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THOMAS E, DEGLING and.
DONNA B, DEGLING.
Plaintiffs
7 tloffer
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
WARNER HOMES, INC, al1d
JACK L, WARNER,
Defendants
CIVIL ACTION - LAW
94-4514 CIVIL TERM
IN~RE: PRETRIAL CONFERENCE
A pretrial conference was held on Wednesday. March
I. 1995. before the Honorable George E. Hoffer. Judge,
In this building contract case, Delono M, Lantz.
Esquire. represents the plaintiffs; and Theodore A, Adler.
Esquire. represents both defendants,
David Campbell. Esquire. oppears at the pretrial
conference on behalf of Donold Hoyt, Esquire. who is the
attorney for the defendant's insurance carrier,
ApparentlY the insurance carrier will be
contesting liability to pay anything under the poliCY.
should the defendants be found to be liable, That is a
matter evidently to be resolved later,
This is a non-Jury trial estimated to take a day
and a half to try, Each party has reviewed the witness
lists and exhibit lists of the other party ond no problem
hos been roised. except that plaintiff has not yet received
a copy of the expert report of wi tness Miller. This should
94-4514 Civil Term
In Re: Pl'etrial Conference
Page 2
be token core of promptly,
Plointiff Is directed to prepare 0 complete set of
Findings of Fact and Conclusions of Low dealing with all
iuues raised in the COSI!, and sholl furnish such document
to the court and defense counsel within three weeks of
todoy's dote; upon receipt of that document. defense counsel
sholl hove two weeks to reply, Upon receipt of the
plointiff's Findings and Condus ions, the court will
cammunicote with counsel and set a trial date,
The court, in view of the lengthY witness list
proposed by plaintiff, stronglY suggests to the parties that
they try to resolve the Question of some of the bills
without the appearonce of the witness in court,
By the Court.
Delano M, Lantz. Esquire
For the Plaintiffs
Theodore A, Adler, Esquire
For the Defendants
David Campbell. Esquire
For Defendants' insurance carrier
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THOHAS I. DIOLIMG and I IN THI COURT or COKKOH 'Lias
DOHHa I. DlaLIHG, I CUMBIRLaHD COUNTY, '.HH8YLVAHI~
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'lainUtr. I
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V. I NO. '4-4814 CIVIL TIRH 1..4
I
WaRHIR HOMII, INC. and I
JACI L. WaRHIR, I
I
Defendante I
'RI-TRIaL KIMORANDUK or DBrIHDANTS.
~.wNC. AND J~CIt L. W~RJfIR
The Defendants, WARNER HOMES, INC. and JACK L. WARNER, by and
through their counsel, Reager & Adler, P.c., hereby submit the
following.
I. BASIC rACTB AS TO LIABILITY
On or about October 1, 1993, Plaintiffs, Dr. Thomas E. Deqling
and Donna B. Degling (hereinafter "Deglings"), and Datendant,
Warner Homes, Inc.
(hereinafter "Warner"), a Pennsylvania
corporation, entered into a written contract. Under the terms of
the contract, Defendant Warner was to erect and build 1.1 new home on
the premises situated at 121 Harmon Drive, Carlisle, Pennsylvania.
In exchange, the Deglings agreed to pay Warner the sum of
$229,750.00.
Warner has been a dasign\bui1d homebuilder which has over the
years designed residences and prepared the 11ecessary plans and
specirioations. Defendant Jack L. Warner never represented to the
Deglings that he was a registered architeot.
UndlJr the terms 0 f the contract, De fendant Warner was to
oommence work on or before october 6, 1993, and wae to oomplete
work on or before March 6, 1994. On or about October 6, 1993,
oonstruction commenoed. While construction waR ongoing, the
parties to the contract entered into several change orders.
On or about February 12, 1994, the Peg lings ordered Warner to
stop work on the project, 'rhe Deglings claim they did so because
of what they alleged were design and construction deficiencies.
Despite assurances by War.ner I s counsel that Warner intended to
correct any defective work that may be reasonably sugg~sted by a
structural engineer, the Deglings have refused to permit Warnor to
proceed with the completion of the project, inclUding any
corrective work. Instead, Plaintiffs hired other contractors to
correct the work on the project.
Up until the time the Deglings ordered Warner to stop its
work, Warner waR proceeding with due course to meet the as-planned
completion date. At the point that Warner was prevented from
making further progress on the work, the home was under roof, rough
plumbing had been placed, the heating system had been roughed-in
and insulation had been installed in the walls, Despite its
willingness to do so, Warner was not permitted to complete the
house.
-2-
In addition, the Plaintiffs have aUeged that Defendant
Jack L. Warner made certain misrepresentations with regard to hi.
qualifioations as an architect. The plaintiffs have, however,
failed to specify when, where, how and to whom such representations
were uttered. The Defendants are currently seeking this
information through interrogutories.
II. UI1~CTS AS TO DAKAGI!IS
The Complaint sets forth damages in an amount which exceeds
$44,959.41. The maj ori ty of these alleged damages represent
charges allegedly incurred by the Plaintiffs to complete the house,
including remedying certain defective work. Warner admits only to
owing Plaintiffs $4,813,36,
III. fROC!DU~L HISTORY
The instant matter was commenced by the Plaintiffs on August
11, 1994, by the filing of a Complaint. Defendants filed an Answer
with New Matter on September 29, 1994. The Plaintiffs filed a
Reply to Defendants' New Matter on or about October 5, 1994.
Discovery is not closed at this time in that Defendants have
propounded interrogatories and requests for production of documents
upon the Plaintiffs on or about January 11, 1995, which currently
remain outstanding.
-3-
vr. LIST or IXHIBITS
1. Letter of 7/24/94, Oegling to Monroe Mechanical Oontractor.
2. Letter of 5/10/94, with enolosure, from G.A. Hyers Adju8tment
Co. to Oeglings
3. All change orders
" . The co"tract between the parties
5. Loan draw schedule
6. Plan of the house
7 . Report of W.B. Miller, IV, P.E.
VII. STATUS or S~MINT HIGOTJaTIOHS
There are no on-going negotiations at this time.
RESVECTFULLY SUBMITTED,
REAGER & ADLER, P.C.
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BYI /
THE600RE A. ADLER, ESQUIRE
Identification No. 16267
2331 Market Street
Camp Hill, PA 17011-4642
(717) 763-1383
Attorneys for Defendants
Datel February~, 1995
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"A""I..U"Ot'A 1710.
v.
I IN THE COURT OF COMMON PLEAS
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I
I CIVIL ACTION - LAW
I
I
I
I NO. 94-4514 CIVIL TERM 1994
THOMAS I. DEGLING and
DONNA B. DEGLING,
PlaintiftB
WARNER HOMES, INC. and
JACK L. WARNER,
Detendants
palTRIaL MIKOaAl>>UK OM .IBALr 0'
PLaIKTIrr.. TBOMAB I. DIGLIHa IBD DOHHa .. DlaLIHa
AND NOW COME Plaintiffs, Thomas E. Degling and Donna B.
Deqling and file this Pretrial Memorandum as followSI
I. STATIIIIHT 01' THI BABIC nCTS AS TO LIUILITY
plaintiffs seek damaqes for various losses arising out of
the failure of Defendants to fulfill their commitment to
construct a residence for Plaintiffs in a good and workmanlike
manner.
In the spring of 1993, Plaintiffs met with Defendant Jack
Warner, President of Warner Homes, Inc., because plaintiffs were
interested in buildinq a hiqh quality residential home on a lot
owned by them at 121 Harmon Drive, Dickinson Township, carlisle,
Pennsylvania. Mr. Warner held himself out as an architeot
skilled in the des1,gn and construction of all phases of a high
quality residential home. Plaintiffs entered into a contraot
with Warner Homes and Jack L. Warner on Ootober 1, 1993, for thM
construction of a home pursuant to plans that had been prepared
by Mr. Warner. Under the .gree.ent, work was to begin no later
than Ootober 6, 1993, and be co.pleted on or before March 6,
1994.
The parties entered into v.rious change orders .s
construction went forward. Plaintiffs made advanoe p.yments on
the change orders ae required by the terms of the change orders.
In Februaxy 1994, Plaintitfs became concerned about serious
design and oonstruotion deficiencies in the home. At the time,
the home was under roof, rough plumbing had been placed and the
heating system had been roughed in. Inaulation had been
installed in the walls. The deticienoies were confirmed by
qualified structural engineers and other trade experts. The
defioiencies constitutsd material breaches of the construction
agree.ent. construction was halted because of the serioul
deticiencies.
After full investiqation was made, Detendants failed to
provide reasonable assurance that they would or w.re capable of
correctinq the material design and construction deficiencies and
completing the construction in a manner that would provide
Plaintitfs with the high quality home to which they were entitled
under the contract. Therefore, Plaintitt. terminated Defendants.
In the winter of 1994, there was signiticant ice and snow.
From the second from the floor up, the home shitted.
Fortunately, plaintiffs had a homeowners policy which provided
payment tor a portion of the harm which was sustained. The
- 2 -
ho.eowner.' in.urer paid tor the co.t to totally re.ove the
.eoond floor and the roof and to replace tho.e ite...
Plaintitt. have hired contractor. to correct the
deticienoie. and oomplete the ho.e. The seoond tloor and roof
were re.oved and rebuilt. The co.t ot that portion of the work
i. not part ot tho damage. claimed in this case. correotive work
ha. al.o been done on the tirst floor and in the b.e.ent. That
work i. part of the present claim. The home i. .till not
finished.
The preaent olaim i. brought by Plaintiff. again.t
Defendants for thOle items of los~ that were not compen.ated by
the homeowners' insurer. Defendants are plainly liable tor their
failure to oonstruct the home in a good and workmanlike manner.
II. STATIUIBIf'1' O. TaB BASIC .ACTS AS TO D1UlAClBS
A. noted above, Plaintiffs received compensation from the
homeowners insurer for the costs of removing and replacing the
root and second floor. However, there were other deficiencie. in
construction and various advances for work not performed and
certain overcharges for which Plaintiffs eeek damage. in thil
action. The items of damages for which claim is made are as
tollOWSI
nu Amount<
1. Advance payment on Change Order 9302-01
for changing to a brick fireplace instead
of artificial stone; payment was made, but
work never done . . . . . . . . . . , . . . . . $1,200.00
- 3 -
3. Advance payment on change Order 9303-01 for
conorete apron alon9 the house in the area ot
the ohianey pad, payment wa. ~ade, but work
va. not done . . . , . , . . . . . . . . , . . .. 450.00
Advance payment on Chanqe Order 9303-03 tor
placin9 a walkway tor attio storage, payment
was .ade, but work was not done . . . . . .
Advanoe payment on Change order 9302-04 for
deoorative tlue c.ps, payment was made, but
tlue oaps were not furnished . . . . . . . .
~. Advanoe payment on Change Order 9303-03,
It.. 9 for drywalling upstairs closets,
advanoe payment was made, but work was not
performed . . . . . . . t . . . . . . . . . . .. 350.00
3.
4.
6.
. . .
500.00
. . .
500.00
7.
Advance payment on Change Order 9302-01
tar siding, siding labor, insulation, trim,
soffit, facia, shingles, dry wall, paint and
tloor covering relating to a bay window,
advanoe payment was made, but work indicated
was not pertormed (bay window was placed, but
the other items were not completed) ....
Advance payment on Change Order 9302-03 for
bonus roo. ceiling over the garage area,
advance payment was made, but work was not
done. . . . . . . . . . . . . . . . . . .
490.00
. . .
960.00
. . . .
8.
Retund ot deposit that was made tor the
pr.paration of plans. The deposit was made
on the representation and underutanding that,
it work went forward, the Oegling. would
receiv. a credit for the deposit. No credit
has been given to date. The plans turned
out to be inadequate . . . . . . . . . . . .
. . .
760.00
9. Credit for the failure to install the two
lones tor heating and COOling as called tor
in the contraot, the install.r installed a
single zone system. After the work was done,
Warner agreed to provide a oredit ot $1,100 to
the Deglings for this item. . . . . . . . . .. 1,100.00
10. Reimbur.e..nt for the co.t of fuel oil. Under
the contract, the oontractor wa. responsible
tor fu.l oil during the construction period.
- .. -
In.tead, the contractor placed .n eaervenoy
c*ll to Hr.. DeVlinv to vet a delivery ot tuel
oil which was paid tor by the DeVlinv. . . . . . . 463.36
11. A. a re.ult of the defect. in the ccn.truction,
the Devlinv. retained a .tructural en9il,eer,
luvene AUfiero, to inve.tivate, analy.e and aake
reco..endation. tor a .clution to the proble...
Hr. Autiero'. total fee. are. . . . . . . . .. 1,~a6.00
la. Lo.. ot u.e ot the buildin9 tor .ix .onth. in
exce.. of the four .onth. paid by the homeowner.'
in.urer. Under the contract, the hou.e wa. to
be co.pleted by March 6, 1994. con.truction
was behind .chedule even betore the proble..
aro.e. It will take at lea.t ten month. from
March 6 to actually have the hou.e ready tor
occupancy. The tair rental value of the property
i. at lellBt $1,600 per month. .... . . . .. 9,600.00
13.
14.
15.
Repair. to the tir.t tloor and ba.ement
per e.ti.ate of R.E.T. A..ociate. ba.ed
the .hortcoming found by the .tructural
engineer.. See e.timate attaohed a.
Exhibit "e" ... . . . . . . , . . . .
area
on
. .
. .
9,304.05
In.tallation of kneewall in attic. At the
time the problem. developed, no kneewall had
been in.talled other than a temporary kneewall
that wa. in.talled on an emergency ba.i.. The
homeowner.' in.urer did not pay tor the inatalla-
tion of an appropriate kneewall. The Oeqling.,
however, had paid tor the draw. through the
completion of all framing, which included
the kneewall. The co.t i. baaed on the
e.ti.ate of R.E.T. tor oompletion ot the
kn..wllll . . . . . . . . . . . . . . . . .
960.00
. . .
corrective work on the heating .y.tem due to
de.ign and con.truction detect. per e.timate
ot Eugene Quigley . . . . . . . . . . . . .
. .
4,2315.00
16. Reimbur.e.ent for failure to complete
required and aqreed to electrical change. in
the ba.ement pur.uant to chanqe Order 9302-03.
Warner wa. paid through all rough in wiring.
Further, the circuit breaker box was improperly
in.talled in the garage in.tead of the ba.ement.
Warner agreed to put a sub-box in the ba.ement.
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That work wa. not
in wa. .uppo..dly
the draw .chedule
done even though all rough
co.pleted and paid for under
, . . . . . . . . . . . " .
. .
947.00
17. Rei.bur.e.ent for .a.onry pier under garage
foundation lintel under Change Order 9303-02.
Thi. item wa. installed a. a re.ult Qf the
deticiencie. in the initial construction.
AlthQugh Plaintiff. as an accommodation agreed
to pay for the addition or. the lintel, it i. now
obvious that this payaent was inappropriate becau..
ot the taot that the work had not been done
in a good and work.anlike manner in the tir.t
in.tano. . I . . . . . . . . . t . . . . , . . .. 125.00
lB. Renailing ar.a. that were inadequately nailed
by Warner. Many ot the area. need to be ra-
nail.d. . . . . . . . . . . . . . . . . . . . I . .600.00
19.
Rei.bur.e.ent for any overcharge. on digging
the foundation. After the initial digging ot
the toundation, the Deglinge wanted it lowered.
The Deglinga agreed to pay any actual additional
coat incurred by Warner for the redigging. By
Change Order 9303-02, Ite. 3, thia was li.ted
at $3,561.60 and was paid by the Deglings. on
infor.ation and belief, the actual coat to
Warner for the redigging was .ub.tantially lesa
than that amount. The exceas over thft actual
co.t i. due and owing to the Degl1ng. . . . . .
. 1,348.00
20.
Trailer rental to atore .aterial. off .ite while
the .econd tloor and roof are torn down and
rebuilt . I . . . . . I . . , . . .
. . .
260.00
260.00
21.
Deductible on homeowner.' policy . .
. .
. . . . .
22. Damage. tor lose ot bargain due to design
flaw., .teel beam. that are too short,
10.. ot .pace due to problem. with the
heati~g and plumbing layout and design,
extra poat in basement and other .imilar
matter. . . . .. .. .. ........ 10,000.00
TOTAL
. . . . . . . . . . . . . . .
$44,969.41+
- 6 -
xxx. .faf...., AI fl. .II.CI.AL I.,UI. 0' LraaILIfY
~ DaM am..
A. Were Plaintitt. ju.titied in refu.ing to per. it
Detendant. to continue with con.truotion or to attempt to correct
deticiencie. where Detendante tailed to acknowledqe the
.eriou.ne.s ot the deticiencies and failed to provide adequate
a..urance. ot their ability to perform pur.uant to the contract?
Appel Media. Inc. v. Clarion State Cclleqe, 16 Pa. Commw. 636,
327 A.2d 420, 423 (1974).
B. Are Plaintitta entitled to refunda tor advancea that
were mad. on ohanqe order. that were not completed by Defendant.?
c. Are Plaintifta entitled to the ooet to r~pair and
correot the defective work wher.e repairs wire actually made and
the ooat ot. the repairs are reasonable and not disportionate to
the market value ot the home? Hoke v. Rea.tor Asphault Pavin~,
114 Dauph. 462 464 (C.P. 1994) and cases oited therein.
D. Did Plaintiff. mitigate their damage.?
IV. IDIKTITY 0' WITHI&&I& TO BI CALLID BY 'LAIKTI,r.
1. Thoma. E. Deqling
2. Donna B. Degling
3. Randy Snyder, RET Associates
4. Eugene Autiero
6. Denni. Regan, Regan Matonak Asaooiate.
6. Steve Johnaon, Getty Buildera, Inc.
7. Dr. Lawrence DiPietro
- 7 -
I. Jay Bier~
e. David Griffie
10. ~req Myer., G.A. Myer. Adju.taent coapany/ Inc.
11. Scott Herigan, Dauphin Excavatinq coapany
la. Williaa L. Shearer, Wolf' Shearer
13. Repre.entative of Gaffrey'. Electrical
V. ~I'T OW .1B~BIT8
1. con.truction contract dated October 1, 1993,
a. construction plan. and specitications,
3. Letter of March 2, 1994 from David W. Reager, Esquire,
to Thomas E. Oegling, DHD,
4. Letter of March 12, 1994 from Thomas E. Degling, DMD,
tu Mr. Jaok Warner,
5. Letter of April 8, 1994 from Thomas E. Deqling, DHD, to
William Plumber,
6. Letter of April 15, 1994, from David W. Reager to
Thomas E. Degling, DHD,
7. Letter of April 26, 1994, from Chris A. Hoover to Mr.
Jack Warner,
8. Letter of April 27, 1994, from David W. Reager,
E.quire, to Thomas E. Degling, DHD,
9. Letter dated Hay 5, 1994, from David W. Reaqer,
Esquire, to Thomas E. Degling, DHD,
- 8 -
10. Invoice. from Dauphin Ixoavatin9, Ino. and related work
order. and cost doouments for work pertor.ed at the
Deglin9 residenoe,
11. Bills from Raub supply for bathtubs, tan and, rheostat
and d.aper (to be subpoenaed from Raub supply for
produotion at trial),
la. Photo of Warner Home.' sign stating "Commitment to
Excellence",
13. Various photographs of the house in differing etages of
oon.truotion and reconstruction,
14. Photos and illustrations of problems with the ceiling
joists and roof rafters,
15. Letter of March 8, 1994, trom Eugene J. AUfiero to
Thomas E. Degling and related drawings prepared by
Eugene Autieroi
16. Letter of April 10, 1994, from Dennis Regan to G.A.
Myers Adjustment company,
17. Letter from William I. Shearer, Jr. to Dr. and Mrs.
Degling dated April 7, 1994, relating to the fair
rental value of the home,
18. Documents, schematics and photos relating to
defioiencie. in the chimney pad and co.ts to correct,
19. Various documents and photos relating to proble.e with
the lintel,
ao. Documents, estimates and photos relating to problem.
with the entry with .aster bath overhead,
- 9 -
21. Doouaent., e.timate. and photo. relatinq to proble.. in
the ta.ily roo.,
22. Handwritten letter fro. luqen. J. AUfiero dated April
22, 1994, relatinq to a~ditional proble.. at the
r..idenoe,
23. Dooument., estimat.s and photo. relatinq to proble.. in
the dining roo. and ba.e..nt underneath I
24. Documents, estimate., bills r.latinq to eleotrical
wiring in fir.t floor and ba...ent'
26. Documents, estimates and photo. relating to problem. in
the study,
26. Document. and photo. relating to design flaw. that
oould not be corrected and for which additional
compensation is de.anded,
27. Sworn .tatement and proof of los. for additional item.
of damag.. after roof was re.oved and rain water caused
additional damages,
2S. statement of American Aluminu. and Insulation company,
Inc. and check. documentinq payment to Amerioan
In.ulation totalling $4,135'
29. Check. documenting payment. .ade by Dr. and Hr..
O.gling to R.E.T. Associates,
30. Checks documenting payments .ade to R , A Benderl
31. Invoicee and check documenting payment to Gaffney'.
Electrical Contracting,
32. Checks documenting payment. to Walter W. King Plumbin;1
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". Docuaent. tor the payaent made by Plaintitts'
homeowners insurer for the removal of root and seoond
tloor and r.eplaoement thereot and related item.,
inoludin9 the explanation ot payaent from G.A. Myers
Adjustment company,
'4. Letter ot February 12, 1994, from Thomas E. Degling,
DMD, to Mr. Jaok Warner reque.ting Warner to take no
action that would make the situation worse,
36. Letter dated June 20, 1994, from Thomas E. Degling,
DMD, to Mr. Jack Warner rei when construction would
resume,
36. Check dated March 10, 1994, payable to Eugene J.
Aufiero' Associates, Inc., in the amount of $1,660,
37. statement of Herman' Shenk Oil company to Thomas
Deqling in the amount of $419.50;
38. Statement ot Eugene J. AUfiero' Associates, Ino. dated
March 8, 1994, in the amount of $1,660,
39. Installation instructions of Rolbe , Kolbe Millwork
company for windows,
40. Supplemental etatement of Euqene Autiero , Aseociates,
Ino. dated April 25, 1994, in the amount of $266.00,
- 11 -
THOMAS B. DIGLING and
DONNA B. DEGLING1
plaintiU.
IN THE COURT OF COHHON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
) I
( 'v'
1994
7( r ,y)
WARNBR HOKBS, INC. and
JACK L. WARNER,
Defendants
NO. IFl . L\ '3 fL/
COK'LaIHT
AND NOW COME plaintiffs, ~y their attorneys, MoNees, Wallaoe
. Nuriok, and state the following Complaint against Defendants.
1. Plaintiffs, Thomas E. Degling and Donna B. Degling, are
husband and wife and adult individuals residing at 555 North
Hanover street, Carlisle, Pennsylvania 17013.
2. Defendant, Warnor Homes, Ino., is a Pennsylvania
oorporation with an office at 3811 Claverton Road, Mechanicsburg,
Pennsylvania 17055.
3. Defendant, Jack L. Warner, is an adult individual
residing at 3811 Claverton Road, Mechanicsburg, Pennsylvania
17065.
4. Defendant Jack L. Warner at all times relevant hereto,
owned, operated and oontrolled the Defendant Warner Homes, Inc.
5. At all times relevant hereto, Defendant Jack L. Warner
held himself out to Plaintiffs and the public as an arohiteot
skilled in the design and experienced in the construction of high
quality private residences. Said Defendant held himself out as
capable of deeigning, preparing all neoessary plans and
performing through himself and his company all phases of the work
involved in the design and construction of a high quality private
reeidenoe.
6. At all times relevant hereto, Defendant Warner Homes,
Ino., held itself out to be a construotion company fully oapable,
through its agents and employees, of deoigning, preparing plans
tor and oonstructing all phases ot a high quality residential
home.
7. In the spring of 1993, Plaintiffs met with Defendant
Jaok Warner because PlaintiffS were interested in building a high
quality residential home on a building lot then owned by them at
121 Harmon Drive, Carlisle, Pennsylvania.
B. Jaok L. Worner held himself out to Plaintiffs to be an
architect skilled at the design and construction of all phases of
a high quality residential home of th~ type plaintiffs wanted to
have built for them.
9. Thereafter, Defendants prepared what Defendant Warner
represented were tinal working blueprints, specifications,
worksheets and purchase orders and contract instructions for the
construction of a high quality residential home for plaintiffs on
the aforesaid lot.
10. In reliance on Defendant Jaok L. Warner's
representations that he was an architect experienced and skilled
in the design and construction of high quality residential homes,
Plaintiffs entered into a construction contract with Defendant
- 2 -
Jaok L. Warner and Warner Home., Inc. dat~d October 1, 1993. A
true and oorreot copy of said construction oontract i. attaohed
hereto as Exhibit "A" and incorporated herein by reference.
11. Under the said agreement, work on the home was to begin
on or betore october 6, 1993, and be completed or on before Maroh
6, 1994.
12. After construction commenced, the parties entered into
several change orders, true and correct copies of which are
attached hereto as Exhibit liB".
13. Under the contract, Plaintiffs were required to pay the
amount of the change orders upon signing of the change order even
though the work had not yet been performed. In good faith,
Plaintiffs made such payments for the change orders that were
entered into by the parties,
14. In February 1994, Plaintiffs became concerned about
serious design and constructJ.on deficiencies in the home. At the
time, the home was under roof, rough plumbing had been plaoed and
the heating system had been roughed in. Insulation had been
installed in the walls.
15. The design and construction deficiencies were confirmed
by qualitied structural engine~rs and other trade experts after
inspection of the premises. These design and construction
deficiencies constituted material breaches of the agreement
attached hereto as exhibit "A".
16. After the design and construction deficiencies were
discovered by tho Plaintiffs, Defendants admitted to prior
- 3 -
knowledqe of the damage. Oefend~nts, however, had not placed
proper eupports and wsre rushing to dry wall the hou.e.
construction was halted becau$e of the seriou. deficience..
Atter a full investigation was made, Defendants failed to provide
any aseurances that Defendants would or were capable of
correctinq said design and oonstruction deficiencies and
oompleting the oonstruotion in a manner that would provide
Plaintiffs with the quality home to whioh they were entitled
under the contract.
17. Because of the material breaohes of the construotion
contract by Defendants, as well os the breaches of the
representations by the Defendant Jack L. Warner with regard to
hie qualifications as an architect and his ability to design and
construot a quality residential home, Plaintiffs terminated the
contract with Defendants.
18. As a result of the aforesaid breaches and
mierepreeentations, Plaintiffs have boen required to retain other
contractors to correct the design and construction deficienoies
in the home.
19. Because of shifting that occurred in the home, it wae
necessary to removo the roof and second floor from the building.
The cost for removing the roof and second floor and
reconstructing those items has been paid for by Plaintiffs'
homeowners insurer.
20. This complaint demands compensation for those items of
damage reSUlting from the design and construction defects and
- 4 -
breache. of warranties and representations that were not and have
not been covered by Plaintiffs' homeowners insurer, the material
breache. of the oontraot by Defendants, and the misrepresenta-
tion. by Defendant Warner set forth herein.
:11. The itema for which Plaintiffs olaim and demand payment
from Defendants are as followSI
no
Amount
1.
Advanoe payment on Change Order 9302-01
for ohanging to a brick fireplace instead
of artificial stone, payment was made, but
work never done ....,..., I , , .
. .
$1,200.00
2. Advanoe payment on Change order 9302-01 for
oonorete apron along the house in the area of
the chimney pad, payment was mado, but work
was not done . . . I . . I . . . I I . . I I .. 450.00
3. Advanoe payment on Change Order 9302-03 for
placing a walkway for attic storage, payment
was made, but work was not done .,. . , . . . . 500.00
4. Advanoe payment on Change Order 9302-04 for
decorative flue caps, payment was made, but
flue oaps were not furnished . . . , . . . . . . . 500.00
6. Advance payment on Change Order 9302-03,
Item 9 for drywallinq upstairs closets,
advanoe payment was made, but work was not
performed .. . . . . . . . . . . . . .. ... 3150.00
6. Advanoe payment on Change Order 9302-01
for aiding, siding labor, in~ulation, trim,
soffit, facia, shingles, dry wall, paint and
floor oovering relating to a bay windOW,
advanoe payment was made, but work indicated
was not performed (bay window was placed, but
the other items were not completed) . . . . . . . 950.00
7. Advance payment on Change Order 9302-03 for
bonus room oeiling over the garage area,
advanoe payment was made, but wo~k was not
done. . . , . . I . . . . . . . . . . , . . . . . 490.00
- 5 -
8. Refund of deposit that was made for the
preparation of plans. The deposit was made
on the representation and understanding that,
if work went forward, the Deglings would
rooeive a credit for the deposit. No oredit
has been given to date. The plans turned
out to be inadequate . . . . . . . . . . . . . . . 750,00
9. Credit for the failure to install the two
lones for heating and cooling as called for
in the oontract, the installer installed a
single lone system. After the work was done,
Warner agreed to provide a credit of $1.,100 to
the Deglings for this item. . . . . . . . . . . 1,100.00
10. Reimbursement for the oost of fuel oil. Under
the oontract, the contractor was responsible
for fuel oil during the construction period.
Instead, the contractor placed an emergency
call to Mrs. Degling to get a delivery of fuel
oil which was paid for by the Deglings . . . . . . 463.36
11. As a result of the defectR in the construction,
the Deglings retained a structural C!lngineer,
Eugene AUfiero, to investigate, analyze and make
reoommendations for a solution to the problems.
Mr. Aufiero's total fees are. . . . . . . . . . 1,926.00
12. Loss of use of the building for six months in
excess of the four months paid by the homeowners'
insurer. Under the contract, the house was to
be oompleted by March 6, 1994. construction
was behind schedule even before the problems
arose. It will take at least ten months from
Maroh 6 to actually have the house ready for
oooupancy. The fair rental value of the property
is at least $1,600 per month. .. . . . . . . . 9,600.00
13.
Repairs to the first floor and basement
per estimate of R.E.T, Associates based
the shortcoming found by the structural
engineers. See estimate attached as
Exhibit "e" ...... . . . . . . . .
area
on
. .
. . 9,304.06
14. Installation of kneewall in attic. At the
time the problems developed, no kneewall had
been installed other than a temporary kneC!lwall
that was installed on an emergency basis. The
homeowners' insurer did not pay for the installa-
tion of an appropriate kneewall. The Deglings,
however, had paid for the draws through the
- 6 -
completion of all framing, whioh inoludad
the kneewall. Tha cost is baaed on the
eatiaate of R.E.T. tor completion of the
k.,..wall . . . . . . . . . . . . . . . . . . . . . geO.OO
16. Correctiva work on the heating system dua to
design and construction defects per estimate
ot Eugane Quigley . . . . . . . . . . . . . . . 4,236.00
16. Reimbursement for failure to complete
required and agreed to electrical changes in
the basement pursuant to Change Order 9302-03.
Warnsr was paid through all rough in wiring.
Furthar, the oircuit breaker box was improperly
installed in the garage instead of the basement.
Warner agreed to put a sub-box in the basement.
That work was not don~ even though all rough
in was supposedly completed and paid for under
the draw schedule . . . . . . . . . . . . . . . . 947.00
17. Reimbursement for masonry pier under garage
foundation lintel under Change Order 9302-02.
This item was installed as a result of the
detioienoies in the initial construction.
Although Plaintiffs as an accommodation agreed
to pay for the addition of the lintel, it is now
obvious that this payment was inappropriate beoause
of the fact that the work had not been done
in a good and workmanlike manner in the first
inst.anoe . . . . . . . . . . . . . . . . t . . . . 1215.00
18. Renailing areas that were inadeqUately nailed
by Warner. Many of the areas need to be re-
nailed. . . . , . . . . . . . . . . . . . . . . t .600,00
19.
Reimbursement for any overcharges on digging
the foundation. After the initial digging of
the foundation, the Oeglings wanted it lowered.
The Deglings agreed to pay any aotual additional
oost incurred by Warner for the redigging. By
Change Order 9302-02, Item 3, this was listed
at $2,~51.50 and was paid by the Deglings, On
intormation and belief, the actual cost to
Warner for the redigging was substantially less
than that amount. The excess over the actual
cost is due and owing to the Deglings .. . . .
. . .
?
20. Trailer rental to store materials off site while
the second floor and roof are torn down and
rebuilt . . . . . . . . . . . . . . . . . . . . . 260.00
- ., -
:31. Deductible on hameowners' polIcy. . . . . . . . . 360.00
32. Damages tor loss of bargain due to desiqn
flaw., steel beams that are too short,
10.. of spaoe due to problems with the
heating and plumbing layout and design,
extra post in basement and other similar
matter. . , .. .... ......... 10,000.00
TOTAL
. . . . . . . . . . . . . .
. $44,959.41+
33. The aforesaid damages werQ oaused by the failure of
Detendant. to prepare final working blueprints, specification.,
worksheets, purchase orders, and contr.actor instructions in a
competent manner and to construct the home in accordance with
the skill and care that would be expected of an architect and an
experienced contractor that held themselves out as capable ot
building first qualit~' residential homes. The actual
construction failed to comply with ordinary building
construction standards, and Defendants railed to construct the
home in a good and workmanlike manner.
23. At all times, Warner Homes, Inc., held itself out to
plaintiffs and the public as being committed to excellence, and
guaranteeing satisfaction with respect to the oonstruction of
custom designed and built homes.
24. Since the problems arose with respect to the
construction of their home, plaintiffS have discovered that
Defendant, Jack L. Warner is not in fact an architect and was
not qualified to prepare plans for Plaintiffs' home.
25. Plaintiffs would not have entered into the contract
attached hereto as Exhibit "A" if they had known that Defendant
Warner was not an architect.
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ggHIXBUgrlQH ggHXB6gr
WARN!~ HOMII, INC.
THIS CONSTRUCTION AGREEHENT ("I~' .ePt"~'.~d t~.~I~
day Of~.J~...~*d b. t~.n '1-..: -~R:'r D.r- - -
o,~ ~~~~~ _ _ ~~_ ______ w .th.r
SI~ijijI.~ O~ P ural ( Own.r" . and WARNER HOHES, INC., a
P.nnsylvanla corporation, having an offlo. at 3811 Clav.rton
Road, Hechanlosburg. P.nnsylvanla 170~~ ("Contraotor').
, ,
.
WITNESSETH, that the partin h.reto. In ooneld.ratlon of
the Mutual proMls.s and oovenants contained her.ln, AND
INTEN~I~C,fO BE LEGALLY BOUND HEREBY, agr.e as f?l!~W:'
I; Location. Thll Contractor shall ereot and Lu,' .
ho.e (th. "Building') on t~epr'~Ls~s~o~~.O~n~ .1
duorlb.d u tolloW5l tk'-1tl11k:/Q''-I.J:l.\!.~_.lr.a~~_,.(A;:._~1
"prul...,), ,; iii '
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2,Prlo., The Owner agr.es to' pay to the Contrae'
~J~~~~~~~=~I~~~lQ~M~A~~
dollar. 11 i~~~ 1 ('Contraot Pric."),
rr"\.. 3, ~',i2Slt, ~lIc.lpt of~~~~1J~..4_
oU!{.l~tsI~J.;:;.'l?!?f}.:.,!"J dollars, to be applllld toward the a~,
upon cost of oonstructlon, is hereby acknowl.dg.d. ~~t I
I'
4, Plans Included In Agr....nt, The Building shall 'be
ereoted In accordance with the flnal working bluep~lntl,
speolflcatlons. work sheet, purchaae ~rd.r, Contractor
Instruotlons to Own.r. and color sel.ctlon she.t. which Ihall
bll duly llXllouted and which are mad. part of the Agr....nt.
Contractor shall furnish all the lat.rlals and perfora all
the work as requlr.d to complete the Building In aocordano.
with chis Agr....nt. .Mcept for work and mat.rlal to b.
p.rform.d and furnished by the Own.r 81 provld.d h.r.ln.
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5, Per.lts/Utllltles, The Own.r hereby authorlz.. and
appolntl Contractor to obtain all necessary per.lts or
authorizations from all Municipal bur.eull and depart..ntl or
utllltl'l which may b. requlr~d for con~trugtlon or
occupancy of the Bu Ildlng and, to the end. authorlz. the
Contractor to eM.cute Owner's na.. on any appllcatlonb for
luch permits or authorizations, Th. Contractor shall provld.
'and pay for elfctrlc. wat.r. sew~r. and heating fuel or
energy to be used during the cours. of construction.
6. Haterlals/Work. Unless oth.~wlse speclfl.dl
a) Contractor shall proYld. and pay for all ~atfrlall
and labor necessary for the execution and COMpletion of
I",proyeuntll,
b) All matfrlalll shall be new and of good quality,
EXlIII3I'1' "^"
r,
.
0) Contraotor shall not eMploy on the pre.lsea a
perlon not responllbly ~kllled In the work ~lllgned to '
hl./her, All labor p~rfor.ed ahall be good work.anllke
quality, Haterlals uDed shall be of the sa.e yrade Ipeolfled,
and where the grade II not Ipeolfled, .eterla s suat be of
quality oOlllpllrable to other Ipeclfled grades of ,lIterlal.
d) Contractor shall furnllh all .aterlal' and perforM
all work al provided In the drawing' and Ipeolfloatlonl
referencld above. Contractor shall. at hi' own e.pen.., atake
out the foundation on Owner'D lotI obtain Owner'l approval of
the house plaoeMent and elevation. whloh approval ahall not
be unreasonably wlthh,ldl eaoavate .nd~!".t'a '9undatlonl,
backfill to the foundation with Illlted&t~l,e .~*~edupon the
Pre.lses, where posslblel and, above-relere ed dravlngl and
Ipec I flcat I onl. il. !i;...
7, Changes, No changes will be .adedl~t: e phns and
speclflcatlonD unless a work change order h.a been prepared.
In writing. signed by the Contractor andlOW er, speclfloally
stat I ng the de tall ~ 0 f the change In conl,tt': ot Ion and the
addItional COlt thereof or credit to be ,1' wed agaln't th!tf""
Contract Pr Ice of con5truct Ion. Contraot. e..rve, the rli t&~
to refuDt to approve changu whloh reDu~:'Hrf' a subltantlal .,(1
alteration of the plans and speclfloatlon,~ : Payunt of the '..
change order will be due upon signing of , Id chang. order, .
8, Stipulation Against Llena. Before IInal pay..nt"
Contractor shall furnish to Owner proper lien waivers Iro.',
Contractor. aubcontractora. and Mater~al people who lurnl,hed
labor or materials on the PreMlaes. Prior to oo..enoe.ent 01
oonstructlon. Contractor shall e.ecute and deliver to Owner a
proper StIpulation and Waiver of Meohanlos 'Llenl, whloh
Stipulation and Waiver .ay be filed by Owner In the
appropriate Prothonotary's Office,
9, IMproveMenta. Contraotor hereby certifies that
OOMpleted ImproveMenta will oonflrM to plana and
apec If lcat I ona.
10. Work By Owner, In the event Owner dellres. or .ay be
required to provide, labor anu Materlale not Inoluded In thl.
Agree.ent, Owner shall not do so without the prior written
approval of th~ Contraotor. and .hall do ao only In suoh a
Manner a~ to not delay the .aterlal progress of the
Contractor's work, Should the Owner Interfer~ with the
cons truct Ion or fall to .ake achedu l lid pay.enta whell
requeDted. Contractor .ay conalder such failure a breach of
this AgreeMent, and that breach will e.cuse Contractor fro.
further perforMance. and Contractor ahall receive all IU..
due hereunder. Including profits 10llt as a rellult thereot.
II. Inaurance/Rlsk of Lou. The Owner IIhall:
"
.) Du~ln9 the prour.l. 01 the wo~k. ..Int.ln
In.u~.no. on the Bulldlnu IUllnlt lOll o~ dlalU. by 'I~'" Th.
polloi.. Ih.ll oov.~ .11 wo~k Inoo~por.t.d In the Building
and Ihall b. .Id. p.y.bl. to ht. p.~tl.. h.r.to, .1 th.lr
Int.~..tl 'PP'I~I
b) Indelnlfy and hold h.~.I'11 Contr.oto~ Irol end
ag.lnlt .ny .nd all 01111., d..and.. 10....' and OOltl
Clnoludlnu ~...onabl. .ttorn'Y'1 ".1) .~lllng out 0' the
n.gllg.nt aot. or olllllonl 0' Own.~, Ind th.lr ag_ntl.
.lploY..I, and Invlt.I"lnd r.,ultlng In 10.1 or da.lg. to
the P~e.I"I. or InjUry ~O"'.\I~d"th 01. Iny perlon whll. In,
upon. o~ Ibou t the pri"~'.~,'l'~ 7 I //111;;, " :if'.
12, Work COlple Ud/C~~ln~p. Wo~k to' be per )or..d und.!:.
th II Agr.n.nt Ihlll 00"'1\0' '/o~ ~~. b~ lort.a:rp~"..J~1.;>>Ind
11'1111 b. co IIlp I. led on or b~Io~e .r:J<<':ftt.{.r..l":l.l__-. cil'ii t ~IO tor
Ig~"1 to co.pl.t. l.prov'l.n~' I' prolptlv .. pOlllbl.. Upon
compl.tlon of work and b.'~.r.t'.co'Ptlne. of Ilnal paya.nt,
Cont~actor ahall olean and~. ov. 'rot Building. .II.V.
at~..t, and adjaoent proper.,~~ III lurplul and dllolrd.d
.at.~I.II, ~ubbllh, and t.~~~rarv Itructurll.jContrlotor
ahall leave alte In a neat. ',1~ pre..nt.bl. oondltlon,
13. Exouaed O.lay.. Th. ~~ntrlotor Ihlll not b. Illbl. 'o~
any d.lay In the pro.eoutlon or oo.pl.~lon 01 the wo~k OIUI.d
by. but not 1lllt.d to. the let. n.gl.ct. o~ d.I.ult 01 the
Own.~1 o~ aa a relult 0' ohlnU'1 o~ Ilt.ratlonl In the planl
and sp.clflcatlon. .ad. by the Own.r. or by da.ag. by Ilr.,
ea~thquake. or oth.~ oalu.lty fo~ whloh the Cont~eoto~ II not
r.lponalbl.1 or by atrlk.. walkoutl, o~ any oth.r aotl of
..ploy.el o~ suppllerl of labor or .at.rlall ov.~ whloh
Contr.otor hal no control or 'or whloh the Contr.ctor II not
r.lponllbl.. In any luoh ,v.nt. the tll' h.r.ln II..d lor the
co.pl.tlon 0' the work Ihall b. ..t.nd.d 'or a p.rlod
.qulval.nt to the tl.. lost by r.alon of any 0' the O.UI..
afo~'lald' p~ovlded. how.v.r, that nonp.rfor.anoe 0' the
Ag~.e.ent by the Contracto~ II exous.d wh.n luoh
nonp.rfor..nc. II eauI.d by an o~d.r of any court or oth.r
public authority or by any gov.rn..nt.1 oontrol. ~'9ul.tlonl,
r'ltrlotlons. or allocation. 0' labor. suppll'l. .nd
.at.rlals Inltltut.d by any stat.. lunlclpal, o~ gov.~n".ntal
agency 'o~ anv r.alon wh.tlo'v,~. In the .v.nt th.t the
Cont~.cto~ II .Icused. the Own'~1 Ihall b. obllg.t'd to pay
the Cont~.otor 'or the r.aaonabl. valu. 0' the wo~k
coapleted.
14. War~antv/Proc.dur..
a) Contracto~ war~anta that, lor a period 01 on. (I)
year f~o' the date of coapletlon, Contractor will remedy,
~.place. or repair d,'ectlve work or .at.rlala, Th. liability
0' Contractor und.r thla warranty .hall b. 11.lt.d to the
replac..ent or correotlon of .ald de'.ctlve .aterlal, or
work.anahlp. and no other clalma and demanda, whatlo.ver.
"
shall b. ..d. upon or r.qulr.d to b. allowed by the
Contractor, EKcepted and eKolud.d froM the afor.lald warranty
Ihall b. ohlp't br.akl, loratohel, or Marl In any Mat.rlall
uI.d In the BUilding that ere not It.alz.d n writing to
Contractor prior to pODe.sslonl frozen pipes' brloK
dlsooloratlon' r.asonable ground settl...nt' werpag. or other
d.flcl.ncl.1 relultlng frOM fallur. to control hualdlty'
grading ~robl'MII oraoKs In conor.t., bricK or woodl
shrlnKag. and oth.r s.ttle..nt probl..sl and variations In
staln.d wood, suoh aa cabln.t., doora, or tria. No warranty
shall apply to~a.ages caused by westher conditions,
reuon.b~,. ,~,U"."'l!PI9"!. lan<!.il'ttl.aent, site oondltlons,
ter.1 tn, 'or!'.ol, .r I,'lnsectl. ,r~\ . h.reby agreed and
understOOd that this worranty'\ ~ll.s only to such It...
furnished unde~ this Agr.e.ent.iNO OTHEP ~APPANTIES, EITHEP
EXPPESS OP I MPLoIED . SHALL APPLY~'TO TH IS AGPEEMENT. THE
WAPPANTIES CONTAINED HEPEIN APE PEPSONAL TO THE OWNER AND APE
NOT TRANSFERl\B~~ OR ASSIGNABLE AND THE OWNEP DOES. HEREBY.
EXPPESSLY WAry. ANY OTHEP WAPPANTY,
b) ,~:,Jhe event there ~e any defeots In work~anshlp
or uterlai~thln the afore"'P1t one (I) yeor period. Owner
shall proMptl,'glv, Contractor ~~Itt.n notlc. of laae. and
Contractor Ih,ll be afforded thi opportunity to reMedy,
replace, or'r.palr the said defective work, Owner's failure
to give Contractor the opportunity to replace, repair, or
reMedy the laid defective work or .aterlal, shall constitute
a waiver by Owner of any claiM by Owner for aald defective
.aterlal or workManship. . ,
I~, Oooupancy, It Is further agreed that Own.r Ihall not
occupy. or cause to be occupied, the Building and PreMla'l
which art subject to this Agrttlllent until final Pllya.nt of
all .UIII due under this Agr....nt. Including any 'lltra
charg.s, shall have been ..ade, Occupancy by Owner In
violation of this provision shall bar Withholding of funds or
defects or denial of suoh acceptance by Owner.
16, Unusual Conditions. In the event that the Contractor
encounters any unusual conditions during the oourse of
construotlon, suoh as solid or ..aohlne rock, qUloksand, link
holes, water, or springs, and the unulual condition r.qulres
any work which, In the r.asonabl. opinion 01 the Contraotor,
Is consld.red to be unusual, such aa, but not llalt.d to, the
r'Moval 01 rock by blasting or drilling or the .p.olal
excavltlon or the Installation of apeclal lootlngl, subbas.,
foundation walll, or drain tiles. the Contractor shall be
cOMpensated additionally by Owner for such work and Materials
provlded'by Contractor's usual ratea and charges,
17. Unused Haterlals, It Is understood at\d agreed that the
Owner shall not be entitled to any .aterlal which has not
been Incorporated Into the construction. ellcept where Owner
has specifically paid for such ~aterl.1 under 5peclal
provisions of the AgreeMent relating to payment specifically
of oosts of IIlatlr I \ ~,
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..... WARNIR HOHII, INC, .....
Con.tuotlon Loan Draw Soh.dul.
Borrow.rl'DP..1U,~ :~~~u~ Date Cloudl
~S' Ho~ ~-ril(.
C/rtU6~/fi:'l7o"~
Lot No.1 1144- ~~A4..~
() ~:''/~r1'"
Subdlvlslonl ~(eu..~~
ID"'I~~I
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1~1lI
Lot payoff I . ::-_~_::.__. and any
construotlon loan closing ooata not
paid at the tlu of the closing.
Foundation cOMpleted and baae.~nt
floor prepared,to pour (atone
InsUlled) "
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c._7.S-O .J~ '
'1r0"f3 ID/)./13
,__J!.=-- ,
Pay.tnt St.gell
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. ~3w~:: ~11"/11
.r-T)>>" it'
.
4JJ ~ ~ 'rZ1/13
I..~..".. I
3)
FraMing and sub-flooring co~pl.t.d.
wlndowa and exterior doore
Inatall.d,(Speclal ord.r doors
and wlndowa ~ust be on order.,
4) I 5 III ~ough plumbing, h.atlng. and
el.ctrlc Installed. Insulation
Inetalled ready for drywall.
"
, \
!l) 25ft Brick and/or stone and/or aiding,
roof and exterior of houee coapl.t.,
Drywall completed.
6) 20ft Interior triM Inatall.d (Including ~ 1.4Gb "I!:.
oabln.t.), flnlah ~alnt on wall. .nd '---,;--_.:.
tria. Finish plum lng, heating.
.lectrlcal, light f latune, and
and appllancea Install.d.
7) 5ft Floor coverlnge. paint compl.ted, . J~!~.:.:':-
and finish grading and/or
landacaplng co~pleted, Lien walvere
elgned and eubaltt.d,
-
TOTAL DRAWS I ~_??1J.!@';':
P~ID ~T CLOSING I '---t~.t;:
e.
TOTAL CONTR~CTI '_~;.1~.:._
.
. GENIiIlAL ES'J'IMATE
, R.E.T. Associates OWNER -I.iJ,Fl'P\4 . E ~
BUILOERS ~
UIIOllIUIlDIHQ' ...~LM ,/11II1_ D"'-"ll ~I'~ LOCATION ,'~ }Jl "hAd.k' 5J._
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R.E.T. Associates
BUILDERS
HOhIllJl.ClNd I ,,'''''COlloM ' "". . 1trM::*1 0.N0U41 ~ljI"'''
~,o, Bo~ 5' Mlllorsburg, PA 17061
692,6266 or 566.1917
GENERAL ~:ST1MAl'E
OWNER
LOCATION
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IVI . '
THOMAS I. DIOLINO and I IN THI COURT OP COMMOH 'LiaS
DOHHA B. DIOLINO, I CUHBIRLaHD COUHTY, PIHHSYLVaHXa
I
'laintUf. I
I
v. I NO. 94-4514 CIVIL TIRH 19'4
I
WaRNIR HOHI8, INC. and I
JaCI L. WaRHBR, I
I
Defendantl I
ANSWBR WITH N~l DIFINDANTBL
WARNIR HOHIS. INC. AND JACK L. WARNER.
~'LAINTIFFIS CO~
1. Admitted.
2. Admitted.
3. Admitted.
4.
Denied as a legal conclusion.
It is admitted that
Jaok L. Warner is a shareholder and officer of Warner Homes, Inc.
5.
Denied in part I admitted in part.
Defendant Jack L.
Warner did not hold himself out as a registered architect. It is
admitted that he advised Plaintiffs that Warner Homes, Inc. has
been a design\build homebuilder for many years, capable of
de.iqning re.idenoes and preparinq the n.ce..ary plan. and
specifications.
6. Admitted.
7. Admitted.
B. Denied. Defendant Jack L. Warner never held himself out
to the Plaintiffs as a registered architeot.
9. Admitted.
10. Denied in partl admitted in part. It is denied that Jack
L. Warner told the Plaintiffs that he was a registered architect.
Moreover, after reasonable investigation, Defendants are without
sufficient information to know what motivated Plaintiffs into
entering into a construction contract. said averments, to this
extent, are denied. It is admitted that exhibit A is a oopy of the
contract entered into by the Plaintiffs and Warner Homes, Inc. It
is denied that Jack L. Warner was a party to that contract.
11. Admitted.
12. Admitted.
13. Admitted.
14. Denied in part I admitted in part. After reasonable
investigation, Defendants are without sufficient information to
know what "concerned" Plaintiffs in February, 1994. It is admitted
that the stage of construction is as described.
15. Denied, After reasonable investigation, Defendants are
without sufficient information to form a belief as to the truth of
~2-
the averments alleging that structural engineers and trade eKpsrts
inspected the premises and confirmed design and construotion
deficienoies. said averments are denied and proof is demanded at
trial. The remaining averments are denied as legal conclusions.
16. Denied, Oefendants admitted to one design deticiency,
namely the absence of a post in the basemont, which they intended
to remedy. It is denied that Defendants were "rushing to drywall"
the house. Rather, Defendants were moving with due course to meet
the as-planned date of completion, It is denied that Defendants
failed or refused to provide assuranoeo that they would complete
the house in accordance with the contract, 'ro the contrary,
Defendants intended to complete the contract but the Plaintiffs
prevented them from doing so,
17. Denied in partl admitted in part. It is denied that
Defendants breached the construction oontract or "representations"
with regard to qualifications. It is admitted that plaintiffs
terminated the contract. Defendants further aver that said
termination was without just caus~.
18. Denied. After reasonable investigation, Defendants are
without information sufficient to form a belief as to the truth of
the averments of paragraph 18 of the Complaint. Averments ot
breaches and misrepresentations are denied and proof is demanded at
trial.
-3-
19. Denied. After reasonable investigation, Defendant. are
without information suffioient to form a belief as to the truth of
the averments of paragraph 19 of tho complaint. Said averments are
denied and proof is demanded at trial.
:l0. Denied.
To t,he extent the averments of paragraph 20
imply or infer that Defendants breaohed the contract and its
warranties, or made misrepresentations of fact, same are denied as
legal conolusions. Furthermore, it is denied that plaintiffs are
legally entitled to any damages.
21. Denied in part r admitted in part.
It is denied that
Plaintiffs are legally entitled to the payment of said sums. It is
admitted that plaintiffs have demanded payment of the claims listed
in paragraph 21. As to the value of the specific items listed,
Defendants answer as follows:
llIDn
1. Admitted.
2. Admitted.
3. Denied. plaintiffS received and kept the material.
delivered in connection with this item.
4. Admitted.
5. Admitted.
6. Denied, Plaintiffs received and kept the bay window
which was delivered to the project.
7. Denied. The bulk of the drywall encompassed by this
change order was performed.
-4-
Denied in p~rt, ~dmitted
plane were inadequ~te.
admitted.
9, Admitted.
8.
in part. It is denied thot the
The r.maining averments are
10. Admitted.
11. Admitted in part, denied in p~rt. It is admitted, upon
information and bolief, that Plaintiff retained the
engineer identified. As to the remaining averments,
~fter reasonable investigation, Defendants are without
sUffioient information to form a belief as to their
truth. Said avorments are denied and proof is demanded
at trial. Defendants also deny that Plaintiffs ore
legally entitled co be reimbursed these costs.
12. Denled. After reasonable investigation, Defendants are
withollt suffioient information to form a belief as to the
truth Of the averments of subpart 12 of paragraph 21 of
the Complaint. Said averments are denied and proof is
demanded at trial.
13. Denied. After reasonable investigation, Defendants are
without sufficient information to form a belief as to the
truth of the averments of subpart 13 of paragraph 21 of
the Complaint. Said averments are denied and proof is
demanded at trial.
14. Denied. After reasonable investigation, Defendants are
without sufficient information to form a belief as to the
truth of the averments of subpart 14 of paragraph 21 of
the Complaint. said averments are denied and proof is
demanded at trial.
15. Denied. After reasonable investigation, Defendants are
without SUfficient information to form a belief as to the
truth of the averments of subpart 15 of paragraph ~1 of
the Complaint. Said averments are denied and proof is
demanded at trial.
16. Denied. After reasonable investigation, Defendants are
without sufficient information to form a belief as to the
truth of the averments of subpart 16 of paragraph 21 of
the Complaint. Said averments are denied and proof is
demanded at trial.
-5-
17.
18.
19.
20.
21.
22.
Denied. After reayonable investigation, Detendants are
without suffioient information to form a belief as to the
truth of the averments of subpart 17 01' paragraph 21 of
the Complaint, Said averments are denied and proof is
demanded at trial. In further response, it is denied
that any of the work described was not done in a good and
workmanlike manner.
Denied. After reasonable investigation, Defendants are
without sufficient information to form a belief as to the
truth of the averments of subpart 18 of paragraph 21 ot
the complaint. Said averments are denied and proof is
demanded at trial,
Denied. The change order at issue was for. a fixed price.
The work was performed by Defendants, The Plaintiffs are
not entitled to any refu.~.
Denied. After reasonable investigation, Defendants are
without sufficient information to form a belief as to the
truth 01' the averments of subpart 20 of paragraph 21 of
the complaint, Sa id averments ar.e denied and proof is
demanded at trial.
Denied. After reasonable investigation, Defendants are
without sufficient information to form a belief as to the
truth of the averments of subpart 21 of paragraph 21 of
the complaint. Said averments are denied and proof is
demanded at trial.
Denied. After reasonable investigation, Defendants are
without sufficient information to form a belief as to the
truth of the averments of subpart 22 of paragraph 21 of
the Complaint. Said averments are denied and proof is
demanded at trial. In further response, it is denied
that damages for "loss of bargain" are legally
recoverable,
22. Denied as a legal conclusion, In further response, it is
averred that the plans and specifications, as well as other
contract documents, were competently prepared in accordance with
industry standards. As to the construction, it is denied that any
of the alleged defects justifiod a termination of the contract.
-6-
Moreover, Defendant. were never given the opportunity to complete
the work, a. they were prevented from doing so by the Plaintiffs.
23. Denied. tQ the extent that the averments of paragraph 23
claim that Defendants are held to a standard of performanoe in
excess of that required by the oontraot/ said averments are denied.
24. Denied. Defendant Jack L. Warner never held himself out
to be a registered arohitect.
25. Denied. After reasonable investigation, Defendants are
without sufficient information to form a belief as to the truth of
the averments of paragraph 25 of the Complaint. Said averments are
denied and proof is demanded at trial. The remaining averments are
denied as legal conolusions.
26. Denied as a legal conclusion.
New MATTER
27. The averments of paragraphs 1 through 26 of Defendants'
Answer to Complaint, to the extent they are relevant, are
incorporated herein by reference as if fully set forth.
26. On or about February 12, 1994, Plaintif.fs directed
Defendants not to perform any further work on the project, except
to stabilize the existing work.
29. On or about February 17, 1994, Plaintiffs were advised by
Defendant Warner Homes/ Inc. that once a plan of action was agreed
to, said Defendant would take whatever actions were necessary to
-7-
oomplete the oonstruction of the project in acoordance with the
oontraot dooument..
30. On or about April 27/ 1994/ Plaintiff. were provided with
a copy of a report prllpllred by a cOnBulting engineering firm in
whioh the opinion was expressed thllt the extraordinary snow loads
on the roof, coupled with the fllct that the structural members had
not been oompletely tied, caused the exterior frame walls to shift
in a number of locations. All other deficiencies were noted in the
report as being minor and easily remedied.
31. All of the alleged deficiencies in the design or
construction of Plaintiffs I house could have been remedied by
Defendants had they been per.mitted to do so by the Plaintiff.
32. The Plaintiffs refused to provide Defendants the
opportunity to correct the alleged deficienoies in the design or
oonstruction of the house.
33. Paragraph 14 of the contract provides as followSI
The liability of Contractor under this
warranty shall be limited to the replacement
or correction of sllid defective materials or
workmanship, and no other clllims and demands,
whatsoever, shall be made upon or required to
be allowed by the Contractor. . . No warranty
shall apply to damages caused by weather
conditions, reasonable water seepage, land
settlement, site conditions, termites, or
other insects. It is hereby agreed and
understood that this warranty applies only to
such items furnished under this Agreement. NO
OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED,
SHALL APPLY TO THIS AGREEMENT. TilE WARRANTIES
CONTAINED HEREIN ARE PERSONAL TO THE OWNER AND
ARE NOT TRANSFERABLE OR ASSIGNABLE AND 'i'HE
-6-
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en attached hereto as Exhibit "A". The remaining averment. of
thi. paragraph are denied. It is denied that the April 26, 1994
report of Chris A. Hoover/ P.E. expressed the opinion a. stated
in thi. Paragraph. Item 2 in the April 26, 1994 letter stated I
The major problem of the oonstruction ha. to do with
the .eoond floor exterior walls. Due to insuffioient
tyinq toasther of structural members and roof loads
from snow, the exterior frame walls shifted by 1-1/2
inche. in several looations. (emphasis added) .
The letter doe. not refer to "extrllordinary snow loads" and the
allegation at. suoh i. denied. Further, the first paragraph of
the letter .tatedl
The majority of the letter (prepared by Eugene J.
AUfiero' Assooiates, Inc.] dealt with defioienoies in
the framing construction. Most of the errors detailed
were minor in nature and would be easy to remedy.
The first item in the letter did not indioate that all of the
defioiencies in the framing oonstruction were minor in nature,
only that most of them were. However, Plaintiffs had their own
oonsultant. examine the structure a8 did the Homeowners Insuranoe
Company. Mr. Hoover'. letter acknowledged the serious nature of
the problems as a result of the insuffioient tying together of
.truotural members as well as the othet unitemized defioienoies
that he found in the work that had been performed by Defendants.
31. Denied. Defendants failed and refused to give reason-
able a..uranoe. that they were willing to perform or that they
were oapable of performing the work required to remedy the
deficienoies and to go forward with oonstruotion required .0 that
- 2 -
Plaintiffa would have a home that was construoted in a 900d and
work.anlik. .anner in accordance with the contract and the
r.pr...ntation. that D.fondants had made to plaintiffs. Based on
D.f.ndant.' traok record/ Plaintiffs deny that Defendant. wer.
capabl. of r...dyin9 the defect. and cOln~letin9 the home in a
9004 and workmanlike manner. DefendantB never unconditionally
off.r.d to oorrect all of the deficiencies in their work.
33. Denied. Defendants failed Bnd refused to provide
Plaintiff. with reasonable assurances that they would remedy all
of the d.fects and that they were capable of completinq the horn.
in aocordance with the contract. On the oontrary, Defendants
....rt.d that it was not neceBsary to remove the entire roof in
ord.r to repair and remedy the defects. ~ the letter from
David w. Rsaqer, Esquire to Plaintiff, Thomas E. Degling, dated
April 37, 1994, a copy of which is attached hereto as part of
Bxhibit "A". At no time did Defendants indicate a willingnes. to
qo forw.rd with the work necessary to remedy all of the d.tect.
or .ny a..urance. that they would be able to then compl.t. the
con.truction in a qood and workmanlike manner in accordanoe with
the oontraot. It i. denied that Defendants had such oapabili-
tie.. At no time did Defendants unconditionally tender the
performanoe that was required in order to remedy the defeots and
to qo forward with the reconstruction and construotion of the
ho.. in aooordanc. with the oontract.
- 3 -
33. Admitted in part and denied in part. Admitted that the
quoted proviaion ie part of Paragraph 14. It is denied that the
quoted proviaion ia all of Paragraph 1~. On the contrary, the
lanquaqe quoted i. part of Paragraph 14(a). The firat Ilntence
in Paraqraph 14(a) provide. IIcontraotor warrant. that, for a
period of one (1) year from the date of oompletion, oontractor
will re.ftdy, replace or repair defective work or materials. II
Paragraph 6(b) provides that lIall materials shall be new and of
good quality.1I Paragraph 6(c) provides in partl IIAll labor
performed shall be good workmanlike quality. Materials used
.hall be of the same grade specified, and where the grade is not
.pecified, materials must be a quality comparable to other
apecified grades of material. II Paragraph 14 in no way limits
Defendants' liability to Plaintiffs for the olaim set forth in
the complaint.
34. Denied. The replies to Paragraph 30-32 are incor-
porated herein by referenoe. Oefendanto failed to complete the
contraot because of their own negligence and failure to go
forward with conBtruction in a good and workmanlike manner,
failure to take unconditional responsibility for the defeotive
oonatruction and the failure to provide reasonable as sura noes to
Plaintiff. that they would take unconditional responsibility for
the defeots and that they were capable of completing the oon-
atruction in a good and workmanlike manner in accordance with the
- 4 -
contract. Plaintiff./ aotiona in haltinq oonatruction and
thenateu refu.inq to permit Warner Homes to go forward with
aon.truction wa. fully jUltified.
35. Denied. Thi. atates a legal oonclusion whioh require.
no anewer. In the evant an answer iB required, it is denied that
the doctrine of e.toppel DarB Plaintiffs' olaim. At no time did
Defendant. rely on any representations by Plaintiffs and at no
time did Defendants take any aotion in reliance on any suoh
repre.entations. None of the elements of estoppel are present in
thi. 0....
36. D.nied. The replies to paragraphs 28-32 are inoor-
porated herein by reference.
37. This Paragraph states a legal oonclusion whioh requires
no an.wer. In any event, the averments are denied. Plaintiffs
have not waived any legal right to pursue their olaim. On the
cQntrary, Plaintiffs have the right to reo overy against D~fen-
dant. for the reasons set forth in the complaint.
38. Thl.s Paragraph states a legal oonclusion which requires
no an.war. In any event/ it is denied that Plaintiffs have
failed to .tate a oaUBe of action. On the contrary, the aver-
ment. of the complaint state a cause of action against both
Defendant..
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.y. THIODO.. A. ADLIR, Ilg.
Idontification No. 16267
2331 Market street
Camp Hill, VA 17011-4642
(717) 763-1383
Attorneys for Defendants
THOKAI I. DiaLING and .
DONNA B. DIGLING, I
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WARNIR HOHIB, INO. and I
JAOK L. WAIUfIR, I
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Detendanh I
IN THI OOURT or OONHOM 'LIAI
OOHBI.LAHD OOUNTY, PINNBYLVANIA
NO. '4-4514 OIVIL THRN 1".
OIRTIrIOATI or BIRVIOE
AND NOW/ this 11th day of January, 1996, I hereby verity that
I have caused I (1) Interrogatories of Defendants Addressed to the
Plaintiffs, Thomas E. Degling and Donna B. Deglingl and (2)
Defendants I Request for produotion of Documents Addressed to
Plaintiffs to be placed in the United states mail, first olass,
postage prepaid and addressed to as follows:
Delano M. Lantz, Esquire
McNees, Wallace & Nuriok
100 Pine street
P.O. Box 1166
Harrisburg, PA 17108-1166
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March 22, 1995
'I'he Ilonorable George E. Iloffer
Cumberland County Courthouae
1 Courthouse Square
Carlisle, PA 17013
Thomas E. Degling and Donna n. Degling v.
Warner 1I0mes, Inc. and Jaok L. Warner
Civil Aotion No. 94-4514
In re:
Dear Judge Hoffer:
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The nbove non-jury matter was the subject of n pretrial
conference before your honor on Wednesday, March 1, 1995. At the
pretrial conference, plaintiffs were directed to file Proposed
Findings of Fact and Conclusions of Law within three weeks from
the date of the conference.
Defendants ore represented by Theodore A. Adler, Esquire.
Mr. Adler has advised the undersiqned that Warner lIollles, Inc. may
choose to file bankruptcy. A docision in that regard will be
made within the noxt two weeks. If a bankruptcy is filed, all
proceedings in this action will be automatically stayed pursuant
to tho provisions of the bankruptcy low.
In view of the above development, counsel have agreed to an
extension of time for Plaintiffs to file their Proposed Findings
of Pact and Conclu~lions of Law. If Warner 1I0llles, Inc. chooses
not to file bonkruptcy, Plaintiffs will then file Proposed
Pindings of Fact ond Conclusions of Law within two weaks after
being advised of WarneL" 1I01lles' decision not to file bankruptcy or
no later than four weeks from today's dote.
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