Loading...
HomeMy WebLinkAbout02-3365HAUBERT HOMES, 1NC., : Plaintiff V. ANN M. GATES, 642 Valley View Drive Boiling Springs, PA 17007 : Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : : : : PRAECIPE FOR WRIT OF SUMMONS TO THEPROTHONOTARY: Please issue a Writ of Summons upon Defendant, ANN M. GATES, advising that a Civil Action in Law has been commenced against her, which she will be required to defend or default judgment may be entered. Please direct the Sheriff of Cumberland County to serve Defendant at 642 Valley View Drive, Boiling Springs, Pennsylvania 17007. Date: By: Respectfully submitted, David A. Fitzsimons, Esquire Sup. Ct. I.D. #41722 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff SHERIFF'S RETURN CASE NO: 2002-03365 p COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HAUBERT HOMES INC VS GATES AN-NM - REGULAR BRIAN BARRICK , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon GATES ANN M the DEFENDANT , at 1111:00 HOURS, at 642 VALLEY VIEW DRIVE on the 19th day of J~uly , 2002 BOILING SPRINGS, PA 17007 MARY HUMER, MOTHER by handing to a true and attested copy of WRIT OF SUMMONS together with and at the same time directing ~er attention to the contents thereof. Sheriff,s Costs: Docketing 18.00 Service 5.52 Affidavit .00 Surcharge 10.00 .00 33.52 Sworn and Subscribed to before me this ~,_~. day of ~-~o~ A D ~pz~othonotar~ ~ So Answers: R. Thomas Kline BY :--/De~pu t y~S ~e~ HAUBERT HOMES, INC., : Plaintiff V. ANN M. GATES, 642 Valley View Drive Boiling Springs, PA 17007 : Defendant IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA . : : NO. 02.35Lo5-- WRIT OF SUMMONS TO THE ABOVE-NAMED DEFENDANT: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. YOU WILL BE REQUIRED TO DEFEND OR DEFAULT JUDGMENT MAY BE ENTERED. Pro~onotary ~ ~ Deputy 295228 HAUBERT HOMES, INC. Plaintiff Vo ANN M. GATES 642 Valley View Drive Boiling Springs, PA 17007 Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 02-3365 TO: NOTICE TO PLEAD ANN M. GATES 642 Valley View Drive Boiling Springs, PA 17007 You are hereby notified to file a written response to the COMPLAINT of Haubert Homes, Inc., Plaintiff within twenty (20) days from service hereof or a judgment may be entered against you. DATED: October 1, 2002 METTE, EVANS & WOODSIDE David A. Fitzsimons, Esquire I.D. No. 41722 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff :306821 _1 HAUBERT HOMES, INC. Plaintiff ANN M. GATES 642 Valley View Drive Boiling Springs, PA 17007 Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 02-3365 COMPLAINT AND NOW, comes Plaintiff, Haubert Homes, Inc., by its attorneys, METTE, EVANS & WOODS1DE, and avers the following Complaint against the Defendant, ANN M. GATES. 1. The Plaintiff is a Pennsylvania corporation with a principle place of business at 15 Central Boulevard, Camp Hill, PA 1701 I. 2. Defendant is an individual with a residence address of 642 Valley View Drive, Boiling Springs, PA 17007 3. On or about May 2, 2001, Plaintiff and Defendant entered into a Residential Construction Agreement - Buyer Owned Lot in the amount of $160,800.00, a copy of which is attached hereto as Exhibit A and incorporated herein by reference as if fully set forth. 4. Plaintiff commenced construction and conducted construction in workman-like manner in accordance with the standards of the building industry. o o A number of change orders were entered into by the parties with regard to the construction resulting in a total value of contracted construction of $189,396.25 after addition of change orders and deduction of appropriate credits. An accurate and complete rendition of costs per schedule A of the contract credits and payments is included in the document attached hereto as Exhibit B. Despite requests from Haubert Homes the only payment ever received on construction is the $35,000 "first draw" received on or about August 7, 2001. Haubert completed construction through painting on main floor (at Defendant's direction) and advised Defendant in a letter of January 10, 2002, attached hereto as Exhibit C that payment for draws 2, 3, and 4 were due in the about of $103,000.00 in addition to $17,987.77 on change order work. No payment has been received from Defendant. BREACH OF CONTRACT 10. The averments of the proceeding paragraphs are reincorporated by reference as if fully set forth. 1 I. Plaintiff conducted its work and completed construction through the level referenced above and is due and owing payment for the work. 12. Defendant has refused to pay for the work performed and has no valid reason to withhold payments 2, 3, and 4. 13. Defendant is in breach of her obligation to pay under the contract. 2 WHEREFORE, Plaintiff, requests that this Court will enter an Order requiring the Defendant to pay for the outstanding draws 2, 3, and 4 and related change orders in a total mount of $120,987.77 together with an award for such costs and other relief including interest that the Court deems just and reasonable under the circumstances. QUANTUM MERUIT 14. The averments of the proceeding paragraphs are incorporated by reference as if fully set forth. 15. Defendant has received the value of the work performed by Haubert Homes on her residence in the amount referenced above which work was adequately and properly performed in accordance with the standards of the industry and for which value has been received and accepted. 16. Defendant is resident in the above referenced property with her husband and has benefitted from the improvements to the property. 17. The value of the improvements made by Haubert Homes is equal to or exceed the amount of $120,987.77. WHEREFORE, Plaintiff, requests that this Court will enter an Order requiring the Defendant to pay for the outstanding draws 2, 3, and 4 and related change orders in a total amount of $120,987.77 together with an award for such costs and other relief including interest that the Court deems just and reasonable under the circumstances. DATED: Respectfully submitted, METTE, EVANS & WOODSIDE David A. Fitzsimons Sup. Ct. I.D. 41722 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110~0950 (717) 232-5000 Attorneys for Plaintiff Haubert Homes, Inc. 4 VERIFICATION I, Bmdly E. Haubert, am authorized to sign this verification, have read the foregoing document and to the extent that it contains info~-iiiation and facts supplied by me, they are true and correct to the best of my personal knowledge, infoi-~iiation and belief. I make this Verification subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. /~ ~ Bra (~ ~E. Haubert 5 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: ANN M. GATES 642 Valley View Drive Bolling Springs, PA 17007 METTE, EVANS & WOODSIDE David A. Fitzsimons, Esquire I.D. No. 41722 3401 North From Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff HAUBERT HOMES, INC., Plaintiff V. ANN M. GATES, 642 Valley View Drive Boiling Springs, PA 17007 Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.02-3365 NOTICE OF PRAECIPE TO ENTER JUDGMENT ON BEHALF OF HAUBERT HOMES, INC. To: ANN M. GATES 642 Valley View Drive Boiling Springs, PA 17007 DATE OF NOTICE: October 23, 2002 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Date: October 23, 2002 By: METTE, EVANS & WOODSIDE David A. Fitzsimons, Esquire Supreme Court I.D. No. 41722 3401 North Front Street Harrisburg, PA 17110 717-232-5000 Attorneys for Plaintiff Haubert Homes, Inc. 2 CERTIFICATE OF SERVICE AND NOW, this day of October, 2002, I, hereby certify that I am serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules for Civil Procedure, by depositing a copy of the same in the United States Mail, Harrisburg, Pennsylvania, with certified, first-class, return receipt requested postage prepaid, as follows: ANN M. GATES 642 Valley View Drive Boiling Springs, PA 17007 Date: October 23, 2002 METTE, EVANS & WOODSIDE David A. Fitzsimons, Esquire Supreme Court I.D. No. 41722 3401 North Front Street Harrisburg, PA 17110 717-232-5000 Attorneys for Plaintiff Haubert Homes, Inc. :308666 _1 LAW OFFICES OF PETER J. RUSSO, P.C. PETER J. RUSSO, ESQUIRE PA Supreme Court ID: 72897 SCOTT A. STEIN, ESQUIRE PA Supreme Court ID: 81738 3800 Market Street Camp Hill, PA 17011 (717) 591-1755 Attorneys for Plaintiff HAUBERT HOMES, INC., Plaintiff ANN M. GATES Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-3365 CIVIL TERM JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS PLAINTIFF'S COMPLAINT AND NOW comes Defendant, Ann M. Gates, by and through her counsel, Law Offices of Peter J. Russo, P.C., and avers the following: .PRELIMINARY OBJECTION FA/LURE TO ATTACH EXHIBITS - Pa.R.C.P. No. 1019 i 1. Plaintiff filed a Complaint in the above captioned matter that asserted a claim against the Defendant sounding in contract. See Plaintiffs' Complaint 9¶ 1-13. 2. Plaintiff also asserted a claim against the Defendant seeking equitable relief. See Plaintiff's Complaint 99 14-17. 3. Plaintiff avers that there was a written agreement, work change orders, and other exhibits which are not attached to the complaint. 4. Plaintiffhas failed to comply with Pa.R.C.P. No.1019 (i) and, therefore, Pa.R.C.P. No. 1028 (2). WHEREFORE, Defendant respectfully requests that Plaintiff amend their Complaint to comply with Pa.R.C.P. No. 1019 (i). Respectfully submitted, Scott A. ~tein Date: Frida¥~ October 25~ 2002 HAUBERT HOMES, INC., Plaintiff ANN M. GATES Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-3365 CIVIL TERM JURY TRIAL DEMANDED VERIFICATION I, Scott A. Stein, Esquire, coUnsel for Plaintiff, verify that the statements made in the forgoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. § 4904 relating to unsworn falsification to authorities. Dated: Scott A. Stein, Esq~re - Attorney ID #81738 HAUBERT HOMES, INC., Plaintiff ANN M. GATES Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-3365 CIVIL TERM JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Scott A. Stein, hereby certify that I am on this day serving a copy of the foregoing document upon the person (s) and in the manner indicated below: Service by Telecopier & First-Class Mail, Postage Prepaid, and Addressed as follows: David A. Fitzsimons, Esquire Mette, Evans & Woodside P.O. Box 5950 3401 North Front Street Harrisburg, PA 17110-0950 Respectfully submitted, cott A.-Stein, Esq~ Date: Friday, October 25, 2002 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate.) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) HAUBERT HOMES, INC., Plaintiff VS. ANN M. GATES, Defendant No. 02-3365 Civil State matter to be argued (i.e., Plaintiff's motion for new trial, defendant's demurrer to Complaint, etc.): Defendant's Preliminary Objections to Plaintiff Complaint. 2. Identify counsel who will argue case: (a) for plaintiff: Address: David A. Fitzsimmons P. O. Box 5950 3401 North Front Street Harrisburg, PA 17110-0950 (b) for defendant: Peter J. Russo Address: Scott A. Stein 3800 Market Street Camp Hill, PA 17011 I will notify all parties in writing within two days that this case has been listed for argument. Argument Court Date: December 6 2002 Dat(~ ,/ / for Defen[lant -At~0rney ' ~. r HAUBERT HOMES, INC. Plaintiff Vo ANN M. GATES 642 Valley View Drive Boiling Springs, PA 17007 Defendant IN THE COURT OF COMMON PLEAS CUMBER]LAND COUNTY, PENNSYLVANIA No. 02-3365 FIRST AMENDED COMPLAINT AND NOW, comes Plaintiff, Haubert Homes, l~c., by its attorneys, METTE, EVANS & WOODSIDE, and avers the following Complaint against the Defendant, ANN M. GATES. 1. The Plaintiff is a Pennsylvania corporation with a principle place of business at 15 Central Boulevard, Camp Hill, PA 17011. Defendant is an individual with a residence adch'ess of 642 Valley View Drive, Boiling SPrings, PA 17007 On or about May 2, 2001, Plaintiff and Defendant entered into a Residential Construction Agreement - Buyer Owned Lot in the amount of $160,800.00, a copy of which is attached hereto as Exhibit A and incorporated herein by reference as if fully set forth. Plaintiff commenced construction and conducted construction in workman-like manner in accordance with the standards of the building industry. o A number of change orders were entered into by the parties with regard to the construction resulting in a total value of contracted construction of $189,396.25 after addition of change orders and deduction of appropriate credits. An accurate and complete rendition of costs per schedule A of the contract credits and payments is included in the document attached hereto as Exhibit B. Despite requests from Haubert Homes the only payment ever received on construction is the $35,000 "first draw" received on or about August 7, 2001. Haubert completed construction through painting on main floor (at Defendant's direction) and advised Defendant in a letter of January 10, 2002, attached hereto as Exhibit C that payment for draws 2, 3, and 4 were du6 in the about of $103,000.00 in addition to $17,987.77 on change order work. No payment has been received from Defendant. BREACH OF CONTRACT 10. The averments of the proceeding paragraphs are reincorporated by reference as if fully set forth. 11. Plaintiff conducted its work and completed construction through the level referenced above and is due and owing payment for the work. 12. Defendant has refused to pay for the work perfo:rmed and has no valid reason to withhold payments 2, 3, and 4. 13. Defendant is in breach of her obligation to pay under the contract. 2 WHEREFORE, Plaintiff, requests that this Court will enter an Order requiring the Defendant to pay for the outstanding draws 2, 3, and 4 and related change orders in a total mount of $120,987.77 together with an award for such costs and other relief including interest that the Court deems just and reasonable under the circumstances. QUANTUM MERUIT 14. The avenuents of the proceeding paragraphs are incorporated by reference as if fully set forth. 15. Defendant has received the value of the work perfm-med by Haubert Homes on her residence in the amount referenced above which work was adequately and properly perforated in accordance with the standards of the industry and for which value has been received and accepted. 16. Defendant is resident in the above referenced property with her husband and has benefitted from the improvements to the property. 17. The value of the improvements made by Haubert Homes is equal to or exceed the amount of $120,987.77. WHEREFORE, Plaintiff, requests that this Court will enter an Order requiring the Defendant to pay for the outstanding draws 2, 3, and 4 and related change orders in a total amount of $120,987.77 together with an award for such costs and other relief including interest that the Court deems just and reasonable under the circumstances. Respectfully submitted, i & WOODSIDE David A. Fitzsimons Sup. Ct. I.D. 41722 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff Haubert Homes, Inc. 4 VERIFICATION I, Bradly E. Haubert, am authorized to sign this verification, have read the foregoing document and to the extent that it contains info~ation and fac~Is supplied by me, they are true and correct to the best of my personal knowledge, information and belief. I make this Verification subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. 5 Exhibit A HAUBERT HO ES- Ir-~c:. Cusfom Building 'For Generafions 15 Central Blvd., Camp Hill, PA 17011 (717) 761-7951 z FAX (717) 761-4125 HAUBERT HOMES RESIDENTIAL CONSTRUCTION AGREEMENT BUYER-OWNED LOT THI~ ,AGREEMENT (hereinafter referred to as "Agreemem") made the day of P'/~I)/ in the year ~2C> Z> ! , by and between HAUBERT -- HOMES, INC. (.hereinafter referred to a~ "Contractor") and (hereinafter referred to a~"Buyer4'). 67 i ' -- WITNESSETH that in consideration of the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the parties hereto do agree to the following terms and conditions: 1. Definitions. The following terms shall have'the assigned meanings for the purposes of this Agreement: Section 1.1. Contract Documents. The comract documents consist of this Agreement (including the Specific and General conditions attached to the Agreement), any drawings, and where applicable, the Radon Disclosure Addendum, specifications, plans, schedules, amendments and change orders relating to the Agreement. These documents constitute the entire contract between the Contractor and Buyer, and shall not be modified except by written amendment to the affected contract documents executed by both the Contractor and the Buyer. Any and all oral discussions, understandings, and agreements between the Contractor and the Buyer before the execution of the Agreement which are not specifically covered by the Contract documents are void and are not enforceable against either the Contractor or the Buyer. 2. Contract Work. The Contractor agrees to furnish all material and labor necessary for the construction of a residence identified as: (the "Contract Work") uEon the Property 9fBuyer located at (the "Property"). The Contract Work shall bd performed in accordance with Schedule "A", plans and specifications furnished .by the Contractor m~d known and identified as duplicate copies of wh/ch have been signe~t by the Contractor and the Buyer hereto and delivered to both parties at the time of or before execution q£this A.~gre_,ement. The Buver/, shall pay to the C/ontraeto,,r, thesumof~ ~v~,~ ~,~gt[~ ~ ~/~ ($ 10~ ~ Oc). ) (the Contract Price ) for the Contract Work in accordance with paragrai3h 5 subject to additions and/or redu?ions by change order as provided in paragraph 5.4 of the Agreement. THE CONTRACT PRICE IS BINDING UPON CONTRACTOR ONLY IF TI-IE CONTRACT WORK IS COMMENCED WITHIN SIXTY (60) DAYS AFTER THE DATE OF TI-[IS AGREEMENT. IN THE EVENT THE CONTRACT WORK IS NOT COMMENCED WITHIN SIXTY (60) DAYS FROM THE DATE OF TH/S AGREEMENT, ~ CONTRACTOR, AT ITS SOLE OPTION, MAY TERMINATE TillS AGREEMENT AND NEGOTIATE A NEW CONTRACT WITH THE BUYER. 3. Obligations of Buyer. 3.1. Prior to the commencement of construction, Buyer shall obtain and deliver to the Contractor proof of Fee Simple Title to the Property in the form of(a) an attorney's certificate of title, (b) a Title Insurance Policy, or (c) a commitment to Title Insurance evidencing Buyer's ownership of the Property in form or content satisfactory to Contractor and its attorney. 3.2. As owner of the Property, Buyer acknowledges responsibility for and assumes alt risk of encountering subsurface conditions of the land which may arise before commencement, during, or after completion, of construction by Contractor. Buyer shall furnish to Contractor all existing surveys and reports describing the physical characteristics, soils, subsurface conditions, restrictive covenants, building restrictions, legal limitations, utility locations, and a legal description of the Property. 3.2.1. Buyer shall review the Schedule "A", plans an~t specifications submitted by Contractor and shall give prompt written notice to the Contractor of any fault or defect in the said plan~ and specification. 3.2.2. Buyer acknowledges the right to retain engineering services, at Buyer's expense, to investigate the Property for suitability for construction. Whether or not such services are engaged, Buyer shall be responsible for any and[ all costs arising fi.om conditions of the land, including but not limited to: additional excavation and blasting, additional reinforced foundation work and suitable fall material. Buyer shall hold Contractor ham~less of aforementioned costs. 3.3. Buyer shall have furnished to the Contractor reasonable evidence satisfactory to the Contractor, prior to starting work under this Agreement, that sufficient funds are available and committed to pay the Contract Price. 3.4. It shall be the responsibility of the Buyer to direct the Contractor with respect to placement of the Contract Work on the Prope~y including locating the lot comers, elevations and other data necessary for this purpose. If the Buyer fails to provide the Contractor with directions to locate the i2ontraet Work on the Property prior to the time that the Contractor commences the Contract Work, the Contractor may place the Contract Work on the Property but shall be released, indemnified and held haxmless by the Buyer for any liability under the Agreement or otherwise,, for any claim~ demand or cause of action whatsoever arising out of the location of the Contract Work on the Property. 3.5. The Buyer shall be responsible for (Jete~mining the applicability of building restrictions, restrictive covenants, zoning and land use ordimmces and regulations to the Contract Work and whether the Contract Work as governed by the plans, specifications and drawings conforms with applicable building restrictions, restrictive covenants, zoning and land use ordinances and regulations prior to commencement of the Contract Work. The Buyer shall specifically describe to the Contractor in writing any part of the Contract Work which does not confomt with these restrictions and limitations. 3.6. The Buyer shall be responsible to clearly establish and mark every Property comer and boundary line prior to the commencement of the Contract Work. 3.7. The Buyer shall be resPonsible for assuring that all public utilities and/or municipal services required during completion of the Contract Work as well as for use of the Property for residential purposes have been extended to the Property right-of-way lille. If the Property will be served by either a private well or an on-lot sewage disposal system, the Contractor shall have no liability to the Buyer and the Buyer specifically indemnifies, releases and holds harmless the Contractor from and against any claim, demand or cause of action whatsoever arising out of the acceptability or suitability of the private well and/or on-lot sewage disposal system including but not limited to, the suitability of the water supply for human consumption, or the adequacy of the water supply as well as the soil suitability, soil absorption, maintenanc, e and operation of the on-lot sewage disposal system. 4. Obligations of the Contractor. 4.1. The Contractor will provide all construction supervision, inspection, labor, materials, tools, equipment, and subcontracted items, necessary for the execution and completion of the Contract Work. 4.2. The Contractor will pay all sales, use, gross receipts and similar taxes related to the Contract Work to be provided by the Coutraetor, which taxes have been legally enacted at the time of execution of this Agreement. 4.3. 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 w/th the contract documents. 4.4. The Contractor shall at all times keep the premises reasonably bee fi:om the accumulation of waste materia[q or rubbish caused by the operations of the Contractor. At the completion of the Contract Work, the Contractor slhall remove all tools, construction equipment, machinery and surplus materials, and shall leave the work area "broom" clean or its equivalent. 4.5. The Buyer hereby authorizes, direc[s and appoints the Contractor to act as the Buyer's agent and attorney-in-fact in the Buyer's name and at the Buyer's expense to procure all applicable permits and approvals. The Buyer agrees to reimburse the builder for actual fees and other costs charged by the issuer of any applicable permit or approval to the extent such fees or costs are advanced by the Contrac. tor within ten (10) days of the Buyer's receipt of the Contractor's invoice for such fees and/or costs. The Buyer shall cooperate with the Contractor to the extent necessary to acquire all necessary permits and approvals including but not limited to, executing all required fmms and applications, expeditiously providing the Contractor with alii information required to complete the forms and applications. Within five (5) days ~:er the date of execution of the Agreement, the Buyer shall provide the Contractor with a list of all permits, impact fees, and approvals applicable to the Contract Work as required by the loan company and local authority. The Buyer releases, indemnifies and holds ha~,,dess the Contractor with respect to any claim, demand or liability whatsoever arising c~ut of the Contractor's failure to obtain any permit or approval not specifically listed by the Buyer. 5. Payment of Contract Price, Progress Payments. 5.1. As compensation for the completion of the Contract Price~ ~the Bgyer~groes to pay the Contracto~'~ in~ourremt funds, the Contract Price of (_~ /4tznq J~,, ]/~/~ tX ¢ ~/~,~cvn,~ ~ ~'? /L/c~J.~ J ($ / (~ ~ 6500, '% (subject to the provisions of paragraph 2 ofthig Contract and in this paragraplt 5). 5.2. The Contract Price shall be paid by the Buyer' to the Contractor according to the following Draw Schedule upon written applications for payment submitted by the Contractor to the Buyer: 0% ~0 % ;~-~-O/o ~% of the Contract Price upon the execution of this Agreement; of the Contract Price upon the completion of the foundation; of the Contract Price when the roof is completed, when flaming and sheathing are completed and when all windows are set in place. of the Contract Price when the installation c,f electrical and plumbing systems, in rough form, are completed; of the Contract Price when the interior drywall is sanded and ready for painting; of the Contract Price upon substantial completion of the building as defined in the Agreement or at~ the time of occupancy of the Contract Work by the Buyer. This Draw Schedule may be modified in writing by the Buyer and the Contractor to conform to the Schedule of Advances required by the Buyer's construction mortgage lender. 5.3. The Contract Price includes estimates or allowances for certain items of work as more specifically set forth on Schedule ':A" attached hereto and made a part hereof.. TH]E BUYER UNDERSTANDS AND AGREES THAT THE CONTRACT PRICE IS SUBJECT TO DECREASE OR INCREASE BASED UPON THE ACTUAL COST OF SUCH WORK PLUS A 10% FEE FOR OVERHEAD AND THAT NO SUCH CHANGE SHALL INVALIDATE THIS AGREEMENT. The Contract Price shall be subject to change if the Buyer's lot condkions require additional foundation work in excess of the plans and specifications, including Engineering, design, and inspection costs of same. 5.4. A Change Order is a written order to the Contractor signed by the Buyer or his authorized agent and issued after the execution of this Agzeement, authorizing a change in the Contract Work and/or an adjustment in the Cuntraet Price, or the Contract Time. 5.5. The Buyer, without invalidating the Agreement, may order changes in the Contract Work consisting of additions, deletions, or modifications. The Contract Price and the Contract Time shall, where appropriate, be adjusted accordingly. All such changes in the Contract Work shall be authorized by written Change Order signed by the Buyer and the Contractor's representative. No change order work shal! be commenced until a change order signed by Buyer is received by Contractor. Buyer shall make payment in advance for all Change Order work. 5.6. The Contract Price, Contract Work and the ,Contract Time may be changed only by Change Order or as otherwise specified in this Agreement. 5.7. The cost or credit to the Buyer fi-om a change in the Contract Work shall be determined by mutual agreement: 5.8. Final payment constituting the unpaid balance of the Contract Price as adjusted by Change Order shall be due and payable when the Contract Work is delivered to the Buyer, upon substantial completion, or prior to the Buyer occupying the home, whichever event first occurs. If there should remain minor items to be completed, the Contractor and the Buyer shall jointly list such items after a joint "walk-through" inspection of the Contract Work (hereinafter referred to as "Punch List"). Completion of such items by the Contractor shall not extend Substantial Completion of the Contract Work nor delay payment of the balance of the Contract Price. The Buyer shall not occupy the Contract Work until the Contra~:t Price has been paid in full. 5.9. The making offina/payment shall constitute a waiver of all claims by the Buyer except those arising fi'om (1) unsettled liens, (2) faulty or defective Contract Work appearing within one (1) year after substantial completion, (3) failure of the Contract Work to comply with the requirements of the contract documents, or (4) completion of the Punch List. Acceptance of final payment shall constitute a waiver of all claim~ by the Contractor except those prevkmsly made ia writing and still unsettled. Occupancy of the home by the Buyer shall constitute acceptance of same by the Buyer, and the Contractor, except as provided above, shall thereafter be under no obligation whatsoever to the Buyer relative to the construction of said home. 6. Time of Performance; Substantial Completion. 6.1. The Work to be performed under the Agreement shall be commenced on or about fitteen (15) days atier the date the Buyer has fulfilled ~fll obligations required by Paragraph 3 of the Agreement, and except as otherwise provided or permitted by the Agreement shall be substantially completed not later than 15© days after commencement of excavation for the foundation; the Date of Substantial Completion. 6.2. The Date of Substantial Completion of the Comlract Work is the date when construction is sufficiently completed in accordance with the Plans and Specification so the Buyer can occupy the Contract Work. Warranties called for by the Agreement shall commence the Date of Substantial Completion. 6.3. If the Contractor is delayed at any time in the progress of the Contract Work by any act, failure or neglect of the Buyer or by changes ordered in the Contract Work or by labor disputes, fire, unusual delay in transportation, adverse weather condkions not reasonably anticipated, unavoidable casualties,, by any action or inaction of a subContractor or any Contractor retained directly by Buyer, or any other cause beyond the Contractor's control, or a delay authorized by the Buyer, then the Date for Substantial Completion shall be extended for the period of such delay. 6.4. Issuance of occupancy permits by the appropriate governmental agency shall be deemed by Buyer and Contractor as conclusive proof of compliance with all codes and ordinances then in effect in the location of the Property. Buyer's acceptance of the said occupancy peanit shall constitute a complete waiver and release of any claim based upon alleged failure to comply with any such codes and ordinances. 7. Insurance. 7.1.' Indemnity. The Contractor agrees to indemnity, and hold harmless the Buyer fi.om all claims for bodily injury and Property damage (other than the Work itself and other Property insured under Paragraph 7.2) that may arise fi.om the Contractor's operations under this Agreement subject to the limitations of Section 8 below. 7.2. Contractor's Liability Insurance. ,The Contractor shall purchase and maintain such insurance as will protect it fi.om claims under Workmen's Compensation acts and other employee benefit acts, fi.om claims for damage:s because of bodily injury, including death, and from claims for c~amages to Property which may arise out of or result fi.om performance of the Contract Work. 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. 7.3. Buyer's Liability Insurance. The Buyer shall be responsible for purchasing and maintaining liability insurance and, may maintain such insurance as will protect against claims which may arise fi.om performance of the Agreement and circumstances arising fi.om Section 8 below. 7.4. Buyer's Property Insurance. The Buyer shall purchase and maintain Property insurance upon the entire Contract Work to the full insurable value thereof. This insurance shall include the interests of the Buyer, the Contractor, the SubContractors and Sub-subContractors in the Contract Work and shah 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 insureds 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 Contract Work. The Buyer and Contractor waive ali rights against each other for damages caused by fire or other perils to the extent covered by insurance provided under this paragraph. 8. Buyer's Access to Property During Construction. 8.1. Miscellaneous Provisions. Completion of the Contract Work within the Contract Time is expressly conditioned upon the Contractor being provided with free and uninterrupted access to the Property as well as the free and uninterrupted opportunity to perform the Contract Work. The Buyer specifically cover~ants and agrees to not interfere with or obstruct the Contractor's performance of the Contract Work under the Agreement. The Buyer shall have the right to periodic and reasonable inspections of the Contract Work but shall direct all questions and communications concerning the Contract Work to the Contractor's Project Manager and shall at no time communicate with or interfere with the Contractor's empl?yees and subContractors while on the premises or otherwise. 8.2. If Buyer is to personally perform or independently subContract Work on the residence under construction, all such work shall be expressly approved by and scheduled with Contractor's Project Manager. 8.3. In order to obtain Contractor's approval to personally perform or subcontract Work under 8.2, Buyer, Buyer's agents, subContractors or invitees shall obtain and furnish proof of valid liability insurance specifically naming Contractor as an additional insured and providing for coverage indemnity and defense of Contractor in the event Buyer, Buyer's agents, subContractors or invitees are injured or suffer Property damage while on the Property. 9. Exclusion of Warranties. The Buyer hereby acknowledges that Contractor has neither made nor is making hereby any warranties other than those expressly contained in this Agreement. THE BUYER HEREBY ACIG~OWLEDGES AND AGREES THAT ANY WARRANTIES OF HABITABILITY AND/OR FITNESS FOR INTENDED USE WHICH MIGHT OTHERWISE BE IMPLIED BY LAW ARE AGREED TO BE SPECIFICALLY EXCLUDED FROM TI-~S AGREEMENT. THE CONTRACTOR MAKES AND TH]ERE EXISTS NO OTH2ER WARRANTIES OR REPRESENTATIONS, WRITTEN OR. IMPLIED CONCERNING THE CONTRACT WORK OR ANY OTHER SUBJECT b/ukTTER OF TI-US AGREEMENT. Specifically, the Contractor disclaims any warranty or representation concerning (a) chips and cracks of nonstmctural cause appearing in concrete floors and masonry walb, (b) shrinking and twisting of lumber caused by drying of lumbers, (c) movement of the structure caused by natural settling after completion of the construction, and (d) moisture in the structure basement. 10. Limitation of Remedies. With regard to any claims by the Buyer resulting fi'om faulty or defective work as set forth herein or with regard to failure of the Contract Work to comply with the requirements of the contract documents, the remedies of the Buyer in such cases shall be limited to repair or replacement of the defective or non-con_fi~rndng work by the Contractor at the Contractor's expense. In the event Contractor is not able to or is denied access by Buyer to conduct repair or replacement, B~ayers are limited to Contractor's actual cost of repair or replacehaent plus reasonable Contractor's "mark- up." Buyer expressly waives any claim for consequential damages such as loss of use, reduction in market value or similar losses. 11. Default by Buyer. If the Buyer shall default hereunder prior to the beginning of Contract Work, Contractor shall retain the money paid by Buyer as liquidated damages; and this Contract shall thereupon terminate. If the Buyer fails to make a Progress Payment to Contractor as herein provided through no fault of the Contractor, the Contractor may, upon seven (7) days' written notice to the Buyer, ter.,,,inate the Contract and recover rom the Buyer payment for all Contract Work completed and for any prowm loss sustained upon any mater/ab, equipment, tools, and construction equipment and machinery, including reasonable profit and damages and reasonable attorneys' fees, and costs. 12. Transfer Tax on Improvements. In the event the Pennsylvania Department of Revenue (herein the "Department") imposes transfer tax on the value of improvements constructed on the Property pursuant to this Construction Agreement, the tax so assessed shall be'paid equally by Contractor and Owner within the time required by the Department. In the event the Department assesses any interest and penalties on the foregoing transfer tax assessment, Contractor shall hold Owner harmless from any such interest and penalties with regard to any assessment by the Department pursuant to 72 P.S., Section 8101(c). Owner agrees to cooperate with Contractor in defense of such a tax assessment should Contractor elect to contest the assessment. 13. General Provisions. 13.1. All rights and liabilities herein given to, or imposed upon, the respective parties hereto shall extend to and bind several and respectNe heirs, executors, administrators, successors and assigns of said parties; and if there be mre than one Buyer, they shall all be bound jointly and severally by the terms, covenants and agreements herein, and the word "Buyer" or "Buyers" shall be deemed and taken to mean each and every person or party mentioned as an owner herein, be the same one or more; and if there be more than one Contractor, they shall be bound jointly and severally by the terms, covenants and agreements herein, and the word "Contractor" or "Contractors" shall be deemed and taken to mean each and every person or party mentioned as a Contractor herein be the same one or more. 13.2. Neither the Buyer nor the Contractor shall assign his interest in this Agreement without the written consent ofth~ other except as to the assignment of proceeds. 13.3. This Agreement shall be governed by the law in effect at the location of the Property. 13.4. The parties hereto hereby warrant that they have read and are fully familiar with the terms and conditions of this agreement and agree to be legally bound hereby. The parties further acknowledge that this is a negotiated agreement and that they have each had the oppommity to consult with legal counsel regarding the aforesaid terms and conditions. CONTRACTOR: HAUBERT HOMES, INC. *Authorized Signature Buyer *Division Manager Buyer *NOTE: Both signatures required by Contractor to validate: Sales Contract. 10 -'HAUBERT HO, ES CurJ'om BUilcJing For I]enera~ions 15 Central Blvd., Camp Hill, PA 17011 (717) 761-7951 ,~ iFAX (717) 761-4125 SCHEDULEA 05/02/2001 HAUBERT HOMES INC. 642 VALLEY VIEW DRIVF BOLLING SPRINGS. PA 17007 SCATTERED LOT (642 VALLEY VIEW DRIVE) CUMBERLAND COUNTY HOUSE MODEL - SPECIAL RANCH I MODIFIED SYMINGTON ALL STANDARD DELUXE SERIES SPECIFICATIONS (UNLESS OTHERWISE NOTED) LIGHTING ALLOWANCE $1266.00 (RETAIL) PROGRESS CATALOG HOUSE OPTIONS AND/OR CREDITS FULL EXPOSED BASEMENT-SIDING TO GRADE ( 6/0 DOOR & 3 WINDOWS) POURED FOUNDATION 8' X 8" 2" X 6" REAR WALL IN LOWER LEVEL SIZE FURNACE FOR FUTURE LOWER LEVEL BATH ROUGH-IN AT LOWER LEVEL (PIT & PUMP NOT INCL. IF" NEEDED) ENLARGE GARAGE AS PER PLAN 24' X 26' PANEL BOX LOCATION TO BE IN GARAGE LANDMARK 25 ARCHITECURAL SHINGLES 30" HIGH MANUFACTURED STONE SKIRT AT FRONT AS PER PLAN 2" X 6" EXTERIOR WALLS ALLOWANCE FOR RED CEDAR SIDING AT FRONT PORCH INTERIOR DOOR HANDLES TO BE LEVER TYPE 8' CEILINGS THROUGHTOUT CREDIT STANDARD KITCHEN CABINETS & COUNTERTOP ALLOWANCE FOR KITCHEN CABINETS AND COUNTERTOPS CREDIT STANDARD RANGE GE #TCX18PAD BOTTOM-FREEZER REFG. 17.6 CU. FT. GE # JE1390WA CONVECTION/MICROWAVE AMERICAN STANDARD - SILHOUETTE KITCHEN SINK ALLOWANCE FOR HOT/COLD TAP AT KITCHEN SINK KITCHEN SINK & SHOWER FAUCETS PROVIDED BY BUYER $250.00 ALLOWANCE FOP~ LEVER STYLE FAUCETS AT BATH VANITIES CABINETS IN GAME ROOM AS PER PLAN (ARISTOKRAFT SELECT) INCL. INCL. $ 5,600.00 $ 1,600.00 INCL $ 450.00 $ 350.00 INCL INCL $ 900.00 $ 850.00 $ 1,150.00 $ 850.00 INCL INCL $ (2,500.00) $ 9,100.00 $ (305.00) $ 970.00 ~ $ 445.00 $ 340.00 $ 500.00 INCL INCL $ 1,410.00 "'HAUBERT HO ES- Ino. Cus~om BiJilcJing J:or I]eneraJions 15 Central Blvd., Camp Hill, PA 17011 (717) 761-7951 ,*, ]?AX (717) 761-4125 SCHEDULE A .PLUMBING & ELECTRICAL IN GAME ROOM AS NEEDED SK2446 SKYLIGHT IN MASTER BEDROOM ANDERSEN FRENCHWOOD PATIO DOOR IN MASTER BEDROOM 3' X 10' DECK AT MASTER WITH SEAT (RED CEDAR) CERAMIC SURROUND AT MST. BATH TUB ON A 6" PLATFORM CAST IRON TUB TO BE PROVIDED BY BUYER 3/,~ WALL CERMAIC SHOWER IN MASTER BATH w/GRAB BARS & SEAT ..4~,~1~N WINDOW IN MASTER BATH ~.. POCKET DOOR IN MASTER BATH, CLOSET & LIVING ROOM AKER SHS--48 SHOWER AT IN-LAWS BATH WITH GRAB BARS GRAB BARS AT TOILET IN IN-LAW'S BATH 90 MINUTE FIRE DOOR AT GARAGE DECK DAND BOARD.~J~FOR FUTURE DECK ATRIUM PATIO DOOR IN BEDROOM # 2 EXTERIOR DOOR IN GAME ROOM TO PORCH SITE WORK ESTIMATES ALLOWANCE FOR EXCAVATION ALLOWANCE FOR HOOK-UP TO WATER AND SEWER $3500.00 FEE FOR BUILDING PERMIT & SEWER FEE (BY BUYER) ALLOWANCE FOR SEEDING APPROX. 1/3 ACRE ALLOWANCE FOR SIDEWALK FROM PORCH TO DRIVE INCL 450.00 ,140.00 INCL INCL INCL INCL INCL INCL INCL INCL INCL 300.00 INCL INCL $ 7,200.00 $ 2,000.00 ~b INCl $ 1,00eM;)8--'~ $ 400.00 * HAUBERT HOMES INC. TOTAL OPTION AND/OR CREDITS $ TOTAL HOUSE $ 34,200.00 160,800.00 * HAUBERT HOMES MANAGER BUYER * Both signatures required to validate contract. (717) 761-7951 ,~ :FAX (717) 761-4125 HO ES, . Cudom Building for general'ions # z AUTHORITY FOR CHANGE IN SALES CONTRACT BY MUTUAL AGREEMENT BETWEEN HAUBERT HOMES, INC. (CONTi~ACTOR) Ann Gates Scattered lot (HOME OWNER) The following changes, alterations or substitutions are made in the materials or work called for in the plans and specifications which are part of the building contract signed by the above parties. Date of Change Order: August 4,2000 Built-in cabinets in nook as per plan 3380.00 Hardwood flooring in Kitchen, Nook & pining Room 2230.00 Hardwood flooring in Living Room & Hall 1980.00 Please sign and return by: August 4, 2000 CONTP~ACTOR ~ 2/~ ~ OWNER CC: DATE DATE DATE File Gates HAUBERT HO ES, . Cu~'J'om BuiJcJing For Generations 15 Central Blvd., Camp Hill, PA 17011 (717) 761-7951 a FAX (717) 761-4125 #1 AUTHORITY FOR CHANGE IN SALES CONTR3NCT BY MUTUAL AGREEMENT BETWEEN HAUBERT HOMES, INC. (CONTRACTOR) Ann M. Gates, 642 Valley View Drive, Boiling Springs (HOME OWNER) The following changes, alterations or substitutions are made in the materials or work called for in the plans and specifications which are part of the building contract signed by tile above parties. Date of Change Order: June 4, 2001 Credit for red cedar siding at front por'ch - installed by buyer Credit kitchen cabinets - installed by buyer Credit nook cabinets - installed by buyer Credit refrigerator & microwave Credit range and dishwasher - provided by buyer Credit special kitchen sink and hot/cold tap -sink & faucet supplied and installed by buyer Credit hardwood flooring in kitchen, nook, dining room, living room and hall - installed by buyer Credit allowance for permits - paid directly by customer Compaction test to be completed by buyer before footings are placed Hot/cold (frost-free) faucets at laundry tub in garage (run through wall including drain top) Boxed stairs to basement Discuss dropping garage on-site 2B ~" stone and 5" concrete slab at garage with wire mesh reinforcement ($85o.oo) ($9100.00) ($3380.00) ($1415.00) ($515.00) ($840.00) ($4210.00) ($3500.00) Incl. $300.00 $150.00 *TBD $460.00 'HALIB ERT HOt, ES- Inc. Cudem Building for I]enerafion 15 Central Blvd., Camp Hill, PA 17011 (717) 761-7951 a F2~X (717) 761-4125 Page 2 C.O. #1 Fill porch foundation with 2B ~" stone and wire mesh in concrete slab Ramp from garage to house to be no steeper than 1/12 & include railing--~J~ ~" drywall on adjoining house/garage wall/ceiling 24"x12" footings with 2 - 5/8" diameter continuous rebars located 2-3" above bottom of footing & evenly spaced !0" poured front wall vs. 8" poured 4" 3000 psi slab in basement with 2B ~" stone and G-mil polyethylene vapor barrier Foundation drain system at ~arage and porch discharge to daylight 2 coats of drylok on interior basement walls R-19 insulation between basement and 1st floor under bedroom and over unfinished areas only ~" OSB sheating at exterior walls Ceramic flooring and shower by buyer $112.00 $320.00 Incl. $660.00 $1158.00 $3O0.00 Incl. $980.00 $440.00 N/C Incl. Stud out basement and drywall ceilings to finish (with unfinished rooms) Sewin~ room, bedroom #3 and lower level bath to be finished $4892.00 $9300.00 'HAUBERT HO ES, . Cusfom Building For Generafions 15 Central Blvd., Camp Hill, PA 17011 (717) 761-7951 ~ F~%X (717) 761-4125 Page 3 c.o. #1 qHeat system to be propane 2-zone - ~lowance/) All towel bars to double as grab bars $2400.00 $312.00 Central joints at basement floor shall run from right to left through steel columns and from right to left at right front corner below the steel beam. In addition, front to rear control joint~ installed at steel column. Incl. Footings shall be continuous pour including any step portions of the foundation. Rebarshould continue through all stepped areas. $600.00 3500 psi concrete at garage floor, exterior walks, steps, porches and any other concrete exposed to weathering. Include 4" of 2B stone over compacted soil. $265.00 Extend passive radon system through the roof $200.00 All downspouts to be buried and extended at least 15' ~~ *TBD away from the foundation to a daylight discharge ($110.00 7f/~ each) Insulated garage doors ~ .... J $220.00 Cantilevered roof at master bedroom deck $370.00 8' x 26' concrete patio at rear lower level $2496.00 Pool foundation $2100.00 Credit all trim except baseboards at kitchen, nook, dining room, and living room - installed by buyer ($200.00) flAUBERT flO ES, . Cus'J'om Building J:or (]enera~ions 15 Central Blvd., Camp Hill, PA 17011 (717) 761-7951 a FAX (717) 761-4125 Page 4 C.0. #1 ~Windows to be 200 series, tilt Incl. Bath vanity faucets to be ADA lever style (see allowance Incl. in contract) ~ ~ for - , (.$~ · Cr .... ckc4~m ~cets Drnvided by buy%r'~d~ ,/~,..~J-c.~ Panel box to be located in ~arage Incl.  Shower and sink in lower level bath provided by buyer Incl. Over the john cabinet in main bath to match cabinets Incl. Platform for master tub to be 8" high Incl. 50 amp service drop to ~lass room *TBD 100 amp service drop to shop area *TBD Install conduit from nook to shop to run future phone lines $40.00 Heat/fan/lights at all baths $150.00 Wire for fan/light at nook and bedroom #2 $140.00 Wire for fan only at master bedroom $50.00 Candle circuit at 3 windows on photo cell *TBD Install exhaust fan (multi-speed) through foundation at *TBD ~lass room with switch Credit seedin~ - by buyer ($1000.00) 't-IAUBERT HO/ ES- I r'-,c. Cudom Building .For Generafions 15 Central Blvd., Camp Hill, PA 17011 (717) 761-7951 ~ FAX (717) 761-4125 Page 5 C.O. #1 Please sign and return by: June_f~4,t 2001 OWNER cc: File Gates DATE (717) 761-7951 ~ ~ (717) 761-4125 HOmES- ick. Cusfom Building for ~enera{ions ~IAUBERT HOMES, INC. (CONT~ACTOR) Ann M. Gates, 642 Valley View Drive, Boiling Springs (HOME OWi~ER) The following changes, alterations or substitutions are made in the materials or work called for in the plans and specifications which are part of the building contract signed by the above patsies. Date of Change Order: June 5, 2001 Add 12'x 26' porch behind (and lower than) 8'x 26' patio $3744.00 Please sign and return by: Ju~5, ~1 OWNER cc: File Gates Turk DATE DATE DATE HAUBERT HOt ES, . Cusfom BuiJding [or Generafions 15 Central Blvd., Camp Hill, PA 17011 (717) 761-7951 ~ FAX (.717) 761-4125 #3 AUTHORITY FOR CHANGE IN SALES CONTRACT BY MUTI~L AGREEMENT BETWEEN HAUBERT ~OMES, INC. (CONTRACTOR) Ann M. Gates, 642 Valley View Drive, Boiling Springs (HOME OWNER) The following changes, alterations or substitutions are made in the materials or work called for in the plans and specifications which are part of the building contract signed by the above parties. Date of Change Order: July 31, 2001 Change cased opening from kitchen to dining room to be 3/0 (30" deep at refrigerator; 78" from corner to C.O.) JChange door to bedroom #2 to 3/0 by reducing size of main bath and linen closet /No sloped ceiling at stairs to basement ~ Wire for extra double floodlight at garage (total of 2) · Credit two coats of Dry-lok on interior basement walls /Wire for two wall sconces at dining room (66" AFF) with two switches plus dimmer Install dimmer on dining room chandelier Wire for two under cabinet lights on separate switches Add outlet above pantry cabinet in kitchen Wire for recessed light over master bath shower Wire for two sets of track lights with separate switches at living room Credit M wall at entry Credit wiring for pole light N/C N/C N/C $2O0.OO $980.00) $i40.00 $20.00 $120.00 ($4o.oo) $60.00 $60.00 $i20.00 ($75.00) ($40.00) HAUBERT HO ES= Cusfom Building For Generafiom 15 Central Blvd., Camp Hill, PA 17011 (717) 761-7951 ~ FAX (.717) 761-4125 Page 2 c.o. #3 Wire for chandelier at stair flat ceiling $30.00 Wire for fixture in soffit over master bath window $60.00 Wire for each light in shop area on separate switches $30.00 Install water filter where water main enters house $150.00 Shower heads with pull chains above basement floor drains (2) TBD Game room sink faucet to be Moen #5992/14705 $60.00 ,/130' aluminum flashing for termite cQntrol TBD Center doors at mechanical room; keep furnace to one side N/C and water heater to other side Moen 5924/14705 lavatory faucets throughout (Qty 3) (Note: widespread faucets) Master bath shower faucets Moen 2594/97462 wil:h 3875 hand held shower Main bath and lower bath shower faucets Moen L2352W with 3875W hand held shower Exterior doors at front porch and house/garage door to be low threshold Change to concrete ramp with 2' slope at door; 3' flat area; 16' +/- sloped ramp; 5' flat area at bottom; install one 'step beside landing; handrail by customers 4Deco 20 seal entire outside of house Add 1~" PVC line from lower patio to mechanical room for future wiring ~-'Add drain in middle of lower patio - drain to daylight,~,- ~dd conduit from bas~ement bath vanity to rear patio $590.00 $300.00 $430.00 TBD $450.00 $1080.00 $120.00 $80.00 $120.00 I r~.c::. Cudom BuiJding 'For C enerafions 15 Central Blvd., Camp Hill, PA 17011 (717) 761,7951 ~ FAX (.717) 761-4125 Page 3 C.O. #3 Basement door to be FW6068 to match other doors on first floor ~Change future shop window to match kitchen wirLdow Pumping service required for footers due to lot conditions N/C N/c $539.00 Please sign and return by: Aug~u~ 2001 OWNER cc: File Gates Turk DATE DATE DATE ft.&UBt RT 15 Central Blvd., Camp F~ilI. PA 17011 (717) 761-7951 ,i FAX-(7-17) 761-4125 Custom Building For Generafionl #4 AUTHORITY FOR CHANGE IN SALES CONTRACT BY MUTUAL AGREEMENT BETWEEN F~AUBERT HOMES, INC. (CONTRACTOR) Ann M. Gates, 642 Valley View Drive, Boiling Springs (HOME OWNER) The following changes, alterations or substitutions are made in the materials or work called for in the plans and specifications Which are part of the building contract signed by the above parties. Date of Change Order: October 19, 2001 Credit concrete ramp at garage - by customers 130' Aluminum flashing for termite control 5/8" Fire code drywall on ceiling of glass blowing room (no paint) Add nailers in dining room for buyer's cabinets Cut & secure trusses as directed by Yingst Engineers 5/8" Fire code drywall on house/garage wall and. garage ceiling instead of ~': Add standard siding at front (red cedar not installed by buyer) Front sidewalk to ramp from porch to grade (36" wide with curbs installed to each side) and wrap around front of garage to driveway - 48" wide (difference over allowance) Install 48" by 26' wide concrete apron at garage Air compressor lines run - per conversation direct with HVAC contractor Lower shower heads at both main floor baths to 74" high ($770.00) $200.00 $40.00 $40.00 $150.00 $40.00 $290.00 $580.00 $416.00 TBD* $30.00 Cullom 8uildincj Far Gener~:fionl 15 Central Blvd., Camp F~il], PA 17011 (717) 761-7951 ~ FAX-('2-17) 761-4125 Page 2 C.O. #4 Duct work in glass blowing room *Price To Be Determined. TBD* PLEASE NOTE: NOW THAT CONSTURCTION HAS BEHUN, PAYMENT MUST ACCOMPANY THIS SIGNED CIIANGE ORDER. OWNER DATE DATE OWNER cc: File Gates Turk DATE Exhibit B HAUBERT HO ES- - I~. Cudom Building for Genera{ions Ann M. Gates 642 Valley Drive Boiling Springs PA 17007 15 Central Blvd., Camp Hill, PA 17011 (717) 761-7951 a FAX (717) 761-4125 Cost to Date per Schedule A House Price Lot Full exposed basement - siding to grade (6/0 door & 3 ~cindows) Poured foundation 8" x 8" Size furnace for future lower level Bath rough-in at lower level (pit & pump not incl: If needed) Landmark 25 architecural shingles 30" High manufactured stone skirt at flont as per plan 2" x 6" Exterior walls Allowance for red cedar siding at front as per plan Allowance for kitchen cabinets and coutertop GE# TCX18PAD bottom - freezer refg. 17,6 cu. fL GE# JE 139OWA convection/microwave American standard - silhouette kitchen sink Allowance for hot/cold tap at kitchen sink Cabinets in game room as per plan (aristokraf~ select) SK2446 skylight in master bedroom Andersen ~enchwood patio door in master bedroom Deck dand board for future deck Costs-to-Date for Excavation & Stone Costs-to-Date for hook-up to water and sewer Allowance for seeding approx 1/3 acre Allowance for sidewalk from porch to drive Built-in cabinet in nook as per plan Hardwood flooring in kitchen, nook & dining room Hardwood flooring in living room & hall Hot/Cold (frost-flee) faucets at laundry tub in garage (runt through wall including drain top) Boxed stairs to basement $ 126,000.00 N/A $5,600.00 $1,600.00 $450.00 $350.00 $900.00 $850.00 $1,150.00 $850.00 $9,100.00 $970.00 $445.00 $340.00 $500.00 $1,410.00 $450.00 $1,140.00 $300.00 $14,052.25 $3,960.00 $1,000.00 $400.00 $3,380.00 $2,230.00 $1,980.00 $300.00 $150.00 2B 3/4" stone and 5" concrete slab at garage with wire mesh reinforcement Fill porch foundation with 2b 3/4" stone and wire mesh in concrete slab Ramp fi.om garage to house to be no steeper than 1/12 & include railing 24" x 12" footings with 2 - 5/8" diameter continuous rebars located 2-3" above bottom of footing & evenly spaced 10" poured fi'ont wall vs. 8' poured 4" 3000 psi slab in basement with 2B 3/4" stone and G-mil polyethylene vapor barrier 2 coats of drylok on interior basement walls R- 19 insulate between basement and 1 st floor under bedroom and over unfinished areas only Stud out basement and drywall ceilings to finish (with unfinished rooms) Sewing room, bedroom #3 and lower level bath to be firfished Heat system to be propane 2-zone - allowance All towel bars to double as grab bars Footings shall be continuous pour including any step portions of the foundations. Rebar should continue through all stepped arias 3500 psi concrete at garage floor, exterior walks, steps porches and any other concrete exposed to weathering, include 4" of 2B stone over compacted soi Insulated garage doors Cantilevered roof at master bedroom deck 8'x 26' concrete patio at rear lower level Pool foundation 100 AMP service drop to shop area Install conduit fi.om nook to shop to nm future phone lines Heat/fan/lights at all baths Wire for fan/light at nook and bedroom #2 Wire for fan only at master bedroom Candle circuit at 3 windows on photo cell Add 12' x 26' porch behind (and lower than) 8' x 26' patio Wire for extra double floodlight at garage (total of 2) Wire for two wall scones at dining room (66" AFF) with two switches plus dimmer Install dimmer on dining room chandelier Wire for two under cabinet lights on separate switches Add outlet above pantry cabinet in kitchen Wire for recessed light over master bath shower $460.00 $112.00 $320.00 $660.00 $1,158.00 $300.00 $980.00 $440.00 $4,892.00 $9,300.00 $2,400.00 $312.00 $600.00 $265.00 $220.00 $370.00 $2,496.00. $2,100.00 $240.00 $40.00 $150.00 $140.00 $50.00 $60.00 $3,744.00 $200.00 $140.00 $20.00 $120.00 $60:00 $60.00 Wire for two sets of track lights with separate switches alt living room $120.00 Wire for chandelier at stair flat ceiling $30.00 Wire for fixture in soffit over master bath window $60.00 Wire for each light in shop area on separate switches $30.00 Install water filter where water main enters house $150.00 Game room sink faucet to be Moen #5992/14705 $60.00 Moen 5924/14705 lavatory faucets throughout (Qty 3) $590.00 Master bath shower faucets Moen 2594/97462 with 3875 hand held shower $300.00 Main bath and lower bath shower faucets Moen L2352W with 3875W hand held shower $430.00 Exterior doors at front porch and house/garage door to be low threshold $80.00 Change to concrete ramp with 2' slope at door; 3' flat are, a; 16' +/- sloped ramp; 5' flat area at bottom; install one step beside landing; handrail by customers $450.00 Deco 20 seal entire outside of house $1,080.00 Add 1 1/2" PVC line from lower patio to mechanical room for future wirin[ $120.00 Add drain in middle of lower patio - drain to daylight $80.00 Add conduit from basement bath vanity to rear patio $120.00 Pumping service required for footers due to lot condition~ $539.00 130' Aluminum flashing for termite control $200.00 5/8" Fire code drywall on ceiling of glass blowing room (no paint) $40.00 Add nailers in dining room for buyer's cabinets $40.00 5/8" Fire code drywall on house/garage wall and garage ceiling instead of L $40.00 Add standard siding at front (red cedar not installed buyer) $290.00 Front sidewalk to ramp from porch to grade (36" wide with curbs installed to each side) and wrap around front of garage to driveway - 48" wide Install 48" by 26' wide concrete apron at garage Air compressor lines run - per conversation direct with HVAC contractor Lower shower heads at both main floor bahts to 74" high Paint interior of garage $580.00 $416.00 $400.00 $3O.OO $5OO.OO Subtotal Adds $ 219,041.25 Less Credits Credit standard kitchen cabinets and countertop Credit standard range Credit for red cedar siding at front porch Credit kitchen cabinets - installed by buyer $2,500.00 $305.00 $850.00 $9,100.00 redit nook cabinets - installed by buyer Credit refrigerator and microwave Credit range and dishwasher - provided by buyer Credit special kitchen sink and hot/cold tap - sink & faucet supplied and installed by buyer Credit hardwood flooring in kitchen, nook, dining room, living room and hall - installed by buyer Credit allowances for permits - paid directly by buyer Credit all trim except baseboards at kitchen, nook, dining room, and living room installed by buyer $3,380.00 $1,415.00 $515.00 $840.00 Credit seeding - by buyer Credit two coats of Dry-lok on interior basement walls Credit doorbell Credit wiring for pole light Credit concrete ramp at garage - by customers $4,210.00 $3,500.00 $200.00 $1,000.00 $980.00 $4O.0O $4O.0O $770.00 Subtotal Credits $29,645.00 Total Less Lot Total Home Construction $ 189,396.25 $ $ 189,396.25 Less Received on Account from Lender Less Received on Account from Customer Total Received on Account $ 35,000.00 $ 35,000.00 BALANCE DUE HAUBERT HOMES, INC. 154,396.25 Customer: Customer: Haubert Homes Rep. Exhibit C HAUBER! In<:~. Cusfom Building For (]¢nerafJons 15 Central Blvd., Camp Hill, PA 17011 (717) 761-7951 ~ FAX (717) 761-4125 CERTIFIED MAIL 7001 2510 0009 2217 8904 RETURN RECEIPT REQUESTED January 10, 2002 Mrs. Ann M. Gates 642 Valley View Drive Boiling Springs, PA 17007 Dear Mrs. Gates: I am directing this letter to you as the owner of the property and as signator of the contract with Haubert Homes. ' Mr. Gates has advised, through your consulting engineer, Mr. Yingst, that he wishes to have someone other than Haubert Homes complete construction of your home. We had previously forwarded to Mr. Yingst the attached detail of costs and charges for work performed to date, and an update is also attached as a second attachment. No payment has been made on the project beyond Draw No. 1 (foundation). We have completed construction through painting. Please refer to Section 5.2 of the contract and the agreed-upon draw schedule. Draws No. 2, 3 and 4, totaling $103,000, are delinquent. Pursuant to Section 11 of the contract, this letter is seven (7) days notice of payment due under these draws. Please remit the draw payments in the amount of $103,000 to me directly, along with the attached copy of this letter signed by you indicating your agreement with these terms contingent upon delivery of a mutually satisfactory general release. Alternatively, if you would also remit, with your payment of the $103,000 in outstanding Draws, the additional funds referenced in the attachments in the amount of $17,987.77 ($155,987.77 less the $35,000 you've already paid and the $103,000 currently delinquent), we will direct our attorneys to forward to you and imf. Yingst a mutual release completing our disengagement from the project. ,I,.IAUBERT HOt ES- I~. Cus'J'om Building For I]¢nera~ions 15 Central Blvd., Cainp Hill, PA 17011 (717) 761-7951 ~ FAX (717) 761-4125 Ann Gates DRAW SCHEDULE Draw t $35,000 Draw 2 $35,000 Draw 3 $35,000 Draw 4 $33,000 Draw 5 $33,000 completion of the foundation (paid by Customer) roof ks completed; windows & doors :set (paid by Customer) rough-ira completed (paid by Customer) dry,vall sanded and ready to paint ($1,000 by Customer, $32,000 by Credk Un/on) completion of house ($33,000 paid by Credit Un/on, balance by Customer) flAUBERT flOrES = Cu~om BuilcJing [or Genera~iom 15 Central Blvd., Camp Hill, PA 17011 (717) 761-7951 ,~ FAX (717) 761-4125 If you have any questions, please do not hesitate to contact me. Thank you. Regards, -~ Division Manager C¢: David A. Fitzsimons, Esquire Sidney Wagner, CFO Stephen Yingst I hereby agree to the terms and conditions of the settlement proposal from Haubert Homes and with my signature of this letter, make remittance of funds in the amount of $103,000, representing payment of all of the outstanding Draws. Payment of the remaining outstanding amount due to Haubert Homes will be made upon execution of a mutual release with the company. Aann M. Gates CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing documem upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: LAW OFFICES OF PETER J. RUSSO, P.C. Scott A. Stein, Esquire 3800 Market Street Camp Hill, PA 17011 DATED: METTE, EVANS & WOODSIDE ])avid A. Fitzsimons, Esquire I.D. No. 41722 3401 North Front Street P.O. Box 5950 Harrisburg,. PA 17110-0950 (717) 232-5000 Attorneys fbr Plaintiff '~741 _1 6 LAW OFFICES OF PETER J. RUSSO, P.C. PETER J. RUSSO, ESQUIRE PA Supreme Court ID: 72897 SCOTT A. STEIN, ESQUIRE PA Supreme Court ID: 81738 3800 Market Street Camp Hill, PA 17011 (717) 591-1755 HAUBERT HOMES, INC., Plaintiff ANN M. GATES, Defendant Counsel for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-3365 CIVIL TERM ANSWER TO PLAINTIFF'S COMPiLAINT AND NEW MATTER AND NOW comes Defendant, Ann M. Gates, by and through her counsel, Law Offices of Peter J. Russo, P.C., who responds as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied in part. Admitted in part. By way of further response, Defendant admits that construction was begun by Plaintiff, but denies that Plaintiff conducted construction in a workman- like manner in accordance with the standards of the building industry. o Admitted. This paragraph is not directed at Defendant and no answer is required. Denied in part. The first draw payment was made to Plaintiff on August 6, 2001. 8. Denied in part. Admitted in part. By way of further response, Defendant denies that Haubert completed construction through painting on main floor. 9. Denied. Defendant denies this general statement &fact. Plaintiff was paid $35,000.00 by Defendant on or about August 6, 2001 BREACH OF CONTRACT 10. The prior paragraphs of this answer are incorporated herein by reference thereto. 11. Denied. Defendant denies that thc Plaintiff completed construction through thc level referenced above and that it is due and owing payment for work 12. Denied. Defendant believes that she has valid reasons to withhold payments 2, 3, and 4. 13. Denied. This is a conclusion of law and Defendant requests strict proof at time of WHEREFORE, Defendant respectfully requests the court to deny the relief requested by the Plaintiff. QUANTUM MERUIT 14. The prior paragraphs of this Answer are incorporated herein by reference thereto. 15. Denied in part. By way of further response, Defendant denies that work done by Haubert Homes was "adequately and properly performed in accordance with the standards of the industry." 16. Admitted in part and denied in part. Defendant admits that she is a resident in the above referenced property with her husband but denies the remainder of the averment. 17. Defendant denies that the value of the improvements made by Haubert Homes is equal to or exceeds the amount of $120,987.77 and requests strict proof at time of trial. WHEREFORE, Defendant respectfully requests the court to deny the relief requested by the Plaintiff. NEW MATTER - BREACH OF CON'rRACT AND NOW, comes Defendant, Ann M. Gates, through her counsel, Law Offices of Peter J. Russo, P.C., who states the following in support of the New Matter: 18. Defendant hereby incorporates by reference paragraphs 1 through 17 of this Answer and New Matter as if each were set forth fully hereunder. 19. Plaintiff and Defendant entered into a contract for the construction of a Symington plan home that was modified by Defendant prior to contract. 20. Plaintiff agreed to build the home to the modified plans of Defendant. 2~1. On or about August 6, 2001, Plaintiffnotified Defendant that work was complete through Phase I, specifically, that the foundation was complete and done to specifications. 22. On or about August 6, 2001, Defendant paid Plaintiff the first draw of $35,000.00 pursuant to the agreed contract schedule stated in paragraph 5.2 of'the contract. 23. One of the requirements for completion of the foundation was that floor drains would be installed in the foundation floor creating an egress for water to "mn to daylight." 24. Plaintiff failed to install the drains in the foundation floor as per the specifications, but represented to Defendant that the foundation was complete to specifications. 25. On or about October 2001, Plaintiff informed Defendant that work for Phase I1 was complete, specifically, that the roof is complete, the sheathing and framing are completed and all windows are set in place. 26. Pursuant to a site inspection, Defendant discovered that the master bath window had not been installed and that a first level window had been installed in the wrong location as required for completion of Phase II of construction. 27. Plaintiff has failed to complete work, or to complete work of"good quality" in that the contract work does not conform to the requirements of the contract documents in the following areas ~ a. Plaintiff failed to comply with industry standards and building codes in the completion of floor drains causing the sewer authority to refuse to grant a use permit to Defendant by: i. Running the drain lines into the sewer lines on the first level instead of to exits through the foundation to daylight; and ii. Not installing drains through the foundation of the garage floor to daylight as required in the plans. a. Plaintiff failed to complete work in compliance with a Veterans Administration grant requirements causing the grant to be withdrawn by: i. Not completing the paperwork required of the contractor by providing drawings and explanatory statements that were inconsistent with each other; ii. Installing a connection for the shower head at the incorrect height and failing to finish installation; iii. Failing to install grab bars and three (3) toilets in the bathrooms; iv. Incorrectly installing an ADA compliant :ramp from the front porch that had 48-inch long landings instead of the required 60-inch long landings; v. Failing to install the "enclosed access ramp" from the garage into the home; and vi. Failing to complete work within the 90-days required by the Veterans Administration purchase order. ¢. Plaintiff failed to place the ceilings at the correct eight-foot height throughout the home causing some ceilings to be too low to accommodate the opening of doors; d. Plaintiff installed the furnace on top of an electrical conduit access; e. Installed a gas line that ran exposed through a bed room; and f. Plaintiff failed to complete construction by November 10, 2001 as required by the construction agreement and failed to address situation with the Credit Union financing the construction causing construction, loan to fail. 20. While Plaintiff has been given the opportunity to :repair or cure the damage to Defendant's satisfaction, they have refused or failed to do so. 21. As a direct and proximate result of Plaintiff's material breach of contract, Defendant's residence and property was left in an incomplete state requiring substantial repairs and modifications, and causing damage both physically and aesthetically to the home thereby depriving Plaintiffs of full use and enjoyment of their property. 22. As a direct and proximate result of the Plaintiff's material breach, Defendant has been required to incur financial expense and losses in excess of $120,000 to repair and to correct the defects in the residence. WHEREFORE, Defendant respectfully request judgment against Plaintiff, Haubert Homes, Inc. in an amount that exceeds the jurisdictional amount, attorney's fees, interest, as well as any reasonable amount deemed appropriate by the Court. Date: By: Respectfully submitted,_ LAW OFFICES OF PETER J. RUSSO, P.C. Scott A. Stein, Esquire 3800 Market Street Camp Hill, PA 17011 (717) 591-1755 Attomeys for Defendant Ann M. Gates HAUBERT HOMES, INC., Plaintiff Ye ANN M. GATES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-3365 CIVIL TERM VERIFICATION I, Ann M. Gates, hereby swear and affirm that the facts in the forgoing Answer and New Matter are tree and correct to the best of my knowledge, information, and belief and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. HAUBERT HOMES, INC., Plaintiff Vo ANN M. GATES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-3365 CIVIL TERM CERTIFICATE OF SERVICE. I, Scott A. Stein, Esquire, counsel for Ann M. Gates, Defendant in the above-captioned action, hereby certify that a tree and correct copy of the foregoing .Answer and New Matter was served upon counsel for Plaintiff, David A. Fitzsimmons, Metre, Evans & Woodside, by depositing same in the United States mail, first class, on December 26, 2002, addressed as follows: David A. Fitzsimons, Esquire Mette, Evans & Woodside P.O. Box 5950 3401 North Front Street Harrisburg, PA 17110-0950 DATED:/~f2-~'/°2- By: LAW OFFICES OF PETER J. RUSSO, P.C. Scott A. Stein, Esquire 3800 Market Street Camp Hill, PA 17011 (717) 591-1755 Attomeys for Defendant HAUBERT HOMES, INC. Plaintiff ANN M. GATES Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CML ACTION - LAW NO. 02-3365 CIVIL TERM 20. Admitted in part and denied in part. It is admitted only that plaintiffand defendant agreed to the construction of a home according to plans and specifications and agreed upon by the parties. 21. Admitted in part and denied in part. It is admitted that on or about August 6, 2001 the plaintiff applied for payment of Phase I of construction because that phase of construction was substantially complete. That Phase I "specifically was complete and done to specifications" was not alleged. By way of further response reference is made to the contract documents. 19. Admitted in part and denied in part. It is admitted only that the parties entered into a contract for the construction ora Symington model plan home that contained some modifications agreed to between the parties. AND NOW, comes the Plaintiff, Haubert Homes, Inc., by and through its attorney, Mette, Evans & Woodside, and avers the following in response to the New Matter of defendant's Answer: 18. The plaintiff incorporates by reference the averments of its complaint as if fully set forth. REPLY TO NEW MATTER 22. Admitted in part and denied in part. It is admitted that within a reasonable time after the defendant application for payment through Phase I the plaintiff's financial institution released payment of the first draw. 23. Denied. That a requirement for completion of the foundation was that floor drains would be installed "run to daylight". Contrary, certain floor drains in the basement were indicated on the plans to "mn to grade". One particular drain was identified by the defendant or the defendant's husband, acting in his capacity as authorized agent of the defendant, and "emergency shower" which was to be wheelchair accessible should be constructed near the room designated as a glass blowing studio for emergency decontamination use. Because a shower was to be installed code required that drain not go to grade but rather into the sewer system. Subsequently, the township inspectors refused to allow the installation of the shower in a manner that would make it handicapped accessible and still drain to the sewer system. 24. Denied. The averments of Paragraph 24 are conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is required, drains were installed to meet the directions of Defendant's agent. 25. Admitted in part and denied in part. It is admitted only that on or about October of 2001 the plaintiffsubstantially completed Phase II of the construction and sought payment for Phase II. It is denied that the plaintiffinformed the defendant "specifically, that the roof was complete, the sheathing and flaming are completed and all windows are set in place". In fact, plaintiff and defendant were aware in October 2001 that one bathroom window on the first floor of the home was back ordered because the plaintiff's husband had erred in conveying measurements for a stain glassed panel that he wished to have installed as part of that window structure. Consequently, a correct sized frame was on order and the framing contractor had made changes to the opening in the bathroom wall to accommodate defendant's husband's wishes and directions. 26. Denied. It is specifically denied that defendant discovered pursuant to a site inspection that the master bath window had not been installed and that a first level window had been installed in the "wrong location" or that installation of either' window in a specific location as required for completion of Phase II construction. To the contrary, the pre-construction worksheet dated June 1, 2001 notes specifically at Paragraph 24 that any corrections required during construction shall be completed prior to completion of the building. The master bath window was not installed because the correct sized frame was on back order. Plaintiff and defendant were aware of this factor prior to and at the time of the request for payment under Phase II of construction. By way of further response, assigned print signed by the defendant conf'mns the dimension that the defendant had requested for the window opening and this was the dimension that had to be subsequently changed because the defendant's husband had a stained glassed panel which did not take in account framing sizes. Further, it is assumed that "first level window" referenced in Paragraph 26 refers to a window in the f'mished basement portion of the house which had to be relocated to accommodate defendant's husband's request and requirement that insulated ducting for exhaust fans in the glass blowing room could be installed. 27. Denied. It is denied that the plaintiffs failed to complete work or to do complete work of "good quality" or that contract work does not conform to the requirements of the contract documents in the following areas: "a." Failure to comply with industry standards and building codes in the completion of floor drains, to the contrary, "a'"'sic" "iii." The only drain line on the fu'st level nm into the sewer rather than through to grade was the aforementioned shower drain which could not legally be installed to grade. Not installing drains through the foundation of the garage to daylight, to the contrary, the plaintiff was directed by defendant's on-site engineer agent, Steve Yingst, that the floor drains in the garage were not to be installed. That plaintiff failed to complete work in compliance with Veterans Administration grant requirements causing the grant to be withdrawn is denied. Further, it is denied that defendant Did not complete paperwork required of the contractor by providing drawings and explanatory statements that were inconsistent with each other, to the contrary, no such inconsistencies occurred; Installing connections for shower head at incorrect height and failing to finish installation; to the contrary, blocking for shower heads during framing was adjusted according to defendant's husband's directions and all appropriate installation was installed up until the time that the defendant refused to allow plaintiff access to the property; Failed to install grab bars and three toilets in the bathrooms; to the contrary, plaintiff did not fail to install these items but rather was discharged from the project and not allowed access to complete the work; blocking was installed prior to discharge; Denied that the plaintiff incorrectly installed an ADA ramp from the front porch that had 48-inch long landings instead of the required 60- inch long landings; the ADA ramp that was installed by plaintiffwas at the specific direction of the defendant after a meeting with the defendant's husband and engineer and included the directive of 48- inch wide ramps as dimensioned by the defendant and her agents; That the plaintiff failed to install the "enclosed access ramp" from the garage to the home, but to the contrary, this installation was removed from the project and credited in a change order dated October 19, 2001. "vi." That the plaintiff failed to complete work within a 90-day period required by the Veterans Administration purchase order, any failure of the property to be completed within the required Veterans Administration time flame was not the result of any failure of plaintiff Haubert Homes, but rather delays by defendant's in decision making. That plaintiff failed to place the ceilings at the correct eight-foot height throughout the home causing some ceilings to be to low to accommodate opening of doors; is denied, to the contrary, the first floor of the house has eight-foot ceilings throughout. The basement, which is finished in some places and unfinished in others, has eight-foot poured walls in accordance with the contract agreement and consequently the ceilings in the basement are lower than eight-feet. One door in the basement that defendant subsequent to the approval of the original plan, determined was to be finished, interfered with a heating duct run and accordingly is shorter, slightly, than the standard 7.6-inch door height. It is specifically denied that there is any ceiling in the house too low to accommodate the opening of doors; all doors in the house open and close as anticipated; Installed the furnace on top of an electrical conduit access; is denied, an electrical conduit access installed at the defendant's husband's request, leading to a patio which in the future might be a greenhouse, was relocated in order to install the furnace. There is no furnace installation on top of an electrical conduit access; Installed a gas line that ran exposed through a bedroom; is denied, plaintiff installed no gas lines exposed in bedrooms; there is a"shop" air line installed in the basement and there is a gas line in the glass blowing room in the basement but upon reasonable investigation plaintiff is aware of no circumstance where a gas line is installed exposed through a bedroom; That plaintiff failed to complete construction by November 10, 2001 as required by the agreement and failed to address the situation with the credit union financing the construction causing a construction loan to fail; is denied, to the contrary, the fact that the construction remained incomplete by November 10, 2001 was in no way or event caused by the plaintiff. Any delay in completion of construction was due to the defendant's refusal and inability to make up her mind and give appropriate directives on features or fixtures 20.(sic) 21.(sic) to be installed in the house; furthermore, defendant failed and refused to make appropriate and overdue progress payments on completion of the construction for no valid reason; furthermore, it is not a element of the plaintiff's contract with defendant to represent defendant's interest with the credit union financing the construction. Defendant's New Matter is numbered in error. Plaintiff has repeated defendant's numbering. It is denied that the plaintiff was given the opportunity to repair or cure damage to defendant's satisfaction; to the contrary, defendant would not allow plaintiff access to the property and defendant's husband informed defendant's engineer agent on the project that the defendant's husband had lost confidence in their ability to have the house completed with plaintiff as the contractor and had the locks changed on the doors to deny access to plaintiff. Denied. The averments of Paragraph 2 l(sic) constitute conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is required, it is specifically denied that the defendant's residence and property was left in an incomplete state requiring substantial repairs and modifications causing damage both physically and aesthetically to the home depriving defendants of full use and enjoyment of their property. On the contrary, the defendant removed plaintiff from the property and would not allow plaintiffaccess to complete the home. Despite this, plaintiff agreed, at defendant's request, to allow plaintiff's painting sub-contractor to complete painting of the upper levels of the house. This work was completed and plaintiff has not been paid. 22.(sic) Denied. The averments of Paragraph 22(sic) constitute conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is required, it is denied that the defendant would be required to incur financial expenses and losses in excess of $120,000 to repair and correct alleged defects in the residence. It is further denied that plaintiff in any way materially breached its agreement with the defendant and proof of such allegations is demanded at trial. WHEREFORE, Plaintiff and counterclaim defendant Haubert Homes, Inc. respectfully request that this Court will enter judgment in it's favor in the full amount requested in the original complaint against the defendant, Ann Gates and will deny defendant's counterclaim for $120,000, attorney's fees, interest, and other relief. Dated: March 28, 2003 Respectfully submitted, METTE, EVANS & WOODSIDE David A. Fitzsimons, Esquire Sup. Ct. I.D. # 41722 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff VERIFICATION I, Bradley E. Haubert, am authorized to sign this verification on behalf of Haubert Homes Inc.,, have read the foregoing document and to the extent that it contains information and facts supplied by me, they are true and correct to the best of my personal knowledge, information and belief. I make this Verification subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, First Class Mail, postage prepaid, as follows: Scott A. Stein, Esquire Law Offices of Peter J. Russo, P.C. 3800 Market Street Camp Hill, PA 17011 Dated: March 31, 2003 METTE, EVANS & WOODSIDE By: ~ David A. Fitzsimons, Esquire Sup. Ct. I.iD. # 41722 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attomeys for Plaintiff :315803 _1 PRAEClPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLABD COUNTY Please list the following case: (Check one) ( ) for JURY tri~l at the next term of civil court. ( X) for trial without a jury. CAPTION OF CASE (entire caption rm~st be stated in full) HAUBERT HOMES, INC. ( Plaintiff ) VS. ANN M. GATES 642 Valley View Drive Boiling Springs, PA 17007 (Defendant) VS. ( check one ) ( X ) Civil Action - Law ( ) Appeal from Arbitration ( ) (other) The trial list will be called on and Trials comnence on Pretrials will he held on (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. 02 Civil 3365 2002 Indicate the attorney who will try case for the party who files this praecipe: David A. Fitzsimons, Esquire, METTE, EVANS & WOODSIDE, 3401N. FRONT ST., HBG, PA 17110 Indicate trial counsel for other parties if known: Scott A. Stein, Esquire Law Offices of Peter J. Russo, P.C., 3800 Market Street, Camp Hill, PA 17011 This case is ready for trial. Signed: Print Name: David A. Fitzsimons, Esquire Date: ~ / ~_~]D~ Attorney for: Plaintiff HAUBERT HOMES, INC., Plaintiff ANN M. GATES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW · NO. 02-3365 CIVIL TERM ORDER OF COURT AND NOW, this 28th day of July, 2003, a pretrial conference in the above matter is scheduled for Wednesday, October 15, 2003, at 1:30 p.m., in chambers of the undersigned judge, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memoranda shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least five days prior to the pretrial conference. A NONJURY TRIAL in the above matter is scheduled for Monday, November 24, 2003, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. david A. Fitzsimons, Esq. 3401 N. Front Street Harrisburg, PA 17110 Attorney for Plaintiff '"'~cott Stein, Esq. Law Offices of Peter J. Russo, P.C. 3800 Market Street Camp Hill, PA 17011 Attorney for Defendant :re BY THE COURT, J,~esley Oler,q~., ~' £E _ 7-30 HAUBERT HOMES, INC., : Plaintiff : : V. : ANN M. GATES, : Defendant : IN THE COUiRT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW NO. 02-3365 CIVIL TERM IN RE: PRETRIAL CONFERENCE A pretrial conference was held in the above-captioned case in the chambers of Judge Oler on Wednesday, October 15, 2003. Present on behalf of the Plaintiff was David A. Fitzsimons, Esquire. Present on behalf of the Defendant were Scott A. Stein, Peter J. Russo, Esquire. Esquire, and This is an action for breach of contract and unjust enrichment arising out of construction of a home by Plaintiff for Defendant and Defendant's failure to pay for the same. Defendant has counterclaimed under new matter for a breach of contract in the form of shoddy work, inter alia. This will be a nonjury trial of an estimated duration of three days. Trial had been scheduled by separate order of court for November 24th, 2003, at 9:30 a.m. To facilitate mediation in the case and by separate order of court, trial will be rescheduled in Wednesday, February 11; shall be this court for Monday, February 9; and Thursday, Pebruary 12, 2004. Pursuant to an agreement of counsel, exhibits exchanged between the parties on or before the mediation in this case. With respect to settlement negotiations, it is not indicated at this time that the case will be settled, but it is hoped that the mediation engaged in will result in a resolution. By the Court, J.yesley Ole~Jr., J. David A. Fitzsimons, Esquire For the Plaintiff Scott A. Stein, Esquire Peter J. Russo, Esquire ~/;~ /~-??.~3 For the Defendant ~. Court Administrator : lfh HAUBERT HOMES, INC., Plaintiff V. ANN M. GATES, Defendant AND NOW, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-3365 CIVIL TERM ORDER OF COURT this 15th day of October, 2003, following a pretrial conference in the above-captioned case and pursuant to an agreement of counsel, the trial scheduled Monday, November 24, 2003, at 9:30 rescheduled for Monday, February 9, a.m. is postponed and 2004, Wednesday, February 11, 2004, and Thursday, February 12, 2004, commencing on each day at 9:30 a.m. By the Court, David A. Fitzsimons, Esquire For the Plaintiff Scott A. Stein, Esquire Peter J. Russo, Esquire For the Defendant Court Admininstrator :lfh for LAW OFFICES OF PETER J. RUSSO, P.C. PETER J. RUSSO, ESQUIRE PA Supreme Court ID: 72897 SCOTT A. STEIN, ESQUIRE PA Supreme Court ID: 81736 3800 Market Street Camp Hill, PA 17011 (717) 591-1755 HAUBERT HOMES, INC., Plaintiff ANN M. GATES, Defendant Counsel for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-3365 CML TERM ORDER OF COURT AND NOW, this 7.>q, ~ day of February 2004, upon consideration of Defendant's Motion For Continuance and with no objection by Counsel for Plaintiff, it is hereby ORDERED, and DECREED that said Motion is GRANTED . Trial in the above-captioned matter is rescheduled for ~z/fl~,~5oZd/~7/_,2004at_ ~:.:~,o o'clock ~_.m. in cour~oom / HAUBERT HOMES, INC. Plaintiff ANN M. GATES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. O2-3365 CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S MOTION TO COMPEL ANT) NOW, comes the Plaintiff, Haubert Homes, Inc. (herein, "Haubert") by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and submits the following Motion to the Court: 1. This action is the result of a Complaint filed by Eiaubert Homes against Defendant, Ann Gates, for monies owed towards the construction of a home located in Boiling Springs, Cumberland County, Pennsylvania. 2. Defendant has filed a verified Counter-Claim, signed by counsel, which alleges damages in excess of $120,000.00, to remedy alleged defects in Haubert's construction. 3. This matter is scheduled for a bench trial before the Honorable J. Wesley Oler, Jr., commencing on May 24, 2004, on which date Haubert is confident it can complete its case in chief and also scheduled for continuation on May 26 and 27, presumably so that Defendant can present her Counter-Claim. 4. Trial is rescheduled at the request of Defendant, whose husband is characterized as a necessary witness at the trial, was to undergo medical treatments on February 9, 11 and 12, 2004, the last rescheduled date for the aforesaid trial. 5. By letter dated March 26, attached hereto as Exhibit "A," counsel for Haubert served Requests for Production and Interrogatories, attached respectively as Exhibits "B" and "C," to counsel for Mrs. Gates to ensure that necessary documentation and information relating to the Counter-Claim were provided prior to trial. 6. No responses have been provided to that discovery to date. 7. The Professional Engineer who was employed by Mrs. Gates and/or her husband to manage the construction of their home with Haubert, is not yet identified as either an expert or a witness at trial. Counsel for Haubert has been unable to contact that witness out of concern that any formal contact might be characterized as inappropriate depending upon the Defendant's characterization of that individual. 8. For Haubert to go to trial and to respond to Defendant's Counter-Claim without the benefit of discovery properly served by Haubert, would be prejudicial. 9. Haubert respectfully requests that the Court order and direct Defendant/Counter- Claim Plaintiff to make full responsive replies to the attached di[scovery, without objections, prior to the close of business on May 18, 2004, or suffer sanctions including, but not limited to, exclusion of all evidence relating to the New Matter and Counter-Claim. WHEREFORE, Plaintiff respectfully requests that this Honorable Court will direct Defendant to respond to the discovery served on March 26, 2004, by the close of business on May 18, 2004, or be excluded from presenting evidence relating to her New Matter and Counter Claim. Date: May 5, 2004 David A. Fitzsimons, Esqmr I.D. No. 41722 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff Haubert Homes MARTSON DEARDORFF WILLIAMS & OTTO MDW N,.O INFORMATION * ADVICE · ADVOCACY TEN EAST HIGH STREET CARLISLE, PENNSYLVANIA 17013 TELEPItONE (717) 243o3341 FACSIMILE (717) 243-1850 [NTERNET wvwv. m dwo.com March 26, 2004 ATTORNEYS ~ COUNSELLORS AT LAW ~(/ILLIAM F. MARTSON JOIIN B. FOWLER III EDWARD k SC}IORPP DANIEL K. DEARDORFF THOMAS J. WILLIAMS* IVO V. OTto III G£ORGE B. FALLER JR,* CARL C. RISCH DAVID A. FITZSIMONS DAVID R. GALLOWAY ANTHONY m. LUCIDO CHRISTOPHER E. RICE STEVEN J. SHANAHAN *BOARD CERTIFIED CIVIL TRI^I. SPECIALIST Scott A. Stein, Esquire LAW OFFICES OF PETER J. RUSSO, P.C. The Chelsea Building 3800 Market Street Camp Hill, PA 17011 Haubert Homes, Inc. v. Ann M. Gates No. 02-3365-Cumberland County C.C.P. Our File No. 11090.4 Dear Scott: I hope that Mr. Gates's appointments at various Veteran's Administration medical facilities during the week that thai was originally scheduled were successful and he has sufficiently recovered so that you have had the opportunity to discuss with his wife her obligations in proceeding towards a resolution of this claim. We are scheduled for thai on May 24, 26 and 27, 2004, and it is my intent to proceed to trial. I need a meaningful and legitimate settlement proposal from your client if we are to engage at all in any discussions of settlement. As I had explained to you and Peter some months ago, it will be necessary for me to receive some assurance that financing for the settlement is available. Peter had indicated that you would obtain confirmation of resources for settlement and I am hopeful that you were able to obtain that confrrmation. Insofar as any further concerns that Mr. Gates has about availability of plans and documentation so that he can obtain grants to install ramps at the property, that can all be wrapped up as part ora global settlement. You had also advised me that you would provide copies and documentation of the repair costs that were claimed in the counter claim. In order to, perhaps, provide you with some leverage with your client, I have included a Request for Production of Documents which will require the provision of all such documentation to me prior to May. If your client has no such documentation or refuses to provide it to you, I will then be able to block the introduction of any such claims at trial. EXHIBIT "A" INFORMA'I'ION ADVICE ' ADVOCACYTM Scott A. Stein, Esquire March 26, 2004 Page 2 I had also asked on prior occasions whether the engineer who served as a "clerk of works" for Mrs. Gates during construction is, in your view, an expert witness or a fact witness. If he is a fact witness, I want to talk to him. If he is an expert witness, maybe you and I and he should sit down together with Brad Haubert and our project manager, Turk, to discuss his observations and findings. To ensure that we understand his role, I have also included basic interrogatories relating to witness and expert testimony so that we can be sure before the end of April as to what we are facing. My recollection is that we had previously provided to you everything that ybu had asked for relating to pricing construction, etc., on the house. If there is additional information that you require, please let me know. I will be glad to provid6 it to you without the need for formal discovery. Very truly yours, MARTSON DEARDORFF WILLIAMS & OTTO DAF/tde Enclosures David A. Fitzsirnons CCi Mr. Bradley E. Haubert (w/o enc.) Mr. Donald Haubert (w/o enc.) HAUBERT HOMES, INC. Plaintiff ANN M. GATES, De~ndant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-336:5 CIVIL ACTION - LAW JURY TRIAL DEMANDED REQUEST FOR PRODUCTION OF DOCUMENTS TO: ANN M. GATES, Defendant, and her attorney, SCOTT A. STEIN, ESQUIRE AND NOW, this 26th day of March, 2004, pursuant te Pa. R.C.P. 4009, as amended, comes the Plaintiff by its Attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, Ten East High Street, Carlisle, Pennsylvania, and requests Defendant to produce for inspection, examination and copying, at the above office, not later than thirty (30) days after service of this Request the following documents: 1. All photographs in the possession, custody or control of Defendant, counsel for Defendant, or any other person or entity acting on behalf of Defendant, including any insurers for Defendant, showing, representing or purporting to show any vehicles, locales, instrumentalities, persons, property, and any and all other matters related to the: subject matters of this litigation. 2. All diagrams, sketches, drawings, plans, measurements or blueprints in the possession, custody or control of Defendant, counsel for Defendant, or any other person or entity acting on behalf of Defendant, including any financier of ]Defendant, showing representing or purporting to show any of the instrumentalities, locales, persons or other matters involved in the incident which forms the basis of Plaintiff's Complaint. 3. All expert opinions, expert reports, expert summaries or other writings of experts in possession, custody or control of Defendant, Defendant's attorneys, which relate to the subject matter of this litigation and the incident in question. 4. Ail documents prepared by Defendant, or by any government agencies, representatives, agents or anyone acting on behalf of Defendant, except Defendant's attorneys, during an investigation of any aspect of the dispute in question. Such documents shall include any documents made or prepared up through the present time, with the exclusion of the mental impressions, conclusions or opinions respecting the value or merit of a claim or defense, or respecting strategy or tactics. (NOTE: As referred to herein, "documents" includes written, printed, typed, recorded or graphic matter, however produced or reproduced, including correspondence, telegrams, other written communications, data processing storage units, tapes, contracts, agreements, notes, memoranda, analyses, projections, indices, work papers, studies, reports, surveys, diaries, calendars, films, EXHIBIT "B" photographs, diagrams, drawings, minutes of meetings or any other writing (including copies of the foregoing, regardless of whether the parties to whom this request is addressed are now in the possession, custody or control of the original) now in the possession, custody or control of Defendant, Defendant's former or present counsel, agents, employees, officers, insurers or any other person acting on Defendant's behalf.) 5. If any document or class of documents is being withheld on the basis of any privilege, identify the document or class of documents, the date or dates of the documents, its author or originator, as well as the privilege which is being asserted. MARTSON DEARDORFF WILLIAMS & OTTO By David A. Fi,lzsimons, Esquire I.D. No. 41722 Ten East High Street Carlisle, PA 17013 (717) 243-31341 Attorneys fe,r Plaintiff CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson DeardorffWilliams & Otto, hereby certify that a copy of the foregoing Request for Production ol~Documents was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Scott A. Stein, Esquire LAW OFFICES OF PETER J. RUSSO, P.C. The Chelsea Building 3800 Market Street Camp Hill, PA 17011 MARTSON DEARDORFF WILLIAMS & OTTO D. Eckenr~oa~ Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: March 26, 2004 HAUBERT HOMES, INC. Plaintiff ANN M. GATES, Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3365 CIVIL ACTION - LAW JURY TRIJtL DEMANDED PLAINTIFF'S EXPERT INTERROGATORIES DIRECTED TO DEFENDANT TO: ANN M. GATES, Defendant, and her attorney, SCOTT A. STEIN, ESQUIRE Enclosed are Interrogatories propounded by Plaintiff to be answered under oath by the aforesaid Defendant pursuant to Pa. R.C.P. No. 4005, within thirty (30) days from the date of service hereof. A copy of said Answers shall be served upon counsel for Plaintiff at the address below. These Interrogatories shall be deemed to be continuing Interrogatories and if, between the time of your Answers to said Interrogatories and the time oflxial of this case, you or anyone acting in your behalf learn of any further information not contained in your said Answers, you shall promptly furnish said information to the undersigned by supplemental answers. As used herein, the word "occurrence(s)" refer to the dispute described in Plaintiff's Complaint and Defendant's Answer with New Matter and all related events and circumstances. Unless otherwise specified, response to the following Interrogatories shall give the requested information for the period from the commencement of construction to the present (hereinafter sometimes referred to as the "time period"). It is hereby certified that a txue and correct copy of' these Interrogatories was mailed to counsel for the Defendant on this date by the undersigned. MARTSON DEARDORFF WILLIAMS & OTTO David A. Fitzsimons, Esquire LD. No. 41722 Ten East High Street Carlisle, PA, 17013 (717) 243-3341 Attorneys for Plaintiff EXHIBIT "C" Interrogatory No. 1 Please identify each person you expect to call as an expert witness at trial and state the subject matter on which each person is expected to testify. ANSWER: Interrogatory No. 2 As to each person identified in your answer to the preceding interrogatory, please state the substance of the facts and opinions to which he is expected to testify and the grounds for each opinion. * Signature of Expert *A report, personally signed by your expert, may be furnished in lieu of your answer to this interrogatory. If you elect to furnish reports in lieu of an answer, then please indicate in the space above the date of each such report and the persons by whom they were prepared. Interrogatory No. 3 Identify by author, title and page number what text, joumals or other writings provide a basis for the opinions held by each person identified in your answer to Interrogatory No. 1 or which may in any way be relied upon by you at the upcoming trial. ANSWER: Interrogatory 4 (a) List the names and addresses of the persons known or believed by you, or any person acting on your behalf, to have been within sight or hearing of the said occurrence and with respect to each of the aforesaid witnesses, state their exact location and activities at the time of the said occurrence and whether he saw the incident. ANSWER: (b) Except as set forth in (a) above, list the names and addresses of all persons known or believed by you, or any person acting on your behalf, to have first-hand knowledge of the facts and circumstances of the said occurrence or of the events leading up to or following it. ANSWER: (c) Except as set forth in (a) above, list the names and addresses of all persons known or believed by you, or any person acting on your behalf, to have first-hand knowledge of the conditions at the scene of the said occurrence existing prior to, at or immediately after the same. ANSWER: Interrogatory No. 5 Identify every person known to you, or to your attorneys, or representatives, who claims to have seen or heard the Plaintiff make any statement or statements pertaining to any of the events or happenings alleged in the Complaint. ANSWER: Interrogatory No. 6 Except as set forth in 1 and 4 above, list the names and addresses of all persons, including potential expert wimesses, from whom you, or anyone acting on your behalf, have obtained any information as to how the said occurrence happened or the cause of the said occurrence. ANSWER: Interrogatory No. 7 If any of the witnesses listed in your answers to Nos. 1 and 4 or whom you propose to use at trial are related to you, or to each other, please state the nature of such relationship(s). ANSWER: Interrogatory No. 8 Please state the names and addresses of all persons you plan to call as witnesses at the trial of this case. ANSWER: COMMONWEALTH OF PENNSYLVANIA COUNTY OF SS. being duly sworn according to law, deposes and says that the facts set forth in the foregoing Answers to Interrogatories are tree and correct. Sworn to and subscribed before me this day of ,2004 CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Interrogatories was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Scott A. Stein, Esquire LAW OFFICES OF PETER J. RUSSO, P.C. The Chelsea Building 3800 Market Street Camp Hill, PA 17011 MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 (717) 243-3:341 Dated: March 26, 2004 CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson DeardorffWilliams & Otto, hereby certify that a copy of the foregoing Motion to Compel was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Scott A. Stein, Esquire LAW OFFICES OF PETER J. RUSSO, P.C. The Chelsea Building 3800 Market Street Camp Hill, PA 17011 MARTSON DEAI~DORFF WILLIAMS & OTTO '-T"~icia D. E~l~enroad Ten East High Street Carlisle, PA 171) 13 (717) 243-3341 Dated: May 5, 2004 HAUBERT HOMES, 1NC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ANN M. GATES, Defendant NO. 02-3365 CIVIL TERM ORDER OF COURT AND NOW, this 12th day of May, 2004, upon consideration of Plaintiff's Motion To Compel Discovery, and following a telephone conference in which Plaintiff was represented by David A. Fitzsimons, Esq., and Defendant was represented by Scott A. Stein, Esq., and pursuant to an agreement of counsel, the motion is granted to the extent that Defendant is directed to provide the requested discow~ry to Plaintiff's counsel by the close of business on Tuesday, May 18, 2004. BY THE COURT, ~avid A. Fitzsimons, Esq. Ten East High Street Carlisle, PA 17013 Attorney for Plaintiff t,S~ott A. Stein, Esq. Law Offices of Peter J. Russo, P.C. The Chelsea Building 3800 Market Street Camp Hill, PA 17011 Attorney for Defendant jWesley Olt~lr.~ J. :rc HAUBERT HOMES, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : V. : CIVIL ACTION - LAW : ANN M. GATES, : 02-3365 CIVIL TERM Defendant : IN RE: NON-JURY TRIAL CANCELLED ORDER OF COURT AND NOW, this 24th day of May, 2004, upon consideration of Plaintiff's complaint in the above-captioned matter and of Defendant's counterclaim, and following a conference in chambers in which Plaintiff was represented by David A. Fitzsimons, Esquire, and Defendant was represented by Scott A. Stein, Esquire, and at which the terms of a resolution of the complaint and counterclaim were placed on the record by counsel with the understanding that the agreement will be reduced to writing and filed of record, and pursuant to an agreement of counsel, the non-jury trial scheduled in this matter is canceled. David A. Fitzsimons, For the Plaintiff By the Court, 'Wesley ~, Jr[~,j. Esquire Scott A. Stein, Esquire For the Defendant :mtf HAUBERT HOMES, INC., : Plaintiff : ANN M. GATES, : Defendant : AND NOW, this IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - ]LAW NO. 02-3365 CIVIL TERM ORDER OF COURT 16th day of July, 2004, following a conference in chambers of the undersigned judge in which Plaintiff was represented by David A. Fitzsimons, Esquire, and Defendant was represented by Scott A. Stein, Esquire, and it appearing to the Court that Defendant has not yet complied with the terms of the agreement reached between the parties and referred to in the order of Court dated May 24, 2004, and Defendant's counsel having indicated that Defendant has represented to him that she will be executing a mutual release in the form attached hereto, and within 10 days of today's date furnishing to Plaintiff's counsel the sum of $105,000 to complete the settlement in this case, and pursuant to an agreement of counsel, it is ordered and directed as follows: 1. Within 10 days of today's date, Defendant shall furnish to Plaintiff's counsel a properly executed mutual release in the form attached hereto and the sum of $105,000; and 2. Within five days thereafter,. Plaintiff shall furnish to Defendant,s counsel an original of said mutual release executed by Plaintiff. By the Court, David A. Fitzsimons, Ten East High Street Carlisle, PA 17013 For the Plaintiff Esquire Scott A. Stein, Esquire Law Offices of Peter J. Russo, The Chelsea Building 3800 Market Street Camp Hill, PA 17011 For the Defendant ~ ~n~.L ¢.P.~'o~I P. C. ~ pcb HAUBERT HOMES, INC., Plaintiff ANN M. GATES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-3365 CIVIL ACTION - LAW : : JURY TRIAL DEMANDED PRAECIPE The undersigned counsel, authorized by their clients to enter into this Praecipe, requests that the docket for the above-referenced action be marked as settled and discontinued. Respectfully Submitted, o, o I.D. No. 41722 Ten East High Street Carlisle, PA 17,013 (717) 243-3341 Attorneys for Plaintiff Haubert Homes LAW OFFICES 0]7 PETER J. RUSSO, P.C. By ~cc~tt A. Stein, Esquire" - The Chelsea B~filding 3800 Market S~n'eet Camp Hill, PA 17011 Attorneys for Defendant Ann M. Gates CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson 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: Scott A. Stein, Esquire Law Offices of Peter J. Russo, P.C. The Chelsea Building 3800 Market Street Camp Hill, PA 17011 MARTSON DEARDORFF WILLIAMS & OTTO ~-~'~r}ci~ I37~:kenroad ' fi'" ' - Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: September 17, 2004