HomeMy WebLinkAbout94-06984
In fact, Defendant Smith did assist Delcndant Webb in conducting a minor bathroom
renovation, which renovations were conducted at a property owned by the Plaintiffs. Subsequent to
completion of the bathroom renovation, Defendant Webb inlormed Defendant Smith that the Plaintiffs
wished to conduct more extensive renovations to their property. Knowing that Defendant Smith had
still not secured liJlltime employment, Delcndant Webb inquired whether Mr. Smith may wish to
continue in assisting Defendant Webb in such renovations, with payment for services rendered by
Defendant Smith to be made on the basis of time expendl.-d by Defendant Smith.
Defendant Smith began working at the Plaintiffs' property located at 5699 Creekview Road,
Mechanicsburg, Cumberland County, Pennsylvania, assisting Defendant Mark Webb in various
aspects of the work. In addition, Defendant Mark Webb also enlisted the services of David Weber, to
provide further assistance and manpower in conducting renovations at the Plaintiffs' property. On
several occasions, Defendant Mark Webb requested that Defendant Smith assist him in making
proposals to the Plaintiffs for the renovations and subsequent modilications. After receiving the from
Defendant Webb the inlonnation necessary to prepare the requested proposal, Defendant Smith, with
the assistance of his wife, Mrs. Smith, prepared a computer generated draft proposal in very large print
to cater to the vision deficit of Plaintiff Rudolph E. Butler. In actually printing the draft proposal,
Defendant Smith's spouse chose to accent the document by placing a heading at the beginning. The
heading which Mrs. Smith chose and placed on the top of the draft proposal was that of"W
Contracting," a name which did not represent an actual business, but rather was a name which
Defendant Smith and his spouse has once discussed using in the event that Defendant Smith may in
the future decide establish his own business.
Defendant Smith continued to assist Defendant Mark Web with the subject renovation project
at the Plaintiffs' property. During the summer of 1994, Defendant Mark Webb began to spend
increasingly less time at the renovation property, leaving Defendant Smith and David Weber to
continue working without the supervision and direction of Delcndant Mark Webb. Eventually,
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3. STATEMENT OF PRINCIPAL ISSUE REGARDING LIABILITY AND DAMAGES
Plaintiffs contend that they contracted with all three
Defendants equally for the work on their property and all
Defendants worked on the project and sha~ed in the proceeds
therefrom. Defendant William smith contends, however, that he
was merely a subcontractor for Defendants Webb and did not
contract directly with Plaintiffs.
4. SUMMARY OF LEGAL ISSUE REGARDING ADMISSIBILITY OF TESTIMONY
AND EXHIBITS
None
5. IDENTITY OF WITNESSES
a. Plaintiffs will testify as to their dealings with all
Defendants, the oral and written contracts they entered into with
them, the sort of work to be done by Defendants and how that work
was actually performed which resulted in additional cost to
Plaintiffs.
b. Plaintiffs' daughter, Heather, will testify as to her
observations of the work done by all Defendants and the problems
related thereto.
c. Mr. Irwin, the contractor who subsequently remediated
the damage done to the subject premises by Defendants and
finished the job that Defendants initially contracted to do, will
testify as to what he observed of the Defendants' work product
and what he had to do to make the job complete, correct and
workmanlike.
6. LIST OF EXHIBITS
Plaintiffs' l. Photographs of the work site taken
during and after the project to show what work was done by
Defendants and whether it was done correctly or incorrectly.
Plaintiffs' 2. Contract/paperwork memorializing the
understanding between Plaintiffs and Defendants and dealing with
the work Defendants would perform for Plaintiffs and the cost
thereof.
Plaintiffs' 3. Plaintiffs' checks relating to material
purchased or monies paid by Plaintiffs to Defendants for work
done by them.
Plaintiffs' 4. Evaluation by Irwin Associates, Inc. of
Defendants work done on Plaintiffs' premises.
Plaintiffs' 5. List of work done on Plaintiffs'
premises by Irwin Associates, Inc. to remediate the result of
Defendants work and to complete job Dsfendants had agreed upon
with Plaintiffs.
Plaintiffs' 6. Check of Plaintiffs paid to Irwin
Associates, Inc.
7. STATUS OF SETTLEMENT NEGOTIATIONS
Plaintiffs successfully obtained a judgment against all
three Defendants. Defendant Smith alone appealed and Plaintiffs
agreed to release him from liability in return for a payment of
$2,000 and the withdraw of his appeal and reinstatement of
judgment against Defendants Webb. Unfortunately, after
4. Admitted in part and denied in part. To the best of defendant Smith's knowledge
and belief, the allegations contained in paragraph four (4) pertaining to the plaintiff's ownership of
the subject property is true and therefore is admitted, It is specifically denied that defendant
Smith was in any way in any business venture together with defendants Webb pertaining to
renovating and remodeling buildings, By way of further answer, at all times relevant to this
lawsuit, defendant Smith was acting as an independent subcontractor for the general contractor,
defendants, Webb.
5. Denied, It is specifically denied that defendant Smith ever entered into any
contract, oral or otherwise, with the plaintiffs and the unsigned contract attached to the Amended
Complaint as Exhibit" A" represents any such agreement between plaintiffs and defendant Smith.
By way of further answer, the remaining averments of paragraph five (5) are conclusions of law to
which no responsive pleading is required.
6. Denied. It is specifically denied that defendant Smith entered into any contract
with the plaintiffs, oral or otherwise, and it is further denied that the document attached to the
Amended Complaint as Exhibit "B" represents a contract between defendant Smith and the
plaintiffs, By way of further answer, the remaining averments of paragraph six (6) are conclusions
oflaw to which no responsive pleading is required.
7. After a reasonable investigation, defendant Smith is without knowledge or
information sufficient to form a beliefas to the truth of the averment of this paragraph and
therefore the averment is denied and proof thereofis demanded at trial.
RUDOLPH E. BUTLER and
LINDA T. BUTLER,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
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94-
CIVIL TERM
HARK WEBB and
PATRICIA HENRY WEBB and
WILLIAM SMITH t/d/b/a
W CONTRACTING
Dsfendants
CIVIL ACTION - LAW
COMPLAINT
AND'NOW comes Plaintiffs Rudoloph E. Butler and Linda
T. Butler by thsir attorney, Herschel Lock, and file their
Complaint as followe, to wit:
l. Plaintiffs Rudoloph E. Butler and Linda T. Butler,
husband and wife, are adult individuals residing at 3610
Cloverfield Road, Harrisburg, Dauphin County, Pennsylvania.
2. Defendant Mark Webb and Patricia Henry Webb, husband
wife, are adult individuals residing at 2469 Adrian Street,
Harrisburg, Dauphin County, Pennsylvania.
3. Defendant William C. Smith t/d/b/a W Contracting, is an
adult individual residing at c/o 2469 Adrian Street, Harrisburg,
Dauphin County, Pennsylvania.
4. At all times relevant hereto, Plaintiffs were the
owners of the property known and numbered as 5699 Creekview Road,
Mechanicsburg, Cumberland County, Pennsylvania while Defendants
were engaged in various aspects of the business of renovating and
remodeling buildings.
5. On or about May l8, 1994, Plaintiffs entered into an
oral contract with Defendants for the repair and rehabilitation
of their aforesaid property wherein Defendants agree to make
repairs and improvements to it, this as evidenced by an unsigned
written contact, and in return for payment by Plaintiffs to them
of Sseven Thousand Five Hundred ($7,500.00) Dollars (See Exhibit
"A" attached hereto).
6. Additiunally, on or about June l7, 1994, Plaintiffs
entered into another oral contact with Defendants for additional
repair and rehabilitation work to their property, this as
evidenced by another unsigned written contract, and in return for
payment by Plaintiffs to them of an additional Two Thousand Eight
Hundred Fifty ($2,S50.00) DollarD (See Exhibit "B" attached
hereto) .
7. Defendants subsequently began to work on the subject
property but, due to reasons unknown and inexplicable to
Plaintiffs and despite payment by Plaintiffs to Defendants of
Eight Thousand Two Hundred Thirty-six Dollars and Twenty-seven
Cents ($S,236.27) and repsated requests by Plaintiffs to them,
that they do the work contracted for, Defendants have breached
their contract with Plaintiffs by failing to complete their work
and to do corrsctly that work done.
8. As a result of Defendants' breach of their contract
with Plaintiffs, Plaintiffs have been forced to seek an
additional quote to have the contracted for work both redone
correctly and completed and believe and therefore aver that the
cost of their having the project correctly completed shall be
Seven Thousand Ninety-three ($7,093.00) Dollars. (See Exhibit ..
.. attached hereto).
COUNT I - BREACH OF CONTRACT
9. The averments of Paragraphs 1 through S hereof are
incorporated herein by reference thereto and made a part hereof
as if more fully set forth.
10. Due to Defendants' failure to perform their duties as
contracted for, Plaintiffs shall be forced to spend Seven
Thousand Ninety-three ($7,932.00) Dollars to have such work done
correctly and completely.
WHEREFORE Plaintiffs pray your Honorable Court to enter
judgment in their favor and against Defendant in the amount of
Seven Thousand Ninety-three ($7,093.00) Dollars.
COUNT II - UNJUST ENRICHMENT
1l. The averments of Paragraphs 1 through 10 hereof are
incorporated herein by referenced thereto and made a part hereof
as if more fully set forth.
12. Plaintiffs paid and enriched Defendants a total of
Sixteen Thousand One Hundred Eighty Dollars and Twenty-eight
Cents ($l6,lSO.2S) for work that they contracted for, said work
neither done correctly or completely.
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W CONTRACTING
732-4264
Job Site:
Rudolph Butler
5699 Creekvlew Road
Mechanicsburg, PA 17055
652-4389 - 731-9204
Job Descript: Install new loft room
above living room area. (Approx. 10' x
10'). Ceiling above living room to be
opened up and taken up to peak of roof.
Skylight and ceiling fan installed to ceil-
ing. Ceiling finished with 1 x 12 pine
boards and stained. Loft will be finished
with drop ceiling and paneled wall and
pine board floors. Open side of loft will
have a banister across it. One window
will be installed in loft (facing creek side).
Install new shingles over kitchen part of
roof.
Living roorn: Install new paneling and
insulation outer walls. Steps or ladder to
EXHIBIT "A"
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Mr. and(or Mrs. Mark We
2469 Adrian Street
Harrisburg, PA 17104
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Domestic Return Receipt
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W CONTRACTING
732-4264
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Job Site: Rudolph Butler
5699 Creekvlew Road
Mechanicsburg, PA 17055
652-4389 - 731-9204
Job Descript: Install new loft room
above living room area. (Approx. 10' x
10'). Ceiling above living room to be
opened up and taken up to peak of roof.
Skylight and ceiling fan installed to ceil-
ing. Ceiling finished with 1 x 12 pine
boards and stained. Loft will be finished
with drop ceiling and paneled wall and
pine board floors. Open side of loft will
have a banister across it. One window
will be installed in loft (facing creek side).
Install new shingles over kitchen part of
roof.
Living roorn: Install new paneling and
insulation outer walls. Steps or ladder to
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EXHIE-!T "BU
RUDOLPH E. BUTLER and
LINDA T. BUTLER,
Plaintiffs
IN TIlE COURT OF COllMON PLiAS OF
CUHBERL;,ND COUNTY, PENNSYLVANlA
NO. 6984
CIVIL
19 94
VS.
MARK WEBB and PATRICIA HENRY WEBB,
his wife and WILLIAM SMITH t/d/b/a
W CONTRACTING,
Defendants
RULE 1J12-l. The Petiti~n for Appointment of Arbitrators shall be substant~ally
in the following form:
!'~TI';'ION FOR APPOWTI1ENT OF ARBITRATORS
"
TO THE HONORABLE, THE JUDGES OF SAID COURT:
Herschel Lock
, counsel for the plaintiff/dtif.K~ in
the above action (lOll ~J11lscl , respectfully represents that:
1. The above-captioned action (~:n~) is (lllI~J at issue.
2. The claim of the plaintiff in the action is S
The counterclai.J:l of the defendant in the action is -0-
The following attorneys are ~nterested in the case(s) as counselor are other-
"ille disqualified to sit as arbit1'8tors: James D. Hughes for william Smith
t/d/b/aW Contracting, Defendants Mark Webb and patricia Henry Webb
unpresented
WHEREFORE, your petitioner prays your Honorable Court to appoint three (3)
arbitrators to "hom the case shall be submitted.
Respectfully submitted,
Herschel Lock, Attorney
Plaintiffs
ORD~R OF COURT 3107 N. Front Street
./ Harrisburg, PA l7l10
AND NOW, J;.AJUA/L..'1 I~ ,191.1...., in consideration of the
foregoing petition, ~ ~Ah','..1 . Esq.,f~J,J lit=',' f,
Esq., and m/cM~L ilAAIf'-f ,ESq:' are appointed arbitrators :n
above-captioned action (or actions) as prayed for.
for
the
By the/Court, ,.J/'J"J7
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P. J.
RUDOLPH E. BUTLER and LINDA
T, BUTLER,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
.
.
v.
NO. 94 - 6984 CIVIL TERM
MARK WEBB and PATRICIA HENRY
WEBB and WILLIAM SMITH,
t/d/b/a W CONTRACTING,
Defendants
CIVIL ACTION - LAW
ANSWER WITH NEW MATTER AND CROSS-CLAIM
AND NOW, come Defendants, Mark Webb and patricia Henry Webb,
and file the following response to plaintiff's Complaint:
1. Admitted upon information and belief.
2. Admitted.
3. Admitted upon information and belief.
4. Admitted upon information and belief except as to
Defendant, Patricia Henry Webb, who is a school teacher and not in
the business of renovation and remodelling.
5.
Denied.
It is specifically denied that the unsigned
contract attached to the Complaint as Exhibit "A" represents a
contract among the parties. By way of further answer, plaintiffs
and Defendant, Mark Webb, did enter into an oral contract or
contracts pursuant to which plaintiffs sought estimates for repairs
and repairs and renovations were performed by Defendants for
various agreed upon prices. It is denied that Defendant, Patricia
Henry Webb, ever contracted with Plaintiffs.
6.
Denied.
It is specifically denied that the document
attached as Exhibit "B" represents a contract between the parties.
By way of further answer, the parties made various oral agreements
which were constantly negotiated and modified during the course of
the contract. It is denied that Defendant, Patricia Henry Webb,
ever contracted with Plaintiffs.
7. Denied. It is specifically denied that Defendants have
failed to do their portion of the work correctly. It is further
specifically denied that Plaintiffs have not received the value for
the monies that they have already paid.
8. Denied. After reasonable investigation, Defendants are
without information to form a belief as to the truth or falsity of
the averments in this paragraph, and proof thereof, if material, is
demanded at the time of trial.
COUNT I - BREACH OF CONTRACT
9. The answers to the averments of paragraphs 1 through S
are incorporated hereby as if set forth fully and at length.
10. Denied. After reasonable investigation, ~efendants are
without information to form a belief as to the truth or falsity of
the averments in this paragraph, and proof thereof, if material, is
demanded at the time of trial.
WHEREFORE, Defendants respectfully request this Honorable
Court to enter judgment in their favor and against plaintiffs, and
dismiss Plaintiff's Complaint with prejudice.
COUNT II - UNJUST ENRICHMENT
11. The answers to the averments of paragraphs 1 through 10
are incorporated hereby as if set forth fully and at length.
12. Denied. It is specifically denied that Plaintiffs paid
this amount to Defendants. Further, it is specifically denied that
Defendants have not done their work correctly or completely.
WHBREFORE, Defendants respectfully request this Honorable
Court to enter judgment in their favor and against Plaintiffs, and
dismiss Plaintiff's Complaint with prejudice.
NEW MATTER
13. The answers to the averments of paragraphs 1 through 12
are incorporated hereby as if set forth fully and at length.
14. Plaintiffs have received work of a value far in excess of
what they paid.
15. Plaintiffs have prevented Defendants from completing the
work.
16. Plaintiff's complaint fails to state a cause of action
for which relief can be granted against Defendants.
17. Plaintiff's Complaint is barred by applicable statute of
limitations.
1S. Plaintiff's Complaint is barred by the doctrine of
impossibility of performance.
19. Defendant, Patricia Hen':'y Webb, has never been a party to
any contract with Plaintiffs.
CROSS-CLAIM
20. The answers to the averments of paragraphs 1 through 1S
are incorporated hereby as if set forth fully and at length.
5. On or about May lB, 1994, Plaintiffs entered into an
oral contract with each of the Defendants, jointly, memorialized
by a written document (see Exhibit "A" to Amended Complaint), for
the repair and rehabilitation of their aforesaid property wherein
Defendants agreed to make repairs and improvements to it for the
sum of Seven Thousand Five Hundred ($7,500.00) Dollars.
6. Additionally, on or about June 17, 1994, Plaintiffs
entered into another oral contract with these same Defendants for
additional repair and rehabilitation work to their property, as
evidenced and memorialized by another writing (see Exhibit "B" to
Amended Complaint), in return for payment by Plaintiffs of an
additional Two Thousand Eight Hundred Fifty ($2,B50.00) Dollars.
7. As part of entering into these agreements, Defendant
Patricia Henry Webb was present for various of the meetings
and/or transactions and acted jointly with her husband, Defendant
Mark Webb, who also functioned as her agent in the joint
undertaking. In fact, this Defendant was the individual who
actually "sold" the job to Plaintiffs and specifically requested
that all checks be made payable to her nusband. Defendant Mark
Webb, despite the fact that she performed some of the actual work
(painting) .
B. As part of entering into these agreements, Defendant
William Smith purported to act as W Contracting and specifically
agreed to be bound for any work to be performed as a refll1l t of
his Agreements with Plaintiffs Rudolph E. and Linda T. Butler.
9. Defendants subsequently began to work on the subject
property but, due to reasons unknown and inexplicable to
Plaintiffs and despite payment by Plaintiffs to both Defendants
Mark and Patricia Henry Webb of Eight Thousand Two Hundred
Thirty-six Dollars and Twenty-seven Cents ($B,236.27) and
repeated requests by Plaintiffs to them that they do the work
contracted for, Defendants have breached their contract with
Plaintiffs by failing to complete their work and to do corr.ectly
that work done.
10. As a result of Defendants' breach of their contract
with Plaintiffs, Plaintiffs have been forced to seek an
additional quote to have the contracted for work both redone
correctly and completed and believe and therefore aver that the
cost of their having the project correctly completed shall be
Eight Thousand Thirty-three ($B,033.00) Dollars. (See Exhibit
"C" attached hereto).
COUNT I - BREACH OF CONTRACT
11. The averments of Paragraphs 1 through 10 are
incorporated herein by reference thereto and made a part hereof
as if more fully set forth.
12. Defendants have failed to perform completely their
duties for which they contracted and, accordingly, have breached
their written and oral contracts entered into with Plaintiffs
Rudolph E. and Linda T. Butler.
13. As a result of the Defendants' breach of their
agreements, Plaintiffs were relegated to spend an additional
Seven Thousand Ninety-three ($7,093.00) Dollars to have the
uncompleted work done correctly and completely.
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Job Site:
Rudolph Butler
5699 Creekvlew Road
Mechanlcsburg, PA 17055
652-4389 - 731-9204
Job Descript: Install new loft room
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Skylight and ceiling fan installed to ceil-
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boards and stained. Loft will be finished
with drop ceiling and paneled wall and
pine board floors. Open side of loft will
have a banister across it. One window
will be installed in loft (facing creek side).
Install new shingles over kitchen part of
roof.
Living roorn: Install new paneling and
insulation outer walls. Steps or ladder to
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EXHIElI': "BII
RUDOLPH E. BUTLER and
LINDA T. BUTLER,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
94-69B4
CIVIL TERM
MARK WEBB and
PATRICIA HENRY WEBB and
WILLIAM SMITH t/d/b/a
W CONTRACTING
Defendants
CIVIL ACTION - LAW
ANSWER TO NEW HATTER
16. The averments of Paragraph 1 through 15 hereof are
incorporated herein by reference thereto.
17. The averments of Paragraph 17 represent a conclusion of
law for which no responsive pleading is required.
lB. The averments of Paragraph 18 are denied and, by way
further answer, it is averred that a contract did existed between
Defendant Smith and Plaintiffs.
19. The averments of Paragraph 19 are denied and, by way
further answer, it is averred that Defendant Smith along with Co-
Defendants Webb contracted with Plaintiff to do work on their
property.
20. The averments of Paragraph 20 are denied and, by way
further answer, it is averred that Defendant Smith did enter into
a contractual relationship with Plaintiffs.
21. The averments of Paragraph 21 are denied and, by way
further answer, it is averred that Defendant Smith prepared the
estimate attached as Exhibit "A to Plaintiffs' Amended Complaint
which set forth his and Defendants Webb's contractual relationship
with Plaintiffs.
22. After reasonable investigation, the averments of
Paragraph 22 are outside the knowledge of Plaintiffs and proof
thereof is hereby demanded.
23. The averments of Paragraph 23 are denied and, by way
further answer, it is averred that Defendant Smith along with Co-
Defendants Webb worked for Plaintiffs.
24. After reasonable investigation, the averments of
Paragraph 24 are outside the knowledge of Plaintiffs and proof
thereof is hereby demanded.
25. The averments of Paragraph 25 are denied and, by way
further answer, it is averred that Plaintiffs paid Defendant Smith
for his work, this through payments made to Co-Defendants Webb.
26. The averments of Paragraph 26 are denied for reasons
more fully set forth in Paragraphs 19, 20, 21, 23 and 25 hereof.
27. After reasonable investigation, the averments of
Paragraph 27 are outside the knowledge of Plaintiffs and proof
thereof is hereby demanded.
WHEREFORE Plaintiffs pray your Honorable Court to deny
Defendant Smith his prayed for relief.
DATED: Iln )'1 (,
Res~ectfully submitted,
C{)) cJ/(
HERSCHEL LOCK, ESQUIRE
ATTORNEY FOR PLAINTIFFS
3107 North Front Street
Harrisburg, PA 17110
(717) 23B-6661
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RUDOLPH E. BUTLER and
LINDA T. BUTLER,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
I
I
I
vs.
94-69B4
CIVIL TERM
MARK WEBB and
PATRICIA HENRY WEBB and
WILLIAM SMITH t/d/b/a
W CONTRACTING
Defendants
I
I
I
CIVIL ACTION - LAW
RULE
AND NOW, this 1'3 -:tL day of oD.u.>.--k,,-,
1995, a Rule
is issued upon Defendants Mark Webb, Patricia Henry Webb and
William Smith t/d/b/a W Contracting to show cause by the relief
requested in the accompanying, "Plaintiffs' Motion For Leave to
File Amended Complaint" should not be granted.
Rule returnable within
.;:10
day of service.
BY THE COURT I
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upon Defendant Mark Webb (See Exhibit "A" to this Motion)
inquiring as to how the $B,236.27 in payment by plaintiffs was
deposited between husband and wife defendants.
5. Defendant Mark Webb has either neglected or refused to
file a response to this requested discovery.
MOTION TO COMPEl.
6. At issued in this case is whether Defendant Patricia
Henry Webb is a proper party defendant, ~, was she present at
the meeting where the terms of the oral contracts were
negotiated; did Defendant Mark Webb function as her agent; were
proceeds of the contract deposited in joint checking accounts of
husband and wife defendant; did Patricia Henry Webb "sell" the
jobs and/or did she perform any of the repairs or rehabilitation
to the p~emises.
7. The interrogatories served upon Defendant Mark Webb are
either relevant to these issues or calculated to lead to
relevant, unprivileged evidence within the meaning of Pa. R. Civ.
P. 4003.1(a), because they relate "to the claim or defense of any
other party..."
B. Pa. R. civ. P. 4019(a)(1) permits the Court to make "an
appropriate order" if (i) a party fails to serve answers,
sufficient answers to objection to written interrogatories under
Rule 4005".
9. It is requested that the Court order Defendant Mark
Webb to file an answer or appropriate objections to the
Interrogatories which have been propounded upon him.
II. DEFINITIONS
"Documant" means any written, printed, typed, or other
graphic matte~ of any kind or nature, however produced or
reproduced, including photographs, microfilms, phonographs, video
and audio tapes, punch cards, magnetic tapes, discs, data cells,
drums, And other date compilations from which information can be
obtained.
"Identify" or "Identity" means when used in reference to --
(I) A natural person, his or her:
(a) full name; and
(b) present or last known residence and employment
address (including street name and number, city or
town, and state or county);
(2) A document:
(a) its description (e.g., letter, memorandum, report,
etc.), title, and date;
(b) its subject matter;
(c) its author's identity;
(d) its addressee's identity;
(e) its present location; and
(f) its custodian's identity;
(3) An oral communication:
(a) its date;
(b) the place where it occurred;
(c) its substance;
(d) the identity of the person who made the
communication;
RUDOLPH E. BUTLER and
LINDA T. BUTLER,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
va.
94-69B4
CIVIL TERM
MARK WEBB and
PATRICIA HENRY WEBB and
WILLIAM SMITH t/d/b/a
W CONTRACTING
Defendants
.
.
.
.
CIVIL ACTION - LAW
PLAINTIFFS' MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
AND NOW, comes Plaintiffs Rudolph E. Butler and Linda
T. Butler, by their attorney, Herschel Lock, Esquire pursuant to
Rule 1033 of the Pennsylvania Rules of civil Procedure, and file
the within Motion for Leave to File Amended Complaint,
representing as follows:
1. On December 13, 1994, Plaintiffs filed their original
Complaint in the captioned matter.
2. Subsequently, Defendant William Smith filed an Answer
with New Matter, alleging the absence of privity of contract with
Plaintiffs and challenging the Complaint for failure to state a
claim against Smith (New Matter, Paragraphs 14 and 15).
3. In addition, Defendant Smith alleged that he was
employed by Defendants Mark and Patricia Henry Webb (New Matter,
Paragraph 20).
4. Conversely, Defendants Mark and Patricia Henry Webb
filed their own Answer with New Matter alleging, in part, that
Patricia Henry Webb has never been a party to any contract with
Plaintiffs (New Matter, Paragraph 19).
5. Despite the nature of these allegations, no pr.eliminary
objections have been filed and, while the pleadings have been
closed, no proceedings on the meLits nor any discovery have been
initiated.
6. Rule 1033 of the Pennsylvania Rules of civil procedurs
pro'vides in part I
A party...may at any time change the form of action,
correct the name of a party or amend his pleading. The
amended pleading may aver transactions or occurrences
which have happened before or after the filing of the
original pleading...
7. Since the Defendant have challenged the Complaint by
putting the relationships between them at issue, it is
appropriate that an Amended Complaint more specifically delineate
the relationships between the parties and their contractual
relationships (See paragraphs 7 and 8 of Amended Complaint and
"joint and several" language added.)
B. Defendants are not prejudiced hy this amendment,
inasmuch as no proceedings on the merits have yet occurred and
the statute of limitations does not expire until May 17, 1998.
WHEREFORE it is requested that the Court grant Plaintiffs
leave to file the attached Amended Complaint.
DATED I 11/29/95
c;;;ji/jYf/ ~ubmitted'
HERSCHEL LOCK, ESQUIRE
ATTORNEY FOR PLAINTIFF
3107 North Front Street
Harrisburg, PA 17110
(717) 23B-6661
5. On or about May lB, 1994, Plaintiffs entered into an
oral contract with each of the Defendants, jointly, memorialized
by a written document (see Exhibit "An to Amended Complaint), for
the repair and rehabilitation of their aforesaid property wherein
Defendants agreed to make repairs and improvements to it for the
Burn of Seven Thousand Five Hundred ($7,500.00) Dollars.
6. Additionally, on or about June 17, 1994, Plaintiffs
entered into another oral contract with these same Defendants for
additional repair and rehabilitation work to their property, as
evidenced and memorialized by another writing (see Exhibit "B" to
Amended Complaint), in return for payment by Plaintiffs of an
additional Two Thousand Eight Hundred Fifty ($2,B50.00) Dollars.
7. As part of entering into these agreements, Defendant
Patricia Henry Webb was present for various of the meetings
and/or transactions and acted jointly with her husband, Defendant
Mark Webb, who also functioned as her agent in the joint
undertaking. In fact, this Defendant was the individual who
actually "sold" the job to Plaintiffs and Apecifically requested
that all checks be made payable to her husband. Defendant Mark
Webb, despite the fact that she performed some of the actual work
(painting) .
B. As part of entering into these agreements, Defendant
William Smith purported to act as W Contracting and specifically
agreed to be bound for any work to be performed as a result of
his Agreements with Plaintiffs Rudolph E. and Linda T. Butler.
9. Defendants subsequently began to work on the subject
property but, due to reasons unknown and inexplicable to
Plaintiffs and despite payment by Plaintiffs to both Defendants
Mark and patricia Henry Webb of Eight Thousand Two Hundred
Thirty-six Dollars and Twenty-seven Cents ($B,236.27) and
repeated requests by Plaintiffs to them that they do the work
contracted for, Defendants have breached their contract with
Plaintiffs by failing to complete their work anc to do correctly
that work done.
10. As a result of Defendants' breach of their contract
with Plaintiffs, Plaintiffs have been forced to seek an
additional quote to have the contracted for work both redone
correctly and completed and believe and therefore aver that the
cost of their having the project correctly completed shall be
Eight Thousand Thirty-three ($B,033.00) Dollars. (See Exhibit
"C" attached hereto).
COUNT I - BREACH OF CONTRACT
11. The averments of Paragraphs 1 through 10 are
incorporated herein by reference thereto and made a part hereof
as if more fully set forth.
12. Defendants have failed to perform completely their
duties for which they contracted and, accordingly, have breached
their written and oral contracts entered into with Plaintiffs
Rudolph E. and Linda T. Butler.
13. As a result of the Defendants' breach of their
agreements, Plaintiffs were relegated to spend an auditional
Seven Thousand Ninety-three ($7,093.00) Dollars to have the
uncompleted work done correctly and completely.
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W CONTRACTING
732-4264
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Job Site:
Rudolph Butler
5699 Creekview Road
Mechanlcsburg, PA 17055
652-4389 - 731,.9204
Job Descript: Install new loft room
above living room area. (Approx. 10' x
10'). Ceiling above living room to be
opened up and taken up to peak of roof.
Skylight and ceiling fan installed to ceil-
ing. Ceiling finished with 1 x 12 pine
boards and stained. Loft will be finished
with drop ceiling and paneled wall and
pine board floors. Open side of loft will
have a banister across it. One window
will be installed in loft (facing creek side).
Install new shingles over kitchen part of
roof.
Living roorn: Install new paneling and
insulation outer walls. Steps or ladder to
EXHIBIT "A"
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RUDOLPH E. BUTLER and
LINDA T. BUTLER,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
I
I
I
I
I
I
I
I
I
I
I
94-69B4
CIVIL TERM
MARK WEBB and
PATRICIA HENRY WEBB and
WILLIAM SMITH t/d/b/a
W CONTRACTING
Defendants
CIVIL ACTION - LAW
ANSWER TO NEW MATTER OF DBFENDANT WILLIAM SMITH
T/D/B/A W CONTRACTING
13. The averments of Paragraph 1 through 12 hereof are
incorporated herein by reference thereto.
14. The averments of Paragraph 14 represent a conclusion of
law for which no responsive pleading is required.
15. The averments of Paragraph 15 hereby denied and, by way
further answer, it is averred that there did exist a contract
between Plaintiff and Defendant Smith.
16. The averments of Paragraph 16 are hereby denied and, by
way further answer, it is averred that Defendant Smith was
employed by Plaintiff herein.
17. The averments of Paragraph 17 are hereby denied and, by
way further answer, it is averred that Defendant Smith entered
into an oral contract with Plaintiff which obligated him to them.
lB. The averments of Paragraph 18 are hereby denied and, by
way further answer, it is averred that Defendant Smith's estimate
was prepared by him to set forth, inter alia, what work he and
Defendants Webb would perform for Plaintiffs.
19. After reasonable investigation the averment of Paragraph
19 as to how the heading in Defendant Smith's computer was set is
outside the knowledge of Plaintiffs and proof thereof is hereby
demanded; however, as to all other averments, they are denied for
reasons more fully set forth in Paragraph 18 hereof.
20. The averments of Paragraph 20 are hereby denied and, by
way further answer, it is averred that Defendant smith, as did
Defendants Webb, worked for Plaintiffs.
21. After reasonable inveotigation, the averments of
Paragraph 21 are outside the knowledge of Plaintiffs and proof
thereof is hereby demanded.
22. The averments of Paragraph 22 are hereby denied and, by
way further answer, it is averred that in fact Defendant Smith did
receive payment by Plaintiffs, this either directly or through
Defendants Webb, for his services rendered.
23. The averments of Paragraph 23 are hereby denied and, by
way further answer, it is averred that in fact Defendant Smith was
employed by Plaintiffs.
24. After reasonable investigation, the averments of
Paragraph 24 are outside the knowledge of Plaintiffs und proof
thereof is hereby demanded.
WHEREFORE Plaintiff pray your Honorable Court to deny
Defendant Smith his prayed for relIef.
DATED I ~/I7N~-
Respectfully submitted,
r::jj)fJ Jd
HERSCHEL LOCK, ESQUIRE
ATTORNEY FOR PLAINTIFF
3107 North Front Street
Harrisburg, PA 17110
(717) 23B-666l
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LAW OFFICiO~
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business known as W Contracting, It was Mr, Smith's intent to fonn such a company at a later
date, however, at all relevant times pertaining to this lawsuit, any business known as W
Contracting did not exist,
4. Admitted in part denied in part. To the best of defendant Smith's knowledge and
belief, the allegations contained in paragraph four (4) pertaining to the plaintiffs ownership of the
subject property is true and therefore is admitted, It is specifically denied that defendant Smith
was in any way in any business venture together with defendants Webb pertaining to renovating
and remodeling buildings, By way of further answer, at all times relevant to this lawsuit,
defendant Smith was acting as an independant subcontractor for the general contractor,
defendants Webb,
5. Denied, It is specifically denied that defendant Smith ever entered into any
contract, oral or otherwise, with the plaintiffs and that the unsigned contract attached to the
Complaint as Exhibit "A" represents any such agreement between plaintiffs and defendant Smith,
By way of further answer, the remaining avennents of paragraph five (5) are conclusions of law to
which no responsive pleading is required,
6, Denied, It is specifically denied that defendant Smith entered into any contract
with the plaintiffs, oral or otherwise, and it is further denied that the document attached as Exhibit
"B" represents a contract between defendant Smith and the plaintiffs, By way of further answer,
the remaining avennents of paragraph six (6) are conclusions oflaw which no responsive pleading
is required,
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RUDOLPH E. BUTLER and
LINDA T. BUTLER,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
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94-6984
CIVIL TERM
MARK WEBB and
PATRICIA HENRY WEBB and
WILLIAM SMITH t/d/b/a
W CONTRACTING
Defendants
CIVIL ACTION - LAW
ANSWER TO NEW MATTBR
13. The averments cf Paragraph 1 through 12 hereof are
incorporated herein by reference thereto.
14. The averments of Paragraph 14 are hereby denied and, by
way of further answer, it is averred that the value of work
received by Plaintiffs in no fashion exceeded the amount of money
they paid.
15. The averments of Paragraph 15 are hereby denied and, by
way further answer, it is averred that Defendants failed to do
their work as contracted for, either correctly or completely,
despite repeated requests by Plaintiffs that they do so.
16. The averments of Paragraph 16 represent a conclusion of
la',oI for which no responsive pleading is required.
17. The averments of paragraph 17 represent a conclusion of
law for which no responsive pleading is required.
18. The averments of Paragraph 18 represent a conclusion of
law for which no responsive pleading is required.
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NOTE
tlnLler (I"'IUlph (I) when the writ it dlrccllld 10 th~ .h"tfr of anolher (ounl)' II IlIlharbed by Rule J 10J(h), Ihe cllunly shouM he
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limier Hule lII1J((:). wrllillued on I Ulnderml Judumenl may ht' dlrecled only 10 Ihe ,he,m of llle tuunl}' In which luued.
......nllh (3) (abllvt .hlluld tie com pl. let! nnl)' I' . Rlnlfd ..rnbhec Is III he I"dulled hi lilt' will,
I'.".nph (4) CI) .hnuhJ he l'C1n111leled unly If lnduln. 11( the f!'U(ullunllnlhe cnunl)' u( lJ.lJ.IlU, "dulual U.ulhurlud h)" Rul. J 104(.),
When the w,lIlhun In Inother t:t1unty lmlulna iJ required I. of coune In thai counly lIy Ih, pmlhunnlar)'. Sre Rul. J 104 (II).
I'.r..urh (4) (ft) Ihnuhl ht L'ompleled only Jr real property In lhe n.me ur. ..rnllhee ".II.ch.1I .nd lndet!n,.,. II, penden.l. dlllr.d.
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