of law. To the contrary, Defendant Kolva is not a party to the contract, and did not provide nor receive consideration fi)r any benefits claimed therein. No prejudice could obtain to defendant Kolva than that visited by its own negligence and breach of contract. The liability of Farinelli is completely separate and independent of the liability of Kolva. 4. Denied as conclusion of law. Plaintiff repeats and re-alleges each prior response to the Response to SJ Motion, Page 2 cited issue. 5. Admitted. 6. Denied. The legal liability to plaintiff is direct and independent of any issues of liability between Plaintiff and Farinelli. 7. It is admitted that a portion of the paragraph is accurately stated. However, the moving party has only cited a portion of the clause. Nowhere in the Contract is Defendant named. 8. It is admitted that a portion of the paragraph is accurately stated. However, the moving party has only cited a portion of the clause. Nowhere in t'he Contract is Defendant named. 9. It is admitted that a portion of the paragraph is accurately stated. However, the moving party has only cited a portion of the clause. Nowhere in the Contract is Defendant named. 10. Admitted in part, denied in part. It is admitted that "one theory" of the cause of the loss was the activity of Diverse Installations. Many other theories are alleged by plaintiff. 11. Denied. To the contrary, plaintiff has alleged in sub ¶ the following factual claims which caused or contributed to the loss: a. failing to utilize acceptable industry standards with regards to safety when installing and maintaining a plumbing system; b. failing to properly and adequately cap all open lines which were part of the plumbing system; c. failing to ensure that all open lines were capped; d. failing to insure that all open lines were capped prior to utilizing the plumbing system; e. failing to notify Plaintiff and/or all contractor personnel on the premises of the existence of uncapped lines in the plumbing system; fi failing to notify Plaintiff and/or all contractor personnel concerning the appropriate safety procedures necessary when using the plumbing system which contained uncapped lines; g. failing in insure proper safety procedures were developed and implemented concerning the use of the plumbing system which contained uncapped lines; h. failing to mitigate the flow of water throughout the premises; Response to SI Motion, Page 3 i. failing to notify Plaintiff and~or all contractor personnel concerning the flow of water throughout the premises; agents, servants or employees failing to properly train and supervise their manner of installing, maintaining and using the plumbing in the proper system, applicable against Diverse These claims are not exclusive, but indeed are cumulative, anq all are and all other defendants. Moreover, the foregoing, directly or by implication include the subiect claim, and discovery does not indicate or reveal that Kolva turned on the water as alleged, but that it, inter alia, failed to cap the pipes thereby allowing the .water to flow. Such liability is expressly set forth in the above clauses· 12. Admitted. 13. 14. 15. 16. 17. Admitted ....... of the subject property, and is Denied. To the contrary, plaintiff Steven Wolf Is an ow~*, as a legal conclusion. entitled to pursue such claims in his own name. D~ied also Moreover, the plumber Kolva certainly cannot complain that a signator to a contract that · a plaintiff. itself was not a party to Is not statute of limitations, does not bar Denied as a legal conclusion. Moreover, the two year the contract action, nor does it absolutely bar amendments to the Complaint against Defendants timely served with the Complaint. Denied as a conclusion of law. Admitted .... ,_ r'ourt deny the Summary WHEREFORE the plaintiff request that this l-lonoram~ '~ ludgment Motion of Defendant, Kolva plumbing. M M. BRIDGE, ESQ., PC Mark M. Bridge Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, pennsylvania 19087 Telephone (610) 902-0150 Facsimile (610) 902-0152 Attorney for plaintiff, Steven Wolf · x~,,~d.. September 23, 2003 Response to S$ Motion, Page 4 VERIFICATION I, Mark M. Bridge, Esquire, am an attorney at law in the Commonwealth of Pennsylvania, and serve as legal counsel to Plaintiff, Steven B. Wolf, I am duly authorized to take this verification on behalf of my clients. By and through their legal counsel, Plaintiff, Steven B. Wolf, makes this verification that the facts set forth in the foregoing document are true and correct based upon reasonable inquiry and investigation. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa CSA Section 4904, r~rn falsification to authorities. Date: September 23, 2003 Marl~. Bridge, Esquire Attorney for Plaintiff, Steven B. Wolf STEVEN B. WOLF, PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA FARINELLI CONSTRUCTION, INC., BE'rTE LOU KOLVA, EXECUTRIX OF THE ESTATE OF RONALD E. KOLVA, DECEASED, and DIVERSE INSTALLATIONS, DEFENDANTS INTEGRA PAINTING, INC., ADDITIONAL DEFENDANT : 5o"~g- : 02-~eO2'CIVlL TERM IN RE: MOTIONS OF DEFENDANTS, FARINELLI CONSTRUCTION, INC., BETTE LOU KOLVA, EXECUTRIX OF THE ESTATE OF RON KOLVA~ DECEASED, AND DIVERSE INSTALLATIONS FOR SUMMARY JUDGMENT AGAINST PLAINTIFF BEFORE BAYLEY~ J. AND HESS~ J. ORDER OF COURT AND NOW, this /'~d,ay of December, 2003, IT IS ORDERED THAT: (1) The motion of defendant, Farinelli Construction, Inc., for summary judgment on the claim against it by plaintiff, IS GRANTED. (2) The motions of defendants, Bette Lou Kolva, executrix of the estate of Ronald E. Kolva, deceased, and Diverse Installations, on the claims against them by plaintiff, ARE DENIED. 02-3062 CIVIL TERM Mark M. Bridge, Esquire For Plaintiff /) Thomas E. Brenner, Esquire For Farinelli Construction, Inc. / Peter D. Solymos, Esquire For Bette Lou Kolva, as executb, r of the estate Ronald E. Kolva, deceased Daniel K. Deardorff, Esquire /'~ For Diverse Installations / Integra Painting, Inc. 281 Hoy Road Carlisle, PA 17013 :sal -2- STEVEN B. WOLF, PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA FARINELLI CONSTRUCTION, INC., BETTE LOU KOLVA, EXECUTRIX OF THE ESTATE OF RONALD E. KOLVA, DECEASED, and DIVERSE INSTALLATIONS, DEFENDANTS V. ~ INTEGRA PAINTING, INC., : ADDITIONAL DEFENDANT : 02-3062 CIVIL TERM IN RE: MOTIONS OF DEFENDANTS~ FARINELLI CONSTRUCTION~ INC. BETTE LOU KOLVA~ EXECUTRIX OF THE ESTATE OF RON KOLVA~ DECEASED~ AND DIVERSE INSTALLATIONS FOR SUMMARY JUDGMENT AGAINST PLAINTIFF BEFORE BAYLEY~ J. AND HESS~ J.. OPINION AND ORDER OF COURT Bayley, J., December 23, 2003:-- Plaintiff, Steven B. Wolf, filed a complaint against defendants, Farinelli Construction, Inc., Ron Kolva Plumbing, and Diverse Installations seeking damages in the amount of $80,940.97. Ron Kolva Plumbing joined Integra Painting, Inc., as an additional defendant. Bette Lou Kolva, the executrix of the estate of Ronald E. KoIva, deceased, has been substituted as a defendant. The following facts are not in dispute. On September 28, 1999, plaintiff Steven B. Wolf, and his wife, Chadene Wolf, entered 02-3062 CIVIL TERM into a written Construction Agreement with Farinelli Construction, Inc., to construct a single-family residence in Mechanicsburg, Pennsylvania, for $917,000. Ron Kolva Plumbing installed the plumbing and Diverse Installations the masonry work on the project. On July 1, 2000, while plaintiff's home was under construction, a water source was turned on which pressurized plumbing that had been installed but not yet completed by Ron Kolva Plumbing. This resulted in $80,940.97 in water damage to the property. The only workers at the site at the time of the accident were from Diverse Installations and Integra Painting, Inc. Plaintiff's insurance carrier, United States Automobile Association, paid the $80,940.97 loss. Article 13 titled "INSURANCE" in the Construction Agreement between plaintiff and Farinelli Construction, Inc., provides: 13.1 Indemnity. The Contractor agrees to indemnify and hold the Buyer harmless from all claims for bodily injury and property damage (other than the work itself and other property insured under paragraph 15.2) that may arise from the Contractor's operations under this Agreement. 13.2 Contractor's Liability Insurance. The Contractor shall purchase and maintain such insurance as will protect it from claims under workmen's compensation acts and other employee benefit acts, from claims for damages because of bodily injury, including death, and from claims for damages to property which may rise out of result from the Contractor's operation under this Contract, whether such operations be by it or by any subcontractor or anyone directly or indirectly employed by any of them. This insurance shall be written for not less than any limits of liability required by law and shall include contractual liability insurance as applicable to the Contractor's obligations under this Agreement. 13.3 Buyer's Liability Insurance. The Buyer shall be responsible for purchasing and maintaining his own liability insurance and, at his option, may maintain such insurance as will protect him against claims which may arise from operations under this contract. -2- 02-3062 CIVIL TERM 13.4 Buyer's Property Insurance. Unless otherwise provided, the Buyer shall purchase and maintain property insurance in the form of Standard Form HO3 upon the entire contract work at the site to the full insurable value thereof. In the event of any loss covered by such HO3 policy, the Buyer shall pay any deductible under such policy. This insurance shall include interests of the Buyer and list the Contractor as a Loss Payee as their interest may appear, and shall insure against the perils of fire, extended coverage, vandalism and malicious mischief. Any insured loss is to be adjusted with the Buyer and made payable to the Buyer as trustee for the insured as their interests may appear, subject to the requirements of any mortgage clause. The Buyer shall provide a copy of all policies to the Contractor prior to the commencement of the work. The Buyer and Contractor waive all rights against each other for damages caused by fire or other peril to the extent covered by insurance provided under this paragraph. The Contractor shall require similar waivers by subcontractors and sub-subcontractors. (Emphasis added.) Defendants Farinelli Construction, Inc., Bette Lou Kolva, executrix of the estate of Ronald E. Kolva, deceased, and Diverse Installations, filed motions for summary judgment against plaintiff which were briefed and argued on October 22, 2003. These defendants maintain that paragraph 13.4 of the Construction Contract constitutes a waiver of subrogation that precludes recovery of the $80,940.97 loss against them. In Penn Avenue Place Associates, L.P.v. Century Steel Erectors, Inc., 798 A.2d 256 (Pa. Super. 2002)? plaintiffs, Penn Avenue Place Associates, L.P. (PAPA) and Oxford Development Company appealed from an order of a trial court granting the preliminary objections of defendants, Century Steel Erectors, Inc. and P.J. Dick, Inc., dismissing plaintiffs complaint. The action arose from a fire at a building owned by PAPA. PAPA entered into a contract with P.J. Dick, Inc. for the renovation of the ~ AIIoc.dn 813 A.2d 843 (Pa. 2002). -3- 02-3062 CIVIL TERM building. The General Contractor then entered into a subcontract with Century Steel Erectors, Inc. for the demolition work associated with the renovation. During the course of construction, hot debris from welding and cutting work by Century Steel fell to the roof and ignited flammable materials that caused damage. The damage was paid by Arkwright Mutual Insurance Company which provided property insurance for the building to PAPA and Oxford. A waiver and subrogation clause was incorporated in the contract between the owner and general contractor, and in the subcontract between the general contractor and the subcontractor. The clause provided: The Owner and Contractor waive all rights against (1) each other and any of their subcontractors, sub-subcontractors, agents and employees, eac. h of the other, and (2) the Amhitect, Architect's consultants, separate contractors described in Article 6, if any, and any of their subcontractors, sub-subcontractors, agents and employees, for damages caused by fire or other perils to the extent covered by property insurance obtained pursuant to this Paragraph 11.3 or other property insurance applicable to the Work, except such rights as they have to proceeds of such insurance held by the Owner as fiduciary. The Owner or Contractor, as appropriate, shall require of the Architect, Architect's consultants, separate contractors described in Article 6, if any, and the subcontractors, sub-subcontractors, agents and employees of any of them, by appropriate agreements, written where legally required for validity, similar waivers each in favor of other parties enumerated herein. The policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged. (Emphasis added.) On appeal, Penn Avenue and Oxford Development did not contend the wavier of subrogation clause was generally unenforceable, or should not be enforced in -4- 02-3062 CIVIL TERM appropriate cimumstances. Rather, they argued that Century Steel and P.J. Dick could not claim the benefit of the clause because their acts and omissions causing the loss violated an ordinance or regulation enacted for the protection of public safety. The Superior Court of Pennsylvania rejected this argument, relying on the opinion of the trial court that stated: IA] waiver of subrogation clause, such as the one at issue here, does not invoke public policy concerns because it does not attempt to transfer liability for negligence away from the tortfeasor. Rather, the tortfeasor who obtains insurance coverage to pay claims for which he is liable does not, ipso facto, transfer liability away from himself to the other party to the clause in question. He satisfies his debt to that party. The public policy concerns regarding indemnification for one's own negligence are therefore not an issue here. Waivers of subrogation are a matter of contract. Penn Avenue and Oxford Development also asserted that the waiver and subrogation clause was not broad enough to include the damages caused by Century Steel. The Superior Court rejected that argument, stating:: In this case, the insurer, Watertight, paid the claim for all damage to the insured property resulting from the fire. This included the property that was part of the renovation work, as well as the property that was damaged as a result of the fire and the efforts to extinguish it. The waiver of subrogation clause is broad. The entire claim paid by the insurer as a result of the fire damage is subject to the waiver of subrogation clause. Thus, the applicability of the waiver is not limited to only areas that were involved in the renovation work. In the case sub judice, plaintiff argues that considered as a whole its contract with Farinelli Construction, Inc. does not waive subrogation for the subject loss. We disagree. Paragraph 13.4 provides that plaintiff purchase and maintain property insurance "upon the entire contract work at the site to the full insurable value thereof." -5- 02-3062 CIVIL TERM Plaintiff and Farinelli Construction, Inc., "waive all rights against each other for damages caused by fire or other peril to the extent covered by insurance provided under this paragraph." Pursuant to that contract, plaintiff secured property insurance from USAA. The waiver in paragraph 13.4 shifted the loss arising from the accident on July 1,2000, to USAA, which loss was covered in its entirety. This waiver was an enforceable, intentional relinquishment by plaintiff of any claim for the peril of the loss occurring on July 1,2000. Farinelli Construction, Inc. is entitled to summary judgment. Unlike the waiver in Penn Avenue Place, which provided that "the Owner and Contractor waive all rights against (1) each other and any of their subcontractors... for damages caused by fire or other perils to the extent covered by property insurance obtained pursuant to this Paragraph .... "the contract in the case sub judice only contains a waiver between "The Buyer and Contractor." It further provides that "the Contractor shall raquira similar waivers by subcontractors and sub-subcontractors." However, no waivers were obtained. ^ waiver of subrogation is a matter of contract. We agree with plaintiff that his waiver with Farinelli Construction, Inc. did not automatically extend to subcontractors for whom waivers were not obtained. We reject the argument that a subcontractor can claim third-party beneficiary status where: (1) no waiver was obtained, and (2) the contract did not contain a specific waiver against -6- 02-3062 CIVIL TERM subcontractors? ORDER OF COURT AND NOW, this ~ day of December, 2003, IT IS ORDERED THAT: (1) The motion of defendant, Farinelli Construction, Inc., for summary judgment on the claim against it by plaintiff, IS GRANTED. (2) The motions of defendants, Bette Lou Kolva, executrix of the estate of Ronald E. Kolva, deceased, and Diverse Installations, on the claims against them by plaintiff, ARE DENIED. Mark M. Bridge, Esquire For Plaintiff Thomas E. Brenner, Esquire For Farinelli Construction, Inc. Edgar B. Bayley, J. 1~ 2 Diverse Installations also maintains that plaintiff's complaint fails to state a cause of action against it, and that the complaint should be dismissed because plaintiff's wife is an indispensable party. Such defenses are not waived. Pa. Rule of Civil Procedure 1032(a). We are satisfied that the complaint does state a cause of action against Diverse Installations. The complaint is brought by Steven B. Wolf as a "resident and the owner" of the subject property. His wife is not an indispensable party. Miller v. Benjamin Coal Company, 425 Pa. Super. 316 (1993). -7- 02-3062 CIVIL TERM Peter D. Solymos, Esquire For Bette Lou Kolva, as executor of the estate of Ronald E. Kolva, deceased Daniel K. Deardorff, Esquire For Diverse Installations Integra Painting, Inc. 281 Hoy Road Carlisle, PA 17013 :sal -8- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF Plaintiff FARINELLI CONSTRUCTION, INC., and DIVERSE INSTALLATIONS, and BETTE LOU KOLVA, as Executrix of the Estate of Ronald E. Kolva, Deceased, Defendants INTEGRA PAINTING, INC., Additional Defendant CIVIL ACTION - LAW No. 2002-3072 Civil Term JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE PURSUANT TO Pa.R.C.P. 101 ? TO THE PROTHONOTARY: Kindly enter the appearance of Thomas B. Sponaugle, Esquire of Griffith, Strickler, Lerman, Solymos & Calkins, as attorneys for the Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, in the above-captioned matter and mark the docket accordingly. By: GRIFFITH, STRICKLER~ERMAN, SOLYM~~t:~,~' THOMAS B. S~PONAUGLE, ESQUIRE Supreme Court I.D. #64584 Attorney for Defendant Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva 110 South Northern Way York, PA 17402 (717) 757-7602 WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw the appearance of Peter D. Solymos, Esquire on behalf of Defendant, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, in the above- captioned action. GRIFFITH, STRICKLER, LERMAN, PI/TER I~.~9'~,~S, ESQUIRE Sfipreme"Co~'t I.D.//07475 Attorney for Defendant Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva 110 South Northern Way York, PA 17402 (717) 757-7602 IN THE COURT OF COMMON PLEAS OF cUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF : CIVIL ACTION - LAW Plaintiff ' FARINELLI CONSTRUCTION, INC., and DIVERSE INSTALLATIONS, and BETTE LOU KOLVA, as Executrix of the Estate of Ronaid E. Kolva, Deceased, Defendants INTEGRA PAINTING, INC., Additional Defendant No. 2002-3072 Civil Term JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this L ~, day of ~~- ,2004, I, Thomas B. Sponaugle. Esquire, a member of the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of Praecipe for Entry and Withdrawal of Appearance by United States Mail, addressed to the party or attomey of record as follows: Mark Bridge, Esquire l 01 East Lancaster Avenue Suite 304 Wayne, PA 19087 (Counsel for Plaintiff) Daniel Deardorf, Esquire Martson Deardorff et al. Shawn Mehok Ten East High Street Integra Painting, Inc. Carlisle, PA 17013 201 Hoy Road Harrisburg, PA 17108-1268 Carlisle, PA 17013 (Counsel for Diverse Inst.) s o L Y By: THOMA~B. SpJ~Ylq~G_I~E, ESQUIRE Supreme Court ~D.'~64584 Attorney for Defendant Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva 110 South Northern Way York, PA 17402 (717) 757-7602 pf~CIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and su~x~itted in duplicate) TO THE PROTHONOTARY OF CUMBERLAbD COUNTY Please list the following case: ( Check one ) ( u/) for JURY trial at the next term of civil court. ( ) for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) (check one) ( ~ Civil Action - Law ( ) Appeal from Arbitration STEVEN B. WOLF, ( ) (other) (Plaintiff) vs. FARINELLI CONSTRUCTION, INC., and DIVERSE INSTALLATIONS, and BETTE LOU KOLVA, as Executrix of the Estate of Ronald E. Kolva, Deceased, (Defendant) vs. INTEGRA PAINTING, INC., (Additional Defendant) The trial list will be called on and 6/15/04 Trials comnence on 7/12/04 Pretrials will be held on 6/22/04 (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No. 3072 Civil 2002 19 Indicate the attorney who will try case for the ~rty who files this praecipe: Thomas B. Sponaugle, Esquire, 110 S. Northern Way, York, PA 17402 (Counsel for Kolva) Indicate trial counsel for other parties if known: Mark Bridge, Esquire, 101 East Lancaster Avenue, Suite 304, Wayne, PA 19087 (Counsel for Plaintiff); Daniel Deardorf, Esquire, Martson Deardorff et al., Ten East High Street, Carlisle, PA 17013 (Counsel for Defendant Diverse Installations); Shawn Mehok, Integra Painting, Inc. 201Hoy Road, Carlisle, PA 17013 /~~y This case is ready for trial. Signed: Print N~n~: Thomas B. Sponaugle, Esquire Date: ~/Q/0~ Attorney for: Defendant Bette Lou Kolva, as Executrix o% the ~state of Ronald E. Kolva, Deceased ROLF E. KROLL, ESQUIRE Pa. Supreme Court I.D. No. 47243 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, Pennsylvania 17011 Telephone: [717] 975-8114 Fax: [717] 975-8124 E-Mail: rkroll@margolisedelstein.com Attorney for Additional Defendant:. INTEGRA PAINTING INCORPORATED STEVEN B. WOLF, PLAINTIFF, VS. FARINELLI CONSTRUCTION, INC., DIVERSE INSTALLATIONS and BETTE LOU KOLVA, as Executrix of the Estate of Ronald E. Kolva, Deceased, DEFENDANTS VS. INTEGRA PAINTING INCORPORATED, ADDITIONAL DEFENDANT. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW DOCKET NO. 2002-3072 - Civil JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: Kindly enter the undersigned's appearance on behalf of the Additional Defendant, Integra Painting Incorporated. Respecffull.~y~mitted, MA RC-'~S~li~2I N ~1,1' E. I~Esquire ~ttorne~"[.D. #47243 Post Office Box 932 Harrisburg, PA 17108-0932 (717) 975-.8114 Attorney for Additional Defendant Integra Painting Incorporated CERTIFICATE OF SERVICE I, Vicki A. Bolinger, RP, hereby certify that I have served a true and correct copy of the foregoing document upon all counsel and parties of record t!his 2nd day of June, 2004, by placing the same in the United States First Class Mail, postage pre. paid, at Camp Hill, Pennsylvania, addressed as follows: Mark Bridge, Esquire 101 East Lancaster Avenue, Suite 304 Wayne, PA 19087 (Counsel for P[aintifJ) Thomas E. Brenner, Esquire Goldberg, Katzman & Shipman, P.C. 320 E. Market Street Harrisburg, PA 17101 (Counsel for Defendant Farinelli Construction, Inc.) Thomas B. Sponaugle, Esquire Griffith,Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 (Counsel for Defendant Ron Kolw~ Plumbing) Dan Deardorff, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 (Counsel for Defendant Diverse Installations) Vicki A. Bolinger, ~ ROLF E. KROLL, ESQUIRE Pa. Supreme Court I.D. No. 47243 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill Pennsylvania 17011 Telephone: [717] 975-8114 Fax: [717] 975-8124 E-Mail: rkroll@margolisedelstein.com Attorney for Additional Defendant:. INTEGRA PAINTING INCORPORATED STEVEN B. WOLF, PLAINTIFF, VS. FARINELLI CONSTRUCTION, INC., DIVERSE INSTALLATIONS and BETTE LOU KOLVA, as Executrix of the Estate of Ronald E. Kolva, Deceased, DEFENDANTS VS. INTEGRA PAINTING INCORPORATED, ADDITIONAL DEFENDANT.: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. : CIVIL ACTION - LAW : DOCKET NO. 2002-3072 - Civil JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE COMPLAINT TO THE PROTHONOTARY OF CUMBERLAND COUN~I"Y: Please issue Rule upon Defendant BETTE KOLVA, as Executrix of the Estate of Ronald E. Kolva, Deceased to file a Complaint within twenty (20) days from service hereof or suffer judgment non pros. MARGOLIS EDELSTEIN //~OLF E. K~OLL, ESQUIRE Attorney for Additional Defendant Integra Paiinting Incorporated RULE TO THE DEFENDANT: You are hereby ordered and directed to file your Complaint against the Additional Defendant in the above-captioned matter witl~in twenty (20) days of service of this Rule against you or suffer judgment non pros. Dated: O/.~-~E., ~t ~'~Oc,/ (/)~-:~'~' ~' y~'- Prothonotar~7~ - 2 - CERTIFICATE OF SERVICE I, Vicki A. Bolinger, RP, hereby certify that I have served a true and correct copy of the foregoing document upon all counsel and parties of record this 3ra day of June, 2004, by placing the same in the United States First Class Mail, postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: Mark Bridge, Esquire 101 East Lancaster Avenue, Suite 304 Wayne, PA 19087 (Counsel for PlaintifJ) Thomas E. Brenner, Esqudre Goldberg, Katzman & Shipman, P.C. 320 E. Market Street Harrisburg, PA 17101 (Counsel for Defendant Farinelli Construction, Inc.) Thomas B. Sponaugle, Esquire Griffith,Strickler, Lerman, Solymos & Calkins 110 South Northern Way York, PA 17402 (Counsel for Defendant BETTE LOU KOL VA, as Executrix of the Estate of Ronald E. Kolva, Deceased) Dan Deardorff, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 (Counsel for Defendant Diverse Installations) Vicki A. Bolinger,(~>P Steven B. Wolf V Farinelli Constmctiun, Inc., and Diverse Installations, and Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased V Integra Painting, Inc. : 1N THE COURT OF COMMON PLEAS OF : CUMBEKLAND COUNTY, PENNSYLVANIA : NO. 02-3072 CWIL TERM ORDER OF COURT AND NOW, June 16, 2004, by agreement of counsel, the above captioned case is hereby continued from the July 12, 2004 trial term. Counsel is directed to relist the case when ready. Mark Bridge, Esquire For the Plaintiff Martson, Deardorff, Williams & Otto Thomas B. Sponaugle, Esquire For the Defendants Court Administrator By the Court, ld IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF : Plaintiff : : FARINELLI CONSTRUCTION, INC., and DIVERSE INSTALLATIONS, and BETTE LOU KOLVA, as Executrix of the Estate of Ronald E. Kolva, Deceased, Defendants INTEGRA PAINTING, INC., Additional Defendant CIVIL ACTION - LAW No.. 2002-3072 Civil Term JURY TRIAL DEMANDED NOTICE TO: Integra Painting, Inc. c/o Rolf E. Kroll, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 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. 1F YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH iNFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service of the Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 Telephone: (800) 990-9108 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mils adelante en las siguientes pfigmas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despu6s de la notificaci6n 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 acci6n 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 reclamaci6n o remedio solicitado por el demandante puede set dictado en contra suya pot la Corte sin mils aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO 1NMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER 1NFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN' CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Lawyer Referral Service of the Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Tel6fono: (717) 249-3166 Tel6fono: (800) 990-9108 GRIFF IT}~/~hgd C ~/~R, LERMP3N; THOMAS B.)g~qAUGLE, ESQUIRE Supreme CouffI.D. #64584 Attorney for Defemtant Bette Lou Kolva, as Executrix of the iEstate of Ronald E. Kolva 110 South Northern Way York, PA 17402 (717) 757-7602 IN THE COURT OF COMMON PLEAS OF STEVEN B. WOLF : Plaintiff : : V, ; FARINELLI CONSTRUCTION, INC., and : DIVERSE INSTALLATIONS, and : BETTE LOU KOLVA, as Executrix of the : Estate of Ronald E. Kolva, Deceased, : Defendants : : V, INTEGRA PAINTING, INC., : Additional Defendant : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No,, 2002-3072 Civil Term JURY TRIAL DEMANDED JOINDER COMPLAINT 1. Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, incorporates by reference, as though set forth in full, Plaintiff Steven B. Wolf's Complaint filed with the Cumberland County Prothonotary on June 26, 2002 for purposes of this Joinder Complaint only. A copy of Plaintiff's Complaint is attached hereto as Exhibit A. 2. On September 9, 2002, Ron Kolva Plumbing, now known as Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, filed a Praecipe for issuance of a Writ to join Additional Defendant to Integra Painting, Inc. 3. On July 1, 2000, Integra Painting, Inc. was in fl~e property of 11 Emlyn Lane, Mechanicsburg, Pennsylvania to perform painting work in the home during its construction. 4. Per Diverse Installations, water damage was occurring to the home when it arrived at the premises following Integra Painting, Inc. 5. No other person was in the home between the time Integra Painting, Inc. was in the premises and Diverse Installations was in the premises on July 1, 2000 when Diverse Installations noticed the water damage upon arriving at the premises. 6. Additional Defendant, Integra Painting, Inc., throughout its work at the promises would use water that was supplied by the plumbing on site. 7. It was indicated through discovery that Diverse Installations turned off plumbing valves which controlled water flow into the home, which apparently were open when they arrived at the premises on July 1, 2000 within minutes of Integra Painting, Inc. having left the premises. 8. Additional Defendant, Integra Painting, Inc., subcontracted the painting work it was doing at the premises through general contractor Farinelli Construction, Inc. Plaintiff was an intended third-party beneficiary of this contract. COUNT I BREACH OF CONTRACT 9. Paragraphs 1 through 8 arc incorporated by refercnc, c as though set forth in full. 10. Additional Defendant, Integra Painting, Inc., breacJhed the contract by reason of the following acts and omissions: a. Failing to properly train and/or supervise their employees prior to thc installation, service, maintenance or utilization of the plumbing system; b. Failing to employ adequately and appropriately trained personnel prior to the installation, service, maintenance or utilization of thc plumbing system; c. Failing to properly and adequately commanicatc safety standards concerning thc use of the plumbing system by and between all contractor personnel on the premises. 11. Joinder Plaintiff incorporates by reference PlaintifFs claim for damages pursuant to Plaintiff's Complaint. WHEREFORE, Bette Lou Kolva, as Executrix of the Estate of Ronald E. Kolva, Deceased, demands judgment in her favor and against Integra l?ainting, Inc. COUNT II NEGLIGENCE 12. Paragraphs 1 through 11 above are incorporated by reference as though set forth in full. 13. Additional Defendant, Integra Painting, Inc., was negligent in its performance of its duties upon Plaintiff's premises by reason of the following acts and omissions: a. Failing to mitigate the flow of water throughout the premises; b. Failing to notify Plaintiff and/or all contractor personnel concerning the flow of water throughout 'the premises; c. Failing to properly train and supervise 'their agents, servants and employees in the proper manner of installing, maintaining and using the plumbing system; d. Failing to secure the premises. 14. Plaintiff's claim of damage pursuant to his Complaint is incorporated by reference for this Joinder Complaint. WHEREFORE, Bette Lou Kolva, as Executrix of tire Estate of Ronald E. Kolva, Deceased, demands judgment in her favor and against Integra Painting, Inc. in the amount claimed by Plaintiff in their claim for damages. By: GRIFFITH, STRICKLER, LERMAN, soLmos & c^~:I~S// /'" THOMAS B. SPON~ ESQUI~ Supreme Co~ LD. ~64584 Attorney for Defendmt Bette Lou Kolva, ~ Executrix of the Estate of Ronald E. Kolva 110 South No,hem Way York, PA 17402 (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBER]LAND COUNTY, PENNSYLVANIA STEVEN B. WOLF Plaintiff FARINELLI CONSTRUCTION, INC., and DIVERSE INSTALLATIONS, and BETTE LOU KOLVA, as Executrix of the Estate of Ronald E. Kolva, Deceased, Defendants Vo INTEGRA PAINTING, INC., Additional Defendant CIVIL ACTION - LAW No. 2002-3072 Civil Term JUiRY TRIAL DEMANDED VERIFICATION I, Thomas B. Sponaugle, Esquire, do hereby verify that I am the attorney of record for the pleading party herein, Bette Lou Ko lva, as Executrix of the Estate of Ronald E. Kolva, Deceased, and that the facts set forth in the foregoing pleading are true to the best of my knowledge, information and belief, upon information supplied. I understand that false statements made herein are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. Dated: Supreme Court I.D. #64584 110 South Northern Way York, Pennsylvania 17402 (717) 757-7602 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEVEN B. WOLF Plaintiff FARINELLI CONSTRUCTION, INC., and DIVERSE INSTALLATIONS, and BETTE LOU KOLVA, as Executrix of the Estate of Ronald E. Kolva, Deceased, Defendants Vo INTEGRA PAINTING, INC., Additional Defendant CIVIL ACTION - LAW No. 2002-3072 Civil Term JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this ,,~'~day of ~ ,. 2004, I, Thomas B. Sponaugle, Esquire, a member o£ the firm of GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKINS, hereby certify that I have this date served a copy of Joinder Complaint by United States Mail, addressed to the party or attorney &record as follows: Mark Bridge, Esquire 101 East Lancaster Avenue Suite 304 Wayne, PA 19087 (Counsel for Plaintiff) Daniel Deardorf, Esquire Martson Deardorff et al. Ten East High Street Carlisle, PA 17013 (Counsel for Diverse Inst.) GRIFFITH, STRIC~ By: SOLYMOS~..~ THOMAS B .~1~ Supreme Court I.D. Attorney for Defcm Rolf E. Kroll, Esquire Margolis Edelstein 35 I0 Trindle Road Camp Hill, PA 17011 (Counsel for Integra) tt Bette Lou Kolva, as Executrix of the Estate ofRonald E. Kolva 110 South Northern Way York, PA 17402 (717) 757-7602 Mark M. Bridge, Esquire Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19087 Telephone (610) 902-0150 Facsimile (610) 902-0152 Attorney for Plaintiff, Steven Wolf STEVEN B. WOLF Plaintiff VS. FARINELLI CONSTRUCTION, INC.; RON KOLVA PLUMBING and DIVERSE INSTALLATIONS, Defendants VS. INTEGRA PAINTING INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA No.: 2002-3072 Civil Term ORDER TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY: This matter having been amicably resolved among the parties, kindly dismiss the action with prejudice, and without costs. MARK M. BRIDGE, ESQ., PC By:~ Mark M. Bridge Attorney ID No.: 34477 101 East Lancaster Avenue, Suite 304 Wayne, Pennsylvania 19087 Telephone (610) 902-0150 Facsimile (610) 902-0152 Attorney for Plaintiff, Steven Wolf Dated: ~"~/~ .CERTIFICATE OF SERVIC__E I, Ami J. Thumma, an authorized agent ofMartson DeardorffWilliams & Otto, hereby certify that a copy of the foregoing Order to Settle, Discontinue and End was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mark M. Bridge, Esquire 101 East Lancaster Avenue, Suite 304 Wayne, PA 19087 Counsel for Plaintiff Thomas E. Brenner, Esquire GOLDBERG KATZMAN & SHIPMAN, P.C. 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Counsel for Farinelli Construction, Inc. Thomas B. Sponaugle, Esquire GRIFFITH, STRICKLER, LERMAN, SOLYMOS & CALKiNS 110 South Northern Way York, PA 17402 Counsel for Ron Kolva Plumbing Shaun J. Mumford, Esquire MARGOLIS EDELSTE1N P.O. Box 932 Harrisburg, PA 17108-0932 MARTSON DEARDORFF WILLIAMS & OTTO en East-High Street Carlisle, PA 17013 (717) 243-3341 Dated: August 16, 2003