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Home My WebLink About02-3639 ROBERT E. MEYER LAW OFFICES BY: Robert E. Meyer Identificetion Number. 32414 Jenkins Court · Suite 200 610 Old York Road Jenkintown, PA 19046 Telephone No: (215) 885-7655 Attorney for Plaintiff SEARS ROEBUCK & CO. alslo Charles Payne Capital City Mall Camp Hill, PA 17011 Plaintiff COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. No.: O~-.d1.39 C~o'J.'T~ EDWIN D. WATTS ind & dlbla EDWIN WATTS SERVICES 12 Mountain St. Duncannon, PA 17020 JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: Kindly issue a Writs ofSuml11ons in the above matter to the above named Defendant.. Writs of Summons shall be forwarded to Sheriff for Service. Date: 1 GAl ~ WRIT OF SUMMONS IN CIVIL ACTION TO: EDWIN D. WATTS ind & dlbla EDWIN WATTS SERVICES You ~. re notified that the Plaintiff has instituted an action against~ yu. . ~K- SEAL OF THE PROTHONOTARY COURT Date: ,....lJy .]d, .;L06";;1.. . ~: .lkO/)JJ - 2.7fC/l/7A:J1 r--- u Deputy Prothonotary "- A..J ~ 'C: l1 ~ - p ~& 0.() f'L) ~ J () f';; ~V' en '"'" ............ C'...:) ......-"::-,,<, ~::.::L ?~(_.-. ;z: ~< ~-:-~, .' ....,.~~ "" -J -, C"') l'~,:, N o.J :,-.1 :j;! :::.tl -~ '--.~' (;) SEARS ROEBUCK & CO. Als/o Charles Payne Capital City Mall Camp Hill, PA 17011 Plaintiff : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA : No. 02-3639 vs. : JURY TRIAL DEMANDED EDWIN D. WATTS ind & dIb/aEDWIN WATTS SERVICES 12 Mountain St. Duncannon, P A 17020 Defendant PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please enter the appearance of Buzgon Davis Law Offices whose address is 525 South Eighth Street, P.O. Box 49, Lebanon, Pennsylvania 17042-0049, as attorneys for Edwin D. Watts, the Defendant, in the above-captioned case. BUZGON DAVIS DATE: August 21, 2002 BY: SCOTT 1. RENOBLE, ESQUIRE Attorney 1. . #72808 525 South Eighth Street P.O. Box 49 Lebanon, P A 17042-0049 (717) 274-1421 E 0 0 1',) 11 ~ :r:- "_I ;:R~ c:: :-1:""'1 CO) ~"'qF Z::c N -Qri ZC: ~.!' N '~)6 .z ~U --l_~_ "'0 -r -+1 ~(-, ~ ~('5 >8 w C)rrl ::;:;! ~ :::> :i.! fT. -<. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2002-03639 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SEARS ROEBUCK & CO VS WATTS EDWIN D ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: WATTS EDWIN D but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of PERRY County, Pennsylvania, to serve the within WRIT OF SUMMONS On August 7th , 2002 , this office was in receipt of the attached return from PERRY Sheriff's Costs: Docketing Out of County Surcharge Dep Perry Co 18.00 9.00 10.00 36.85 .00 73.85 08/07/2002 ROBERT E MEYER so~~ R. Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this -Z.2/k-01 day of O"r'J- ;U~o.:L A.D. Q'f'A' G. "",ip, , ~, Prothonotary , SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2002-03639 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SEARS ROEBUCK & CO VS WATTS EDWIN D ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: WATTS EDWIN D DBA EDWIN WATTS SERVICES but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of PERRY County, Pennsylvania, to serve the within WRIT OF SUMMONS On August 7th , 2002 , this office was in receipt of the attached return from PERRY Sheriff's Costs: Docketing Out of County Surcharge 6.00 .00 10.00 .00 .00 16.00 08/07/2002 ROBERT E MEYER ~~<~~~ R.homas Kline Sheriff of Cumberland County Sworn and subscribed to before me this J. ;t,....{ day of ~"J.r .,2./J-V.L A.D. q~. . () n-.../"" . ~r>YJ- Prothonotary' , , In The Court of Common Pleas of Cumberland County, Pennsylvania Sears Roebuck & Co VS. Edwin D. Watts ind & d/b/a Edwin Watts Services 02 3639 civil Edwin D. Watts No. SERVE : Now August 1, 2002 , , I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Perry County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. r~~~ Sheriff of Cumberland County, P A Affidavit of Service N August 5, ow, 20 02 at 2: 55 o'clock '-' P M. served the within Writ of Summons upon Edwin D. Watts at 12 Mountain st. Duncannon, Pa. 17020 (Penn Township) by handing to Edwin D. Watts a True & Attested copy of the original Writ of Summons and made known to Him the contents thereof. So answers, James T. Bennett Va~~ C\~:J ~~ Deputy shhiffof p;:jy County,PA COSTS SERVICE MILEAGE AFFIDA VIT $ Sworn and subscribed before me this Qi{lday Of~, 20().:+ f)1al $ ~ In The Court of Common Pleas of Cumberland County, Pennsylvania Sears Roebuck & Co vs. Edwin D. Watts ind & d/b/a Edwin Watts Services Edwin D. Watts d/b/a N 02 3639 civil o. Edwin Watts Services SERVE: Now August 1, 2002 , , I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Perry County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. r~~,,~~ Sheriff of Cum berland County, P A. Affidavit of Service Now, August 5, 02 ,20_, at 2: 55 o'clock P M. served the within Writ of Summons upon Edwin Watts Services at 12 Mountain St. Duncannon, Pa. 17020 ( Penn Township) by handing to Edwin D. Watts, owner a True & Attested copy of the original Writ of Summons and made known to Him the contents thereof. So answers, James T. Bennett Deputy ~ ~ ~ County. PA Sworn and subscribed before me this Sl!l day of __~.u..g,'\(M , 20 (5)..- . n 't1vtJ i" 'tU . , NOTARiAl SEAL MARGARETF. FLICKINGER, NOTARY PUBLIC BLOOMFIElD BORD., PERRY COUNTY MY COMMISSION EXPIRES ffB. If. 700L COSTS SERVICE MILEAGE AFFIDAVIT $ $ ROBERT E. MEYER LAW OFFICES BY: Robert E. Meyer Identification Number. 32414 Jenkins Court · Suite 200 610 Old York Road Jenkintown, PA 19046 Telephone No: (215) 885-7655 Attorney for Plaintiff SEARS ROEBUCK & CO. a/s/o Charles Payne COURT OF COMMON PLEAS OF CUMBERLAND COUNTY v. No,,: 02-3639 Civil1erm EDWIN D. WATTS ind & d/b/a EDWIN WATTS SERVICES JUHY TRIAL DEMANDED COMPLAINT NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the coun your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be enetered against you by the co1;111 without further notice for any money claimed in the complaint or for any other claim or relief requestc4 by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LA 'WYER OR CANNOT AFFORD ONE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIA nON 2 Liberty Ave. Carlisle, PA 17013 ROBERT E. MEYER LAW OFFICES BY: Robert E. Meyer Identification Number. 32414 Jenkins Court · Suite 200 610 Old York Road Jenkintown, PA 19046 Telephone No: (215) 885-7655 Attorney for Plaintiff SEARS ROEBUCK & CO. a/s/o Charles Payne COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. No.: 02-3639 Civil Term EDWIN D. WATTS ind & d/b/a EDWIN WATTS SERVICES JURY TRIAL DEMANDED COMPLAINT And Now comes Plaintiff, Sears Roebuck & Co., by and through undersigned counsel who alleges as follows: 1. Plaintiff, Sears Roebuck & Co. (hereinafter "Sears") is a corporation authorized to conduct business in the Commonwealth of Pennsylvania , with a place of business located at The Capital City Mall, Harrisburg, PA. 2. EDWIN D. WATTS ind & d/b/a EDWIN WATTS SERVICES is an individual/business which was, at all times pertinent, involved, inter alia, in the installation of HV AC systems, with a principal place of business located at 1 2 Mountain St., Duncannon, PA. 3. On or about November 21, 1993 Defendant entered into a Contract with Plaintiff whereby Defendant would, inter alia provide services on behalf of Plaintiff to third party customers of Plaintiff. A copy of that contract is attached hereto as Exhibit "A". 4. On or about November 15, 1996 the contract referenced above was amended. A copy of the Amendment to the Contract is attached hereto as Exhibit "B". 5. On or about 1 0/1 0/98 Plaintiff entered into a sales agreement, "Estimate and Proposal", with Carol Payne whereby Plaintiff was to provide and install a new heating and air-conditioning system to Carol Payne. A copy of the Estimate and - 1 - Proposal is attached hereto as Exhibit "C". 6. Upon information and belief, in or about November 1998 Defendant Watts installed an HV AC system on behalf of Plaintiff at the Payne property located at 220 West Main St., Mechanicsburg, PA. 7. On or about August 1, 2000 water was discovered flowing from the condensation line/system in the location where Defendant had connected same to a pre-existing exhaust stack into the Payne property. 8. The water from the condensation lines/system caused significant damage and destruction to the Payne property. 9. The contract between Plaintiff and Defendant states, in pertinent part, 12. Contractor agrees to protect, defend, hold harmless and indemnify Sears, its agents and employees from and against any and all claims, demands, actions, liabilities, losses, costs and expenses (including but not limited to attorney's fees) arising out of any actual or alleged .. .damage to or destruction of any property ... in part from any actual or alleged act or omission of the Contractor, in the performance of the work.. . 10. The contract between Plaintiff and Defendant additionally states, in pertinent part: 1. That during the term of this contract, Contractor will accept jobs tendered by Sears. .and that Contractor will perform such ... installation work..pursuant to...the Estimate and Proposal... 11. The Estimate and Proposal, Exhibit JlC" hereto, contains, in pertinent part, the following language: JI...GAS LINE, ELECTRICAL WIRING AND LINE SET TO CONDENSER TO BE ENCASED IN WHITE 3X4 DOWNSPOUT ALONG LEFT SIDE OF BUILDING..." 12. As installed the condenser line was run to a waste exhaust stack inside the property and not in a 3X4 downspout along the left side of the building 1 3. Pursuant to it's contract with its customer, Sears indemnified Carol and Charles Payne for the damage they sustained in the amount of $26,642.83. 14. Pursuant to Sears contract with Defendant and as the result of the negligence - 2 - of the Defendant in improperly installing the condensation line, Plaintiff has requested that Defendant reimburse Sears for the damages but Defendant has refused. COUNT I INDEMNIFICATION 15. Plaintiff Incorporates and re-alleges it's averments set forth in paragraphs 1 through 14 as fully as though set forth herein. 16. Pursuant to the contract between Plaintiff and Defendant, Defendant is to indemnify Plaintiff for all claims arising out of actual or alleaed damage to property arising from any actual or alleaed act or omission of the contractor. 17. A claim has been made that the actions of the contractor in negligence and/or failure to follow the directions of/on the Proposal and Estimate led to the damages sustained by Payne and paid by Plaintiff and to which Plaintiff is now entitled to be reimbursed. 1 8. As of this date Defendant has failed and refused to reimburse Sears for the damages it sustained. 1 9. By reason of the aforesaid contract between Plaintiff and Defendant, Plaintiff is entitled to be indemnified for the damages to the Paynes. in the amount of TWENTY SIX THOUSAND, SIX HUNDRED FORTY TWO DOLLARS AND EIGHTY-THREE CENTS ($ 26,342.83). WHEREFORE, plaintiff demands judgment against defendant in the amount of $ 26,342.83 plus counsel fees, costs and interest as provided in the Contract and such other remedies as this Court feels just.. COUNT II NEGLIGENCE 20. Plaintiff Incorporates and re-alleges it's averments set forth in paragraphs 1 through 19 as fully as though set forth herein. 21 . The damage to the Paynes property described above was caused by the negligence, carelessness and or recklessness of the defendant, his agents, servants and/or employees in failing to exercise reasonable care in the following - 3 - manner; 1. Failing to properly install, service, inspect, test and/or protect from harm the above-described property from water damage; 2. Failing to properly ensure that the above-described condensation line was installed properly and adequately; 3. Failing to properly determine that the exhaust stack to which defendant connected the condensation line was adequate to handle the condensation line drainage; to be produced by the air conditioner being installed by defendant; 4. Failing to test the exhaust stack to ensure it's sufficiency as a drain; 5. Failing to advise the Paynes of any limitations inherent in the use of the exhaust stack as a condensation line drain; and failing to properly connect the condensation lin to the exhaust stack. 22. As a result of the aforesaid negligence, carelessness and/or negligent omissions of Defendant, the incident referred to in Paragraphs "7 & 8" took place and resulted in extensive damage and destruction to the Paynes' property. 23. Pursuant to it's Contract with the Paynes Plaintiff reimbursed the Paynes for the damages they sustained and are now subrogated to the rights of the Paynes for the damages so sustained. WHEREFORE, plaintiff demands judgment against defendant in the amount of $ 26,342.83 plus counsel fees, costs, interest and such other remedies as this Court feels just. COUNT II BREACH OF CONTRACT 24. Plaintiff Incorporates and re-alleges it's averments set forth in paragraphs 1 through 23 as fully as though set forth herein. 25. Pursuant to its contract with Plaintiff, Defendant was to install materials in accordance with the Estimate and Proposal entered into between Plaintiff and the end-customer. - 4 - 26. Defendant failed to conform with the installation details provided on the Estimate and Proposal. 27. The damage that occurred to the property of Plaintiff's customer occurred in the portion of the job that was in violation of the directions provided in the estimate and proposal. 28. Plaintiff was required to reimburse it's customer for damages sustained by the customer. Plaintiff has demanded reimbursement for the amounts paid from Defendant and Defendant has refused to pay despite it having materially breached its's contract with Plaintiff 29. The material breach of the contract was a direct and proximate cause of the damages sustained by Plaintiffs customer. WHEREFORE, plaintiff demands judgment against defendant in the amount of $ 26,342.83 plus counsel fees, costs, interest and such other remedies as this Court feels just. R LAW OFFICES Attorney for Plaintiff - 5 - VERIFICATION Elizabeth A Morrow hereby states that he/she is Sr Claims Representative with Helmsman Management Services, the third party administrator of the Plaintiff in this action and as such is authorized to execute the within verification and hereby verifies that the statements made in the foregoing Complaint are true and correct to the best of his/her knowledge, information and belief and based upon information and investigation obtained through the investigation into the cause of the incident described herein. The undersigned understands that thEl statements made therein are subject to the penalties relating to unsworn falsification to authorities. ~ /2, LOa 2.- DATE f~j1JJ ~~ -.. 0 (:~:" C-') C r'..,,:. -;1 ;~ ::-J -I 1:) c,: ;''j rn 1. l ') -7 ,,:.".._" .J -". I L"- U! , 00 ~:-.: "'-;) )~: (~:) -~;,.~ s> ' , ~;; f'~) -, .. '--.,.. ~ J.) ~iJ -< f~\.1 SEARS ROEBUCK & CO. alslo Charles Payne IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 02-3639 Civil Term vs. EDWIN D. WATTS ind & d/bla EDWIN WATTS SERVICES Defendant JURY TRIAL DEMANI1>ED ANSWER. NEW MATTER AND COUNTERCL~IM AND NOW, comes the Defendant by his attorneys, Buzgon Davis Laiw Offices, and files this Answer, New Matter and Counterclaim, averring as follows: I. ANSWER 1. Admitted upon information and belief. 2. Admitted. 3. Denied. The Agreement in question is a document in writing and speaks for itself. 4. Admitted in part and denied in part. It is admitted that the contract was amended on or about November 15, 1996. By way of further response, the contrad is a document in writing and speaks for itself. 5. Admitted. By way of further response, the Agreement betteen Plaintiff and Carol Payne is a document in writing and speaks for itself. 6. Admitted. 7. Denied. After reasonable investigation, Defendant is witlhout knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 7, strict proof being demanded at trial. 8. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 8, strict proof being demanded at trial. 9. Denied. The Agreement between Plaintiff and Defendant is a document in writing and speaks for itself. 10. Denied. The Agreement between Plaintiff and Defendant IS a document In writing and speaks for itself. 11. Denied. The Estimate and Proposal is a document in writing and speaks for itself. By way of further response, Plaintiff's representative, Joel Sneeringer, expressly directed Defendant to install the condensation line into the drain vent pipe. 12. Admitted in part and denied in part. It is admitted that the priJinary condensor line was connected to the vent pipe per the express instructions of Plaintiff's Irepresentative, Joel Sneeringer. 13. Denied. Paragraph 13 sets forth conclusions of law to which no response is required. By way of further response, it is denied that Carol and/or Charles Payne suffered damages in the amount claimed or said damages resulted from any improper conduct on the part of Defendant Watts. 14. Denied. Paragraph 14 sets forth conclusions of law to wIlch no response is required. By way of further response, said allegations are denied, strict proofibeing demanded at trial. -2- COUNT I - INDEMNIFICATION 15. The averments of paragraphs 1 through 14 above are incorporated herein by reference as if textually set forth at length. 16. Denied. The Agreement between Plaintiff and Defendant IS a document In writing and speaks for itself. 17. Denied. Paragraph 17 sets forth conclusions of law to which no response is required. By way of further response, it is denied that Defendant's actions cdnstituted negligence or that Defendant failed to follow the directions of Plaintiff, Sears, and its representatives. 18. Admitted in part and denied in part. It is admitted that Defendant has failed to refused to reimburse Sears. It is denied that the claimed damages wete sustained and/or compensable. 19. Denied. Paragraph 19 sets forth conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. WHEREFORE, Defendant respectfully requests your Honorable Court to dismiss Plaintiff's Complaint with prejudice. COUNT II - NEGLIGENCE 20. The averments of paragraphs 1 through 19 above are incorporated herein by reference as if textually set forth at length. 21. (1.-5). Denied. Paragraphs 21(1.-5.) sets forth conclusions df law to which no response is required. By way of further response, said allegations are denie~, strict proof being demanded at trial. -3- 22. Denied. Paragraph 22 sets forth conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proqf being demanded at trial. 23. Denied. Paragraph 23 sets forth conclusions of law to Which no response is , required. By way of further response, said allegations are denied, strict prodf being demanded at trial. WHEREFORE, Defendant respectfully requests your Honorable Court to dismiss Plaintiff's Complaint with prejudice. COUNT II (sic) - BREACH OF CONTRACT 24. The averments of paragraphs 1 through 23 above are incprporated herein by reference as if textually set forth at length. , 25. Denied. By way of further response, Defendant installtd the materials in accordance with the Estimate and Proposal provided by Plaintiff Sears and Wr the instructions of Sears'representatives. 26. Admitted in part and denied in part. It is admitted that the c~ndensation line was I not installed per the estimate and proposal. By way of further response, the condensation line was installed per the instruction of Sears' representative, Joel Sneeringer. 27. Denied. 28. Denied. Paragraph 28 sets forth conclusions of law to wll1ich no response is required. By way of further response, said allegations are denied, strict proof being demanded at trial. -4- 29. Denied. Paragraph 29 sets forth conclusions of law to which no response is required. By way of further response, said allegations are denied, strict proolf being demanded at trial. WHEREFORE, Defendant respectfully requests your Honorabltj Court to dismiss I I Plaintiffs Complaint with prejudice. II. NEW MATTER 30. Any injuries suffered by Plaintiff were caused by its own contributory negligence. 31. Plaintiff s claims are barred by the doctrine of accord and sati$faction. 32. Plaintiffs claims are barred by the assumption of risk. 33. Plaintiff is estopped from pursuing this matter as a result of its Settlement Agreement with Carol Payne and/or Charles Payne. 34. Plaintiffs claims are barred by the loss of Defendant's oppo~nity to reasonably I defend against the allegations of Carol Payne and/or Charles Payne. 35. Plaintiff has failed to state a cause of action upon which reliefican be granted. 36. Plaintiffs claims are limited or barred by the doctrine and/or!theory of spoliation ! of evidence. 37. Defendant was not negligent, reckless, or careless with res.,ect to any conduct regarding the losses and damages alleged by Plaintiff. , 38. Any acts or omissions of Defendant alleged to constitute qegligence were not substantial causes and did not result in the damages or losses alleged by Plaintiffs. I ! 39. The losses and damages allegedly sustained by Plaintiff w~re not proximately caused by Defendant. -5- 40. The negligent acts or omissions of other individuals including the Paynes, or entities may have constituted superseding causes of the damages and/or injtpies alleged to have been sustained by Plaintiff. 41. Plaintiff's own comparative negligence, carelessness and recklessness exceeds I any negligence or carelessness of Defendant, all such negligence or careleSsness of Defendant being specifically denied. 42. Plaintiff's claims are barred by the affirmative defenses identified in Pennsylvania Rule of Civil Procedure 1030, including but not limited to (a) waiver; (b) estoppel; (c) statute of limitations; (d) laches; (e) illegality; (f) release; (g) impossibility of performance; (h) fraud; (i) assumption of risk; and G) payment. 43. Any claim or request in this action for damages for delay purs~ant to Rule 238 of the Pennsylvania Rules of Civil Procedure is in contravention to and barred by the United States and Pennsylvania Constitutions because: (a) the rule exceeds the rule-makiqg authority granted to the judiciary by the Pennsylvania Constitution; (b) the rule violates the equal protection clauses of the United States and Pennsylvania Constitutions; (c) the rule viol~es the standards of I due process guaranteed by the United States and Pennsylvania Constitutions; and (d) the rule violates the excessive fines clause of the United States Constitution. WHEREFORE, Defendant avers that it is not liable to the Plaintiff in any amount whatsoever and prays that the Complaint against it be dismissed and that Oefendant may be awarded costs of defense including attorneys fees and Defendant may have such other and further relief as may be just and appropriate. -6- III. NEW MATTER PURSUANT TO P A.R.C.P. 22~ COUNTERCLAIM 44. The averments of paragraphs 1 through 42 above are incorporated herein by reference as if textually set forth at length. 45. Plaintiff is solely responsible for the damages referred to in .heir Complaint as a result of its negligence in providing instructions regarding the installation of the heating and cooling units to Defendant. 46. Plaintiff improperly paid and/or indemnified Carol Payne for damages that were not properly payable, thus precluding Plaintiff from recovering hereunder. WHEREFORE, Defendant avers that it is not liable to the Plaintiff in any amount whatsoever and prays that the Complaint against it be dismissed and that Defendant may be awarded costs of defense including attorneys fees and Defendant may have such other and further relief as may be just and appropriate. BUZGON DA VIS LAW OFFICES BY: ------ Scott L. oble, Esquire Attorney!. .#72808 525 South Eighth Street Post Office Box 49 Lebanon,PA 17042-0049 (717) 274-1421 Attorneys for Defendant -7- VERIFICATION I, Edwin D. Watts, do hereby verify that I am the Defendant in the foregoing action; that the attached Answer, New Matter and Counterclaim is based upon infoJ!mation which I have furnished to my counsel and information which has been gathered by my counsel in the preparation of the lawsuit. The language of the Answer, New Matter and Counterclaim is that of counsel and I not of me. I have read the Answers and to the extent that the Answers are based upon information which I have given to my counsel, they are true and correct to the best of my knowledge, information and belief. To the extent that the content of the Answers is that of oounsel, I have relied upon counsel in making this Verification. I understand that false statemehts herein are made subject to the penalties of 18 Pa.C.S. ~4904 relating to unsworn falsification to authorities. Edwin D. Watts ~ 3- Z.d-03 Date: lJ ~~ SEARS ROEBUCK & CO. a/s/o Charles Payne Plaintiff : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNty, : PENNSYLVANIA vs. : No. 02-3639 EDWIN D. WATTS ind & d/b/a EDWIN WATTS SERVICES Defendant : JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA) ) ss: COUNTY OF LEBANON ) I, Janelle K. Worcester, an employee of the law firm ofBuzgon;Davis Law Offices, 525 South Eighth Street, Lebanon, Lebanon County, Pennsylvania, Attorneys for Defendant, being duly sworn according to law, depose and say that I filed on March 27, 2003, ~n the Office of the , Prothonotary of Schuylkill County, the original ANSWER, NEW i MATTER AND COUNTERCLAIM and that I mailed, by First Class mail, in a postpaid envelope, a true and correct copy to Robert E. Meyer, Esquire Suite 200, Jenkins Court, 601 Old York Road, Jenkintown, Pennsylvania 19046, Attorney for Plaintiff. Sworn to and subscribed before me this 27th day of Marc A.D., 2003. '~ JAN~~ . .-~~~ESTER \~ Notarial Seal Jennie L Brewer, Notary Public CIlyOf~, Lebanon County My Canmission Expires Aug. 5, 2006 Member. PennsyiViinia Association Of Notaries o C ::~ ~~;~~ ~;;:~t t7> ;~~ --- ...- ~ ~~:) ~C) ~~~~ :~ -< C:J C.,) o -1 , ::-:: J;.-'. ;~iJ r...) CO -"':' :J;; x;- C) r" ROBERT E. MEYER LAW OFFICES BY: Robert E. Meyer Identification Number. 32414 Jenkins Court · Suite 200 610 Old York Road Jenkintown, PA 19046 Telephone No: (215) 885-7655 Attorney for Plaintiff SEARS ROEBUCK & CO. alslo Charles Payne COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. No.: 02-3639 Civil Term EDWIN D. WATTS ind & dlbla EDWIN WATTS SERVICES JUHY TRIAL DEMANDED REPLY OF PLAINTIFF TO NEW MATTER OF DEFEND,ANT AND ANSWER TO OF PLAINTIFF TO COUNTERCLA.IM And Now comes Plaintiff, Sears Roebuck & Co., by and through undersigned counsel to Reply to New Matter of Defendant and Answer Counterclaim of Defendant as follows: II. REPLY OF PLAINTIFF TO NEW MATTER: OF DEFENDANT 30. DENIED: The within is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at the time of trial. By way of further response it is specifically denied that Plaintiff was negligent. in any manner. 31. D DENIED: The within is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at the time of trial. 32. DENIED: The within is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at the time of trial. 33. DENIED: The within is a conclusion of law to which no responsive pleading is - 1 - required. Strict proof is demanded at the time of trial. By way of further response it is specifically denied that Plaintiff's arrangement with Carol and/or Charles Payne has any estoppel effect. 34. DENIED: The within is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at the time of trial. 35. DENIED: The within is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at the time of trial. 36. DENIED: The within is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at the time of trial. 37. DENIED: The within is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at the time, of trial. By way of further response, Plaintiff reincorporates and re-alleges the allegations of negligence set forth in it's Complaint. 38. DENIED: The within is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at the time of trial. By way of further response Defendant's conduct and/or contractual responsibility was the substantial cause and/or responsibility for the loss. 39. DENIED: The within is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at the time of trial. By way of further response Defendant's conduct and/or contractual responsibility was the substantial cause and/or responsibility for the loss. 40. DENIED: The within is a conclusion of law to whieh no responsive pleading is required. Strict proof is demanded at the time of trial. By way of further - 2 - response Defendant's conduct and/or contractual responsibility was the substantial cause and/or responsibility for the loss. Byway of further response Plaintiff's specifically deny that the damages were the responsibility of any other party. 41. DENIED: The within is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at the time of trial. By way of further response Defendant's conduct and/or contractual responsibility was the substantial cause and/or responsibility for the loss. 42. DENIED: The within is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at the time of trial. 43. DENIED: The within is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at the time of trial. By way of further response Defendant's conduct and/or contractual responsibility was the substantial cause and/or responsibility for the loss. WHEREFORE, plaintiff demands judgment against defendant in the amount of $ 26,342.83 plus counsel fees, costs, interest and such other remedies as this Court feels just. III. ANSWER OF PLAINTIFF TO COUNTERCLAIM OF DEFENDANT 44. Plaintiff Incorporates and re-alleges it's averments set forth the averments in it's Complaint and Reply to New Matter as fully as though set forth herein at length. 45. DENIED: The within is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at the time of trial. By way of further response Defendant is solely responsible for the safe and proper installation of the equipment subject to the within action. - 3 - 46. DENIED: Plaintiff acted properly at all times in reimbursing the Paynes' for damages sustained. The only misaction being that of the defendant for refusing to accept responsibility for the damages that were the result of his actions and/or inactions and/or his contractual responsibility to Plaintiff. WHEREFORE, plaintiff demands judgment against de1fendant in the amount of $ 26,342.83 plus counsel fees, costs, interest and such other remedies as this Court feels just. ROBERT E. MEYER LAW OFFICES By: {! eyer, Esq. Attorney for Plaintiff - 4 - VERIFICATION Robert E. Mever. ESQ. hereby states that he is Counsel to the Plaintiff in this action and as such is authorized to execute the within verification and hereby verifies that the statements made in the foregoing Reply to New Matter and Answer to Counterclaim are true and correct to the best of his knowledge, information and belief and based upon information and investigation obtained through the investigation into the cause of the incident described herein. The undersigned understands that the statements made therein are subject to the penalties relating to unsworn falsification to authorities. April 9, 2003 DATE ~ ROBERT o ~~ -0 t~'~": n"'lr ~; ~ .",:. ~ ~:~(- ~b~ ~~{ ... -~ Co C> -"il --I (-~ -u ::'J ;c", 1-, '( ) ~_.) ., -1' ) -.--" .' 1 ":' t~-rl I ;~.. ) (1' ~J --, ROBERT E. MEYER LAW OFFICES BY: Robert E. Meyer Identification Number. 32414 Jenkins Court · Suite 200 610 Old York Road Jenkintown, PA 19046 Telephone No: (215) 885-7655 Attorney for Plaintiff SEARS ROEBUCK & CO. a/s/o Charles Payne COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. No.: 02-3639 Civil Term EDWIN D. WATTS ind & d/b/a EDWIN WATTS SERVICES JURY TRIAL DEMANDED CERTIFICATION OF SERVICE I hereby certify that I served a copy of Plaintiff's Reply to New Matter and Answer to Counterclaim was served on Defendant by First Class U.S. Mail, Postage pre-paid to: Scott L. Grenoble, Esq. BUZGON & DAVIS 525 South Eighth St. P. O. Box 49 Lebanon, PA 17042 ROBERT I . MEYER LAW OFFICES ilL BY: ~bert E. Meyer, Esq. April 9, 2003 - 1 - o -TJ ~~ "'if' -'7 ..> ~~. :.'~1 -( ,...... ".".-;> W :;".:>0 -U 7"ry o -r~ -Ci ~~) !", en THE LAW OFFICES OF THOMAS W. HARRITY, LLC By: Thomas W. Harrity, esq. Identification Number 72709 P.O. Box 56135 Philadelphia, PA 19130-6135 ATTORNEY FOR PLAINTIFF (Tel) 215-236-2427 SEARS ROEBUCK & CO. COURT OF COMMON PLEAS alslol Charles Payne OF CUMBERLAND COUNTY VS. NO.: 02-3639 Civil Tenn EDWIN D. WATTS indo & d/b/a EDWIN WATTS SERVICES ENTRY OF APPEARANCE Kindly enter my appearance on behalf of plaintiff. SealS Roebuck & Co. alslo Charles Payne in the above captioned matter. ~~jJ.~- Thomas W. Harrity Attomey fOf Plaintiff o *~ r-o";; ~--- sj~~~: :cc, ~ , '" = = .r- c_ = r- I \D o -q ~:D r- -om :pel Clt :1!~ 9~ <jrn s:~! '" :.:( :0 1'0 a c..;. THE LAW OFFICES OF THOMAS W. HARRITY, LLC By: Thomas W. Hanity, esq. Identification Number 72709 P.O. Box 56135 Philadelphia, PA 19130-6135 ATTORNEY FOR PLAINTIFF (Tel) 215-236-2427 SEARS ROEBUCK & CO. COURT OF COMMON PLEAS alslol Charles Payne OF CUMBERLAND COUNTY VS. NO.: 02-3639 Civil Tenn EDWIN D. WATTS indo & d/b/a EDWIN WATTS SERVICES PLAINTIFF, SEARS ROEBUCK & CO'S MOTION FOR !IUMMARY JUDGMENT Plaintiff, Sears, Roebuck & Co. alslo Charles Payne, by llnd through its counsel, The Law Offices of Thomas W. Harrity, LLC. move for summary judgment pursuant to Pa. RC,P. 1035.2 and in support thereof aver as follows: 1. Plaintiff, Sears, Roebuck & Co. alslo Charles Payne (hereinafter "Plaintiff") instituted this civil action against defendants, Edwin D. Watts. individually ,and Edwin Watts Services (hereinafter "Defendants") on or about July 30. 2002, by Writ of Summons and thereafter filed the Complaint. A true and correct copy of the Complaint is attached as Exhibit "A". 2. Defendants filed their Answer with New Matter and Counterclaim on or about March 27. 2003. 3. Plaintiff filed its Reply to New Matter and Answer to Counterclaim on or about April 14, 2003. 4. Plaintiff entered into a service contract with Defendants on November 21, 1993 entitled "Contract For FumishinQ And Installing Materials" (hereinafter "The Contract") whereby Defendants would provide contracting installation servic:es on behalf of Plaintiff to third party customers of Plaintiff. A true and correct copy of The Contract is attached as Exhibit as",. 5. Paragraph 12 of The Contract provides as follows: Contlllctor agrees ro protect, defend, hold harmless alld Indemnify SealS, its agents and employees against any and all claims, demands, actions, liabilities, losses, costs and expenses (Including but not llmited:to attomeys fees) arising out of any actual or alleged bodily injury, sickness, disease or death, or damaae ro or destruction of anv orooetfv including, or any other Injury, damage or In part from anvactual or alleaed act or omission of the contractor. in the 09rformance of the work. of anv law. statute or sfate ordinance or anv ao"emmental edmlntstrative order. IUle or reaulaf#on. (emphasis added) 6. The Contract thus mandates that Defendants indemnify and hold Plaintiff hannless against any and all claims associated with Defendants' pE,rfonnance of its services to third party customers of Plaintiff. 7. The Contract between Plaintiff and Defendants additIonally states, in pertinent part: That during the term of this contract, ConfnIctor will accept jobs tendered by SealS...and the Contractor will perform su,~h repair and/or insfallaf#on work for each job in a neat and professional manner pUlSuant ro... the Estimate and proposal...and In accordance \tofth the established trade practices In the area, all applicable laws, IUles, regulations, ordinances or other lawful requirements. (emphasis added). See paragraph 1 of Exhibit "B". 8. On or about November 15. 1996 The Contract between l'laintiff and Defendants was amended by the execution of an "Amendment Agreement." A copy of the "Amendment Agreement" is attached as Exhibit "C". 9. The Amendment Agreement specifically added jobs inve,lving the repair and/or installation of heating, ventilation and/or air conditioning equipment. See Exhibit "C". 10. The Amendment Agreement also specifically addresses "condensate drains" among other items. See Exhibit "C". 11. On or about October 10, 1998 Plaintiff entered into a sales agreement, "Estimate and Proposal", with Carol Payne ("Payne") whereby Plaintiff sold Payne a new heating and air COnditioning system. A copy of the two page Estimate and Proposal signed by Payne. is attached as Exhibit "0". 12. The Estimate and Proposal called for installation of inter mia, a Kenmore 2 % ton 30,000 BTU 13 SEER Central Air Unit. See Exhibit "D". 13. The Estimate and Proposal called for the line set to condenser to be encased in white 3 x 4 downspout along left side of building. See Exhibh: "0". 14. Pursuant to the tenns of The Contract between Plaintiff and Defendants, Edwin Watts Services, Inc. was required to follow the installation requirements of the Estimate and Proposal and install the condenser line to the 3 x 4 downslpout along the left side ofthe Payne residence. 15. Defendants did not install the condenser line to the 3 x 4 downspout along the left side of the Payne residence as required by the aforementioned contractual agreements. 16. Defendants incorrectly and unlawfully installed the condenser line to a waste exhaust stack inside the property that was designed for transport of gases and not liquids. 17. As a result of the incorrect and unlawful installation by the Defendants, water leaked and flowed from the condensate line over time in such volume that Payne sustained property damage in the amount of $26,642.83. 18. Pursuant to Sears' contract with Payne, Sears indemnified Payne for the damage incurred in the amount of $26,642.83. 19. Sears has repeatedly requested that defendants, Edwin Watts and Edwin Watts. individually and Edwin Watts Services reimburse Sears pursuant to its contractual obligations but defendants have refused. WHEREFORE, plaintiff Sears Roebuck & Co. alslol Carol and Chartes Payne respectfully requests that summary judgment be entered in its favor and against Defendants as set forth in the attached Order. Respectfully submitted, 7L~ I~. ~""A1f The Law Offices of Thomas W. . y, LLC. Attomey for Plaint.iff Verification The undersigned verifies that he is the attomey for plaintiff, Sears Roebuck & Co. alslol Charles Payne in this action; that he is familiar with the fac:ts set forth in the fOfegoing Motion fOf Summary Judgment; that the same afe true and correct to the best of his knowledge. information and belief; and that said statements are made subject to 18 Pa. C,S. Section 4904 relating to unswom falsification to authorities. ~~l0. Thomas W. Harrity, Esquire Date: "71c./6 '/ " Certificate of Service The undersigned hereby states that he served a true and c:orrect copy of Plaintiff's Motion for Summary Judgment, by First Class mail, post!ll;te prepaid on July 6, 2004. upon: scott Grenoble, esquire Buzgon Davis 525 South Eighth Street P.O. Box 49 Lebanon, PA 17042 The Law Offices of Thomas W. Harrity, LLC By: Q!~ /.J. ?/;-AMd;- Thomas W. Hanity - '0 Attomey for Plaintiff THE LAW OFFICES OF THOMAS W. HARRITY, LLC By: Thomas W. Harrity, esq. Identification Number 72709 P.O. Box 56135 Philadelphia, PA 19130-6135 ATTORNIEY FOR PLAINTIFF (Tel) 215-236-2427 SEARS ROEBUCK & CO. COURT OF COMMON PLEAS alslol Char1es Payne OF CUMBERLAND COUNTY VS. NO.: 02-:~639 Civil Tenn EDWIN D. WATTS indo & d/b/a EDWIN WATTS SERVICES MEMORANDUM OF LAW IN SUPPORT OF PU\lNTIFF'S MOTION FOR SUMMARY JUDGMENT I. STATEMENT OF FACTS Plaintiff entered into a service contract with Defendants on November 21, 1993 entitled "Contract For Fumishing And Installing Mater1als" (hereinafter "The Contract") whereby Defendants would provide contracting installation services on behalf of Plaintiff to third party customers of Plaintiff. See Exhibit "B". Paragraph 12 of The Contract provides as follows: Contractor aorees to orotect. defend. hold harmless and indemnifv Sears. its agents and employees against any and all claims, demands, actions, liabilities, losses, costs and expenses (including but not limited to attomeys fees) arising out of any actual or alleged bodily injury, sickne:,s, disease or death, or damaae to or destruction of anv orooertv including, or any other injury, damage or in part from anv actual or alleaed act or omission of tlm Contractor. in the oerformance of the work. of anv law. statute or state ordinanoe or anv aovemmental administrative order. ro/a or reaulation. (emphasis added) The Contract mandates that Defendants indemnify and hold Plaintiff hannless against any and all claims associated with Defendants' perfonnanc:e of its services to third party customers of Plaintiff. Moreover, The Contract between Plaintiff and Defendants lldditionally states: That during the term of this contract, Contractor wiH accept jobs tendered by Sears.. .and the Contractor will perform such repair and/or installation wort< for each job in a neat and professional manner pursUSlnt to. .. the Estimate and Proposal.. .and in accordance with the established trade practices in the area, all applicable laws, rules, regulations, ordinances or other lawful requirements. See paragraph 1 of Exhibit "S". On or about November 15, 1996 The Contract between Phlintiff and Defendants was amended by the execution of an "Amendment Agreement." ~!!! "Amendment Agreement" attached as Exhibit "C". 111e Amendment Agreement SpeCifil:ally added jobs involving the repair andlor installation of heating, ventilation andlor air conditioning equipment. See Exhibit "C". 111e Amendment Agreement also specificallly addresses "condensate drains." See Exhibit"C". On or about October 10. 1998 Plaintiff entered into a sales agreement. "Estimate and Proposa'", with Carol and Char1es Payne ("Payne) whereby Plaintiff sold Payne a new heating and air conditioning system. A copy of the two page Estimate and Proposal signed by Payne, is attached as Exhibit "0". The Estimate and Proposal called for installation of a Kenrnore 2 % ton 30.000 STU 13 SEER Central Air Unit. See Exhibit "0". The Estimate and Proposal also called for the lIne set 10 condenser to be encased in white 3 x" downspout illong left side of buildIng. See Exhibit "D". Pursuant to the teRns of The Contract between Plaintiff and Defendants. Edwin Watts Services, Inc. was required to follow the installation requirements of the Estimate and Proposal and install the condenser line to the 3 x 4 downspout along the left side of the Payne residence. Defendants did not install the condenser line to the 3 x 4 downspout along the left side of the Payne residence as required by the aforementictfled contractual agreements. Defendants incorrectly and unlawfully installed the condenser line to a waste exhaust stack inside the property that was designed for transport of gasl~s and not liquids. As a result of the incorrect and unlawful installation by the Defendants, water leaked and flowed from the condensate line over time in such volume that Payne sustained property damage in the amount of $26,642.83. Pursuant to Sears' contract with Payne, Sears indemnified Payne for the property damage incurred in the amount of $26,642.83. Despite Plaintiff's repeated requests to Defendants to reimburse Plaintiffs for the indemnity payments made, Defendants have refused. Consequently, Plaintiffs have instituted this Civil Action to enfon::e its rights under The Contract. II. LEGAL ARGUMENT a) Summary Judgment Standard Pennsylvania Rule of Civil Procedure 1035,2 provides that a motion for summary judgment shall be granted if the record evidence in a case, together with affidavits. shows that there is no genuine issue of material fact and that the moving party is entitled to summary judgment as a matter of law. Samarin v GAF Com, 571 A.2d 398, 400-401 (Pa. Super. 1989). The moving party bears the burden of proving that no genuine issue exists as to any material fact. Pa. R.C.P 1035.2; Celotex Com vs, Catrett. 477 U.S. 317, 322 (1986). All factual disputes must be resolved in favor of the non-moving party. ~ In the case at bar, there are no genuine issues of material fact as the terms and conditions of the contracts executed between the parties cle;arly and unequivocally spell out the terms. The Contract clearly spells out the fact that Defendant is required to indemnify and hold Plaintiff harmless from any and all claim!: associated with the installation services provided to third party customers. In Pennsylvania. the law is well settled that if a wriliten contract is clear and unequivocal, meaning must be detennined from the langua,ge itself. Roman Mosaic and Tile Co. v. Thomas P. Camey. Inc., 729 A.2d 73 (Pa. Super. 1999). Under Pennsylvania law, if written contract is clear and unambiguous, court must construe contract as a matter of law by its contents alone. In re LaBrum & Doak. LLP 227 BR 391. appeal denied 1999 WI. 667280. When language of contract is c1ellr and unambiguous. its meaning must be detennined by examination of contract itself. Fleetway Leasino Co. v. Wrioht, 697 A.2d 1000 (Pa. Super. 1997). When language of contract is clear and unambiguous. courts interpret its meaning by its contents allone, within the four comers of the document. Banks Enoineerino Co.. Inc. v. Polons, 697 A.2d 1020 (Pa, Super. 1997). In addition. mere disagreement between the parties regarding the meaning of tenns in a contract is not enough to make it "ambiguous." 1:1''' Street GYm. Inc. v. General Star Indem. Co.. 93 F.3d 1158, on remand 980 F. Supp. 7~16 (C.A3 PA 1996). Under Pennsylvania law, the burden of proof of any ambiguity is 011 the party claiming it; it is up to the party claiming that ambiguity exists to show that contract is reasonably or fairly susceptible of different constructions and is capable of beinll understood in more senses than one and is obscure in meaning through indefiniteness llf expression or has double meaning. Comoass Technolooy. Inc. v. Tseno Laboratories. Inc.. 71 F,3d 1125 (CA3 PA 1995). Moreover, courts are limited in their discretion in reviewing written contracts, Courts enforce but may not rewrite agreements which the pllrties enter. Brezan v. Prudential Ins. Co. of America. 507 F. Supp. 962 (E.D. PA 1981). The court may not. under the guise of interpretation, make a new contract. Interoace COrD, v, Penbrook Haulino Co.. Inc. . 389 F. Supp. 560. affinned 535 F.2d 12411 (M.D. PA 1975). In the case at bar, the contract between the parties ils clear. As stated above, , I Plaintiff entered Into a service contract with Defendants on November 21, 1993 entitled "Contract For Fumlshing And Installing Materials" (hereinafter "The Contractj whereby Defendants would provide contracting installation services on behalf of Plaintiff to third party customers of Plaintiff. See Exhibit "B". Paragraph 12 of The Contract provides as follows: Contractor aarees to orotect. defend. hold harmles~l and indemnify Sears. its agents and employees against any and all claims, (femands, actions, liabilities, losses, costs and expenses (including but not limite<d to attorneys fees) arising out of any actual or alleged bodily injury, sickness, <rlisease or death, or damaae to or clestruciion of anv orooertv including, or any other injury, damage or in part from anv actual or alleaed act or omission of the Contractor. in the oerformance of the work. of anv law. statute or state ordinance or anv GOvernmental administrative order. rule or reaulation. (emphasis added) The contract is quite clear and free of ambiguity. This language is standard hold harmless and indemnification language used and enforced by hundreds of thousands of businesses in America every day. Given the clarity of the written contract terms, the equal bargaining power of the parties and the absence of ambiguity, this court must enforce the contract as written. Accordingly, Plaintiff moves this Honorable Court to grant summary judgment in its favor and enter the attached Order. Res~ submitted, ~, The Law Offices of Thomas W. , LLC Thomas W. Harrity, Esquire Attomey for Plaintiff ROBERT E. MEYER LAW OFFICES BY: Robert E. Meyer Identification Number. 32414 Jenkins Court · Suite 200 610 Old York Road Jenkintown, PA 19046 Telephone No: (215) 885-7655 Attorney for Plaintiff V. COURT OF C~~ PLEAS OF CUMBERLAND CfO~TY ;I...., No.: 02-3639 Civil1er l" '"', SEARS ROEBUCK & CO. alslo Charles Payne EDWIN D. WATTS ind & dlbla EDWIN WATTS SERVICES JUFi:Y TRIAL DEMANDED COMPLAINT NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and noti<:e are served, by entering a written appearance personally or by attorney and filing in writing with the coun your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be enetered against you by the co1;lrt without further nc,tice for any money claimed in the complaint or for any other claim or relief requestce! by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND CO\JNTY BAR ASSOCIATION 2 Liberty Ave. Carlisle, P A 17013 ROBERT E. MEYER LAW OFFICES BY: Robert E. Meyer Identification Number. 32414 Jenkins Court · Suite 200 610 Old York Road Jenkintown, PA 19046 Telephone No: (215) 885-7655 Attorney for Plaintiff SEARS ROEBUCK & CO. a/s/o Charles Payne COURT OF COMMON PLEAS OF CUMBERLAND COUNTY V. No.: 02-3639 Civil Term EDWIN D. WATTS ind & dlbla EDWIN WATTS SERVICES JUFiY TRIAL DEMANDED COMPLAINT And Now comes Plaintiff, Sears Roebuck & Co., by and through undersigned counsel who alleges as follows: 1. Plaintiff, Sears Roebuck & Co. (hereinafter "Seam") is a corporation authorized to conduct business in the Commonwealth of Pennsylvania, with a place of business located at The Capital City Mall, Harrisburg, PA. 2. EDWIN D. WATTS ind & d/b/a EDWIN WATTS SERVICES is an individuallbusiness which was, at all times pertinent, involved, inter alia, in the installation of HV AC systems, with a principal place of business located at 12 Mountain St., Duncannon, PA. 3. On or about November 21, 1993 Defendant entered into a Contract with Plaintiff whereby Defendant would, inter alia provide services on behalf of Plaintiff to third party customers of Plaintiff. A copy of that contract is attached hereto as Exhibit "A". 4. On or about November 15, 1996 the contract referenced above was amended. A copy of the Amendment to the Contract is attached hereto as Exhibit "B". 5. On or about 10/10/98 Plaintiff entered into a sales agreement, "Estimate and Proposal", with Carol Payne whereby Plaintiff was to provide and install a new heating and air-conditioning system to Carol Payne. A copy of the Estimate and - 1 - Proposal is attached hereto as Exhibit "C". 6. Upon information and belief, in or about November 1998 Defendant Watts installed an HV AC system on behalf of Plaintiff at the Payne property located at 220 West Main St., Mechanicsburg, PA. 7. On or about August 1, 2000 water was discovered flowing from the condensation linelsystem in the location where Delfendant had connected same to a pre-existing exhaust stack into the Payne property. 8. The water from the condensation lines/systern caused significant damage and destruction to the Payne property. 9. The contract between Plaintiff and Defendant states, in pertinent part, 12. Contractor agrees to protect, defend, hold harmless and indemnify Sears, its agents and employees from and against any and all claims, demands, actions, liabilities, losses, costs and expenses (including but not limited to attorney's fees) arising out of any actual or alleged ...damage to or destruction of any property ...in part from any actual or alleged act or omission of the Contractor, in the performance of the work... 10. The contract between Plaintiff and Defendant additionally states, in pertinent part: 1. That during the term of this contract, Contractor will accept jobs tendered by Sears..and that Contractor will perform such ... installation work..pursuant to...the Estimate and Proposal... 11 . The Estimate and Proposal, Exhibit "C" hereto, contains, in pertinent part, the following language: "...GAS LINE, ELECTRICAL WIRING AND LINE SET TO CONDENSER TO BE ENCASED IN WHITE 3X4 DOWNSPOUT ALONG LEFT SIDE OF BUILDING..." 12. As installed the condenser line was run to a waste exhaust stack inside the property and not in a 3X4 downspout along the left side of the building 13. Pursuant to it's contract with its customer, Sears indemnified Carol and Charles Payne for the damage they sustained in the amount of $26,642.83. 14. Pursuant to Sears contract with Defendant and as the result of the negligence - 2 - of the Defendant in improperly installing the condensation line, Plaintiff has requested that Defendant reimburse Sears for the darnages but Defendant has refused. COUNT I INDEMNIFICATION 15. Plaintiff Incorporates and re-alleges it's averments set forth in paragraphs 1 through 14 as fully as though set forth herein. 16. Pursuant to the contract between Plaintiff and Defendant, Defendant is to indemnify Plaintiff for all claims arising out of flctual or alleaed damage to property arising from any actual or alleaed act or omission of the contractor. 1 7. A claim has been made that the actions of the contractor in negligence and/or failure to follow the directions of Ion the Proposal and Estimate led to the damages sustained by Payne and paid by Plaintiff and to which Plaintiff is now entitled to be reimbursed. 18. As of this date Defendant has failed and refused to reimburse Sears for the damages it sustained. 19. By reason of the aforesaid contract between Plaintiff and Defendant, Plaintiff is entitled to be indemnified for the damages to the Paynes. in the amount of TWENTY SIX THOUSAND, SIX HUNDRED FORTY TWO DOLLARS AND EIGHTY-THREE CENTS ($ 26,342.83). WHEREFORE, plaintiff demands judgment against defendant in the amount of $ 26,342.83 plus counsel fees, costs and interest as provided in the Contract and such other remedies as this Court feels just.. COUNT II NEGLIGENCE 20. Plaintiff Incorporates and re-alleges it's averm<3nts set forth in paragraphs 1 through 1 9 as fully as though set forth herein. 21 . The damage to the Paynes property describl3d above was caused by the negligence, carelessness and or recklessness of the defendant, his agents, servants andlor employees in failing to exercise reasonable care in the following - 3 - manner; 1 . Failing to properly install, service, insp1ect, test and/or protect from harm the above-described property from water damage; 2. Failing to properly ensure that the above-described condensation line was installed properly and adequately; 3. Failing to properly determine that the exhaust stack to which defendant connected the condensation line was adequate to handle the condensation line drainage; to be produced by the air conditioner being installed by defendant; 4. Failing to test the exhaust stack to ensure it's sufficiency as a drain; 5. Failing to advise the Paynes of any liimitations inherent in the use of the exhaust stack as a condensaltion line drain; and failing to properly connect the condensation lin to the exhaust stack. 22. As a result of the aforesaid negligence, carelessness andlor negligent omissions of Defendant, the incident referred to in Paragraphs "7 & 8" took place and resulted in extensive damage and destruction to the Paynes' property. 23. Pursuant to it's Contract with the Paynes Plaintiff reimbursed the Paynes for the damages they sustained and are now subrogated to the rights of the Paynes for the damages so sustained. WHEREFORE, plaintiff demands judgment against defendant in the amount of $ 26,342.83 plus counsel fees, costs, interest and such other remedies as this Court feels just. COUNT \I BREACH OF CONTRACT 24. Plaintiff Incorporates and re-alleges it's avermEmts set forth in paragraphs 1 through 23 as fully as though set forth herein. 25. Pursuant to its contract with Plaintiff, Defendant was to install materials in accordance with the Estimate and Proposal entered into between Plaintiff and the end-customer. - 4 - '26. Defendant failed to conform with the installation details provided on the Estimate and Proposal. 27. The damage that occurred to the property of Plaintiff's customer occurred in the portion of the job that was in violation of the directions provided in the estimate and proposal. 28. Plaintiff was required to reimburse it's customer for damages sustained by the customer. Plaintiff has demanded reimbursement for the amounts paid from Defendant and Defendant has refused to pay despite it having materially breached its's contract with Plaintiff 29. The material breach of the contract was a direct and proximate cause of the damages sustained by Plaintiffs customer. WHEREFORE, plaintiff demands judgment against detendant in the amount of $ 26,342.83 plus counsel fees, costs, interest and such other remedies as this Court feels just. ROBERT E. MEYER LAW OFFICES By: Robert E. Meyer, Esq. Attorney for Plaintiff - 5 - VERIFICATION Elizabeth A Morrow hereby states that he/she is Sr Claims Representative with Helmsman Management Services. the third party administrator of the Plaintiff in this action and as such is authorized to execute the within vElrification and hereby verifies that the statements made in the foregoing C,omplaint arle true and correct to the best of hislher knowledge. information and belief and based upon information and investigation obtained through the investigation into the cause of the incident described herein. The undersigned understands that the statements made therein are subject to the penalties relating to unsworn falsification to authorities. D/'p,~ 1212002- DATE ~,-,t~l~~ '80'39~c 900~ 652 ~~5 ;uL. 24. 2002 3:0SP~ SEARS UNIT 5556 25:91 2002 v2 In! NO. 556 P.5 i . CONTRACT FOR FURNISHING AND INSTALLING MATERIALS Tl'llS C01><1RACT.madetbis '2/ dayof #i10 I!!?-PH :te--e .19 9..] I beLW~oSEARS ROEBUCK A......"D CO. Unitt!' loc3ll:dar (herei'mferredlO as "SealS") and e&.AJ/;" LJ. uJP.tib~ S'e-e(//c.c..r ;.k,' .@ . ,.'/-"'<>7' ;fJ~.. ,IVU~ve/ (hercinro..!erredtoas"Co=tor"): . 'I pIY&<-. / ).0<'0 WHEREAS. Sears desire. to provide 1'0 its cnstOll1ers cert3ln home improvement, ,:cpait's consisting of rhe repair andlor installation of replacement materials in, au or arouod the .tlome and suc.h 'ervic~ associated with the r<:pair and/or ins<allation of snch matomal.,; and 'W"HEREAS, Sears is willing to arraD~. through Conttaeror, to have Contractor procure and SlIpply snch materWs for Sllid repair anClo, ius~lation;and ' WHEREAS. Contractor represenlS that tontractor is experienced, compet<:llt and qu<ilified to repair and/or instllll i' materials and is duly li=sed 10 do such wode where a license is required; and WHEREAS, Contractor is willing and d!'<in:s to procure and supply such otaleri3ls a:nd to do such repair and/orinstallalion wnrl<. but only as an independent contractor and Dot as an employee of Sears. and pursU3Jlt to tho temlS and condition ,et oUlherein. I NOW THEREFORE, it is mutually agreed as iollows: locatedat /2-,(3 I, That during the term at this Contract,. C9ntracror will accept jobs tendered by Sears, on behalf of tbe customas, to contract for the r;pair and/orinstalIation of . i: (materials) which can beperfcm1:d satisfactorily by CoritraClOr, and thar Cotltr2CtOr will petfonn such repair and/or instalJatiDn wod< for each job in" nea: a.~d professional manner pursuant to the installation instructions as cotltlliued in the current Owner's Manual, Manufacturer's Specificatious ar.d :nsltUotions as contained in the Estimate a:nd Pzoposal or ~neraI Order To ContractOr hereinafcec provided for and in accorcLmcc with me established trade practices in the area, all applicable laws, rules, regulations, ordinances or other lawful requirements. 2. Thar upon receiving ajob for a "",air an~crinstallation frem Sears. Conttacror shall firstdetettnine whether the job can be satisfacmrily completed before beginning the job. IfComr..clOt determines that the job cannot be completed satisfacrorily within the tenDS of the Schedule Of ContraCtor's Charges described in paragra\lb 7 below. and aaachedber'..ro as appendi:t A, Contractor Will notify Sears promprly and ifr.,'" General Order or Schedl!1e is not agreed upoo for mat job. the reuder of t1le job shall be ,deemed to be withdrawn from Comracror. . I. 3. Ccntractor will procJre.andlorstock the nj:\teri31 to be supplied by it1mrler this COnlrB/:t which will meet or exceed themaretial specificati::ms lIluclled h..-reto as appendix B. which specifiCations may be amended from time to time ~o writing, by the parties hereto. Concurrence by Se-.:s in said specifications sball nOt relieve COmraclar of any liabiliry a:isingin cmmecticn with Sllid specifications. Contraa:or shallmake no putt:hase or incur any expense or obligation of any kind in the n3l:Ie of Seors. Contractor will nor install any material containing defects. : 4~ ContractOr g'=antees that every jab shall be free from defectS in Contractor.s wor1<:lnansbiIl for a pertod of One (1) year aflet COlDpletic.,. If a defecr appears or a claim is made by .. cust~merwithin Illatperiod, !hat there is rir W2.S a defect in the workmEllShip. CODtractor wiIlremeay said defect promptly after notice by Sears or cUStomer and if Contractor fails to do so, Sears ortbe CUstomer shall have the rightto have the detect corrected at Ccmtr1lCtor's expense and Sears inh withJ>,old and use eDYDlonies then or tb""eafter due to Contractor as ser-<>ff for any SCCOIlO!S so paid. ContractOr guarantees that ail material will CQnform to rhe specifications set forth in paragraph 3 and appendix B and agree to replace any material not meeting these specifications at n9. cost to the cnstcmer or Sears. 5, Sears wi!: issue to Contractor an identification card which identifies Cont:actor as a "Sears Authori2.ed Contractor". 1lJhich ContraCtor aM its employees Dlay nse to identify lheO'.selves to Sears Cuammers. Contractor will return to Sears all suchidentifica.non mat::rial upon tetmina=on or this agreement and '","ill not thereafter repreSent irself to the public as a "Sears Aulhorized Contractor", 5. Under no circwnSt!llces shall Contractor o~ itS employees represent themselves as Sears employees ora,gCUtS. The Contractor will NOT use :he SearsAuthori2.ed Icsta1ler designation in ~bone directory listings or any otherl)'pel:Jfadvertis.ing tvithoutthe express prior "'riereD consent ,(Scars. " , r ,~ Sears will submit a General O;der to Contr= on behalf of the customer which shaU contain the specific:aliotls for the job to be petfaur e<1 Ultl the repair and/or instlll1alion charge based oil the Negotiated Schedule of Contractor's Charges atUl:hed hereto as appendix A. Said S chedcte hall remain in force until revised by mutwl1 ag,.eementin writing betWeen Cona:actOI and Seats. Contractor wilInot be paid by Sean for a:.>y vark nor specified in Ille General Order 10 Cot\'l:ractor or the Estimate and Proposal sigo.:d by the customer without wrinen instructions signed 'y Sears on behalf of the customer. 10 rhe everit cusramer request changes in or additions [0 Ille specified work involving additional rnan:rUlS "labor, Contractor will notify Sears immediately orinsrrucr cusrome:r to notify Sears to:this effect. 10 rhe eve~r Soars CaIIDOt or..iIJ not arrange or saidc!langes wd/ora6iitians, Contractor S~NOT elect to pe:form such work. F\lrtber, all leads and prospects resulting from Sear.; work dong to Sean and Contractor agrees 10 notify SeatS of all such prospective custometS. Jillle:xd.s and prospeclS resulting from Conc:actOis ncn- :eatS wod< remain the property of the Conrracror. '.ev (3-93) (\\rt:t:l . 60',,;)tjc . :;.JL. 24.20132 900t> 6SC t>l.S 3'0SPM SEARS UNIT SS56 ;:S : 91 caelc t>c Iflf ,,0.S56 P.5 5, Sears shall pay to Conuactor on bellalf of Sears custome", the repair and/or inst<iIlation ch3rges a; based 011 the negotWcd Schedule of Comractor's Charges, upon receiptof Contractor's invoice aftet'cOIDpletion of rile job and executed "W;\!VO'S of Lien" and ComnclOt's affidavit, and verification by Sears lhaIthejob has beer. properlycomp!eted ioaccordance with the Estirrul.leandProposal. the General OtderToContr:>.Clor and the provisions of this Contract. ' . 9. Con=o= has full right TD detemline, and tile responsibility for, the method, man!ler and COtllrOl of tile work to be perionned as Specified ill the Estimate and Proposal or me G.netal Order To ConttaClOr, and Contractor will '~ploy sufficient competent adult workers to complete .uh job promptly and satisfactorily. Coum1cror bas the sole and exclusiverigbt to hire, din:ct. sUP"fVise and discharge any wotkers =ployed by CQnncwr.l1acus=er is not satisfied with lbe workmanship. quality ofmnte:riaI or custOmer is not satisfied with the worlcmanship. quality of ma=:ial Otprogress of the job. Sears may, asagentforcustomer. request thatCont:'aClorlllldJorltS workers be withdrawn frQm the job. Contra= a<<r= to transfer fronllhe job any employeeJwl:.o is objectionable ro Sean or Sears customers for reason ofhealch. safety 3D/IIorsec:urity 01 Sean cUstOmers (including propeny), employees [)r znaterials and/or whose manner impairs :,ears CUstomers rel.tions. 10. COlllractor shall at its own e:cpense procUre and keep in force during the terms ofrm,; Contract. Comprcl>ensive General Uability Insurance, ir.clu.ding ProductS and Comple ted Operati~s Coverage, Motor VehiclePnblie Liability lnsllX1mCe, and Worker'. Compensation and Employers Liab:lity lIlsurance in amounts not less !ban tIlose recommended by Sears. Contractor agrees to furnish certi.fu:ates oflnsuraocc Ot otherevidence acceprable to Sears of such insurance coverage. Sucll evidence of insurance mustconwn II notice provision whereunder ren (10) days prtor'llV:'iucn notice of any ma:erial change or cancellation must be given by the insurance =ier to Sears. If ContractOr is oot~uired under any applicable Wo:x:r's Compensation Act 10 operate undc!r or'become subject 10 such act but is pennitre<i!o do so, ContractorwiU dulyelee! to be governed by and operate under said act. ; L CODlfllClor ass-urnes full responsibility fOr all contributions, taXes and assessments !,n all payrolls or otherwise undeI all applicable feda>.l. stare and local laws (including withholding 1!'om wages ofiIs employees wbere reqai.ted) and if lcontracror is notn:qnired under any applicable Unemployment Compensatlon Act to opera\C under or become subject to such Act but iis permitted to do so, Contractor agrees :0 comply wi'" any other federal O! stare law or regulation regarding compensation. ho= ofworlc, or otber conditio"s of employment including. butllotlimiled ro, federal Or sea:. laws or regulations regarding minimum c:ompetl.\atiCll, (lvertime and: equal oppommilies for employment 12. Cen""c!or agrees TD protect, defend, bcj1d hannless and indemnify Sears, its "Sems and employees from and against any and all claios. demands, aClions, liabilities, losses, costs and expenses uncludingbutnotlimiled 10 aLtomey's fees), arising outof any acmalar alleged (al bodily l:;jory, sickness. disease Ot death, or damagejto or des!rllCIi011 of any properryincluding the loss of use resultill8 tberefroln, or any other mjury. da::r..age oriD part from any actual Or alleged actor omission of the ConttaCtor. in tbepe:rfotm:mce of the wor~ of~y la~. statUte O1'S12.te orclin3J.~ce or ~y governmental administrative orderl rule or regulation... 13. This Con tract sball be personal ro Sears aild Conaactor and cannot be assigned or trmlfelTed by eitherpany. either voluntarily Or by operation of law. 14. This Contral;tconstitutes the enlireagreemem between the parties and mayno!be varied, alrered or changed inany respea e:<.c.."P!by a writlen agreement between the parties. No oral changes in tile =s of lbis Contract or oral approval of deviatioDsfrom p~OImance underIhis Com:act . shall be permitted. . 15 ltis understood that no promises orreprwtations whatsoever have been made as 10 tile potential number of jobs that may be available at any time during <he terms of this Contract. Sei!tts may aff-..rjobs described in chis Conna to CODlIaCtors other than the Comracoor aDd Collt!actor may accep' jobs including mose as described;herein from other parties. Contractor repre.;ems and warranIS !hat it has not incurred and does not intend!o incur a.,y expenses tor additional personnel, facilities or equipmentinreliance upon ar in anticipation of receiving jobs from Sears. and agrees that Sears shall not be obligated for allY expense inCU'Ted by CootractOf in connection with any increase in the nwnber of contractor's employees or expenditures made by Cotltrac!or for additional facilities or equipment, . , . 16, The term oftbisContract $ball be for onel{l) yoarerom the above date, andtbereafier' foradditionalsuccessiveperi0d.3 of one (1) year each: provided, however, either party bereto shall have the righ [ to terminate thi. ContraJ::t at anytime during the term or extended = br::rc:of. without cause, without peJlalty and "'itbout liability f'lr any datnages as a result of sucb [etIIllnation, by giving TD lbe olAerpany .,least thil'ty (:;0) days prior written notice of termination. S neh n01ic'e sllaIJ. be in \Vriting and transmitted by Ovemight Courier, or t:niled Stares Regisrered (lr Certified Mai~ postage prepaid, tetum receipt requested, and shall be dir=ed to the panics at lb,~ respective address as shown above. IN WITNESS WHEREOF, the parties '''mese present; have beretmder seI their hUld$ and af6:o;ed their seals the day and year. first allo'.. wrir:en. Witness Sears, ~~co. By:-t1~~y Manager Contractor Wimess EdOlF;'" .iJ W>4-//S -5 C-RWCe.s; ::\'am: OfCo~cto~ BY:~~ - jt.L Signa1lIre of Owner . "..I " jOWev;P'1 "'~-f. -"-.\:L;\~i':;'\J~:::,,_;"- ,.::.,' r:. =::\l;':i'i.- <; L';,;,"/->(l . ; ~,...:: /' ~ ,.'. ,,_;, r~ I~''-;, / , ,- .' l-... A/An ~ ~s-rJ:"- .-.f. 'j'J ~ r'\~'=l"'''''' "'~"',.q""':l ';:':>'''<'; ., '." i :"-) ~!:....-_._.- .. -"-:- .-' , ::..__ .'-' -: \..- "":"_""0_' ~.,}'_.'." . .../ j .'<5._ S/I~".f...J~.LL~,}.t._\~~jL\:~Y ,_)Y!(1 l~lD.)Q (Se'-'1f"S".' .----=-...",---:-.. '0<. _ C Ui1I~:; 5,55";:. r'~'~;P.tl r,.' ',:k :;,-:;;,J -~i' ""'_'il4vN_-1).,.~,4..vJ.&._.. . .._...._~ji~~.,:;;':.: 1;rvb'<___._,_, Can trde!.> . "'-0 nlC 1J' r. "1"'0' ""':e .' ')€re;."",,,... '.' ,"'" CS""ad I'Cvnt,a~"'1 fc:d')f;rrCII_IJI,;[1J4L~'OI'.1 !"!a'''''',~i~, "'lee,.! ..-----.-......_...... ;j'. .',,:a ;,,,0,,.,.,,, Sears ana C'Jr'tr:3C::", whereb',' Contra(.t..,r 10 fa r',~D.3" ar'cicr . .} It.~,j /cd 'lS~::3I) Il:J.:ltlI"'9 '~'_,?,..,r;j.:;r:or-, .~I':{: ~k "-~Gi:'LJ:")C;nin9 equiprr1eTil" Tee 0,1/",,, heretc. :";"o':C q'~;, '~"e C>""";,ct 'S hee'3by aC'C"'''ded 1i' ,,":clude ~h9 reliC'w,,:\) p;oV:S:Oll$ as :::~dr-agra.?h ;6 'C; ''''00;(''01' U ~""A: ::<'. ...:" >O','NeG pursuar" ,.') CC,d,'r;u';;<'g ",arc",.,) ';f lis '<15t;,""t:C'(: Nerl<, Contr<lctor. iJponSe;;.rs re"ueSL,. sl,all perform the fOllOWing warranty Work. for the heatIng, venWatiDI1 and air ccrlditict!ing ;,ql,i{)r::",nr 'Nhieh contrac!or hc;s "Istalled purSU3r,! to this Contract: 41/ work ';ec'ilssa! '{ ~G """'Jir any defec.l','e mechanical compon"", of any :tern or equipment instal/ed by Con!,ac(ol for 3 p~r':):J 01 ~:"" d! yeil: 'fCIll ~he dBle of installation 3uch date '0 De det",rmined by thl!' .;ac<i>?st Known dar~ C,' (.)'; I'he ':rar" 8'.'PEanng 011 tile Signed certi"cate of compfetio,) or (b) tpi; da,;; the .-':Qnt~a,:::tor is pai'j f.;:..,- tl-~~ rn'st...'1Ua~;er; Slich Work shat: ir,,7:~,ja rh0 fabo: rc CI,palr Dr ,>?p!ace any mecnanicat COrnponent I/1Cluding, but not ;,'nded te, relaj's,conracror5. (nc":r,,.Seque,;r,cers, meter:n" devicl:is. rafng."a"t coils refrigerant compressors, w,r",,; remlll''''/", [""'''''01 boa~dB. valvi;ls. reversing valves. gas valves, transformers, aCCumUlators, CI~"G' v~'veii ,.\r,[j ~,;!e' drjers and dE'v,ces Installed Wit/) and connected to the ,,'oduct ,r,s'3iied. ,nclud!l1g. t'l" o'er ';""'",d ~~, ':Qnd"nsale dralt,s endior PUI'YlpS, thermostats. fUses and dUC~Nork ::"j.'1d 2ir t1istnbu!icr. )I'":3t:31;f~,j O'/.:>d<;i1 s. ..',:; 1"p.OI' parts fQr .,,,,' \i".c::' WPi', W'!' i:.. ,'lade ~va"<lbl& to! the G')nir3cta, pws,:an, to, and in acccrdanc;! ,Vltn the "'pplrcaelE: 8',.3r, o:C'~',cl w?,r:1:"Y agreement with th~ cppi'opriate ma~ufacture;. prOVided If:ar Cont:actor Sh,,1I p,o'ide tr01l:CI, I.,.;a"'~facturer the r;;.p1aced pan, Contrar;tor aCknOwledges that the rates '0' ;"stallstlon work "peG'!',:J~: U,e "".,h',dlll.. of Contractor'" Chacg'ls includes an arnount as Contrac!or's :::or;,oe:n.satiofl fo~ lh~;ie(vj,:e~t ro b~1 P(/Z'\(:(ied purstJar1t ~o thIS A!'nendment ::,;"lr"C/'j, w'l' 1:", """"st,,,,; i.:. p""",!,. U;'i, warranly,mrk fo.. 'IS 'ns(C'l!alions onl~ In 1he ']Vent ':L'",'a::tor :0 li:'au'" " .~C"'L"r.. "-J" "20':'%0', W """"'/ ".'j:, :)""",j:'"lle' 110", pr(":.",,... "':""d party w'" ~e r~qu"sted to mail" $u;;h"",u:!J!fS "nd the labc" :;harges ~hcr"L'f will be aSS~5se,:i to tha COntracto, for -,e;mbUr.sRrnent:;l.il:\iLant ie' Ute p:"".il,i1Si(jns :~J tr~l$ C ';Jnlri::i::7t. !fl-;.:: C:0fn;-~c! iti In 3n.~J!r::::-;- rr:~sper:t5 >;i,: 'd:tif;..~(~ .]::Q (or.{lrrned ,I, Vi,':'Ni:SS ','.'f-'f'P,c '.'!-- ":"" ;;a"e", h'~,',,'IQ "'3V" 'ne':u~'<d rh.', Cor:lrSc[ Amenrirnenl ,3s of lh," """ J.!<)!= aCLj\,e wn~t(~r. ,~'y 1'10"::)" :)~" ::'r:.' .):"J'l. ~.;:~; ('Ir ;'3C;(~1~i."j <J\liy J-,:rl ~(":!t:,'lj ,.'JI'H~reu;lto ";..;;,al":;, i-?!Jl?bIKk ':)11(1 C.C: ,-, /" ? ~/ -,./ 'I ..=--,,:. ~:::.~~:...A.~~ . _._~=----___ ~-_.- -.._- .----------. .._._-~~>----------._--_. !:?'! ...-.., '-.--"",,, - -_..-- . .---- .-. '-.~_. ------_._--..-----_._---~ 22 9001' 55;~ ;o/.5; ~UL.24.2002 2.2~P . _ 1'1 HEJ5EARS ROEBUCK" c;;;.. ....~. _ ..--.. 51': 9t Gi2I0G I'G lnr S~AR~. RO~BUCK P.NOlOO. ~Y'NO.006 P.2/S' ~USTOMER COpy -- ",,-fT~o.- l "" L..lC~~D_ ! :l~oS! r::: ;'PAYt<j;"" _ __:--"1;":":;;: 1=~~' --1 I-~ 220 "OST ,.....STI.eEr oii. MECHANI- ~'''' PA' - -~':'""" 1 \iN6,.>LJ...TION.OD"ci'SAMENT-CITr---SECONo-Fi.p<i'R.-" - ST.fE --- . V.CODE I-SVSTEM'!iATiNOBWS'-- 13 ---......--- -'''''-~D,lloa Q2'lC. I \COO~I~_:. ~.UD~'" SEER__ HE~TING~_____ AFUEI__._.....__ I I EOUIP~ENTMOPEL"S; "'ft'" 3 ZONE T'~. ~lJE~;':':~~~~-CI1I~NEY:" .'. ~ , FuaN'C~"la u"'DL=~G$I--.. T ST ~ CY'ST D EW 1- ev . .. ~ ~~., ..~_ ~ . A. '"'" ING N' : ; ~1ST1NG VENT OR CHIMNEY D REPLACE FLUE D I CONDENSERbNITJ ' Cl<T3D-1 COOLER. ,NSTALLNEWCtiIMNEYUNER 0 SIZE I PACKAGE UNIT' U31 eOILER. P'l1~VENT PIPE FOR HI.E FURNACE HOALD VERT\] , "vAPORATOfI COIL. OTHER. :COM6USTlON AlR [] EXISTING 0 MOOIFY I)i! ~ ._.____ _ .__..''''- 1 F'IPEINSl'ALLATIOND 2 PIPE INStALLATION 0 I EQUIPMENT 6PECIFICATI0MS: ~TURN AIR 0 ElCtSTING 0 MODIFY D I FURNACE/AlflHANOW:R EXISTINGC NEW~ DRAIN LINE -~-;;,~~O ~;;d ..---. ..--'1 I CONDENSER UNIT EXlSilNGO NEW~ i CONDENSATE PUMP EXIS11NGCi NEWQ FlBERGLASS : EVAPORATOR COIL EX1!jTING 0 NEW' SLAB EXISTING D NEW cr SIZE \ LINE SET EXISTING 0 NEW OTHER EXISTING C NEW 0 ~ REMOVE OLD EOUIPMENT FROM SITE D LEAVE ONI SITE ~ . I ~~~~~: S:STEM 0 AOD TO EXISTINC!O. ! ~~~~~~-~I~m/G PANEL ~ ~~~~~~~'~5~~:~~ -;-- \_ INSTALlINGNEW.SYSTEM~ SEESPEQALINSTflI.lCTIONS IINSTALLNEW_.._~EXiB1!MS~t:P..C REXlISTERS USEEXiSTlNGO I'IEW~ - AO~~k'!~PIC ..--. -,.. ---.-.. :..... .-~- 1-- ...--..-----,.-.--.,--- --- . G0'3::Jt!c . ~"""' I SPEC'AlIN$TlIIICTlONS: ! FURNISlo/ AND INSTAll. Nf:W KEN MOR E ~ 1/2 TON 30,000 8TU 1;J SIa=R CENTRAL AIR UNIT WITt! 60.000 Bl\J 2 , STAGE' GAS FURNACE.. ALL NECessARY OUClWORK, ELECTRICAL, PIPING AND PROGRAMAB\.E DIGITAL I ' THERMQSTA T. LOW RETURN AIR GRILLE IN HALLWAY WITH DUCT flU" ntRU CLOSET IN LEFT REAR BEDROOM. -mau: WILL BE {1) DIl'f-USai IN ALL ROOMS INCl.UDlNG BATH. DUClWORK TO BE FIBERGlASS DUCTBOARO AND FLEX DUCT. GAS UN~. ELECTRICAL W1R1N~ AND UNE SET TO CONDENSeR TO BE ENCA$ED ".. WHITE 3X4 OQWNSPOlI1' AlpNG LEFT SlOE OF aUIi-O/l~G. . -..--- -- ALL WORK TO BE DONE IN WORKIIIAm.'fE MANOR. CARE W1LL!BE TAt<e WHEN CUTllNG f'lASTERED WAllS AND CEIUNGS BUT BECAUSE OF LATH AND PLASTER SOME PATCH WORK MAY BE NeeDED. f'A1'CH WORK BY PURctfASE~ (5) YEAR LABOR. 10 YEAR ALL PARTS!WARRI'NTY ON CONOeNSlING UNIT (1) YEAR LABOR + r; YEAR ALL PARTS AND lIF1:nME HEA r EXbH~,WGER WARRANTY ON FURNACE (1J LABOR l1l YEAR PARTS WARAANTYION llfERIIIOSTAT I i I I I ~~;~~ .." I . ADDRESS _. ... ... . . .. ..-." r --... .....---.------...-. -' 'mIS CONTIIAcY PRICE INClUOes, ... . . . i .- YEA!il !loI1\\/lTENANCEAGREEMENi [J ~ , ~ YEAR R;;PAIR P\.AN oc:: I I NPS CODE : :'.~~:2Nf;.R AGFl.EES:.3E'1\~$~~ NO"lllF-SPOf'lSrfJLE FOR"'P"'f 'E)I.'$":1~~ COO:-'J:/A"', \ T1~NS oilt P"E.I!XJ$TlNO CO~~l'tO'N$~~"'" l'lUC~P."i. PIPtNQi. f.t.F.cm:-:A.L. SU'cp;"lf~ ; ~1~ ~~:Jm'IEtiT..oT DEI~r. ~CP'~:.tt:O :'T 7lollS fI"'l"E lr' 1I,t:!::'TIOMAL lo\.'OR.K IS ~cur~e~. -~ ....-.. --.-.-. -----,- .. PHONE N UCENSE , ..i-'" . I I A91lESTOS ABATEMENT I THlG t5n'-'l,~iE A1'4D PlIIDPQS.L. Afj;5UMSS NO ,.sBF.S't"OS '11I'1", BE o~aiO IN THE JlIERFa'-"'IANcE 0'1= WORK. IF UPQ~ FURT'HEfl' l",,,pfCTION ." CCltmw:TDR QR <rKEAtI Il$8'E'Sl'QI. HAS TO BE OIST~ep TO f"fJlFoAM t\IORlf.. CU$TOI.!ER MUSi:AFFl~J'lrjC;e ANt:! ,....., F~~ AS..:,tM~l of ,w.::tlC.Sft:: rr~\ j':': ;'lIe. :;'1Al'i.( oUR CONTitt;U..TIO/ll OF \YORK IF CU9TQM1!.FI F"'Ll...:. i~ J.l'flfJ'lGE FaA iUCD$AA.... , ASas.;rOS,ea.TEMENT Wtll1lh lrl!!'Ifl' I:Q o..."s. GS;APlS. M~" c..~ fl1fZ PlQ.- ,--- - -.- .-...-" s- m'3:J!:!d -rJL. 24. 2002- 90017 6S1: t7LS 2:25PM SE~RS ROEBUCK 0S:9! 1:002 171: lnf NO.Be6 P.3/5 ; r- __ --- . -.-- i Ilr'''''''If'l'''A\.\.''"UNW ~rl"'''N",..\.U\''UNU I EQUIPMENT SPECIFICATIONS: ~ruFlN AlA 0 EXISTING 0 MOOfFY 0 1 \ FURNACIW'IRI(ANOLER lOXlSTINGD l'leN~ ORA\NLINE . 'E~~G6-"~~d '. CONDENSER UNIT EXISTING 0 NEW ~ CONOENSATE PUMP EXISTING 0 NEW C;C FI81:RGLASS EVAPOAATOR COI\. EXISTING 0 NEW s\...a EXISTING 0 NEWer SIZE \ UNE SET EXISTING 0 NEW '~ OTHER EXISTING 0 NE\V 0 I \!.:.~?~E ~\.O EOUIPMENT FRO,,", SITED LEAve ON SITE D .' ..' . I DUCTSVliTEM: ElECTRICAL.: -- ...------.--.--.... ....--1 LISE EXISTING S'I'STEM 0 ",,1<00 TO EXiSTING 0 CONNECT TO ElOsTI/IG PANEL If INSTALL NEW DISCONNECT 0 \ ~Nsr"'I.I.INGNewSYSTEM~ SEESPECIALINSTRUcnONS INST. AU.NEW_~~.AMP~. ---UI8J REGISTERS LISE EXiSTlNG 0 NE\N~ ACDl!lOlI.AL.wa&K... ".."'I;l'nTC....,.........~......- ~~p~~ - . J i iPECiiLltlSTRUCTlO"~ . -". -.--. ----.. ---. .. .--'" \ FURNIStlAND INSTALL NEW KEN MOR E 21/2 TO!t 3O,goO BTU 13 ~CER CENTRAL ~R UNIT WITH 10..000 BTU 2 ! . ' ' STAGE G-.s FURNACE. AL.L. NECESSARY DIJCTWORK. eL.ECTfU~L. PIPING AND PROGRAMA~E DIGITAL THERMOSTAT. LOW RE1URN AIRGRlLLJ: IN HAUWAYWlTH D1RUN THRU CLOSET IN LEFT REAR SEOROOItI- THERE WILL BE (1) DIFFUSER iN AI-L. ROO"S INCLU 'lG BATH. DUCTVVORtl: to BE F\8J:ItGLASS DUCTBOARD AND FLEX DUCT. GAS I-INE.EL.ECTRlCAL. WIRING 'IP UME SET TO COMOENSER 'TO BE 'ENCASED IN WHITE U-t DOWNSPOUT ALOI!tG LEFT SIDE OF BUlu!lrNG. ALL WORK TO BE DONE IN WORKMANUKE MANOR. CARE WILL. BiE TAK~ WHEN CUT11NG PLASTERED WALLS ANP CEIUNGS BUT BECAuse OF \..ATH AN;O p1J\.sn:R SOME PA~H WOI'K MAY 8E NEEDED. PA.TCH WORK BY PURCHA~ER j I I!) YJ:AR LAPOR 10 10 YEAR AU. PARTS WARRANlY ON CONDENS,ING UNIT , {1) YEAR LABOR" 5 YEAR ALL PARTS At.lO LIFETIME fiEA T EXC.,JUlGER WARRANlY ON FURNACE 111 L.ABOR {11 YEAR PARTS WARRANTY ON 1'HERMOSTA. T ",_,__ i CONllIllCTOll . ,- ---.-------::-PHONE;-- ...-"'- - .. - lICE~~'_-'-'_. ... . .~ I ~oo~~_.~: .- . -..-. . .- . ..,- . . ! THI& OQflTRACT PRICEINCl.lJDEi'- ___"__''''...'00-'--'-'.-'-1--'' - '. .:._::..~-: ',=,'-::---:':'::'::-- =- " _ YEAA ~INTENANCe AGP,l;EMENT 0 ()J4 G.r!lI'URl4l'CC . ASBESTOS ABATnl"NT i /; YEAR REPAIR PLAN ~ TMI. es'li.,~~ A.O PROl'05.... "50"0& NO ","""""S WI'-'- ,. O,STU..'" 'N \ , NPS CODE ___ _ n<6 PEAJ~)"".NC. O. WO"'. " UPO~ FUImi'. 'N&PECT'ON ., CON""",ro" \ \ CUIlTOI(ERjUJREek........IQT~..l'Q.Sl...~.O"A.TE>:STIN.""D."O"" O' OT";::t!;i;, AS8ESTOS H.II.S TO BE QISTL.'RBEtr TO PEftFCF\'" ;'WORK.. 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QtClHIP 0 AMEX SUBMl'1"feo E'I' : o DISCOVER 0 VIMC ~(SAUS REPJset{t"n\lE) No. CARD EXP. DATE (ADOIIIONA\. PROVISIONS OF THIS PROP\:l6AL ARE STATI'O ON REVERSE SlOE.} (!~. ~ ~ '0ACTIOH GUARANTEED O~I YOUR MONEY BACK" 1Df101199U \C;oJSTO!'Efl'UlG.......-~ .._eeSISlONATllA1;J : .1t>A"'OfT"IS~"' NonCE TO CALIfORNIA RESIDENTS oN\.Y: IF JHIS COI'ITRACT IS IN EXCESS OF $5llll "YOU AS <JWNER OR TENIII.i Htlvt TIlE RlGH110 i\EQ\llRf THE cotm\ltrrOR 10 HAV~ A PERFORMANCE AND PATMalT BONO OR REFUNDING CONTROL .. gx~~'l='JJ~MdJrO~\~Zz~ss'f,': UC. S'Ej'I"S\~'T NI!We. Z/!!J7!lt\ 8L!Il!IS. ~tO. 1OS1 NV lie. 5543 HI Uc. e5 ,;z U.~ O~ 07Sll51. YOU, tilE BuYEB. MAY CANCll11l1S TRANSAGTlON (tT AN'! TIME PRIOR Tll MIONmlff nc I).rm: OF mr """NlIAGTION. 1m: Off: ATTAlJIliO fla1JC~ OF Il1IlCEl.UffOll Mil" ..~F THE THIRD BU8tNEP PAY AF1fII TtI.Ii ... ....8 AN ElQ'LANAndN OF lHII RIGHT. S / () "" f; ,"'l ~ C::l ...- "c' ") ~ c..... :::f r c:: ::J':n r-' m <. r- I -Or." \.D :IJ", Ur: ;J .J . ~ -- -r' - , C5:D , tshi .' ~_.- ::J ":';> c-! C) '.-'- ~:o W -< 1';.:;..........:0,...... ....;.... . , - .. ... ....1. ~ , ~ " ...- '> ~ . ... ...'.,. <.... PDZCJ;PI iOR' r..tS'h1lli CMZ J31i1l ~ 0IlR _ l~.: I 1ttM ad --..~ :Ill '-lI'u_"') :~. . .,' ~ . . . ~ ftZ PIIOIIIOliIO&IY OF ~"...r "lID ~!lI. ~ 1:ist tba1d.tDiD . lit __ t!l8 _It A"'lj .1 Q:Iaft.. CAftIo. OF CASB (~~ _ . 1 . -.t: be 6t.4lod in ~) Sears Roebuck & Co a/s/o Charles Payne _. (p1ti_tp) Edwi.n D. Watts, individually and. d/b/a Edwin watts Services (~ . .l) -.02 _ CUU 3639. 19 2002 ;;. ,', '.. ,~ '" 1. Slid. _u- ~ be "'~ (i.... ~'. IIIlt:k:ln far: DllIr 1zSa1. 4rdlIIodWd.'. .(" .- to """"'P,.."-t:. ".h Plai"ntiff's Motion for Summary Judgment 2. JdIDt1t':r .....~~ Ita 1II.U .at9IlI t:aIe: C.) ~ pl........_: Thomas w. ~r~~ity, Esquire -.... P.O. Box 5 0 -. Philadelphia, PA 1913 Scott Crenoble, Esquire (b) t'Qr.y . II . Buzgon Dav1.S I 525 S. 8th Street P.O. Box 49 > 'Lebanon, PA 1704:. _u 3.. I 1lII1111l1tU:F au ~ .in .a.t1Dg .t.tJdJl .. .lIIIp U. ttU __ .. ... ~ -...-:.. . 4_ .... ..J't'.-?T.uJ~i?- ... 0:IuEt -= 7T"'1 iJ 2004 . ..... .,((! t'f ".~~~;:?,l7 () c ;?" -:Ji~;-: r-'It -.," ~,,~' ~~~ ,> --- >~,-::: Z ~ ....., <= = J:'" <- c= ,- I \.0 o " -l ::r:-n n1p "T)rn 86 ~j~,; :....-n ~~o orn :::--\ :55 -< -u ~ r:-? o w SEARS ROEBUCK & CO. a/s/o Charles Payne IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 02-3639 Civil Term vs. EDWIN D. WATTS ind & d/bla EDWIN WATTS SERVICES Defendant JURY TR][AL DEMANDED DEFENDANT'S REPLY TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT I. Admitted. 2, Admitted, 3. Admitted. 4, Admitted generally. By way of further response, the contract referenced in paragraph 4 of Plaintiffs Motion for Summary Judgment is a document in writing which speaks for itself. 5, Admitted generally. By way of further response, the contract referenced in paragraph 5 of Plaintiffs Motion for Summary Judgment is a document in writing which speaks for itself. 6, Denied as stating a legal conclusion. 7. Admitted generally. By way of further response, the contract referenced in paragraph 7 of Plaintiffs Motion for Summary Judgment is a document in writing which speaks for itself. 8. Admitted generally. By way of further response, the Amendment Agreement referenced in paragraph 8 of Plaintiffs Motion for Summary Judgment is a document in writing which speaks for itself. 9. Denied to the extent that Exhibit "C" is a document in writing which speaks for itself. 10. Denied to the extent that Exhibit "C" is a document in writing which speaks for itself. 11. Admitted. 12. Admitted. 13. Admitted, 14. Admitted generally. By way of further response, Defendant received instructions from an authorized representative of Plaintiff regarding installation of the condensor line. An Affidavit of Defendant, Edwin Watts, is attached hereto as Exhibit 'A' and incorporated by reference as if textually set forth herein.. 15. Admitted, By way of further response, Defendant received specific instructions regarding installation of the condensor line from an authorized representative of Plaintiff. See Exhibit 'A'. 16. Denied to the extent that Defendant received specific instructions from an authorized representative of Plaintiff regarding installation of the condensor line. See Exhibit 'A', 17. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth ofthe averment. -2- 18. Denied. After reasonable investigation, Defendant IS without knowledge or information sufficient to form a belief as to the truth of the averment. 19. A genuine issue of material facts exists as to whether Defendant is obligated to reimburse Sears. WHEREFORE, Defendant respectfully request your Honorable Court to dismiss Plaintiffs Motion for Summary Judgment. BUZGON DAVIS LAW OFFICES BY: enoble, Esquire Atto .D. #72808 John W. Ditzler, Esquire Attorney I.D, #83761 525 South Eighth Street Post Office Box 49 Lebanon, P A 17042-0049 (717) 274-1421 Attorneys for Defendant -3- i;U('!i'iJdlhfiligdli\'lI'''i:liL F;IPl1 1:1\'"SI WilU:;,/\{fld,I\;( L1! Irh','n \\illt:id<i; X/!()'lj',! '!:31'\[\,'1 SEARS ROEBUCK & CO. als/o Charles Payne IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 02-3639 Civil Term vs. EDWIN D. WATTS ind & d/blaEDWIN WATTS SERVICES Defendant JURY TRIAL DEMANDED AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA COUNTY OF P E \<. Q.j ) ) ss: ) I, EDWIN D. WATTS, being duly sworn according to law, depose and say that: 1. I am the Defendant in the above-referenced matter. I trade and do business as Edwin Watts Services. 2. I am familiar with the project giving rise to this lilligation. 3. In 1998, I installed an HVAC system on behalf of Sears at the Payne property located at 220 West Main Street, Mechallicsburg, Pennsylvania. 4. In performing work at the Payne property, I dealt exclusively with Jad Sneeringer. 5. Mr. Sneeringer was a salesman for Sears. 6. Mr. Sneeringer was responsible for all lay-out work with respect to the Payne project. This included the design and location of the various ducts, lines, wiring and unit placements. This also included the placement and location of the condensation lines for the units which were placed in the attic of the Payne home, EXHIBIT A 7. Per the direction of Mr. Sneeringer, condensation lines from the cooling and heating units were joined into a single three-quarter inch PVC drain pipe. This PVC pipe was run approximately 12 feet from the units to a vent pipe. The vent pipe served as a vent to the second floor drains, Mr. Sneeringer directed that the line be installed into the vent pipe. 8. The project invoice indicates that the condensation line would be encased in a 3" x 4" downspout. This reference pertains to a secondary back-up condensation line for the cooling unit which was actually installed. 9. I complied in all respects with Mr. Sneeringer's directions and instructions regarding the Payne project. ~~ ?~5" EDWIND. WATTS Sworn to and subscribed before me this d 3c%ay of August, A.D., 2004. ~~ j:: \~~ Notary P'ublic Notarial Seal Deborah E. McQuay, Notary Public DUI\Cl8f1non Born, Perry COUnty My Commlaslon Expires Sepl26, 2005 Member, Pennsylvania Association of Notaries -2- Linn II\<SF Wdt1<AfL OfSCf\k,' It';' !\ric(dc\' "1V)i1'IJ4 '::45 P\'1 SEARS ROEBUCK & CO. als/o Charles Payne IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 02-3639 Civil Term vs. EDWIN D. WATTS ind & d/bla EDWIN WATTS SERVICES Defendant JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA ) ) ss: COUNTY OF LEBANON ) I, Vickie 1. Swoyer, an employee of Buzgon Davis Law Offices, 525 South Eighth Street, Lebanon, Lebanon County, Pennsylvania, Attorneys for Defendant, being duly sworn according to law, depose and say that I mailed on August 30, 2004, by regular mail, in a postpaid envelope, a true and correct copy of DEFENDANT'S REPLY TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, the original of which was mailed on August 30, 2004, for filing in the Office of the Prothonotary of Cwnberland County, Pennsylvania, to Thomas W. Harrity, Esquire, P.O. Box 56135, Philadelphia, PA, 19130. -J. ~ .. .~C":x~LI~/ VICKIE 1. SWOYER r Sworn to and subscribed before me this 3oe..<day of ~Vo.~t. , A.D., 2004. COMMONWEALTH OF PENNSYLVANIA NcIaIfaI Seal JaneIe K. Woo........, NolaIy Public CIty Of Lebancn.l8benon County My Co.........., e.pinlsJUy 21. 2llO8 Member. Pennsy4vanla AasoclaUon Of Notaries ?~~., C] \~ C:) '. C>' ~; <- -, -t. ....., = = .c- ;po. c:: C;~ '-', ~ :C:n ~hi -09 00 :.:J-1'i r";-n '7(') -'5rn ~--\ ..... ~ -u =.;: - .. .r:- N 1. Sears Roebuck & Co. A/SIO Charles Payne : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA V Edwin D. Watt, Individually and D/BIA Edwin Watts Service : NO. 02-3639 CIVIL TERM ORDER OF COURT matter is continued from the September 22, 2004 Argument Court list. Counsel is directed to relist AND NOW, October 6, 2004, by agreement of counsd, the above-captioned the case when ready. By the Court, ..AJ:'omas W. Harrity, Esquire For the Plaintiff , ou,~ ~ott Grenoble, Esquire For the Defendant ) /()-()~<I Court Administrator ld :...-~,?~t':nJ L'1 :Z \.ld 9- DO iGGl A'd\ilU,--:OHl.Cdd 3Hi :10 :r:Jt!:o-Qj\H SEARS ROEBUCK & CO. als/o Charles Payne Plaintiff : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA vs. : No. 02-3639 EDWIN D. WATTS ind & d/b/a EDWIN WATTS SERVICES Defendant : JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA) ) ss: COUNTY OF LEBANON ) I, Janelle K. Worcester, an employee of the law firnl of Buzgon Davis Law Offices, 525 South Eighth Street, Lebanon, Lebanon County, Pennsylvania, Attorneys for Defendant, being duly sworn according to law, depose and say that on January 20, 2005, I mailed the original and one copy ofINTERROGATORIES and REQUEST FOR PRODUCTION OF DOCUMENTS OF DEFENDANT DIRECTED TO PLAINTIFF by First Class mail, in a postpaid envelope, to Thomas W. Harrity, Esquire, P.O. Box 56135, Philadelphia, Pennsylvania 19130, Attorney for Plaintiff. Sworn to and subscribed before me this 20'h day of January. A,D., 2005. '~ J~~~~E K. ~R~TER I .// 1 . \..j-' ("7;1;' , ...~J~I~I;~ , . 'it((J:/--('-~-- I ,:,...... ' ',' :':v~;~o,ty I L._ i-:\./ ' ' ,. .',>'" __...1 ',; ,-' ;'-''; ~ ~.~< \:? c, '. ~ THE LAW OFFICES OF THOMAS W. HARRITY, LLC By: Thomas W. Harrity, Esquire Identification Number 72709 P.O. Box 56135 Philadelphia, PA 19130-6135 ATTORNEY FOR PLAINTIFF (Tel) 215-236-2427 SEARS ROEBUCK & CO. als/ol Charles Payne COURT OF COMMON PLEAS OF CUMBERLAND COUNTY VS. NO.: 02-3639 Civil Term EDWIN D. WATTS indo & d/bla EDWIN WATTS SERVICES PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND RESPONSE TO REQUEST TO PRODUCE DOCUMENTS Plaintiff, Sears, Roebuck & Co hereby responds to defendants, Edwin D. Watts individually and doing business as Edwin Watts Services Motion To Compel Answers to Interrogatories and Response to Produce Documents as follows: 1. Admitted that Defendants served written discovery requests to Plaintiff. 2. Admitted. 3. Denied. On the contrary, Plaintiff has filed answers and objections to Defendants' Interrogatories and compkte responses to Defendant's Request to Produce Documents and counsel for Defendants has admitted as such. See Exhibit "A". 4. Admitted in Part; Denied in Part. It is admitted only that counsel for Defendants sent a letter requesting responses to written discovery requests. It is denied that said discovery is outstanding. On the contrary, Plaintiff has filed answers and objections to Defendants' Interrogatories and complete responses to Defendant's Request to Produce Documents and counsel for Defendants has admitted as such. See Exhibit "A". 5. Denied. On the contrary, Plaintiff has filed answers and objections to Defendants' Interrogatories and has also filed complete responses to Defendant's Request to Produce Documents and counsel for Defendants has admitted as such. See Exhibit "A". WHEREFORE, it is respectfully requested that this Honorable Court DENY Defendant's frivolous Motion and issue sanctions against counsel for Defendants for misleading the court and failing to timely withdraw as moot said Motion. The Law Offices of Thomas W. Harrity, LLC. ~~,W' Thomas W. Harrity, Esquire Attorney for Plaintiff, Sears Roebuck & Co. eg The Law Offices of Thomas W. Harrity, LLC r PD. 1bl56135.PUIIIIlIl4Ai&, PA 19131Hl135.Tet 215-23&2427' FIDc 21sm&3771 Thomas W. Harrity, esq. Atlomey at Law & CPCU _In ""'...,....&_Joraoy Scott Grenoble, Esquire Buzgon Davis 525 South Eighth Street P.O. Box 49 Lebanon. P A 17042 May 9, 2005 Re: Sears vs. Watts My File #: 0039TWH Dear Mr. Grenoble: Enclosed is the original party verification to be sdttoMed to Plaintiff's Answers and Objections to Defendant's Interrogatories Thank you. Sincerely, NM ./;JLd- ~~IIarrit{'-rc;- BUZGON DAVIS LAW OFFICES A PItOnSSIOMALCORPOlL\11ON SCOTT L. GRENOBLE sgrenoble@buzgondwis.com 525 SOUTH EIGHTH STREET POST OFFICE BOX 49 LEBANON. PA 17042 PHONE: (717) 274-1421 FAX: (717)274-1752 May 4, 2005 RE: Claim Number: Insured: Date of Loss: 38-P515-803 Edwin D. Watts AUl!Ust I. 2000 Thomas W. Harrity, Esquire P.O. Box 56135 Philadelphia, PA 19130 Dear Mr. Harrity: I am in receipt of your faxed discovery responses. Interrogatories 8 and 9 included typographical errors, which referenced lad Sneering. As such, if you require the re-issuance of those Interrogatories with the correct name, I will be happy to do so. However, I believe this is an unnecessary waste of time and effort. With respect to the Request for Production of Documents. Sears and Roebuck & Co; is a named party in this case and therefore, I submit that it is not necessary to issue separate subpoenas to them. Unless we can reach an agreement on this issue, I will have no (:hoice but to file another Motion to Compel. Again, this would result in an unnecessary delay. In the meantime, I would like to schedule the depositions of all witnesses whom you identified in the Interrogatories. I have tentatively scheduled those depositions for June 23, 2005. Enclosed please find notices for the following: Carol Payne Charles Payne Umberto Zapeta Cliff Ressler Thomas Zurick Sandy Klietz 10:00 am. 10:45 am. 11:30 am. I :30 p.m. 2:15 p.m. 3:00 p.m. As parties or representatives of the parties, I assume you will produce these individuals pursuant to the Rules. If you will not, please advise as to their respective addresses as requested in the Interrogatories and I will have subpoena's issued. Finally, Plaintiff's responses with respect to the proposed testimony of Mr. Blum, is insufficient. Under the Rules, absent the provision ofa report, a party is required to provide specific details as to the expert's findings, purposed testimony, conclusions and the basis for those findings. As BUZGON DA VIS LAW OFFICES To: THOMAS W. HARRITY. EsQUIRE DATE: MAy 4,:lOO5 SHEET No. - 2 - previously discussed, absent such details, my client is not inclined to consider settlement options. Therefore, I respectfully suggest that if there is any desire to try to move forward with a settlement dialogue, a report will be necessary. I look forward to hearing from you on these issues. Very truly yours, -.-..----.. SCOTL1. .GRENOBLE SLG/aIill v [!g The Law Offices of Thomas W. Harrity, LLC P.O. Box 56135-PhiIadeIphia, PA 19130-6135-TeI: 215-236-2427- Fax: 215-23&3771 r Thomas W. Harrity, esq. Attorney at Law & CPCU Admitted in Pennsylvania & New Jersey By Facsimile .and Mail Scott Grenoble, Esquire Buzgon Davis 525 South Eighth Street P.O. Box 49 Lebanon, P A 17042 April 19, 2005 Re: Sears vs. Watts My File #; oo39TWH Dear Mr. Grenoble: Enclosed are Plaintiff's Answers and Objections to Defendant's Interrogatories and Requests for Production of Documents. I am still awaiting the executed verification from my client and will forward it under separate cover. If you have any questions, please feel free to call. lbank you. Sincerely, ~t.> Thomas W. Harrity VS. THE LAW OFFICES OF THOMAS W. By: Thomas W. Harrity, Esquire Identification Number 72709 P.O. Box 56135 Philadelphia, PA 19130-6135 (Tel) 215-236-2427 SEARS ROEBUCK & CO. alslol Charles Payne EDWIN D. WATTS indo & dfb/a EDWIN WATTS SERVICES PLAINTIFF'S ANSWERS & OBJECTIONS TO DEFENDANT'S INTERROGATORIES Plaintiff Sears Roebuck & Company as subrogee of Charles Payne, by and through its undersigned counsel, The Law Offices of Thomas W. Harrity, LLC, hereby responds to the Interrogatories of Defendant, Edwin D. Watts, individually and doing business as Edwin Watts Services, as follows: 1. Fred Blum clo Paul Zamrowski and Associates. 2. a. It is expected that Mr. Blum will testifY as to the negligence of Defendant with regard to the installation of the HVAC unit at the Sears residence. b. It is expected that Mr. Blum will testifY based on photographic evidence, written documents, deposition testimony of parties and witnesses and information exchanged during the course of discovery. c. It is expected that Mr. Blum will produce an expert report which will be furnished under separate cover. d. See above answers. 3. It is unknown at the present time whom Plaintiff will call as trial witnesses and Plaintiff reserves the right to update its witness list at any time until trial. However, any or all of the following individuals may be called: Carol Payne; Charles Payne; Jad Sneeringer (former Sears employee); Edwin Watts (Defendant); Umberto Zapeta (Sears); CliffRt:ssler (Sears); Thomas Zurick (Sears); Sandy Klietz (Sears); other individuals whose identity may become known pending further discovery. 4. Carol Payne; 220 West Main Street; Mechanicsburg, Pennsylvania 17055; Charles Payne; 220 West Main Street; Mechanicsburg, Pennsylvania 17055; Suzanne Binns Treadway (tenant of Charles & Carol Payne at the time of the incident); Dorothy Elizabeth Treadway (tenant of Charles & Carol Payne at the time of the incident); Jad Sneeringer clo of JSS Building and Development, 48 Cornell Drive, Hanover, Pennsylvania 17331. 5. Suzanne Binns Treadway, 220 West Main Street, 2nd Floor, Mechanicsburg, Pennsylvania 17055; Dorothy Elizabeth Treadway, 220 West Main Street, 2nd Floor, Mechanicsburg, Pennsylvania 17055. 6. See answer to 2. c. 7. See answer to 2. c. 8. This information is unknown as Plaintiff does not know who Chaz Sneering is. 9, Objection. Irrelevant, unduly burdensome and overbroad. Without waiving said objections, Plaintiff can not furnish this information as Plaintiff does not know who Chaz Sneering is. 10. Unknown. It is believed that the equipment de'scribed is in the possession of Charles and Carol Payne but its precise location will be identified and the information if known, will be furnished in the near future. Respectfully submitted, The Law Offices of Thomas W Harrity, LLe THE LAW OFFICES OF THOMAS W. HARRITY, LLC By: Thomas W. Harrity, Esquire Identification Number 72709 P.O. Box 56135 Philadelphia, PA 19130-6135 ATTORNEY FOR PLAINTIFF (Tel) 215-236-2427 SEARS ROEBUCK & CO. als/ol Charles Payne COURT OF COMMON PLEAS OF CUMBERLAND COUNTY VS. NO.: 02-3639 Civil Term EDWIN D. WATTS indo & dfbla EDWIN WATTS SERVICES PLAINTIFF'S OBJECTIONS AND RESPONSES TO DEFENDANT'S REOUEST FOR PRODUCTION OF DOCUMENTS Plaintiff, Sears Roebuck & Company, as subrogee of Charles Payne, by and through its undersigned counsel, The Law Offices of Thomas W. Harrity, LLC, hereby responds to the Request For Production of Documents of Defendant, Edwin D. Watts, individually and doing business as Edwin Watts Services, as follows: 1. Objection. Overbroad and unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence. Without waiving said objections, discoverable portions of Plaintiff's claims and investigation file is attached. 2. It is expected that Fred Blum will be producing an expert liability report which will be produced in the future. . 3. Objection. Overbroad and unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Without waiving said objections, see answer to # 1. 4. Objection. Overbroad and unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence. Without waiving said objections, see answer to # 1. By way of further answer, counsel for Defendant can subpoena the appropriate records he seeks directly from Sears Roebuck & Company. 5. Objection. Defendant has equal access to this information for after all Defendant installed the HV AC system. Without waiving said objection, counsel for Plaintiff is not currently in possession of this information but will seek to obtain said information. 6. Laser color copies of photographs depicting some of the damage caused by Defendants' negligent installation of HV AC equipment are enclosed. 7. Plaintiff is not in possession of any "statement" from any witnesses or parties in this matter other than deposition transcripts. 8. See prior answers. 9. Objection pursuant to PA R.C.P 4003.5 (a) (3). Also objectionable as overbroad and unduly burdensome and violates attorney client privilege and attorney work product doctrine. Respectfully submitted, The Law Offices IJ,lThomas W Harrity, LLe C~~ THO~S W. HARRITY, Attorney for Plaintiffs n , :"fJ. .-, f~ ; (..,) , 0 {}"1 -.~ C..J SEARS ROEBUCK & CO. afslo Charles Payne Plaintiff : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA vs. : No. 02-3639 EDWIN D. WATTS ind & d/b/a EDWIN WATTS SERVICES Defendant : JURY TRIAL DEMANDED PRAECIPE TO SETTLE AND DISCONTINUE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please mark the above-referenced litigation as settled and discontinued. ( BY: ~W., Thomas . Harrity, Esquire Attorney ID # ''/''1-'71) 9 P.O. Box 56135 - ( Philadelphia, PA 19130 Counsel for Plaintiffs Q ,"" " -rJfr, rr:f)" ~i~: 0;' .~ r~( .' i::c;: '~L Z :::! '"" = = e.n > c:: en 0'\ -0 :A ~ i~ 00 ~:B ':::~~ o -, ~ N ., U'I