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Home My WebLink About94-05613 E . ::f f ;:r: Q) J j III . oJ " ~ I ~ ~l (31 N') - \51 , i o( <:, l :="" IN TIlE COURT OF COMMON PLEAS OF TIlE 9TH JUDICIAL DISTRICT OF PENNSYLVANIA CUMBERLAND COUNTY BRANCH EDWARD FRED DAVIS AND DEBORAH HARLIN DAVIS, illS WIFE, Plaintiffs NO, 94.5613 CIVD. ACTION - LAW VI. BONNIE HEIGHTS HOMES, INC. and AnV ANCED CONCRETE SYSTEMS, INC. Defendants PRAECIPE FOR RULE TO FILE A COMPLAINT TO TIlE PROTHONOTARY: Please enter a Rule upon the Plaintiffs to file a Complaint within 20 days after service of the Rule upon them or suffer a judgment ofnon pros. S} / Y: MAR UDNITS, ESQUIRE ATTORNEY NO, 0 8 ATTORNEY FOR EFENDANT, ADVANCED CONCRETE SYSTEMS 9 Courtyard Offices Suite 130, Routes 11 & 15 Selinsgrove, PA 17870 (717)742-2333 Date: October J.2, 1994 u:\advconcr\davis.pra .... IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT OF PENNSYLVANIA CUMBERLAND COUNTY BRANCH EDWARD FRED DAVIS AND DEBORAH HARLIN DAVIS. HIS WIFE, P1aintiJfs NO, 94-5613 VI. CIVll.. ACTION. LAW BONNIE HEIOHrS HOMES, INC, and AnV ANCED CONCRETE SYSTEMS, INC. Defendants RULE TO FILE A COMPLAINT AND NOW, this JJi.. day of October. 1994 it is hereby Ordered that plaintiffs shaI1 fl1~ I Complaint within 20 days after service of this Rule upon them or suffer I judsment of non prol. BY THE COURT: ~ J ~.~ '-.- ;J; - ,~.-- .11. ~_ .. ~ ... '" ,-.-, , -J ... .., Co> ~~~ DOUGLAS, DOUGLAS" DOUGLAS 17 W. HIGH ST. POB 161 CARLISLE PA 17013 TELIlPHONK 717.14J.1790 OEORoe F. DOUOLAS. JR., ESQ, Supromo CoW1 LD,I 06270 x WILLIAM P. DOUOLAS, ESQ. Supremo CnW1 1,0,1 37926 OBORoe P. DOUOLAS, ill, ESQ, Supremo CoW1 tD,1 6U86 '. EDWARD FRED DAVIS and DEBORAH HARLIN DAVIS, his wife PLAINTIFF IN THE COURT OF COMMON PlEAS OF CUMBERLAND COUNTY PENNSYLVANIA 1994. S-~ 13 CIVIL TERM \S BONNIE HEIGHTS HOMES. INC. and ADVANCED CONCRETE SYSTEMS. INC. CIVIL ACTION LAW DEFENDANT To: Lawrence E. Welker, Prothonotary PRAECIPE Please issue a writ of summons against the within defendants: Bonnie Heights Homes, Inc. 530 Highland Court Carlisle. Ps. 17013 Advanced Concrete Systems. Inc. Route 2, Box 174 B Hiddleburg. Pa. 17842 Date: September 30. 1994 DOUGLA_S, DOUGLAS(&'fOUGLA by \, ,(? Attorney for the Plaintiffs .':r=' ~,.. .,- . - _r0 m\o <.>ot' - ~ "'- ~'%\ ~J. ~ - ~ , to' ::'.4- e;; c:::> ,., .... ~ ',..;c..: : Commonwealth of Pennsylvania County of Cumberland Edward Fred Davis and Deborah. Harlin Davis, his wife vs. Bonnie Heights 530 Highland Carlisle, PA Homes, Court 17013 Inc. Courl of Conunoll PIeu 94-5613 Civil Term No. and Advanced Concrete Systems. Route 2, Box 174 B Middleburg, PA 17842 In ....u..C J..'{J.l.AcJ;,lQ.Qu~_J&llX____.___.._ Inc. To .'!C?~~}.~_-'!~.~9.'!!!'..!l.q!!,_~~.~__I,,)~,__~.!t~. Advanced Concrete Systems, Inc. You are hereby notified Ibat .. _ _ _~<..I~~!..'! _ X~.~~ _.!?~ y j._~ _.'! !'!!..~ P.QF.. ~ h _!!jl_~ J..!!!. _ Pl!yJ lI-,-_h-!. ,.. ,tUft __._ _...._ __ m__ the Pwnriffs have commen~ an action in .._____.f_i,y.i:.!__~jl_'!L'____..._________u._.__.uuu___.__ agaiNI you which you are required to defend or a defaull judgment may be entered apiNI you. (SEAL) Lawrence E. Welker .-------------.--------------------------.-.----- Prolbonowy Date __.___!?!!.I!!!'!!!'P.~F.._}.CL__.__ 19..'H By ./"- ~ J.+I ua.__1i~_______ ~DeP\lCY I 'tl . Ql C lJ lIol III C ." ,.. ~ :a . \Q ~ . . J~ I III 011I I :.a C e , ,..Ql l:l' Cl c8 I .. 11I0 I Ql 'tl . . III ra:lg . .. c:: III Ill>' Ill'" !I!CIl .51 . 0 M I"l > IS U) '" .,... 'M .~ ~ e Ql " III ~C I > =.. j ~I ~j r- 11 'M > Ql Ol . ~ u ~.~ - III ~ ::l . C ..0 8Cl'" Cl\ M ~ ..cc 8Ul<r- I"l '2~ Ole >1 ' ~~\Q \Q 'I'l U t .c::: IN , 'I'l, , an '"= Ql UI ~ O'I"M~ I I ra. ='tl ...."" GJ.r-- I ... ..c Ql , mj=~NM ell 'tllll Ql lJ III _ I '" '" ." C .rt .....- 1 ~.8 c:: III ~Cl:a~r- . 1 ! C> ~8 ~~Q I ~! dl~ .... r- r-. :a NU...1ol . l. Edward Fred Davis and Deborah Harlin Davis his wife -vs- Bonnie Heights Homes, Inc. Advanced Concrete Systems, Inc. In the Court of Common Pleas of Cumberland County, Pennsylvania No. 94-5613 Civil Term Summons in Civil Action Law Michael E. Barrick, Deputy Sheriff who being duly sworn according to law, says on October 7, 1994 at 9:21 o'clock A.M.E.D.S.T.,he served a true copy of Summons in Civil Action Law, in the above entitled action upon one of the within named defendants to wit: Bonnie Heighte Homes, Inc., by making known unto Sandra Kautz Service Coordinator at 7048 Carlisle Pike, Carlisle, Cumberland County, Pennsylvania, its contents and at the same time handing to her personally the said true and attested copy of the same. R. Thomas Kline Sheriff who being duly sworn according to law, says he made diligent search and inquiry for the within named defendant to wit: Advance Concrete Systems, Inc., but was unable to locate them in his bailiwick,. He therefore deputized the sheriff of Snyder County to serve the within Summons in civil Action Law according to law. SNYDER COUNTY RETURN: Now October 5, 1994 at 3:35 o'clock P.M. served the within Writ of Summons upon Advanced Concrete Systems, Inc. at R.D.H 2 Box 147A, Middleburg, Snyder County, Pennsylvania 17842 by handing to Angela Barrett, office manager and person in charge at time of service a True and Correct copy of the original Writ of Summons and made known to Angela Barrett the contents thereof. So answers:Norman Folk, Deputy Snyder County Return is hereto attached. So Sheriff's Costs: Docketing Service Surcharge Out of County Snyder County answer~ ' ., .,,:-::::-1! f/;::~~ .' "" ~..~ 1":-;';:"~\ R. Thomas Kline, Sheriff 18.00 3.92 4.00 5.00 19.00 $ 49.92 pd. atty 10-19-94 BY~~~ Deputy Sheriff by Sworn and Subscribed To Before Me This ,l)~ Day of CO,,-r;.l.-- 1994, A.D. (,1/,-,- C hu~ A.V~_ Prothonotary \ I., .Th~ Court cT C.::mmO:l ~i i ! ~-::s _ '" .....^ _0 ....:..._...J .. -. ,........~ _1 t.:..J..._.:.:.:~ ._.1.1_ \.._t..:.,.ft :J ~"'r:<'Y!\I-"I'- , _.!.,;.,j ......,.... Edward Fred Davis and Deborah Harlin Davis. his wife 'is. Advanced Concrete Sys~~ms. Inc. :fo. 94-561~.Civil Term :?..-- ~OWJ October 03. 1994 :9_ I. SE:::::~? O~ C=:..t3z:?.!..A.'rn CO-:.;.r~. ?..-\,.. co :=--':Iy ci.;:u= :....: Sh=::l oi Snyder CJu::.t1 :0 ~-:::.1t4 :is 'tV ri:, :::.:s :...-:u:=:cu =_:..,tP ~ U ~ :=u.:n :.:ci :isk ~i == ;n..:-=. . -, . ~g~n~~~~ Slle.~ Qt C:=u'-1CQ C~UAr7. ::':1. . AScavit or S~-nc:= :..=-:= wi":":" OCTOBER 5, WRIT OF SUMMONS ~9 94 . .... 3:35 o'.:!c:= . 'P. ',t l~.ri . :iowf ~l ADVANCED CONCRETE SYSTEMS, INC., R.D.#2 BOX 147A. NIDDLEBURG. SNYDER COUNTY, PENNSYLVANIA 11842 '~;:Oll '""1 ,=:c::.; :0 TRUE AND CORRECT ANGELA BARRETT, office manager and person in charge at time of service 3. c:::pr at ::: Q~~ '-, I WRIT OF SUMNONS ... mQ -~~. i:::.awn :0 ANGELA BARRE'IT :.!:.# .:::u::::.:s =-=---::1. So u:swc:;v , BY: ~~ "t.)Q.tt D w r A~Y'I~ NORl-IAN FOLK. DEPUTY I .~ s:..= ot ~lR.hf..ti(.'i~ . 3wc~ :me! r.:~~!:d~ . . . ~ty td1~~O?(OtlOi~:2L C)/t1r If) hll17+" '':'71 j MY COMLtISSlON EX~ FIRST MOIl JIIN f9!lS U ;- "--' COSTS ::J:..~vlC:::: ~a:u.l,CZ 15.00 2.00 s A.': : JJ.JA ~ -rr ? no , $19.00 . s IN TIffi COURT OF COMMON PLEAS OF THE 9TH JUDICIAL D1STRlCT OF PENNSYLVANIA CUMBERLAND COUNTY EDW AID FIlED DAVIS AND DEBORAH HARLIN DAVIS, HIS WIFE, Plaintiff NO. 94-5613 vs. BONNIE HEIGHTS HOMES. INC" and AnV ANCED CONCRETE SYSTEMS, INC., Defendants Clvn. ACTION - LAW AFFlDA VlT OF SERVICE COMMONWEALTH OF PENNSYLVANIA COUNTY OF SNYDER SS. , NANCY M BONNER, ESQUIRE being duly sworn according to law, deposes and says that I am 10 attorney at law duly authorized to practice law in the County of Snyder, Commonwealth ofPennsy\v8nia. and that on November 16, 1994, I sent a copy of the Rule to File a Complaint dated October 21, 1994 properly endorsed to William p, Douglas. Esquire at Douglas, Douglas & Douglas, 27 West High Street, P,O, Box 261, Carlisle, Pemuylvania 17013-0261, by First Class Mail, postage prepaid, the auorney for the Plaintiffs in the above-captioned mauer. '~KY&~~ BY: /71f, O~ NAN Y M, BONNER, ESQUIRE ATTORNEY NO, 61340 ATTORNEY FOR DEFENDANT ADVANCED CONCRETE SYSTEMS, INC. 9 Courtyard Offices Suite 130, Routes 11 & 15 Selinsgrove. P A 17870 (717) 743-2333 Sworn and subscribed to before me this lei l'\ day of November, 1994, I. ..... II") \ \ \ \, \!_, t. " '}:,t 1<' r _JIo. ta ry-: - C t ~,-, ';,. !':,~~r;, PlJt!\c :/ 1 ,"" :_ .:!.J-~._' -:r en .. = e- m ,., ~ ~.. <to- ..-_'Y. lp..,:"'" t} 7 '-'='- '..\.- <C".. ~} ." ~;~:: ~~ ~!~ t...:~:.r. -..r:l."W .2XQ,. :> :;'u ...... ".. <:> = , , DOUGLAS. DOUGLA.~ " IXIU(,LAS 17W. HIGH ST. POB 161 CARLISLE PA l1au TELEPHONE 1I7.W-11IIO Wll.L1AM p, DOUGI.AS, ESQ, SUP'""'" COUll 1,0,' 31926 Edwar Fre Davis and Debora Harlin Davis, h/w Plaintiff vs No. 94-5613 CIvil Term Bonnie Heights Homes, Inc. and Advanced Concrete Systems, Inc. Defendant Civil Action Law Trial Demanded MQIlCE 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 lWENTY DAYS AFfER THIS COMPLAINT AND NOTICE ARE SERVED. BY ENTERING A WRITTEN APPEARANCE PERSONALL Y OR BY A TIORNEY AND HLlNG IN WRITING WITH HIE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU, YOU ARE W ARNED THAT IF YOU FAIL TO DO SO. THE CASE MA Y PROCEED WITHOUT YOU AND A JUDGMENT MAYBE ENTERED AGAINST YOU BY TIlE COURT WITHom HJRHIER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OHlER CLAIM OR RELIEF REQUESTED BY TIlE PLAINTIFF YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGlITS IMPORTANT TO YOU, YOU SHOULD TAKE Tl-IIS PAPER TO YOUR LA WYER 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. Court AdminiSlralor Fourth Floor Cumberland COlUlly Court House Court House SqWlre Carlisle P A 17013 717.240-6200 By~r DATE: \~ - S -94- Complaint 1. The plaintiffs, Edward Fred Davis and Deborah Harlin Davis, are adult Individuals residing at 38 Fickes Road, Newville, Cumberland County, Pennsylvania. The defendant, Bonnie Heights Homes, Inc., Is a Pennsylvania corporation with business offices located at 530 Highland Court, Carlisle, Cumberland County, Pennsylvania. The defendant, Advanced Concrete Systems, Inc., is a corporation, with a business address of Route 2, Box 174 B, Middleburg, Snyder County, Pennsylvania. On or about August 4, 1992 the plaintiffs placed a deposit on a 28 x 48 manufactured home with the defendant Bonnie Heights Homes, Inc., in the amount of $5,000.00. 2. 3. 4. 5. The defendant Bonnie Heights Homes, Inc., told the defendant that they had available a manufactured water tight basement that they could Install under the aforesaid home, and the plaintiffs agreed to purchase the said basement ior the amount of $11,425.00, which brought the total purchase price of the home to $50,242.00. The defendant, Bonnie Heights Homes, Inc" sub-contracted the basement work with the defendant, Advanced Concrete Systems, Inc., who performed the basement installation, After the plaintiffs moved into the home, they discovered that the basement was not in fact water light but would flood with several feet of water on a regular occasion. 6. 7. 8. The plaintiffs informed the defendant, Bonnie Heights, of the problem and they suggested that it was the fault of the basement door installed and told the plaintiffs that they should install a Bileo precast door and steps to alleviate the water problem which cost the plaintiffs an additional $1,033.50. 9. The remedial measure performed by the plaintiffs at the suggestion of Bonnie Heights did not alleviate the problem. The plaintiff relied upon the representations of the defendant that they were purchasing a water tight basement to their detriment. 10. 11. 12. 13. 14. Davis v Bonnie Heights Homes, Inc. Breach of Contract The allegations of paragraphs 1 through 10 are incorporated herein and reference is made thereto as if fully set forth at length. The defendant, Bonnie Heights Homes, promised the plaintiffs that the pre-fabricated basement that they were purchasing and having installed was water tight. The basement sold and installed at the plaintiffs' residence was not water tight and repeatedly floods, As a direct and proximate result of the misrepresentations of the defendant, Bonnie Heights Homes, the plaintiffs have suffered financial loss and have experienced aggravation and inconvenience. Wherefore it is prayed that judgment be entered in favor of the plaintiffs and against the defendants in an amount in excess of that requiring compulsory referral to arbitration. It is further prayed that interest, attorneys iees and costs be awarded to the plaintiffs. A jury trial is hereby demanded. 15. 16. 17. 18. 19. Davis v Advanced Concrete Systems, Inc. Breach of Contract The allegations of paragraphs 1 through 14 are incorporated herein and reference is made thereto as if fully set forth at length. The defendant, Advanced Concrete Systems, installed the basement at the request of the defendant, Bonnie Heights Homes, Inc. The defendant, Advanced Concrete Systems, was a subcontractor of the defendant, Bonnie Heights Homes. The defendant, Advanced Concrete Systems, owed a duty to the plaintiffs to install the water tight basement in the proper and professional manner, which they failed to do, As a direct and proximate result of the failure of the defendant, Advanced Concrete Systems, Inc., to install the water tight basement in the proper and professional manner, the plaintiffs have suffered financial loss and have experienced aggravation and inconvenience. Wherefore it is prayed that judgment be entered in favor of the plaintiffs and against the defendants in an amount in excess of that requiring compulsory referral to arbitration. It is further prayed that interest, attorneys fees and costs be awarded to the plaintiffs. A jury trial is hereby demanded. Davis v Bonnie Heights Homes, Inc. and Advance Concrete Systems, Inc. Negligence 20. The allegations of paragraphs 1 through 19 are incorporated herein and reference is made thereto as if fully set forth at length. The defendants were negligent in failing to take all steps necessary to assure the basement in question would be water tight and did negligently install the basement in question, As a direct and proximate result of the negligence of the defendants Bonnie Heights Homes, Inc. and Advanced Concrete Systems, Inc., to install the water tight basement in the prorer and professional manner and for failing to assure that they take al proper steps to assure said basement would be water tight, the plaintiffs have suffered flnandalloss and have experienced aggravation and inconvenience. 21. 19. Wherefore it is prayed that judgment be entered in favor of the plaintiffs and against the defendants in an amount in excess of that requiring compulsory referral to arbitration. It is further prared that interest, attorneys fees and costs be awarded to the plaintiffs. A jury tria is hereby demanded. Respectfully submitted, Date: December 5,1994 Affidavit This verification is made pursuant to Pa.R.c.P 1024(c) by counsel for the plaintUf. To the best of the signer's knowledge, information and belief, the foreg true and correct. . William P. Douglas Attorney for plaintiff I' 6.:-'" - r.:}< <!l " , , <'I , . ,ou ",t[ tn"l! In III.OUIII[O '0 JIlt ... WlllfrfH .'-',1'0""'>1 ,') lit' flj(lO'UO -.-IIHIN "'Hid' IIC' 0''15 fAOIiil !lllVlcr "' Aeo. Olf ... JUn'."tIN' ......, nr lfHrnlD ...."INn YOU .. DOUGLAS. DOUGLAS & DOUGLAS Wt DO Hurn CUll.. THAT 'Ml WITHIN IS A TAUE ..~o COA~r~co..' 0' THE' OAIGINAL nUl) IN THIS "'CTlON. .,---- ,,;, i'--'H....Y~...r L...."" ;''''''''''''''..1...' "()8,;"'\' <:AH~I'jLr:. p(.~lrl"'(LVAPj:A A,nOANIY "'''OIlNI' IN TIlE COURT OF COMMON PLEAS OF TIlE 9TH JUDICIAL DISTJUCT OF PENNSYLVANIA CUMBERLAND COUNTY BRANCH EDWARD FRED DAVIS AND DEBORAH HARLIN DAVIS, HIS WIFE. Plaintiffs NO. 94-5613 CIVIL ACTION. LAW vs, BONNIE HEIGHTS HOMES, INC. and ADVANCED CONCRETE SYSTEMS, INC. Defendants PRELIMINARY OBJECTIONS OF DEFENDANT ADVANCED CONCRETE SYSTEMS, INe. Defendant, Advanced Concrete Systems, Inc., by and through its counsel, Rudnitsky & Hackman, herein preliminarily objects to the Complaint of Plaintiffs pursuant to Pa. R,C.P, 1028(a)(2}, (3) & (4) seeking to have Count II of Plaintiffs Complaint dismissed pursuant to Pa. R.C,P, 1028(a)(4} and Count III stricken pursuant to Pa, R.c'P. 1028 (a)(2). In the alternative to the Motion to Strike Count III pursuant to Pa, R.c'P, 1028(a)(2}. this defendant moves to have the Plaintiffs ordered to file I more specific plCllding pursuant to PI, R,C,P. 1028(a)(3). In support of these roquma, Defendant asserts the following: L PRELIMINARY OBJECTION TO COUNT n OF PLAINTIFFS' COMPLAINT IN THE NATURE OF A DEMURRER PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE I028(A)(4) 1. Paragraphs IS through 19 of Plaintiffs' Complaint allege Breach of Contract against defendant Advanced Concrete Systems, Inc, Plaintiffs failed to label these Paragraphs as Count n. but they will be referred to hereinafter collectively as Count II. 2. This objecting defendant demurs to Count II of Plaintiffs' Complaint in that it fails to state facts constituting a cause of action for breach of contract against Advanced Concrete Systems. Inc, 3. Objecting Defendant at no time entered into an oral or written contract with Plaintiffs. Objecting Defendant did enter into a Sales Contract with co-defendant Bonnie Heights Homes for the sale of basement walls, 4. Plaintiffs fail to allege that a contract existed between Plaintiffs and objecting Defendant at any time relevant herein. S. This objecting defendant, therefore, demurs to Count II of Plaintiffs' Complaint alleging breach of contract WHEREFORE, objecting Defendant respectfully roquests that this Honorable Court dismiss Count II ofPIaintift's Complaint pursuant to Pa, R.C,P. 1028(a)(4), as Count II fails to state a claim upon which relief can be granted. 2 n. PRELIMINARY OBJECTION TO COUNT m OF PLAINTIFFS' COMPLAINT PURSUANT TO PA RC.P. 1018(a)(1) '" (3) 6, Paragraphs 20 through 22(misnumbered as Paragraph 19) of Plaintiffs' Complaint allege negligence against both named defendants, Plaintiffs failed to label these Paragraphs u Count III, but they will be referred to hereinafter collectively u Count III 7. Plaintiffs allege the following in Count III: 21. The defendants were negligent in failing to take all steps ner.....ry to assure the basement in question wculd be water tight and did negligently install the basement in question. 19.[misnumbered] M a direct and prmumate result of the negligence of the defendants Bonnie Heights Homes. Inc. and Advanced Concrete Systems, Inc" to install the water tight basement in the proper and professional manner and for failing to assure that they take all proper steps to ~re said basement would be water tight, the plaintiffs have suffered financial loss and have experienced aggravation and inconvenience, 8. Pa. R.C,P. 1028(aX2) provides that preliminary objections are pennitted when a pleading fails to confonn to law or rule of court 9, Pa, R.C,P. 1028(aX3) provides that preliminary objections are pennitted when there is insufficient specificity in a pleading. 10, Pa, R.C,P. 1019(a) requires Ihat the material facts upon which a cause ofac:tioa or defense is based be stated in a concise and summary fonn. 11, Count ill of Plaintiffs' Complaint does not contain the material facts upon which their cause of action for negligence is based and thereforet violates Pa. R.C.P. 1019(a), 3 12, Count 111 of Plaintiffs' Complaint is deficient pursuant to Pa. RC,P. 1028(a)(2) " (3) u foUows: (a) Paragraph 21 alleges that defendants failed to take all steps necessary to usure that the said basement would be water tight It fails to allege any specific acts or omissions of the objecting defendant or how the act or omission caused Plaintiffs' damages; (b) Paragraph 21 alleges that the defendants negligently installed the basement in question. It fiWs to allege any specific acts or omissions of the objecting defendant or how the act or omission caused Plaintiffs' damages; (c) Misnumbered Paragraph 22 alleges that both defendants failed to install the basement "in the proper and professional manner" and failed to "take all proper steps" to assure that the basement would be water tight Plaintiffs fail to state with specificity the alleged negligent acts or omissions of the objecting Defendant or how the act or omission caused Plaintiffs' damages; (d) Paragraph 21 and misnumbered Paragraph 22 fail to differentiate between the defendants, thereby precluding the objecting defendant from having the infonnation of the alleged role assigned to it in Plaintiffs' general allegations of negligence, II. Due to the Plaintiffs' failure to confonn with the pleading requirements of Pa. RC.P, 1019(a) and insufficient specificity in pleading, objecting defendant is prejudiced in that it is unable to frame an answer or detennine on what basis it wiU fonn its defenses, Said allegations require objecting Defendant to defend a claim of unknown scope and undetennined negligence. 4 WHEREFORE, Advanced Concrete Systems, Inc., requests that pursuant to PI. R,C,P. 1028 (a)(2) &. (3) this Honorable Court strike Count III of Plaintiffs' Complaint. In the alternative. it is requested that Plaintiffs be ordered to make Count III of their Complaint more specific by stlting the acts or omissions of objecting defendant which allegedly clused Plaintiffs' damaacs. m. MOTION TO STRIKE A PLEADING DUE TO LACK OF , CONFORMITY TO RULE OF COURT 12. Plaintiffs filed an Affidavit signed by Plaintiffs' attorney and stating that it is a verification made pursuant to Pa, R.C.P, 1024(c), 13. Pa. R.C,P. 1024(c) provides: The verification shall be made by one or more of the parties filing the pleading unless all the parties (a) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for fi1ing the pleading, In such cases, the verification may be made by any person having sufficient knowledge or information and belief and sball set fortb tbe source of bls Information as to matten not stated upon bls own knowledge IIId the reasons why tbe verification is not made by a party. (emphasis added) 14. The verification attached to Plaintiffs' Complaint fails to state the source of Attorney Douglas' information and the reasons why the verification was not made by a party in violation ofPa. R.C.P. 1024(c). 5 WHEREFORE. Advanced Concrete Systems, Inc., requests that pursuant to PI, R. C.P. 1028 (1)(2) this HonorabI., Court dismiss Plaintiffs' Complaint for their failure to I:Omport with the pleadinS rcquiremenu set forth in PI. R.C.P. 1024(c). BY: MARVIN 1 SKY, ESQ ATTORNEY NO, 05158 ATTORNEY FOR DEFE ADVANCED CONCRE 9 Courtyard Offices Suite 130, Routes 11 & 15 Se1insgrove, PA 17870 (717) 742.2333 Date: December 22, 1994 u:\advconc:r\davis.po 6 CERTTInCATEOFSERVICE I, MARVIN 1. RUDNITSKY, ESQUIRE, hereby certifY that I served a true and correct copy of the Preliminary Objections or Derendant Advanced Concrete System.. Inc.. upon the counsel named below by placing same in the United States Mail, First Class, Postage Prepaid, this 23rd day of December, 1994. WiUiam P. Douglas, Esquire Douglas, Douglas & Douglas 27 West High Street P,O. Box 261 Carlisle, P A 17013 BY: MAR UDNITSK . ESQUIRE ATIORNEYNO.051 ATIORNEYFOR ANCED CONCRETE SYSTEMS, C. 9 Courtyard Offices Suite 130. Routes 11 & IS Selinsgrove. PA 17870 (717) 743-2333 -or IT) - :.-: .,. " = Q..... 1" '" rl (Y) r".-- ....J <-> U. = . I~ . . .. "'U lJ ... Ilz PO "'t .... "'... ~... :a . :il ~ . . ""~ to to ~~ to ~I ~ ~~ o:l .... ... .. 1~ '" U .d ... II ill'" ~ .... ... '" !"'1 ~ ~~~~ ... . .. .", ... II'" II "'=-- " ~~ ~ ~ill~~ ..... .... !;J'" .. 8"'~E > '" ... "'< ... lil~ ~ U> ~'" "" i J II g~ ......... "'\:;! og=--:> <Z 01 "'0 "'... "'U E--t""~UM ~~ o:lZ ool - . toO 5i5",,~~ Ul "'U > !:l!ij h u'" I ... ... -4 ~~ @ '" !:l"'0 '" <oIU ...i5 ::i ...~ III z... Sci ~~ ~> ...0 UZ ~~ llo!il . . Amended Complaint 1. The plaintiffs, Edward Fred Davis and Deborah Harlin Davis, are adult individuals residing at 38 Fickes Road, Newville, Cumberland County, Pennsylvania. The defendant, Bonnie Heights Homes, Inc., is a Pennsylvania corporation with business offices located at 530 Highland Court, Carlisle, Cumberland County, Pennsylvania. The defendant, Advanced Concrete Systems, In~., is a corporation, with a business address of Route 2, Box 174 B. Middleburg, Snyder County, Pennsylvania. On or about August 4, 1992 the plaintiffs placed a deposit on a 28 x 48 manufactured home with the defendant Bonnie Heights Homes, Inc., in the amount of $5,000.00. 2. 3. 4. 5. The defendant Bonnie Heights Homes, Inc., told the defendant that they had available a manufactured water tight basement that they could install under the aforesaid home, and the plaintiffs agreed to purchase the said basement for the amount of $11,425.00, which brought the total purchase price of the home to $50,242.00. 6. The defendant, Bonnie Heights Homes, Inc., sub-contracted the basement work with the defendant, Advanced Concrete Systems, Inc., who performed the basement installation. After the plaintiffs moved into the home, they discovered that the basement was not in fact water tight but would flood with several feet of water on a regular basis, 7. 8. The plaintiffs informed the defendant, Bonnie Heights, of the problem and they suggested that it was the fault of the basement door installed and told the plaintiffs that they should install a Bileo precast door and steps to alleviate the water problem which cost the plaintiffs an additional $1,033.50. 9. The remedial measure performed by the plaintiffs at the suggestion of Bonnie Heights did not alleviate the problem. 10. The plaintiff relied upon the representations of the defendant that they were purchasing a water tight basement to their detriment. Count One Davis v Bonnie Heights Homes, Inc. Breach of Contract The allegations of paragraphs 1 through 10 are incorporated herein and reference is made thereto as if fully set forth at length. The defendant, Bennic Heights Homes, promised theJlaintiffs that the pre-fabricated basement that they were purchasing an having installed was water tight. The basement sold and installed at the plaintiffs' residence was not water tight and repeatedly floods. As a direct and proximate result of the misrepresentations of the defendant, Bonnie Heights Homes, the plaintiffs have suffered financial loss and have experienced aggravation and inconvenience. Wherefore it is prayed that judgment be cntered in favor of the plaintiffs and against the defendants in an amount in excess of that requiring compulsory referral to arbitration. It is further prayed that interest, attorneys fees and costs be awarded to the plaintiffs. A jury trial is hereby demanded. 11. 12. 13. 14. Count Two Davis v Advanced Concrete Systems, Inc. Breach of Contract 15. The allegations of paragraphs 1 through 14 are incorporated herein and reference is made thereto as if fully set forth at length. 16. The defendant, Advanced Concrete Systems, installed the aforesaid basement at the request of the defendant, Bonnie Heights Homes, Inc. 17. The defendant, Advanced Concrete Systems, was a subcontractor of the defendant, Bonnie Heights Homes, and contracted with Bonnie Heights Homes for the sale and installation of a water tight basement. The plaintiffs were the beneficiary of said contract. 18. The defendant, Advanced Concrete Systems, owed a duty to the plaintiffs to install the water tight basement in the proper and professional manner, which they failed to do. 19. As a direct and proximate result of the failure of the defendant, Advanced Concrete Systems, Inc., to install the water tight basement in the proper and professional manner, the plaintiffs have suffered Cinancialloss and have experienced aggravation and inconvenience. Wherefore it is prayed that judgment be entered in favor of the plaintiffs and against the defendants in an amount in excess of that requiring compulsory referral to arbitration. It is further prared that interest, attorneys fees and costs be awarded to the plaintiffs. A jury tria is hereby demanded. Count Three Davis v Bonnie Heights Homes, Inc. and Advance Concrete Systems, Inc. Negligence 20. The allegations of paragraphs 1 through 19 are incorporated herein and reference is made thereto as if fully set Eorth at length. The defendants were negligent in failing to take all steps necessary to assure the basement in question would be water tight and did negligently install the basement in q'lestion. As a direct and proximate result of the negligence of the defendants Bonnie Heights Homes, Inc. and Advanced Concrete Systems, Inc., to install the water tight basement in the pro fer and professional manner and for failing to assure that they take al proper steps to assure said basement would be water tight, the plaintiffs have suffered Cinancialloss and have experienced aggravation and inconvenience. 21. 22. Wherefore it is prayed that judgment be entered in favor of the plaintiffs and against the defendants in an amount in excess of that requiring compulsory referral to arbitration. It is further prayed that interest, attorneys fees and costs be awarded to the plaintiffs. A jury trial is hereby demanded. Count Four Davis v Bonnie Heights Homes, Inc. and Advance Concrete Systems, Inc. Restatement of Torts 2nd, 402(a) 23. Paragraphs 1 through 22 are incorporated herein by reference thereto. 24. At all times relevant hereto, the defendants were engaged in the business of designing or having designed, manufacturing or having manufactured, supplying and selling pre-fabricated basements. 25. The defendants did design, or have designed, according to their specifications, manufacture, or have manufactured, to their specifications, supply and sell a pre-fabricated basement to the plaintiffs. 26. The defendants knew that if the pre-fabricated basement was defective In design and/or manufacture and/or Improperly marketed, It would be unreasonably dangerous to the user of the product. 27. The defendants knew that the pre-fabricated basement would reach the user without substantial change. 28. The said pre-fabricated basement did reach the plaintiffs without any substantial change. 29. The defendants knew the pre-fabricated basement was defective In either its design and/or manufacture. 30. The defendants gave no warnings cf the defective design and/or manufacture to the plaintiffs. 31. Due to the defective nature of the pre-fabricated basement, water entered the plaintiffs basement and damaged and destroyed their personal property. 32. As a result of the aforesaid, the plaintiffs has endured aggravation and inconvenience, both past and future. Wherefore it is prayed that judgment be entered in favor of the plaintiffs and against the defendants in an amount in excess of that requiring compulsory referral to arbitration. It is further prayed that interest, attorneys fees and costs be awarded to the plaintiffs. A jury trial is hereby demanded. Count Five Davis v Bonnie Heights Homes, Inc. and Advance Concrete Systems, Inc. Warranty 33. Paragraphs 1 through 32 are incorporated herein by reference thereto. 34. The defendants impliedly and/or expressly warranted that the product sold and supplied by them, a pre-fabricated basement, was fit for the intended use. 35. The product in question was unfit for the intended use. 36. As a result of the aforesaid, the defendants breached their warranty and/ or warranties, which breach resulted in the injuries to the plaintiffs. @ ..1"> <rl ,., ..., ,~ . t ,,JU loIn: MUf" _rOUllIrl) fO "U .. _"lfUN .uPo~~r .0 ,,"II: I"lCL051D "'''HIN fWINff ItOI on, rllOaf SUVlcr Hrll[O' o. 6 ;UO'-lII[11U M.., Ir INnlllD AGIoUUr '011. Of DOUGLAS, DOUGLAS & DOUGLAS ': .. ..,.~.. )Tlltt T .. 0 ..~. ~ ~ WI DO Hur.., CUTI" THAT THI WITHIN II A nUl AND CO"~CT COpy 0' THI o,uoulu 'lua IN nUl AloflON. I" ___p"__ ATTOAHtl'Si At LA.... UTOIl"U ,"'OAHU . OBRTI.ICATB O. 8..VIC. I HEREBY CERTIFY that I have serve~ a true and correct copy of the:ort~gOing docu~~ent upon all counsel and parties ot record this .)(1 day of tr '.i II n /1:";- , 1995, by placing the same in the United state First clfds Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as tollows: William P. Douglas, Esquire Douglas, Douglas & Douglas 27 West High street Post Office Box 261 Carliale, Pennsylvania 17013 (~X Ma IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT OF PENNSYLVANIA CUMBERLAND COUNTY BRANCH EDW ARC FRED DAVIS AND DEBORAH HARLIN DAVIS, HIS WIFE. Plaintiffs NO. 94-5613 vs. CIVIL ACTION. LAW BONNIE HEIGHTS HOMES, 1Ne. and ADVANCED CONCRETE SYSTEMS, INC, Defendants STIPULATION The Plaintiffs, Edward Fred Davis and Deborah Harlin Davis, and DeCendant, Advanced Concrete Systems, Inc,. agree. for all purposes of this action, that the foUowina factual averments and legal conclusions are true and correct: I, The Plaintiffs' allegations regarding a water tight basement are not based upon . writing but upon alleged oral representations by Bonnie Heights Homes, Inc, 2. The Plaintiffs withdraw all allegations, claims, and requests for attorney fees in coMection "ith this action. 3, Count V of Plaintiffs' Complaint is based upon an alleged implied warranty under the Uniform Commercial Code, Plaintiffs do not set forth a cause of action based upon an eltpress . WlltTll1ty by Advanced Concrete Systcnu. Inc. to Plaintiff" and Count V is withdrawn to the extent that any such ellpress warranty isallcged. 4, That the Defendant, Advanced Concreto Systems, Inc.. shaD have twenty (20) days from the f!ling hereof to file its response to the Amended Complaint. RUDNI'fSKY & HACKMAN BY: WiUiam P. Douglas, Esquire Attorney for Plaintiffs Date: Ma~ 1995 u:\advconcr\davis.sti 2 IN TIlE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT OF PENNSYLVANIA CUMBERLAND COUNTY BRANCH EDWARD FRED DAVIS AND DEBORAH HARLIN DAVIS, HIS WIFE, Plaintiffs NO. 94.5613 vs. CIVIL ACTION - LAW BONNIE HEIGHTS HOMES, INC, and ADY ANCED CONCRETE SYSTEMS, INC. Defendants ANSWER WITH NEW MATTER OF DEFENDANT ADVANCED CONCRETE SYSTEMS, INC. I. Admitted 2. Admitted, 3, Denied in part; Admitted in part, Answering Defendant admits the avennents of this Paragraph with the exception of its mailing address, Answering Defendant's correct address is R,D, 2, Box 147.A, Middleburg, Pennsylvania, 4, After reasonable investigation, Answering Defendant is without sufficient knowledge or infonnation to fonn a belief as to the truth of this avennent. Hence, said avennent is deemed denied, S. After re.lSOnable investigation, Answering Defendant is without sufficient knowledge or infonnation to form a belief as to the truth of this averment Hence, said averment is deemed denied, 6. Admitted in part and denied in part, Answering Defendant admits only that it entered into a Sales Contract with defendant Bonllie Heights Homes for the sale of basement walls, Answering Defendant specifically denies that it perfonned the "basement installation", Answering Defendant did not perform the flooring, excavating. drainage and landscaping involved in the installation of the said basement 7. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of this averment Hence, said averment is deemed denied, 8, After reasonable investigation, Answering Defendant is without slMfficient knowledge or information to form a belief as to the truth of this averment, Hence. said averment is deemed denied, 9. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of this averment Hence. said averment is deemed denied, 10. Denied, Answering Defendant incorporates by reference the Stipulation between counsel for Plaintiffs and Answering Defendant filed on June I, 1995 in which Plaintiffs admit that their allegations regarding a water-tight basement are based upon alleged oral representations by Bonnie Heights Homes, Inc, Answering Defendant incorporates by reference the Stipulation between 2 counsel fOl' Plaintiffs and Answering Defendant filed on lune I, 1995, By way of further answer, after reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a beliefas to the truth of this averment Hence, said averment is deemed denied, COUNT I DAVIS V. BONNIE HEIGHTS HOMES. INC. . BREACH OF CONTRACT II, Answering Defendant incorporates by reference its responses to Paragraphs I through 10 inclusive of Plaintiffs' Complaint as if fully set forth at length herein, 12, . 14, Said averments are addressed to a defendant other than Answering Defendant and, therefore, no response is required under the Pennsylvania Rules of Civil Procedure, COUNT II DAVIS V. ADVANCED CONCRETE SYSTEMS, INC. . BREACH OF CONTRACT IS, Answering Defendant incorporates by reference its responses to Paragraphs I through 14 inclusive of Plaintiffs' Complaint as if fully set forth at length herein, 16, Denied. To the contrary, Answering Defendant did not install the basement. Answering Defendant did not perform the flooring, excavating, drainage and landscaping involved in the installation of the aforesaid basement 17. Admitted in part and denied in part. Answering Defendant adm:ts that it was a subcontractor of the Defendant Bonnie Heights Homes. Inc, and entered into a sales contract with Defendant Bonnie Heights, Homes, Inc, for the sale of basement walls, Answering Defendant specifically denies that it performed the "basement installation", Answering Defendant did not perform the flooring, excavating, drainage and landscaping involved in the installation of the said J 27, Denied. To the contrary, the basement walls would be practically useless to the Plaintitfuntil Bonnie Heights Homes, Inc, prepared and installed the foundation. floor and drainage system. 28, Denied. To the contrary, the basement walls would be practically useless to the Plaintitfuntil Bonnie Heights Homes, Inc, prepared and installed the foundation, floor and drainage system. 29, Denied. To the contrary, the pre-fabricated basement was designed and manufactured in the proper and professional manner and Answering Defendant had no knowledge of any alleged design or manufacturing defects, 30, Denied. An.'lWering Defendant incorporates by reference the answer set forth in Paragraph 29, By way of further answer, no warnings were called for because no defect existed in the pre-fabricated basement. 31, Denied. Answering Defendant incorporates by referr.nce its response set forth in Paragraph 29 as iffuJly set forth at length herein. By way of further answer, Answering Defendant specifically denies that any defect in the pre-fabricated basement caused water to enter the Plaintiffs' basement. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averment that Plaintiffs' personal property was damaged or destroyed and demands strict proof thereof at trial. 32. Answering Defendant incorporates by reference its response to Paragraph 31 II if set forth fully at length hllrein, 6 COUNT V DAVIS V BONNIE HEIGHTS HOMES, INC. AND ADVANCED CONCRETE SYSTEMS, INC.. WARRANTY JJ, Answcring Dcfcndant incorporatcs by rcfcrcncc its rcsponses to Paragraphs 1 through 32 inclusivc of Plaintiffs' Complaint as if fully sct forth at Icngth hcrcin, 34, Answering Defendant incorporates by refercnce thc Stipulation betwecn counsel for Plaintiffs and Answering Dcfendant filed on June I, 1995 in which Plaintiffs withdraw the averments of Count V as they relate to any alleged express warranty by Answering Defendant In thc aforcsaid Stipulation, Plaintiffs also admit that the allegations regarding a water-tight basemcnt are based upon alleged oral reprcsentations by Defendant Bonnie Heights Homes. Inc, 35. Denied. To the contrary, the pre-fabricated basement was fit for its intended use when it Icft the control of Answering Defendant 36, Dcnied, Answering Defendant incorporates by reference its response in Paragraph 35 as if fully set forth at length herein. By way of further answer. Answcring Defcndant fulfilled any implied warranty. After reasonablc invcstigation, Answcring defendant is without sufficient knowledge or infonnation to fonn a belief as to the truth of the averment that the Plaintiffs suffercd injuries and strict proof thereof is demanded at trial. NEW MA TIER 37. Answering Defendant incorporates by reference its responses to Paragraphs 1 through 36 of Plaintiffs' Amended Complaint and the Stipulation between counsel for Plaintiffs and Answcring Defendants filed on June I, 1995 as if fully set forth at length herein, 7 38, Answering Defendant entered into a Sales Contract with Defendant Bonnie Heights Homes, Inc. for the sale of basement walls, 39, Answering Defendant did not install the basement in question. 40, The direct and proximate causes of water in the Plaintiffs' basement are fJooring, excavation, drainage and landscaping problems, 41, Answering Defendant did not perform the flooring. excavating, drainage and landscaping involved in the installation of the said basement 42. The damages alleged in Plaintiffs' Amended Complaint relate to items which were solely the responsibility of Defendant Bonnie Heights Homes, Inc, and/or of third parties over whom Answering Defendant had no control and were of no responsibility of the Answering Defendant 43, The Plaintiffs admit, in the aforesaid Stipulation, that their allegations regarding a water-tight basement are based upon the alleged oral representations of Defendant Bonnie Heights Homes, Inc, 44. Defendant Bonnie Heights Homes, Inc. is not an agent of Advanced Concrete Systems, Inc. 45, Plaintiffs have failed to state a claim against Defendant Advanced Concrete Systems. Inc. upon which relief may be granted, WHEREFORE, Defendant Advanced Concrete Systems, Inc. requests that Plaintiffs' Amended Complaint against Defendant Advanced Concrete Systems, Inc, be dismissed and judgment be entered in its favor. 8 cause of action set forth in Plaintift's' Amended Complaint, all liability on the part of Defendant Advanced Concrete Systems, Inc. being specifically denied. RUDNlTS ~ MARVIN NlTSK . SQUIRE ATTORNEY NO, 05 ATTORNEY FOR.' EFENDANT. ADY ANCED CONCRETE SYSTEMS, INC. 9 Courtyard Offices Suite 130, Routes II & 15 Selinsgrove, P A 17870 (717) 743-2333 Date: June 9. 1995 u:\advconcr\daviuns 10 VJ:RlfICA TlON LARRY L YARGER, President of Advanced Concrete Systems, Inc., states that Advanced Concrete Systems, Inc, is one of the Defendants in the above-referenced action and the facts set forth in the foregoing pleadings are true and correct to the best of his knowledge, information and belief. This statement is made subject to the penalties of 18 Pa, C,SA Section 4904, relating to unswom falsification to authorities. ~~&...r;~~;> CERTIFICATE OF SERVICE I, MARVIN 1 RUDNITSKY, ESQUIRE, hereby certifY that I served a true and correct copy of the Answer with New Matter of Defendant Advanced Concrete System.. lac. upon thll persons named below by placing same in the United States Mail, First Class, Postage Prepaid, this..21h. day of June. 1995, William Douglas, Esquire Douglas. Douglas & Douglas 27 East High Street P,O, Box 261 Carlisle, PA 17013-0261 Rolf E. KroU, Esquire 101 Pine Street P.O. Box 932 Harrisburg, PA 17108 RUDNITSKY & /'" /BY: ( MAR , R NITS ATTORNEY NO. 0 8 ATTORNEY FO DEFENDANT ADVANCED CONCRETE SYSTEMS. INC. 9 Courtyard Offices Suite 130. Routes \1 & 15 Selinsgrove, PA 17870 (717) 743-2333 ..., f"" :'lI:: "- ~--.. "'lo "6 - -;,.. - 4 ~~ ..1<>1 Pol-< '" ~~ ~ ~:;l;SlXl 8....::a>I-< ~H,.J:Z: Oe:>><=> ::>UlO E-o"'ZUt'"I '" Z ... 5iS~!:::: Uo. I r.. ... gj!;jOW'" :~ ~O !-to U;;i!: .- - ::~. . ~:ij~,., ~'~~'..'I ~;::i ~~~,~ k-." .:.;;.,- , ..,~ "",",j/.':: i..-,:::t (,.)1.,,) . II ... ... 31 co ... .<:: " ... .... ... c: Ul ... ...... .. > c: Ul< ... ....e:> .. > .... <Z '" i~ '" ~~ ::OlXl e:>W we:> . . "'U C:Z ...... ~ I i!l ~ I ~ ~ ~~ !3~j~",~ ~ ~ ~ ~I ~ ~ olIf~~'I~R >' ~..;::[; ::ld '" 11 - - ~-<~'g to~ ~ 3I i:IIl ~Jl . . co > ~ffi I-< 'Ul Ull-< ~'" ow "'I-< ",l:j I- 5:l~ " .. c: .. ... c: .. ... ~ () i.. I: EDWARD FRED DAVIS and DEBORAH HARLIN DAVIS, his wife IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA. CML ACTION - LAW V. NO. 94-5613 BONNIE HEIGHTS HOMES, INC., and ADVANCED CONCRETE SYSTEMS, INC. REPLY 46. The allegations of paragraphs 1 through 45 of the original Complaint are Incorporated herein by reference thereto. 41. Admitted. 48. Admitted. 49. Denied as a legal conclusion. WHEREFORE, the plaintiffs pray that the New Matter of the Defendant, Advanced Concrete Systems, Inc., be dismissed. DOUGLAS, DOUGLAS & DOUGLAS /..) BY~'1 Attorney for Plaintiffs ' ~ ( .. COMMONWEALTH OF PENNSYLVANIA ) ss. COUNTY OF CUMBERLAND ) This verification ia made pursuant to Pa. R.C.P. 1024(c) by counsel for the plaintiffs, based upon information received, due to the unavailability of the plaintiffs. To the best of signer's knowledge, information, and belief, the foregoing Is true and correct. Dated: June 13, 1995 DOUGLAS, DOUGLAS &: OOUGLAS BY~ . &~ William P. Douglas, Esquire Attorney No. 37926 Attorney for Plaintiffs 27 West High Street P.O. Box 261 Carlisle, Pa. 17013 717-243-1790 ~ . l: ~. 1f::; ,.- __:r .~ ~~: '.~ ~.~. ,.3 .... N " .: .c- "';.'-~ ..,'.'. t>--. .... '~I ',5'-l -c:r .. ~ ...., '- . 'UU .Uf. NT .1.' .(QUIIED fO FlU .- ...TUN .l \PON$l f" fMf. INCI.OUO WITHI.. '.UU' "01 PU' '10M "_VICI ..,,,ro, _ 0_ Ii JUO,"JII(NT ...., Ie , . l..lllflQ AGAINST fOU. DOUGLAS, DOUGLAS & DOUGLAS '.'" .., j' "( ~ . .. ? IIQ~ l'" WI DO MIIII' C[.J~' THAr THE WITHIN IS... 'I..A:A"O \"ollftrCT COP' 0' T"I ORIGINAL 'IUD IN THIS ACJlON. I' ______. ..HORNEt ,f,!TOANE"t$ ,U L"'W " C"'~LI5L(. PE:NN'il'L'IANIA IIOL' .. DOLL, .SOUID 'a. 'up~'" COurt I.D. 10. 67363 IIAaJlY A. DOIITUL, ..glnu 'a. 'up~... COurt I.D. 10. "673 UYII01.D. , IAVAII 101 ,1lle n....t Poat Oll1ce loa 933 ..~~1aburg, '.DAaf1..llia 1710'-0933 T.1apboll.' (717] 336-3300 .u. (717] 336-6163 Attonef lor U.aaae4 CoIICrR.. IOIXI. ..108T8 SOM8', 18C. EDWARD HARLIN FRED DAVIS and DEBORAH : DAVIS, h/w, Plaintiffs IN THE COURT OP COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-5613 . . . . v. . . CIVIL ACTION - LAW BONNIE HEIGHTS HOMES, INC. and ADVANCED CONCRETE SYSTEMS INC. , . . . . Advanced Concretes : JURY TRIAL DEMANDED KOTIC!! TO PLBAD TO: ADVANCED CONCRETE SYSTEMS, INC. Marvin J. Rudnitsky, Esquire 9 Courtyard Offices suite 103, Routes 11 , 15 Selinsgrove, Pennsylvania 17870 You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days trom service hereof or a default judgment may be entered against you. DATE: r~ Y7r . KRONTHAL ey I.D. #55672 Attorneys for Defendants, BONNIE HEIGHTS HOMES, INC. 101 pine street Po at Ottice Box 932 Harrisburg, PA 17108-0932 (717) 236-3200 IOLP .. DOLL, "QUID 'a. lupr... enurt 1.0. MO. .13.3 lIAAIIl' A. DOII'r1IAL, 'IQUIlUI 'a. 'up~ Court 1.0. MO. "'13 ~ a lAY.. 101 .11l. It:r_t: Poat: Olllc. loa 933 'arrlaburg, '.llAafl.aIl1. 11101-0933 Tal.pIIo.a, ,... (111) 33'-3300 (111) 33'-6163 AttGraer 'ow De,.....t, ~l. 81..,. ....., lire. EDWARD FRED DAVIS and DEBORAH HARLIN DAVIS, h/w, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-5613 CIVIL ACTION - LAW v. BONNIE HEIGHTS HOMES, INC. and ADVANCED CONCRETE SYSTEMS INC., JURY TRIAL DEMANDED Defendants UB1fD WITH lID OTTO OJ' DIJ'DDUl'f, BO..II BBIGHTS BOKKS, I.C. TO ... OTTO 1M HI IlATOR. OJ' & CROSSCUIM .ORSVAMT TO .A. ..C... MO. 2252(4) OJ' DlJ'lIlfDAMT. ADVAllCIlD COHORTII SYBTI!IJIB. IMO. 46. Donied. The averments of this paragraph state a conclusion of law to which no response is required and they are, therefore, denied. 47. Denied. The stipulation, being in writing, speaks for itself and the averments relating thereto are, therefore, denied. 48. Denied. The Amended Complaint of Plaintitts, Edward Fred Davis and Deborah Harlin Davis, his wife (collectively referred to as "PlaintiffS"), being in writing, speaka tor itself and the averment relating thereto are, therefore, denied. By way of further answer, it is specifically denied that Defendant, Bonnie Heights Homes, Inc. ("Bonnie Height. Homa.") braachad any contract, oral or writtan, with Plaintiff. end/or caused any harm to Plaintifts. 49. Denied. The averment. of this paragraph state a conclu.ion of law to which no response is required and they are, therefore, denied. By way of further answer, it is specitically denied that Bonnie Heights Home. is in any way liable for Plaintiffs' alleged damages and/or is liable to Defendant, Advanced Concrete systems, Inc. ("Advanced concrete") tor contribution and/or indemnity. WHEREFORE, Defendant, Bonnie Heighta Homes, Inc. demands judgment in its favor and against Defendant, Advanced Concret~ systems, Inc. )1ft KATTD 50. The answers contained in Paragraph 46 through 49 inclusive hereof are incorporated by reference hAre in as if set torth in their entirety. 51. Plaintiffs' claims, if any, are barred by the applicable statue of limitations. 52. Plaintiffs' claims, if any, are barred by lack of consideration. 53. Plaintiffa' claims, if any, are barred by their failure to mitigate their damages. 2 54. Plaintitt.' claims, if any, are barred by the doctrine. ot sssumption ot the risk and contributory and comparative negligence. 55. plaintiffs' claims, if any, are barred by the statute ot frauds. 56. Plaintifts' claims, if any, are barred by the doctrine ot impossibility of performance. 57. Plaintitfs' damages, if any, were solely, directly and proximately caused by the neqligent, carelesa and/or recklesa conduct or person(s) and/or entities over whom Bonnie Heights had no control and for whom Bonnie Heights has no legal responsibility, including Advanced Concrete and its agents and employees. 58. To the extent that it is proven that Bonnie Heights manufactured, designed and/or sold the pre-tabricated basement, Bonnie Heights, at all times relevant hereto, exercised due care and caution in doing so. 59. Plaintiffs' claims, if any, for strict liability are barred because at no time was the subject basement in a defective condition unreasonably dangerous to the user or any bystanders by reason of any act or failure to act of Bonnie Heiqhts. 60. Plaintirfs' claims, if any, for strict liability are barred because Plaintiffs are prohibited from recovering 3 solely economic damages for a strict liability claim brou9ht pursuant to Restatement (Second) of Torts, 5402(a). 61. plaintiffs' claims, it any, tor breach ot warranty are barred because Bonnie Heights never made any express or implied warranties of titness or merchantability to Plaintitfs with rsgard to the subject basement. WHEREFORE, Defendant, Bonnie Heights Homes, Inc. demands judgment in its favor and against Detendant, Advanced Concrete systems, Inc. lID OTTD IX ftll IlATUIlll OJ' A CR088CLA1JI PUR8UANT TO PA. R.C.P. HO. 2252(4) 80BRI. B.IGKT8 B0KlI8, IHC. V. ADVANCED CONCRET. 8YSTEMS. INC. 62. The answers contained in Paragraphs 46 throu9h 62 inclusive hereof are incorporated by reference herein as set forth in their entirety. 63. The negligent, recklesa, careless and/or willful conduct of Advanced Concrete exceeds and/or is of a higher degree than any negligence on the part of Bonnie Heights Homes, with the existence of any negligence on the part of Bonnie Heights Hom.s being expressly denied and, therefore, Advanced Concrete is liable to indemnify Bonnie Heights Homes. 64. Bonnie Heights Homes aver that Advanced Concrete is solely liable to Plaintiffs on their cause of action. 4 65. Alternatively, if it is deterained that Bonnie Heights Home. is liable to Plaintitfs, with said liability being speoitically denied, Advanced Concrete is jointly and severally liable with Bonnie }{eights Homes on Plaintiff.' cause ot action and/or Advanced Concrete is liable over to Bonnie Heights Homes by way of contribution and/or indemnity. WHEREFORE, to the extent that Plaintiffs, Edward Fred Davis and Deborah Harlin Davia, his wife, are entitled to recover on their Complaint against Defendant, Bonnie Heights Homes, Inc., Bonnie Heights Homes demands judgment against Defendant, Advanced Concrete Systems, Inc. on the basis that it is solely liable to Plaintiffs on their cause of action, liable over to Bonnie Heights Homes by way of contribution and/or indemnity, or jointly and severally liable with Bonnie Heights Homes on Plaintiff.' cause of action, with any liability on the part of Bonnie Heights Homes, Inc. being specifically denied. DATE: i:>rj9( REYNOLDS '~VAS A profei:i6nal Corporation I By: . KRONTHAL Att rn y I.D. #55672 Attorneys for Advanced Concrete, BONNIE HEIGHTS HOMES, INC. 101 pine street Post Otfice Box 932 HarriSburg, FA 17108-0932 (717) 236-3200 3001/MISC24 5 ""11'10"'1'10. I, BARRY A. KRONTHAL, have read the toreqoinq Answer with New Matter of Detendant, Bonnie Heiqhts Home., Ino. to New Matter in the Nature of a crossclaim purauant to PA. R.C.P. No. 2252(d) ot Defendant, Advanced Concrete systems, Inc. The factual statements contained therein are true and correct to the best of knowledge, information and belief. I am authorized to make this Verification on behalf of my client, Bonnie Heiqhts Homes, Inc. This Verification is made subject to the penalties ot 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities, which provides that it I knowingly make false averments, I may be subject to crim~~ penalties. ~ ~A. .-~ONTHAL, ESQUIRE DATE: 7/.).r/9r C"~I~IC~T. O~ ."VIC. I HEREBY CERTIFY that I have .erved a true and correct copy ot the toregoing document upon all counsel and partie. of record this ~ay ot -=:rU~ ' 1995, by placing the same in the United States Firat Class Mail, postage prepaid, at HarriSburg, Pennsylvania, addressed as follows: George Douglas, Esquire Douglaa , Douglas 27 West High street Post otfice Box 261 Carlisle, Pennsylvania 17013-02Gl Marvin J. Rudnitsky, Esquire Rudnitsky , Hackman 9 courtyard ottices suite 103, Routes 11 , 15 Selinsgrove, Pennsylvania 17870 '1 ~k-~ ~ CLJJ.--- ebora L. HaDIIII IN THE COURT OF COMMON PLEAS OF TIlE 9TH JUDICIAL DISTRICT OF PENNSYLVANIA CUMBERLAND COUNTY BRANCH EDWARD FRED DAVIS AND DEBORAH HARLIN DAVIS, HIS WIFE. Plaintiffs NO. 94-5613 vs, CIVIL ACTION - LAW BONNIE HEIGlITS HOMES, INC. and ADVANCED CONCRETE SYSTEMS. INC, Defendants REPLY TO NEW MATTER OF DEFENDANT BONNIE HEIGHTS HOMES, INC. AND NOW, comes the Defendant Advanced Concrete Systems, Inc.. by and through its attorneys, Rudnitsky & Hackman, and files the following Reply to the New Matter of Defendant Bonnie Heights Homes, Inc.: 50 - 61, These allegations do not pertain to Defendant Advanced Concrete Systems. Inc, 62, Defendant hereby incorporates by reference, !'IS though fully set forth herein, the allegations contained in Paragraphs 41 through 49 of its New Matter in the nature ofa Crossclaim against Defendant Bonnie Heights Homes, Inc. pursuant to Pa. RC.P. 2252(d), 63, The avermenlS of lhis Paragraph are a conclusions oflaw 10 which no response is required under the Pennsylvania Rules of Civil Procedure; hence. strict proof thereof is demanded allrial, 64, The averments of lhis Paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure; hence, strict proof thereof is demanded al lrial, 65, The averments of this Paragraph are conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure; hence. strict proof thereof is demanded at trial, WHEREFORE, Defendanl Advanced Concrete Systems, Inc, n:quests Ihat judgment be entered in its mvor, In the a1lernalive, Defend3TIt Advanced Concrele Syslems, Inc. requests that Defendant Bonnie Heights Homes, Inc. be found alone liable to the Plainliff's, or, in the alternative, jointly and/or severally liable wilh Defendant Advanced Concrele Systems, Inc, and/or liable over to Defendant Advanced Concrele Syslems. Inc, by way of indemnification and/or contribution on the cause of action set forth in Plaintiff's' Amended Complaint. all liability on the part of Defendant Advanced Concrete Systems. Inc, being specifically denied. BY: RUDNlT~~L~K)'AAN " ' C. ~VTNJ.R~TSKY,ES ATTORNEY NO. 05158 ATTORNEY FOR DEFENDANT ADY ANCED CONCRETE SYSTEMS, INC. 9 Courtyard Offices Suite 130, Routes II & 15 Selinsgrove, PA 17870 (71 7) 743.2333 2 ~ . :!e 0..;, ... ., = ,.... ....... ~!;4 W(.~,.. 1;.> Z <:':''1 a:;:OO,:"" 10.. ".1: ~~w" ....:)1':"' ;.-:::;1 , ... ~,' '.) ~~ ..ft... .'::'I~ ., :,:;...... ;.\ - g '""" . I . . .. '1:lU ~ .... <l:Z: ~~ .... "'.... :. . . ~ a~ ....~ '" ~~ . ..... o:l .... '" ,. /:l i m U .Cl .... ... =~~j ~~ :z:.... ~ .... .. <l 11Io 'o '1:l ...... <l !ijm .... .. ~ ~ i ~I ~ m< .. 0'" .... ~ f ~ ~ ~ U> .....'" .... :~ .. ~H~Z > 0., '" ~ 0. r:: E:: O~...::> <:z: .... mo /:l.... ..U !;! ~~lfq ~~~j~ ~~ . o:lZ I '" toO Z 5 "" > ....u j 00.,,,, '" o u U'" I !'o o:l!i3 i=l ;:) '" !'o <t ~~ Ill: ~~o",'" "'u ....~ ~ :z:~ ~o "'~ ~> ~ HO uz t;l~ iil~ " . . .- -, EDWARD FRED DAVIS and DEBORAH HARLIN DAVIS, his wife IN THE COURT OF COMMON FLEAS OF CUMBERLAND COUNTY, PA CML ACTION - LAW NO. 94-5613 V. BONNIE HEIGHTS HOMES, INC., and ADVANCED CONCRETE SYSTEMS, INC. AMENDED REPLY TO NEW MATTER OF DEFENDANT. ADV ANCED CONCRETE SYSTEMS 37. Admitted in part. Denied in part. It is admitted with respect to the said Stipulation. The allegations of the Amended Complaint are incorporated herein and reference Is made thereto. 38. Admitted. 39. Denied. After reasonable investigation, the p!i.jntiffs are unable to determine the truth of the averment, and proof thereof Is demanded. 40. Denied ilS stated. The reason for water entering the basement of the plaintiffs is the defect with respect to said basement and/or the negligent installation of said basement. 41. Denied. After reasonable investigation, the plaintiffs are unable to determine the truth of the averment, and proof thereof Is demanded. 42. Denied as a legal conclusion, as no facts were set forth on which to base said conclusion. 43. Admitted. 44. Denied. After reasonable investigation, the plaintiffs are unable to determine the truth of the averment, and proof thereof is demanded. 45. Denied. The allegations of the Amended Complaint are set forth herein by reference thereto, and they state a valid cause of action. . , WHEREFORE, the plaintiffs pray that the New Matter of the Defendant, Advanced Concrete Systems, Ine., be dismissed. OOU9LAS, OOUGLAS & OOUGLAS By Attorney for Plaintiffs II.n <en .- = C._ ,'I, ~>J ~ " .~; ... ... . fOll .11' M'.....' 1l'1'IIAlD TO fll' ... ......IT I'''' Itl 1'0....1 ~. r,,, . O'l t 'jC,ll, .UNI" '''''''''1111' l'\..~. rll'I'4 '.I"~lr" llf.roG' nil .. <llI"....t'lI ,..., MI (l4f1nlO ";11'....' ")1) DOUGLAS DOUGLAS [. DOUGLAS _I ",:.J'P!!.' "'J l".~ WE DO H[RrBf~rRtl'f 114Af flt[ WIHUN 11 A rMUrAND COlllllcrco., 0' THI( OJlIQINAL nLEQ IN THIS AClION. .. r:Afl~t~l.r ,.t".", fL'..\/il.o. 1'1'___ UTORN[Y IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT OF PENNSYLVANIA CUMBERLAND COUNTY BRANCH EDWARD FRED DAVIS AND DEBORAH HARLIN DAVIS, HIS WIFE. : Plaintiffs NO. 94-5613 vs. CIVIL ACTION - LAW BONNIE HEIGHTS HOMES, INC. and ADVANCED CONCRETE SYSTEMS, INC. Defendants MOTION FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO PA, R. C. P. I037(c) OR IN THE AL TERNATIYE MOTION FOR JUDGMENT ON THE PLEADINGS I. Plaintiffs commenced this action by filing a Writ of Summons on September 30, 1994 naming Bonnie Heights Homes, Inc., and Advanced Concrete Systems, Inc., as Defendants. Defendant Advanced Concrete filed a Praecipe for Rule to File a Complaint on October 21, 1994. On December 5, 1994, Plaintiffs filed their Complaint Advanced Concrete filed Preliminary Objections to the Complaint on December 27, 1994, and an Amended Complaint was filed on January 12, 1995. 2. The Plaintiffs and Defendant Advanced Concrete entered into a Stipulation which was filed with this Court on June I. 1995. On June 9, 1995, Advanced Concrete served an Answer with New Matter and New Matter in the Nature of a Cross Claim against Delendant Bonnie Heights Homes, Inc, endorsed with a Notice to Plead. 3. On June 14, 1995, Plaintiffs tiled a Reply which was purportedly in response to the New Matter tiled by Advanced Concrete. However, Plaintiffs answered Paragraphs 46 through 49 which sets forth the New Matter in the Nature of a Cross-Claim against Defendant Bonnie Heights. Plaintiffs failed to reply to the New Matter directed to the Plaintiffs which was set forth in Paragraphs 37 through 45. Also, the Plaintiffs' Reply incorporates Paragraphs I through 45 of the Complaint. However, the Plaintiffs' Amended Complaint contains only Paragraphs I though 36. 4. On or about July 26, 1995, Defendant Bonnie Heights Homes, Inc. tiled an Answer to the New Matter of Defendant Advanced Concrete. However, a copy of Bonnie Heights' Answer to the Plaintiffs' Amended Complaint was never served upon Advanced Concrete. 5. In a letter dated July 6, 1995, Defendant Advanced Concrete advised the Plaintiffs that they had failed to respond to the New Matter directed to them and requested that a Reply be filed. The Plaintiffs failed to respond to this letter and have failed to file a Reply to the New Matter of Advanced Concrete. 6. The N~w Matter of Advanced Concrete was endorsed with a Notice to Defend in accordance with Pa. R.C.P. 1026(a), directing the Plaintiffs to file a response within 20 days. More than twenty days have elapsed since service of the New Matter upon the Plaintiffs. 7. Pursuant to Pa. R.C.P. 1037(c), the Plaintiffs are deemed to have admitted the avennents contained in the New Matter of Advanced Concrete. If the avennents contained in the New Matter of Advanced Concrete are deemed admitted, Plaintiffs have no cause of action against Advanced Concrete and the Plaintiffs' Complaint as against Advanced Concrete should be dismissed. 2 8. In the alternative, if the coon declines to grant the motion for entry of a default judgment, Advanced COllCrete is entilled to judgrw:nt on the pleadings pursuant to Pennsylvania Rule of Civil Procedure 1034(a). 9. The Plaintiff has failed to plead to the New Matter of Advanced Concrete thereby admitting the factual averments contained in the pleading. If the Plaintiff is deemed to have admitted said averments, there is no genuine issue of malerial fact and this coun should enter judgment in favor of Advanced Concrete and against the Plaintiff. RUDNlTSKY & H CKMAN, L.L.P. ay: MARVIN 1. A TIORNEY O. 05158 A TIORNEY FOR Advanced Concrete 9 Courtyard Offices Suite 130, Routes II & 15 Selinsgrove, P A 17870 3 IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT OF PENNSYLVANIA CUMBERLAND COUNTY BRANCH EDWARD FRED DAVIS AND DEBORAH HARLIN DAVIS, HIS WIFE, : Plainti ffs NO. 94-5613 vs. CIVIL ACTION - LAW BONNIE HEIGHTS HOMES, INC. and ADVANCED CONCRETE SYSTEMS, INC. Defendants BRIEF IN SUPPORT OF MOTION FOR ENTRY OF DEFAULT JUDGMENT OR IN THE ALTERNATIVE FOR JUDGMENT ON THE PLEADINGS I. PROCEDURAL POSTURE PlaintilTs commenced this action by filing a Writ of Summons on September 30, 1994 naming Bonnie Heights Homes, Inc., and Advanced Concrete Systems, Inc., as Defendants. Defendant Advanced Concrete filed a Praecipe for Rule to File a Complaint on October 21, 1994. On December 5, 1994, Plaintiffs filed their Complaint. Advanced Concrete filed Preliminary Objections to the Complaint on December 27, 1994, and an Amended Complaint was filed on January 12, 1995. The Plaintiffs and Defendant Advanced Concrete entered into a Stipulation which was filed with this Court on June I, 1995. Exhibit "An On June 9, 1995, Advanced Concrete As set forth in Wallingford Sleel vs. Wire and Melal Speciallie.v Corporalion, 58 Pa. D&C 2d 720 (1972), Rule 1037(c) "gives a blanket authorization to the cOurlto enter appropriate judgments against any party upon 'default' or 'admission.''' Wa//illgford Sleel, 58 Pa. D&C 2d at 722- 723 (quoting Goodrich-Amram, Section 103 7( c)-I). The New Matter of Advanced Concrete was endorsed with a Notice to Defend in accordance with Pa. R.C.P. 1026(a), directing the Plaintiffs to file a response within 20 days. More than three months have elapsed since service of the New Matter upor. the Plaintiffs and no reply has been filed. Therefore, pursuant to Rule 1037(c), the Plaintiffs are deemed to have admitted the avennents contained in the New Matter of Advanced Concrete and judgment should be entered in favor of Advanced Concrete and against the Plaintiffs. Gotwall V.I'. Dellinger, 395 Pa. Super. 439, 571 A.2d623 (1990). The New Matter filed by Advanced Concrete contains the following allegations: 38. Answering Defendant entered into a Sales Contract with Defendant Bonnie Heights Homes, Inc. for the sale of basement walls. 39. Answering Defendant did not install the basement in question. 40. The direct and proximate causes of water in the Plaintiffs' basement are flooring, excavation, drainage and landscaping problems. 41. Answering Defendant did not perform the flooring, excavating, drainage and landscaping involved in the installation of the said basement. 42. The damages alleged in Plaintiffs' Amended Complaint relate to items which were solely the responsibility of Defendant Bonnie Heights Homes, Inc. and/or of their parties over whom Answering Defendant had no control and were of no responsibility of the Answering Defendant. 3 43. The Plaintift's admit, in the aforesaid Stipulation, that their allegations regarding a water-tight basement arc based upon the ~Ieged oral representations of DcfendiUlt Bonnie Heights Homes, Inc. 44. DefendiUlt Bonnie Heights Homes, Inc. is not an agent of Advanced Concrete Systems, Inc. 4S. Plaintiffs have failed to state a claim against Defendant AdviUlced Concrete Systems, Inc. upon which relief may be griUlted. Exhibit "B", Answer iUld New Matter of Advanced Concrete, Paragraphs 38 - 45. "[ B ]efore the court can enter a judgment, it is compelled to examine all of the pleadings iUld ascertain if. .. [the Plaintiffs] halve) admitted the claim of [AdviUlced Concrete] in its pleadings either affirmatively or by failure to respond when the rules require a response." Wallingford, at 723. Counts 11 and 111 of Plaintiffs' Amended Complaint allege breach of contract and negligence against Advanced Concrete based upon its installation of the basement in question. AdviUlced Concrete has denied that it installed the basement. Exhibit "B", Paragraph 39. Plaintiffs' Amended Complaint also asserts a strict liability claim alleging that the pre-fabricated basement is defective. Plaintiffs' Amended Complaint, Count IV. Advanced Concrete has averred that the causes of water in PlaintitTs' basement are the result of flooring, excavation, drainage and liUldscaping problems. Exhibit "B", Paragraph 40. AdviUlced Concrete was not involved in the flooring, excavating, drainage or liUldscaping perfonned in relation to said basement. Exhibit "B", Paragraph 4 1. Count V of Plaintiffs' Amended Complaint, breach of a warranty claim, is addressed in the Stipulation filed on June I, 1995. Exhibit "A", Plaintiffs have admitted that Count V asserts breach ofiUI implied warranty rather than an express warriUlty. Exhibit "A", Paragraph 3. Further, 4 Plaintiff~ admit that the allegations regarding a water-tight basement are based upon oral representations allegedly made by Defendant Bonnie Heights Homes, Inc. Exhibit "An, Paragraph I. A review of the pleadings indicate that if the above averments are deemed admitted, Plaintiffs have no cause of action against Advanced Concrete and the Plaintiffs' Complaint as against Advanced Concrete should be dismissed. III. IN THE ALTERNATIVE, IF THE COURT DENIES THE MOTION FOR ENTRY OF DEFAULT JUDGMENT, JUDGMENT SHOULD BE ENTERED ON THE PLEADINGS IN FAVOR OF DEFENDANT ADVANCED CONCRETE AND AGAINST THE PLAINTIFF Pennsylvania Rule of Civil Procedure I034(a) provides: After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings. Pa. n.C.P. 1034(a). A motion for judgment on the pleadings should be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. American Motorists Insurance Co. VS. Fanner's Bank and Trust Company of Hanover, 435 Pa. Super. 54, 644 A.2d 1232 (1994). The court must accept as true all well-pleaded facts of the non-moving party and must consider against the non-moving party only those facts which he specifically admits. Jones v. Travelers Insurance Company, 356 Pa. Super. 213, 217, 514 A.2d 576, 578 (1986). In conducting its inquiry, the court should confine itself to the pleadings themselves and any documents or exhibits properly attached thereto. Id. s As discussed fully, supra, Advanced Concrete has denied the factual averments alleged against it in Plaintiffs' Amended Complaint and the Plaintiff has stipulated to other factual iS3\:es thereby relieving Advanced Concrete of liability on these issues. The Plaintiffs have failed to plead to the New Matter of Advanced Concrete thereby admitting the factual averments contained in the pleading. If the Plaintiffis deemed to have admitted said averments, there is no genuine issue of material fact and no cause of action against Advanced Concrete exists. Based upon the Plaintiffs Complaint, the Answer of Advanced Concrete with New Malter and the Stipulation between the Plaintiff and Advanced Concrete, this court should enter judgment in favor of Advanced Concrete and against the Plaintiff. WHEREFORE, Defendant Advanced Concrete requests judgment be entered in its favor and against the Plaintiffs. BY: MARVIN J. NITSKY, ATTORNEY NO. 05158 ATTORNEY FOR DEFENDANT ADVANCED CONCRETE SYSTEMS, INC. 9 Courtyard Offices Suite 130, Routes II & 15 Selinsgrove, P A 17870 (717) 743-2333 u;ladvCOIlcrldavlsl \motion.der 6 '.'q.," 1m D::\",'- -L ~\H\ ~ fc,151'f'~ IN TIlE COURT OF COMMON PLEAS OF TIlE 9TIlJUDIClAL DISTRICT OF PENNSYLVANIA CUMBERLAND COUNTY BRANCH EDWARD FRED DAVIS AND DEBORAH HARLIN DAVIS, IDS WIFE, Plaintiffs NO_ 94-5613 vs. CIVIL ACTION. LAW l:: .. BONNIE HEIOmS HOMES, INC. and ADVANCED CONCRETE SYSTEMS, INC. N '" ... -0 ::c Defendants . - .,- . ~ V1 STIPULATION The Plaintiffs, Edward Fred Davis and Deborah Harlin Davis, and Defendant, Advanced Concrete Systems, Inc., agree, for all purposes of this action, that the following factual avennents and legal conclusions are true and correct: 1. The Plaintiffs' allegations regarding a water tight basement are not based upon a writing but upon alleged oral representations by Bonnie Heights Homes, Inc. 2. The Plaintiffs withdraw all allegations, claims, and requests for attomey fees in coMection with this action. 3. Count V of Plaintiffs' Complaint is based upon an alh:ged implied warranty under the Unifonn Commercial Code. Plaintiffs do not set forth a cause of action based upon an express Exhibit "A" wamnty by Advanced Concrete Systems, Inc. 10 Plaintiffs, and Count V is withdrawn to the extent that any such express warranty is alleged. 4. That the Defendant, Advanced Concrete Systems, Inc., ahall have twenty (20) days from I.he fi1ing hereof to file its response to the Amended Complaint. RUDNlTSKY & HACKMAN Marvin J. 'lsky, E Attomey for Defend Advanced Concrete Systems, Inc. BY: Date: Ma~ 1995 u:\advconcr\davis.sti 2 IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT OF PENNSYL V ANlA CUMBERLAND COUNTY BRANCH Plaintiffs NO. 94-5613 ~<O)~~ EDWARD FRED DAVIS AND DEBORAH HARLIN DAVIS, illS WIFE, vs. CIVIL ACTION. LAW BONNIE HEIGHfS HOMES, INC. and ADVANCED CONCRETE SYSTEMS, INC. .....,... :::- , a: NOTICE -.. ~;~,;r ~~~>~t-:; ~ <l;~1 .-'" W Cl'1 ..." ::c ... Defendants TO: Edward F. Davis and Deborah H. Davis c/o Wtlliam Douglas, Esquire "", ,:"..., ..:~..:; .;.c. .;:.~ j,";r."'.'l . I =i ~: ... -( u; .." Bonnie Heights Homes, Inc. c/o RolfE. Kroll, Esquire You are hereby notified to lile a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. BY: MARVIN J ATTORNE NO. 05 8 ATTORNEY FOR EFENDANT ADV ANCEDC CRETE SYSTEMS,INC. 9 Courtyard Offices Suite 130, Routes 11 & 15 Selinsgrove, PA 17870 (717) 743-2333 Exhibit "B" IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT OF PENNSYLVANIA CUMBERLAND COUNTY BRANCH EDWARD FRED DAVIS AND DEBORAH HARLIN DAVIS, IDS WIFE, Plaintiffs NO. 94-5613 vs. CIVIL ACTION - LAW BONNIE HEIGHTS HOMES, INC. and ADVANCED CONCRETE SYSTEMS, INC. Defendants ANSWER WITH NEW MATTER OF DEFENDANT ADVANCED CONCRETE SYSTEMS, INC. 1. Admitted. 2. Admitted. 3. Denied in part; Admitted in part. Answering Defendant admits the averments of this Paragraph with the exception of its mailing address. Answering Defendant's correct addresalJ R.D. 2, Box I47-A, Middleburg, Pennsylvania. 4. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of this averment. Hence, said averment It deemed denied. t 5. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of this averment Hence. said averment is deemed denied. 6. Admitted in part and denied in part. Answering Defendant admits only that it entered into a Sales Contract with defendant Bonnie Heights Homes for the sale of basement walls. Answering Defendant specifically denies that it performed the "basement installation". Answering Defendant did not perform the flooring. excavating, drainage and landscaping involved in the installation of the said basement. 7. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of this averment. Hence. said averment is deemed denied. 8. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of this averment Hence, said averment is deemed denied. 9. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of this averment. Hence, said averment is deemed denied. 10. Denied. Answering Defendant incorporates by reference the Stipulation between counsel for Plaintiffs and Answering Defendant filed on June I, 1995 in which Plaintiffs admit that their allegations regarding a water-tight basement are based upon alleged oral representations by Bonnie Heights Homes, Inc. Answering Defendant incorporates by reference the Stip'Jiation between 2 counsel for Plaintiffs illld Answering Defendant filed on June I, 1995. By way of further answer, after reasonable investigation, Answering Defendant is without sufficient knowledge or infonnation to form a belief as \0 the truth of this averment. Hence, said averment is deemed denied. COUNT I DA VIS V, BONNIE HEIGHTS nOMES. INC, . BREACH OF CONTRACf 11. Answering Defendant incorporates by reference its responses to Paragraphs I through 10 inclusive of Plaintiffs' Complaint as if fully set forth at length herein. 12. _ 14. Said averments are addressed to a :Iefendant other than Answering Defendant and, therefore, no response is required under the Pennsylvania Rules of Civil Procedure. COUNT n DA VIS V, ADVANCED CONCRETE SYSTEMS, INC. . BREACH OF CONTRACf IS. Answering Defendant incorporates by reference its responses to Paragraphs I through 14 inclusive of Plaintiffs' Complaint as if fully set forth at length herein. 16. Denied. To the contrary, Answering Defendant did not install the basement. Answering Defendant did not perform the flooring, excavating, drainage and landscaping involved in the installation of the aforesaid basement. 17. Admitted in part and denied in part. Answering Defendant admits that it was a subcontractor of the Defendant Bonnie Heights Homes, Inc. and entered into a sales contract with Defendant Bonnie Heights, Homes, Inc. for the sale of basement walls. Answering Defendant specifically denies that it performed the "basement installation". Answering Defendant did not perform the flooring, excavating, drainage and landscaping involved in the installation of the said 3 basement. The averments that Plaintiffs were the beneficiaries of the sales .;ontract is a conclusion of law to which no response is required under the pennsylvania Rules of Civil Procedure; hence, strict proof thereof is demanded at trial. 18. Denied. Answering Defendant incorporates by reference the Stipulation between counsel for Plaintiffs and Answering Defendant filed on June I, 1995 in which Plaintiffs admit that their allegations regarding a water-tight basement are based upon alleged oral representations by Bonnie Heights Homes, Inc. By way of further answer, Answering Defendant denies that it owed any duty to Plaintiffs. To the extent that any such duty was owed to the Plaintiffs, Answering Defendant denies that it breached this duty. 19. Said avennent is denied as a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure; hence, strict proof thereof is demanded at trial. To the extent that an answer is required, Answering Defendant denies that Plaintiffs suffered financial loss and/or experienced aggravation and inconvenience as a result of any conduct on the part of Answering Defendant and strict proof thereof is demanded at trial. COUNT ill DAVIS V. BONNIE HEIGHTS HOMES, INC., AND ADVANCED CONCRETE SYSTEMS, INC. - NEGLIGENCE 20. Answering Defendant incorporates by reference its responses to Paragraphs I through 19 inclusive of Plaintiffs' Complaint as if fully set forth at length herein. 21. Said averment is a conclusion of law to which II!) response is required under the Pennsylvania Rules ofCivU Procedure; hence, strict proof thereofis demanded at trial. To the extent that an answer is required, Answering Defendant specifically denies that it installed the basement in 4 question. Answering Defendant admits only that it entered into a Sales Contract for the sale of basement walls to defendant Bonnie Heights Homes. 22. Said avennent is a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure; hence, strict proof thereof is demanded at trial. By way of further answer, Answering Defendant incorporates its response to Paragraph 21 as if fully set forth at length herein. By way of further answer, Answering Defendant specifically denies that Plaintiffs suffered tinancialloss and experienced aggravation and inconvenience as a result of any conduct on the part of the Answering Defendant. COUNT IV DAVIS V, BONNIE HEIGHTS nOMES, INC. AND ADVANCED CONCRETE SYSTEMS, INC, - RESTATEMENT OF TORTS 2ND, 402(A) 23. Answering Defendant incorporates by reference its responses to Paragraphs I through 22 inclusive of PI~jntiffs' Complaint as if fully set forth at length herein. 24. Answering Defendant admits that at all times relevant hereto it was engaged in the business of designing, manufacturing and supplying and selling pre-fabricated basements. 25. Admitted in part; denied in part. Answering Defendant admits only that it designed, manufactured and sold the pre-fabricated basement walls at issue to Defendant Bonnie Heights Homes, Inc. 26. Denied. To the contrary, the pre-fabricated basement was designed and manufactured in the proper and professional manner, presented no risk of harm to the user, and was properly marketed. By way of further answer, Answering Defendant denies that the pre-fabricated basement would be unreasonably dangerous to the user of the product even if it was found to be defective in design, manufacture or was improperly marketed. s 27. Denied. To the contrary, the basement walls would be practically useless to the p1aintift'until Bonnie Heights Homes, Inc. prepared and installed the foundation, floor !lid drainage system. 28. Denied. To the contrary, the basement walls would be practically useless to the p1aintift'unti1 Bonnie Heights Homes, Inc. prepared and installed the foundation, floor and drainage system. 29. Denied. To the contrary, the pre-fabricated basement was designed and manufactured in the proper and professional manner and Answering Defendant had no knowledge of any alleged design or manufacturing defects. 30. Denied. Answering Defendant incorporates by reference the answer set forth in Pvagraph 29. By way of further answer, no warnings were called for because no defect existed in the pre-fabricated basement. 31. Denied. Answering Defendant incorporates by reference its response set forth in Paragraph 29 as if fully set forth at length herein. By way of further answer, Answering Defendant specifically denies that any defect in the pre-fabricated basement caused water to enter the Plaintiffs' basement. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form a belief as to the truth of the averment that Plaintiffs' personal property was damaged or destroyed and demands strict proof thereof at trial. 32. Answering Defendant incorporates by reference its response to Paragraph 31 as if set forth fully at length herein. 6 COUNT V DAVIS V BONNIE HEIGHTS HOMES, INC. AND ADVANCED CONCRETE SYSTEMS, INC, - WARRANTY 33. Answering Defendant incorporates by reference its responses to Paragraphs 1 through 32 inclusive of Plaintiffs' Complaint as if fully set forth at length herein. 34. Answering Defendant incorporates by reference the Stipulation between counsel for Plaintiffs and Answering Defendant liled on June I, 1995 in which Plaintiffs withdraw the averments of Count V as they relate to any alleged express warranty by Answering Defendant. In the aforesaid Stipulation, Plaintiffs also admit that the allegations regarding a water-tight basement are based upon alleged oral representations by Defendant Bonnie Heights Homes, Inc. 35. Denied. To the contrary, the pre-fabricated base,nent was lit for its intended use when it left the control of Answering Defendant. 36. Denied. Answering Defendant incorporates by reference its response in Paragraph 35 as if fully set forth at length herein. By way of further answer, Answering Defendant fulfilled any implied warranty. After reasonable investigation, Answering defendant is without sufficient knowledge or information to fonn a belief as to the truth of the averment that the Plaintiffs suffered injuries and strict proof thereofis demanded at trial. NEW MATTER 37. Answering Defendant incorporates by reference its responses to Paragraphs 1 through 36 of Plaintiffs' Amended Complaint and the Stipulation between counsel for Plaintiffs and Answering Defendants tiled on June I, 1995 as if fully set forth at length herein. 7 38. Answering Defendant entered into a Sales Contract with Defendant Bonnie Heights Homes, Inc. for the sale of basement walls. 39. Answering Defendant did not installlhe basement in question. 40. The direct and proximate causes of waler in the Plaintitl's' basement are flooring, excavation, drainage and landscaping problems. 41. Answering Defendant did not perform the flooring, excavating, drainage and landscaping involved in the installation of the said basement 42. The damages alleged in PlaintiftS' Amended Complaint relate to items which were solely the responsibility of Defendant Bonnie Heights Homes, Inc. and/or of third parties over whom Answering Defendant had no control and were of no responsibility of the Answering Defendant 43. The Plaintiffs admit, in the aforesaid Stipulation, that their allegations regarding a water-tight basement are based upon the alleged oral representations of Defendant Bonnie Heights Homes, Inc. 44. Defendant Bonnie Heights Homes, Inc. is not an agent of Advanced Concrete Systems, Inc. 45. Plaintitrs have failed to state a claim against Defendant Advanced Concrete Systems, Inc. upon which relief may be granted. WHEREFORE, Defendant Advanced Concrete Systems, Inc. requests that Plaintiffs' Amended Complaint against Defendant Advanced Concrete Systems, Inc. be dismissed and judgment be entered in its favor. 8 cause of action set forth in Plaintiffs' Amended Complaint, all liability on the part of Defendant Advanced Concrete Systems, Inc. being specifically denied. RUDNITS ~~ MARVIN NITSK . SQUIRE ATTORNEY NO. OS ATTORNEY FO EFENDANT, ADVANCED CONCRETE SYSTEMS, INC. 9 Courtyard Offices Suite 130, Routes 11 & IS Selinsgrove, PA 17870 (717) 743-2333 Date: June 9, 1995 u:\advconcr\davis.ans 10 ~Q)~~ VERIFICATION LARRY L YARGER, President of Advanced Concrete Systems, Inc., states that Advanced Concrete Systems, Inc. is one of the Defendants in the above-referenced action and the facts set forth in the foregoing pleadings are trUe and correct to the best of his knowledge, information and belief. This statement is made subject to the penalties ot' 18 Pa. C.SA Section 4904, relating to unswom falsification to authorities. .if ~a.-?~ L. CERTmCA TE OF SERVICE I, MARVIN] RUDNlTSKY, ESQUIRE, hereby certifY that I served a true and correct copy of the Answer with New Matter of Defendant Advanced Concrete Systems, IDe. upon the persons named below by placing same in the United Slates Mail, First Class, Postage Prepaid, this .21h. day of June, 1995. William Douglas, Esquire Douglas, Douglas & Douglas 27 East High Street P.O. BOlt 261 Carlisle, PA 17013-0261 RolfE. Kroll, Esquire 101 Pine Street P.O. Bolt 932 Harrisburg, P A 17108 BY: MAR . R NITS ATTORNEY NO. 0 8 ATTORNEY FO DEFENDANT ADVANCED CONCRETE SYSTEMS, INC. 9 Courtyard Offices Suite 130, Routes 11 & 15 Selinsgrove, PA 17870 (717) 743-2333 Rudnilsky &Hackman 9 Courty.,d Ofiicel, Suitt: l.tO. P.ou(u II. IJ ~lin'lJrove. P\enn.ylvani. 1781!l Telt'phone j717} 14J.1H\ ABA Nel'RUDNITSKYM Inl.rMt RudnitUOcJ..w;laln..~u,edu AnOf'n.,.. .t Uw PAX 1111) 1<H:W1 July 6, 1995 William P. Douglas, Esquire 27 W. High Street P.O. Box 261 Carlisle, PA 17013-0261 Re: Davis VI. BODDie Heights Homell, Iae:. aad Advane:ed Concrete Systems, Ine:. (Cumberland County) Dear Bill: On June 14, 1995, we received your Reply to New Matter. It appears that you inadvertently replied to the New Matter addressed to Defendant Bonnie Heights Homes and failed to respond to the New Matter directed to the Plaintiff. Therefore, we request that you file a response to the new matter addressed to the Plaintiff. Please do so immediately as it has been more than 20 days since our Answer with New Matter was served upon you. Very truly yours, RUDNITSKY & HACKMAN BY: MARVIN J. RUDNITSKY :f '" larTy Villi'" Presldenl u:advconcr\ldoualu,706. Exhibit "e" ~ - ,"r J.._ .< - ~ .... :=: c;""') - u: . L~ ~ " .:..,-,'...,. .' " -:r .- ... c:::> 'i m.. ~~ o.,~ '" u Z.... :=s 0'" i>l ~':l~~ 8;::l~... u>.. l:;~>l?i", ~r.no..... ~,..,~u..o ~ Cl '" O~o.,~, U", !'o <t tu~O 0\ f.5~ Ul Z~ ~o ~O UZ - .. .... '" :. - , '1:lU <I:Z: "'.... t ~ tl /:l 11Io o '1:l . <1m ...... > m< ....'" > <:z: "'.... ~~ !'o ~~ "'~ !i3~ '" .... '" .d .... .... .... ... <l .... .. ... 0., urn ~ i5 ~ .. ....U !:j", Ul UlU ....~ ~> ~~ ~ ~ !!! ~ a J j ~ 0- = ~ ~ il ~ ~ ~ i!i ~ ~ 0- ~~~~~g ~a~> 6~ ~<~l "" o:l .. " i .. , DOUGLAS. DOUGLAS,.,. DOUGLAS 17 W. HIGH ST. P08 161 CAJlLlSL& PA 110lJ TELEPHONE 111,143.1190 x WILUAM P DOUGLAS. ESQ. Supnoma Cuurt I.D,~ 31926 GEORGE p, DOUGLAS. ill. ESQ. SUpnlma Court I.D.~ 6US6 EDWARD FRED DAVIS and DEBORAH HARLIN DAVIS, his wife, IN THE COURT Of COf.MJN PLEAs Of ClM3ERI.ANO COUNTY PENNSYLVANIA PLAINTIFF 1994 . ';Iii J CIVIL TEAM \S BONNIE HEIGHTS HOMES, INC., and ADVANCED CONCRETE SYSTEMS, INC., CIVIL ACTION LAW DEfENOANT To: Lawrence E. Welker, Prothonotary f.RA.EOfE. Please mark the docket in this case settled and discontinued with prejudice. Date: August 30, 1996 by Attorney for the Plaint!. s >,: \D - 0, ('"; ., <~ !-c- (': ~:~ UJ~: .~-'-" ( ) ,,:~ -... 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