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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CRAIG A. MURPHY and
CANDACE A. MURPHY,
:
No. ~y. /c2ll ~
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Plaintiffs
vs.
Civil Action - Law
S & A CUSTOM BUILT HOMES, INC.,
Defendant
Jury Trial Demanded
NOTICE TO DEFEND
You have been sued in Court. If you wish to defend
against the claims set forth in the following pages, you must
take action within twenty (201 days after this Complaint and
notice are served, by entering a written appearance personally,
or by attorney and filing in writing with the Court your
defenses or objections to the claims set forth against you.
You are warned that if you fail to do so, the case may proceed
without you and a jUdgment may be entered against you by the
Court without further notice for any money claimed in the
Complaint or for any other claim or relief requested by the
Plaintiff. You may lose money, or property, or other rights
important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF
YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN
GET LEGAL HELP.
Cumberland County Legal Services
8 Irvine Row
Carlisle, Pennsylvania 17013
Telephone: (717) 243-9400
LE HAN DEMANDADO A USTED EN LA CORTE. Si usted qui ere
defenderse de estas demandas expuestas en las paginas
signuientes, usted tiene viente (201 dias de plazo al partir
de la fecha de la demanda y la notificacion. Usted debe
pres~ntar una apariencia escrita 0 en persona 0 por abogado y
archivar en la corte en forma escrita sus de fens as 0 sus
objeciones alas demandas en contra de su persona. Sea
avisado que si usted no se defiende, la corte tomara medias y
puede entrar una orden contra usted sin previo aviso 0
notificaction y por cualquier queja 0 alivio que es pedido en
la peticion de demanda. Usted puede perder dinero 0 sus
propiedades 0 otros derechos importantes para usted.
LLEVE E~TA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO
TIENE ABOGADO~ SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL
SERVICIO, YAYA'EN PERSONA 0 LLAME POR TELEFONO A LAW OFICIANA
CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGI1AR DONDE
SE PUEDE CONSEGUIR ASISTENCIA LEGAL.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CRAIG A. MURPHY and
CANDACE A. MURPHY,
No.
Plaintiffs
Civil Action - Law
vs.
S & A CUSTOM BUILT HOMES, INC.,
Defendant
.
,
.
.
Jury Trial Demanded
COMPLAINT
AND NOW, comes the plaintiffs, Craig A. Murphy and
Candace A. Murphy, by and through their attorneys, Bianchini
& McDonald, and files this Complaint against the Defendant, S
& A custom Built Homes, Inc.
1. The Plaintiff, Craig A. Murphy, is an adult
individual residing at 1721 Trindle Road, Carlisle, Cumberland
County, Pennsylvania. Plaintiff Craig A. Murphy's spouse, Dee
Ann Murphy, also resides with her husband at the same
residence.
2. The Plaintiff, Candace A. Murphy, is an adult
individual and the sister of the Plaintiff, Craig A. Murphy,
and also resides at 1721 Trindle Road, Carlisle, Cumberland
County, Pennsylvania.
3. The Defendant, S & A custom Built Homes, Inc., is a
Pennsylvania corporation with an office at 401 East Louther
Street, Carlisle, Cumberland County, Pennsylvania.
4. The Plaintiffs are the record title owners of real
property and improvements known as 1721 Trindle Road,
Carlisle, Pennsylvania.
2.
II
"
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5. On July 10, 1992, Plaintiffs entered into a
Residential Construction Contract with the Defendant for the
construction of a home to be built at 1721 Trindle Road,
Carlisle, Pennsylvania (hereinafter "Residence"). A copy of
said Contract is attached hereto, marked as Exhibit "A", and
incorporated herein by reference.
6. The total amount received by Defendant for the
construction of the Residence under the aforementioned
Construction Contract was One Hundred Fifty-eight Thousand Two
Hundred Forty-four Dollars and Thirty-four Cents
($158,244.34) .
7. As part of the Construction Contract, the Defendant
installed a roughed-in bathroom and a pit with an extra flue
for the installation of a fireplace in the basement of the
Residence.
8. The Defendant was fully aware that the Plaintiffs
intended to finish off the basement and use the said basement
as part of the normal living area since they had made
preparations for a bathroom and a fireplace to be installed in
the basement.
9. The construction of the residence was completed on
April 20, 1993, and the Plaintiffs moved into the residence on
May 12, 1993.
10. Prior to the competition of the construction of the
Residence in April, 1993, the plaintiffs became aware of a
severe water-leakage problem that was occurring in the
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basement of the Residence. At one point in time, as much as
two inches of water was located in the basement of the
Residence even though the Defendant had two sump pumps running
in an attempt to remove the water from the basement.
11. The Defendant was fully aware of the severe water-
leakage problem occurring prior to the completion of the
Residence.
12. Mr. Lee Esham and other employees of 5 & A Custom
Built Homes, Inc. (hereinafter "S&A" I witnessed the severe
water leakage in the basement and attempted to correct the
leakage by the use of sump pumps. Mr. Lee Esham discussed the
water-leakage problem with the Plaintiff, Craig A. Murphy, and
informed Mr. Murphy that a Gould 1/2 HP sump pump and
discharge line, which S&A eventually installed within the
Residence, would take care of the severe water-leakage
problems and there would not be any further water leakage in
the basement.
13. The Plaintiff, Craig A. Murphy, informed Mr. Lee
Esham that he wanted the severe water-leakage problem
corrected and was willing to pay additional funds to correct
the problem and prevent future water leakage. However, Mr.
Lee Esham informed Mr. Murphy that the sump pump that was to
be installed in the Residence would take care of even the
severe water-leakage problems that had occurred during
construction.
4
14. During the construction of the Residence, Defendant
found it necessary to operate at least two (21 sump pumps in
order to remove the water from the basement. However, the
Defendant installed only one sump pump within the finished
Residence which was to allegedly take care of the water-
leakage problem.
15. On March 22, 1994, the Plaintiffs discovered a large
amount of water that had leaked into their basement through
the floor joints and the opening in the floor used for the
sump pump that had been installed by Defendant. At one point
in time, the plaintiffs had up to sixteen (16) inches of water
in the basement.
16. The Plaintiffs contacted Mr. Donald Haubert, Sr.,
President of S&A Custom Built Homes, Inc., and asked that the
water-leakage problem be fixed. Mr. Haubert sent his head
foreman to the site to inspect the problem. Subsequently,
Plaintiffs were informed that S&A could do nothing more to
repair the water-leakage problem.
17. Following the discovery of the water in the
basement, the Plaintiffs used three (31 sump pumps, one of
which was a heavy-duty pump obtained from the local fire
department, to begin removing the water from the basement of
the Residence,
18. After ten ( 10 I days of having the sump pumps
operating in the basement of the Residence, there was still
5
five (51 inches of water in the basement of the Residence.
The water did not fully subside until April 4, 1994.
19. Under Section 8 of the aforementioned Construction
contract, the Defendant indicates that, "Contractor does not
warrant a waterproof or damp-proof basement." However, that
statement applies after the completion of construction and
acceptance of the home by the plaintiffs.
20. Section 8 also states, "The Contractor shall correct
any work that fails to conform to the requirements of the
Contract Documents [which include the Construction contract]
where such failure to conform appears during the progress of
the work." The Defendant knew about the severe water-leakage
problem that occurred during construction but did not properly
correct the problem. The plaintiffs had contracted for a
basement to be constructed in a workmanlike manner and also to
be a dry basement.
21. The plaintiffs relied upon the assurance they
received from Mr. Lee Esham that the sump pump installed by
S&A would take care of the water-leakage problem or be easily
corrected upon future detection of a water-leakage problem.
22. Since the Defendant would not correct the water-
leakage problem, on April 9, 1994, the Plaintiffs entered into
an Installment Retail Agreement Contract with Mid-Atlantic
Waterproofing of Delaware, Inc. (hereinafter "Mid-Atlantic")
with an office in Harrisburg, Pennsylvania, for the purpose of
installing a proper water-management system that would correct
6
the severe water-leakage problem. The cost of the said
Waterproofing Contract was Eight Thousand Nine Hundred Thirty-
five Dollars ($8,935.00). A copy of said Contract is attached
hereto, marked as Exhibit "B", and incorporated herein by
reference.
23. Since the completion of the work done by Mid-
Atlantic, the Plaintiffs have not experienced any problem with
water leakage in the basement of the Residence.
24. Following the completion of the work done by Mid-
Atlantic, Mid-Atlantic prepared a Report which indicated that
the water-management system installed by Defendant was not
sufficient and further described the water-management system
that Mid-Atlantic installed. A copy of said Report is
attached hereto, marked as Exhibit "e", and incorporated
herein by reference.
25. As part of the Report prepared by Mid-Atlantic, it
was noted that the Defendant installed a hydro-gap around the
interior perimeter of the basement of the Residence which led
into the sump pump installed by Defendant. The installation
of a hydro-gap which would carry water from the interior
border of the basement to the sump pump was not consistent
with the Plaintiffs' desire to eventually finish the basement
and use the basement as a part of the normal living area. The
use of a hydro-gap to take care of a water-leakage problem
into the basement was not consistent with the Plaintiffs
desire to have a basement free of water.
7
26. Following the leakage of water into the basement, it
was necessary for Plaintiffs to replace the water heater that
was in the basement and put the new water heater on blocks in
order to avoid any further water damage prior to correction of
the water-leakage problem. The water heater was replaced by
PHE Mechanical Systems, Inc. at a cost of One Thousand Ninety-
eight Dollars ($1,098.00). A copy of the invoice evidencing
the payment made to PHE Mechanical Systems, Inc. is attached
hereto, marked as Exhibit "D", and incorporated herein by
reference.
27. The Plaintiffs also found it necessary to have the
furnace located in the basement of the Residence put up on
blocks in order to avoid any further water damage prior to the
correction of the water-leakage problem. JRD Heating &
plumbing performed this service at a cost of One Hundred
Seventy-seven Dollars and Twenty-eight Cents ($177.281. A
copy of the invoice evidencing the payment to JRD Heating &
Plumbing is attached hereto, marked as Exhibit "E", and
incorporated herein by reference.
28. The Defendant failed to install a proper water-
management system to correct a problem that clearly existed
prior to completion of construction and is therefore obligated
to reimburse the Plaintiffs for the costs incurred in the
installation of a proper water-management system and also for
the damage that occurred due to the water-leakage problem.
8
I verify that the statements made in the foregoing
Complaint are true and correct to the best of my knowledge,
information and belief. This Verification is made only as to
the factual averments contained herein, and not to legal
conclusions and averments authored by counsel in his capacity
as attorney for the party or parties hereto. I understand
that false statements herein are made subject to the penalties
of 18 Pa. C.S. Section 4904, relating to unsworn falsification
to authorities.
Dated!E- kh /qqj-
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S & A Custom Built Homes, Inc,
Residential Construction Contract
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AGREEMENT, mac!!'
and between S & A CUSTOH
to as "Cont actor") and
of I'
(hereJ.na fter
of ~, 191.2. by
INC~U(herEr.L~after rC1~rred
.a.
t?1l{eplly
the ..lQ... day
BUILT HOMES,
as I BU~1f~r") .
WITNESSETH that in ccnsideration of tho mutual covenants
and agreements herein contained, and intending to be bound legally
hereby, the parties hereto do agree to the following terms and
conditions:
1. Definitions. The following terms shall have the
assigned meanings for the purposes of this agreement:
Section 1,1 Contract Documents. The contract documents
consist or this Aqreement (including specific and general condi-
tions hereto), any drawin~s, specifications, plans, amen~~ents,
and chance orders relating to this Agreement. These aforpsaid
documents constitute the entire contract between the parties,
and shall not be modified except by written amendment to the said
contract documents. The contract documents do not include, and ./
specifically exclude, any and all or.al discussions, understandings,
and agreements between the said parties prior to the execution of
this Agreement.
Contract Work, The Contractor aarees to furnish
1 and labor necessary for the ~onstruction of a
upon the proforty o{ Buyer, which property is located and sJ.tup.te
at ~ The said work
shall e per_ormed in accord nce with ce-rtaJ. plans and specifica-
tion furnished by contractor and known nd identified as ~~
'-'" - 1" duplicate copies
o Which ha-e been J.nitJ.al ed by the parties hereto and delivered
to both Buyer and Contractor pursuant to this Agreement, In con-
sideration for the work to be performed nder this contract, Buyers
_I llhaJ,l ~ay. t~ contractor the sum of . -
--,Iofu., J-"(~'.Jw......l$~ 1'17,- ) in accordance wJ.th para.raph here-
inbelow,Jand subject 'to additions and/or deductions by change order
as provided in paragraph 5,4 of this Contract.
THE ABOVE STATED CONTPACT PRICE IS BU/DING UPON CONTRACTOR
ONLY IF THE COllTRACT WORK IS COMMENCED WITHIN SIXTY (601 DAYS AFTER
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Exhibi t "A"
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THE DATE OF THIS CONTRACT. IN THE EVENT CONTRACT WORK IS NOT CnM-
HENCED WITHIN SIXTY 1601 DAYS FROM THE DATE OF THIS CONTRACT, CON-
TRACTOR, AT ITS SOLE OPTION, MAY TERMINATE THIS CONTRACT AND NECOTI-
ATE A NEW CONTRACT PP.ICE WITH BUYER.
J. . Obliaat:ians af Buver.
3.1. Prior to the commencement of construction,
Buy~r shall obtain and deliver to Contractor an attorney's cer-
tificate of title to the property, which certificate shall be
in proper form, or other proof of Buyer's ownership of the
premises which is satisfactory to contractor and its counsel.
3.2. Buver shall furnish to contractor all
necessary surveys describing the physical characteristics, soils,
reports and sUbsurface~investigations, restrictive covenants, ,
buildinq restr1ctions; legal limitations, utility locations, and
a legal description of the buildinq site. Buyer shall review the
plans and specifications submitted ~y Contractor and shall give
prompt written notice to the Contractor of any fault or defect in
the said plans and specifications.
3.3. Btl~.qr r,",5'1 lu:s"'''rA and DSV In,... n.,.a...t4r;:..... AI1""
qevq-"ma"~~l ap~~g"41~ er pe~i-~. ft~eQmaR~S, a[~qet~gA~; lRi ~
cna~sa~ rQ1~i~ed ~B~ eke ~ORg~MUB~ien, ~3~, er eceapanc! ". pe~
mSRIIRti s1!~1:1e;~1S.E'aG gr fal' pe9LAullOOul. ~hdUYt:~ J.u c....:....t.:.r.g fe.eilik:.c's.
Buyer shall furnish to Contractor reasonable evidence satisfactor!
to the Contrac~or, p,.~n,. ~o ~;g"~"~ ~~~~ B""OOM~Rt, that suffi-
cient funds are available and committed to pay for the work to be
performed under this Agreement.
3.4, Buyer shall be responsible for eB1!aillih~ ..11
'PeEiRit~ rel:ttiR'; 'ea ....wouL"'uCo.I.,i,""u af the-a.fnrBf:J.id Qn~ 1AiR" and leI:
determininq how, if at all, the building lot upon which said con-
struction is to occur is encumbered by restrictions,' conditions
and/or limitations aEtecting such construction.' Contractor shall
not be responsible for determininq, how,. if at all, any laws or
ordinances dealinq with SUbdivision, zoning and the like might
affect the lot upon which the contract work is to be performed.
Buyer shall clearly mark the boundarf lines of ~~e building lot
prior to commencement of construction thereon by Contractor.
4. Obliaations of Contractor.
4.1. Contractor will provide all construction
supervision, inspection, labor, materials, tools, equipment, and
subcontracted items necessary for the execution and completion of
the contract work.
4.2. Contractor will pay all sales, use, gross
receipts and similar taxes related to the contract work to be
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provided by the contractor, which taxes have been leg.::llly enacted
at the time of execution of this Agreement.
4.3. The Contractor shall supervise and direct
the work, using his best skill ane ~ttQntion.
4.4. The Contractor warrants to the Buyer th.::lt
all materials and equipment incorporated into the contract work
wil~:be'new unless otherwise specified, and that all contract work
will be of good quality, in conformance with the contract documencs.
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4.5. Contractor shall be resDonsible for the acts
and omissions of its employees ane all subcontractors engaged by
Contractor, their agents and employees, and all other persons
performing any of the work under this contract on behalf of or
with the Contractor.
4.6. The ~ontr.::lctor shall at all times keep the
premises reasonably free frem the accurnulatie~ of waste materials
or rubbish c.::lused by the opera':ions of the Contractor. )l.t the
completion of the work, the contractor shall remove all tools,
ccnstruction equi~~ent. machinery ane surplus materials, and shall
leave the work "breom" clean or its equi'lalent, except as other-
wise specifiee.
5. Pa\~ent of Contr~ct Price. Prooress P~vments.
5.1. In consideration fer the per:crma~cQ 0: the
Buyer agrees ~o pay ~ontractor, in current fU~ as ~
n fer is ser'.'ices, the Contract Price of~..... .-...L.'.;;u.;..l:-
~. . . _ . ($ I~I 147 - ) U::lJect .:J
to the prov~s~ons ot paragrapn - of th~s Contr.::lctJ .
5.2.
to Contractor based
may be submitted to
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The Contract Price shall be paid by eu~er
upon written applica,tions for payment which
Buyer at the following times:
of the Contract Pricn upon the execution
~~~~*A&d ~~
of the Contract Price upon the comPleJ.(on
of the foundation:
of the Contr.::lct Price when the roof is
completed, when framing and sheathing
are completed and when all windows are
set in place:
of the Contract Price when the installation
of electrical and plumbing systems, in rough
form, are completed:
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~, of the Contr3ct Price when the interior
drywall is sanded and ready for painting:
of the Contract Price upon substantial
completion of the building as defined
herein or at the time of occupancy of
, "-I... . thl!. buildi.!:!g byy .1 Buver.
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5.3. The Contract pri~for the materials and
labor in construction of the Contr3ct Work Otl!.Y. The Contract
Price specifically excludes the cost of eus~"~'R~ r~l!:i-:, ~iek
.c':'ll':"u"j d.louuu~ fS11RQ2tisR) J"rl landncapinq :lR~ ~Fa8ift!, The fol-
lowing items are also specifically excluded from the Contract pric
ex~erior and interior painting, Y'ili~y eeftRee~ieF.~. P9--~~~.
8'tS L..1':'de eeRe=e~A Ii i'ilgudl'.<a:, iftsiiallA I.':'~ I. lj f 3e~ eie aysieRl. U(l, ';e=
latl.__l~, al;:i :e~.:ay I surveying, financing CC1~tS, attorney's fees
8rld wll ..,Ll......... _.......L.J RBe spssi:isall) i"~l:1...__d if! SeRRg-"~""~ ..:...",
tHe i.f\i3ta=.:...L':...l. at t:kl. maL..._':'ul.. .lpea':'f.:.es':l: 1...c:iiea :5_ .:...
tlulI pI.]...... 4l.2 -t"........:..:.:.~.s...:."...J. The co~t 0: e~cavatinq '.lRi-L.. -':zl~
b... tlQ':.a 4~ a~ aaai L':\.Ih _~ L:u~ I...Cn1;_Q"".. F....:...-e includes the cost: of
rock removal, regardless of whethp.r such removal requires tr.e aid
of explosives. The Buyers shall also pay, the the additional ~osts
involved in provicing e~tra engineering or foundation wo~~which
may be required if the Contractor encounters abno~al or unusual.
s~bterranean condrtrons during the course of construction including,
but not limited to:
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(AI E~tra c=ncrete block and labor neces-
sarv to install the same for tr.e
construction of foundation that may
be recuired in excpss of blueorint
specification 'f. .
(nl The cost of labor and materials
needed to divert or control surface
or subsurface water found during ~'e
course of construction.,
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5.4. The Buyer, without invalidating the Contract,
may order Change9 in the Wor~ consisting of addition~, deletions,
or modifications, thp. Contract Sum and thp. Contract Time bei~g
adjusted accordingly. All such Changes in the Work sh31l be
authori:ed by written Change Order signed by the Buyer.
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The cost of
requirec to
job site.
all fill and topsoil
backfill and grade thp
(D)
The cost of removal of all exoess
dirt and fill from the job site.
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5.5. A Change Order i~ a written order to the
Contractor signed by the Buyer or his authorized agent and issued
after the execution of this Agreement, authorizing a Change in
the Project and/or an adjustment in the Contract Price, or the
Performance Time Schedule.
5.6. The Contract Price and the Performance Time
Schedule may be changed only by Change Order or as otherJise
sp~;.ified in this Agreement.
5.7. The cost or credit to the Buver from a
Change in the Work ~hall be determined by mutal agreement.
5.a. Final payment constituting the unpaid
balance of the Contract Price as adjusted by Change Orders shall
be due and payable when the Project is delivered to the Buyer,
resdy for beneficial occupancy, or when the Buyer occupies the
Project, whichever event first occurs, provided that the Project
is then substantially co~pleted and this Agreement substantially
performed. If there should remain minor items to be completed,
the Contractor and the Buver ~hall list such items and the
Contractor shall deliver,' in writing, his guarantee to complete
said items within a reascnable time thereafter.
5.9. The making of final payment shall constitute
a waiver of all claims by the Buyer except those arising frcm III v
unsettlec liens, (2) faulty or defective Work acce~r;nq wi~hin
o~e (1) year after Substantial Comoleticn, or (3) failure of the
Worx to comply with the requirements of the Contract Documents.
The acceptance of final payment shall constitute a waiver of all
claims by the Contractor except those previously made in writing
and still unsettled.
Ocoupancy of the home by Buyer shall constitute
acceptance of same by Buyer and Contractor, except as provided
hereinabove, shall thereafter be under no o~ligaticn whatsoever
to Buyer relative to the construction of said home.
6. Time of Performance.
6.1. The Work to be performed under this Contract
shall be commenced on or about ~ ...."t. /~ /'f~r fifteen (15)
days after the date Buyer has ul~lled all ooligations required
by Paragraph 3 of this Contract, and except as otherwise provided
or permitted by the Contract, shall be substantially completed not
laterthan /5't') ,9+;,,",J ~,n., ..t!/..h..+. (f ;.?~~u~u:--
6.2.
Contract Wor~ is the
pleted in accordance
The nate of Substantial Completion of the
date when construr.tion is sufficiently com-
with the Plan anc Specifications so the Buyer
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can occupy the construction work. Warranties called for bv this
Agreement shall,commence on the Date of substantial Completion of
the construction work.
- 6.3. If the Contractor is delayed at any time in
the progress Of_the, construction work by any act failure or neglect
of the Buyer or by changes or~ered in the pro;ect or by labor
disputes, fire, unusual delay in transportation, ad~p.rse weather,
conpitions not reasonably anticipatable, unavoidable casualties,
or any causes beyond the Contrar.tor's control, or a delay author-
ired by the Buyer,then the Date for Subst3ntial Completion shall
be extended for the period of such delay.
7. InsuranC9.
7.1. Indemnity. The Contractor agrees to inde~~ify
and hcld the Buver harmless from all clains for bodily injury and
property damage' (other than the Work itself and other property
insured under Paragraph 7.21 that may arise from the Contractcr's
operations under this Agreement.
7.2. Contractor's Liabilit~ Insurance. The
Contractor shall Durchase and maintain'such insurance as will
protect it from claims under workmen's co~pensation acts an:
other employee benefit acts, from claims for dacages because of
bcdily inju~!, including death, and from claims for d~~agp.s to
property which may arise out of or result fro~ the Contractor's
operation under this Contract, whether such operations be by
it or by any Subcontractor or anyone direotly or indirectly
emnloved b., anv of them. This insurance shall be ~ritten for
not less than any limits of liability requirec by law and shall
include contractual liability insurance as applicable to the
Contractor's obligations under this A~reement.
7.3. Buyer's Liability Insuranoe. The Buyer shall
be responsible for purchasing and maintaining his own liability
insurance and, at his option, may maintain such insurance as will
protect him against claims wich may arise from operations under
this Contract.
7.4. Buyer's Property Insurance. Unless othe~~ise
provided, the Buyer shall purchase and maintain property insurancp
upon the entire Contract Work at the site to the full insurable
value thereof. This insurance shall include the in~erests of the
Buyer, the Contractor, Subcontractors and Sub-suboontractors in the
Contract Work and shall insure against the perils of fire, extenced
coveraqe, vandalism and malicious mischief. Any insured 1055 is
to be adjusted with 'the Buyer and made payable to the Buyer as
trustee for. the insureds as their interests may appear, subject
to the requirements of any mortgagee clause. The Buyer shall
provide a copy of all policie9 to the Contr3ctor prior to the
commencement of the Work. The Buyer and Contractor waive all
riqhts against each other for damaqes caused by fire or other
perils to the extent covered by insurance provided under this
paragr3ph. The Contractor shall r~quire similar waiver: by
Subcontractors and,Sub-subcontr3ctors.
8. Corrpction of Work. The Contractor shall correct
any, J~qrk...t_hat fails to conrorm to the requirements of the Contr3<;t
Documents where such failure to conform appears durinq the proqress
of the Work, and shall remedy any defects due to f~ulty mater~als,
-equipment or workmanship whichappearw,ithin 'a pp.riod of OtlE (11
YEAR from. the Date of Substantial Completion 'of the Contract. The
provisions of this paraqraph apply to Work done by Suboontractors
as well as to Work done by direct employees of the Contractor.
Contractor does not warrant a _w~proof or damp-proof basement.
THE CONTRACTOR MA~ES AND THERE EXISTS NO OTHER WARRANTIES, WRITTEN
OR IMPLIED, CONCERtlING THE CONTRACT WORK OR ANY OTHER SUBJECT
MATTER OF THIS AGREEMENT.
9. Default bv Buver. If the Buyer shall default here-
under prior to the beg~nning or con~truction work, Contractor
shall retain the money paid by Buyer as liquidated damages: and
this Contract shall thereupon terminate. !f the Buyer fails to
make a Progress Payment to Contractor as herein provided through
no fault of the Contractor, the Contractor may, upon se~en days'
written notice to the Buyer, terminate the Contract and recover
from the Buyer payment for all Work completed and for any proven
loss sustained upon any materials, equipment, tools, and construc-
tion equipment and machinery, includinq reasonable profit and
damages.
Upon default in payment of any'installment as provided
in Paraqraph 5.2, the Buyer hereby authorizes and empowers any
attorney of any Court of Record of Pennsylvania, or elsewhere,
to appear for and to enter judgment'against him (theml for the
Contract Price, a sum certain. and for all moneys due under this
Contract without defalcation, with costs of suit, release of
errors, without stay of execution and with ten (10\1 percent
added for collection fees: and he also waives the right of inqui-
sition of any real estate that may be levied upon to collect this
sum: and does hereby voluntarily condemn the same, and authorizps
the Prothonotary to enter upon the fi. fa. his said voluntary
condemnation and he further aqrees that said estate may be sold
on fi. fa. and he hereby waives and releases all relief from any
and all appraisement, stay or exemption laws of any state, now in
force or hereafter to be passed.
- , -
'..
10. Ganer~l Provisions.
10.1. All rights and liabilities herein given to,
or imposed upon, the respective p~rties hereto shall extend to
and binc the sever~l and respective heirs, e~ecutors,-adminis-
tr~tor3" successors and assiqns of said parties: and if there be
more than Buyer, they shall all be bound jointly and severally by
the te~s, covenants and agreements herein, and the work "auler"
or ."Buyers" shall be deemed and taken to mean each and eve:!."j'
person or party mentioned as an cwner herein, be the sarna one
or more: and if therebe more than one Contractcr, they shall be
bound joint!, and severally by the terms, co~ennnts and agree-
ments herein, and the work "Contractor" or "Contractors" shall
be deemed and taken to mean each and every person or party men-
tionerl as a contractor herein be the same one or more.
10.~. Neither the Buy~r nor the Contractor shall
assian his interest in this Aqreerr.e~t without th2 written ccnsent
of tfe other excep: as to the assignment of Froceeda.
10.3. This Agreame:lt shall be gO'ler~ed by the la.'
in effect at the locat~cn 0: this p:oject.
Con~:-ac4;~r
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SELLER OF PROPERTY OR SERVlCF.5 ORT A'NED PUR~ 1:- ."Iirl\,;;Y .Ill, Sob""",", "'m.S,IUin(.Il' :1-
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Exhibit "B"
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Mid-Atlantic
Waterproofing
185 2nd Slreel' Highsplre, PA 17034
(717) 986,9200' (800) m.6292' Fa, (717) 986,9208
August 8,1994
Jerome MoDonald, Esquire
Hershey, PA
Re: Murphy Residenoe
1721 Trindle Road
Carlisle, PA 1701]
Upon inspeotion of property in mention we found the water
management system installed was not adequete to manage the
water around the perimeter and foundation of the property. We
found a drain tile installed on the exterior perimeter and
brought under the foundation into a single sump pit with a
submersible pump discharging the water back outside the home.
Also there was a hydro gap around the interior perimeter of
the basement leading into the same sump pit. We found this to
be inadequete to faoilitate the high water table, ground water
being disoipated through capillaries and any normal rainy
season that might ooour. As a result the Murphy's were
getting a foot and more of water.
Mid-Atlantio Corporation was contraoted to install a system
that would eliminate water under any circumstance, other than
a flood and be warranted as long as the Murphy's owned the
structure.
"D,Jic'uud,,, E..tuUmCf" '~ FllulIJalltm WUlt'rpnlf'.l;"," Un/I Will',. M,mt'1/,.m,n, Stn'irtJ"
Proudly \rr\'lcmg lhe RC'ldcnual OInd C"ummcn:ial Communilic,
Exhibi t "e"
.
PHE
MECHANICAL SYSTEMS, INC.
Plumbing . Heating . Electrical
RR 4 Bo. 105A1
MIFFLlNTOWN, PENNSYLVANIA 17059
(717) 436.5151
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TO
o CONTRACT
DEXTRA
.IOItOCA'JOIIl
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
dJ)
HAR 7 2 Sa PH '95
CRAIG A. MURPHY and CANDACE A. HURPHY,
Plaintiffs
S & A CUSTOM BUILT HOHES, INC.,
Defendant
,p,'.C' OFfICE
Of 1 HE P,,,ll'iO~~TAhY
CUMBEI;' 1./40 C('lJ>"V
f'Etjk5,(l"'!'~)4
.i a#
~,.f{"zJ r/' -L ,~
.5.&~~' .at~
No.
CIVIL ACTION - LAW
Jury Trial Demanded
COMPLAINT
d=#dJ10
fi!:I#- ;) 3COt/
Jerome J. McDonald, Esquire
BIANCHINI & McDONALD
389 West Gove~nor Road
Hershey, PA 17033-2074
(717) 533-2513
8HIlIU..I" 8 IUilTUI\N
CA81l NO, 199&-01211 P
COMMON1lIlAXoTH 01' PIlNN8YJ:.VAN:tA,
COUNTY 01' CUMBIlRLAND
MUI\PH'Y t::Jl\AZCJ A mT AL
V8.
8 & A CU8TOM BU:tLT HOMIl8 :tNC
RO..R!r %.. r%NIC. 81\.
, 8hec~rr oc Deputy 8hec~rr or
CUM8SRLAND county. P.nngy~van~a. who b.~n9 du1y Slworn accord1ng
to 1aw, gay., that ha Sleeved the within
COMPLA:tNT
upon 8 & A CU8TOM BU:tLT HOHIl8 :tNC
the
d.~.nd.nt, at 1340100 HOURS, on the 10th day or March
,
1'.!..!!. at
401 EAST ~OUTKm~ ST.
CAAL%8LS. PA 17013
,CUMBIIRLAND
,
County, pannmy1vania, by handing to
M:tCKA&lL DANN&lR.
ADULT :tN CHAR.a&l
a true and ate.gted copy or the
COMPLA:tNT
,
and at the .ame t1m. directing ~ attention to the contenta ther.or.
18.00
2,80
.00
2.00
;;.-- >~- ~ ,-' ~-
I
1\. Thoma.
anawec~. " ~~~
..' ',," ~."..:~_.4i
,..,......- ~-
KUne, 8hec~rr
BherirrYg C:Olltlll
Docll:et~n9
S.l:'v;l.ce
A~r~dav~ t
SurchargQ
80
822.80 JIlR.OMIl MCDONALD
03/15/1"5
by
~c--"
-.-..-1 Daputy B 1:'.1.
Sworn and .ub.cribed to baror. m.
th~a :lJ....r{ day or '7Ilo>.,,/___
19 "7 -:
A.D,
, 1L.. ,,--,-- C. ) fLL~ C<--' U",T,;' .
f Prothonotary"
J.lTmonJ, Shipman, Eoqul..
I,D, No. '17U
GOLDBERG, KAT/.MAN " SIIIPMAN, P,C.
320 Morbi S,...I
p,O, Dox 1268
",rriobulll, PA 17108-1268
AuomoY for o.,rondlnl
CRAIG A. MURPHY and
CANDACE A. MURPHY,
plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNA.
.
.
CIVIL ACTION - LAW
v.
: NO. 95-1211 CIVIL TERM
S&A CUSTOM BUILT HOMES, INC., :
Defendant JURY TRIAL DEMANDED
NOTICE
TO: CRAIG A. MURPHY and
CANDACE A.MURPHY, plaintiffs, and
JEROME J. McDONALD, ESQUIRE
Bianchini & McDonald
389 Governor Road
Hershey, PA 17033-2074
Counsel for Plaintiffs
YOU ARE REQUIRED to plead to the within Answer with New
Matter within twenty (20) days of service hereof, or a default
judgment may be entered against you.
GOLDBERG, KATZMAN & SHIPMAN, P.C.
.
320 Market Street
strawberry Square
P.O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Attorneys for Defendant
DATED: 0/ //,8/70-
v.
.
.
NO. 95-1211 CIVIL TERM
J,IT,nonJ,5hlp01ln.l!Iquho
1.0, No, 51785
GOI.DDERG, KAT'LMAN " SUlPMAN. P.C.
320 Morkol 5\100\
P,O. Box 1268
",mobufl. PA \7108-1268
AUomev (or nerendlnt
CRAIG A. MURPHY and
CANDACE A. MURPHY,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
.
.
: CIVIL ACTION - LAW
S'A CUSTOM BUILT HOMES, INC.,
Defendant : JURY TRIAL DEMANDED
ANSWER AND NEW MATTER OF
DEFENDANT. S&A CUSTOM BUILT HOMES. INC.
AND NOW, comes the Defendant, S&A custom Built Homes,
Inc., and files the following Answer and New Matter to
Plaintiffs' Complaint:
ANSWER
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admi tted.
6. Admitted.
Inc. witnessed a high water table condition. It is denied
that they witnessed a severe water leakage problem in the
basement, nor did they attempt to correct a water leakage
problem. By way of further answer, it is also denied that Mr.
Lee Esham discussed the alleged water leakage problem with
Plaintiff Craig A. Murphy and informed Mr. Murphy that a gould
one-half HP sump pump and discharge line would take care of
the alleged severe water leakage problem and that there would
be no further water leakage in the basement. By way of
further answer, it is averred that Plaintiffs were advised of
a high water table problem rather than a water leakage problem
and that Plaintiffs were given reasonable options to correct
that condition, which they failed to do.
13. Admitted in part; denied in part. It is admitted
that Plaintiff Craig A. Murphy had discussions with Mr. Lee
Esham regarding correction of the high water table condition.
As to the specific statements, Defendant is without sufficient
knowledge or information to form a belief and strict proof
thereof is demanded at the time of trial. It is specifically
denied that Mr. Lee Esham informed Mr. Murphy that the sump
pump that was to be installed in the residence would take care
of the high water table condition.
3
14. Admitted in part; denied in part. It is admitted
that during construction of the residence that two sump pumps
were operated and that one sump pump was installed in the
residence. It is specifically denied, however, that
Plaintiffs were advised that one sump pump within the finished
residence would correct the high water table condition.
i
f I
I
I
,
15. Denied. The Defendant is without sufficient
knowledge or information to form a belief as to the date in
question and the amount of water that allegedly leaked into
Plaintiffs' basement and therefore can neither admit nor deny
these averments and strict proof thereof is demanded at the
time of trial.
16. Admitted in part; denied in part. It is admitted
that Plaintiffs contacted Mr. Donald Haubert, Sr., C.E.O. of
S&A custom Built Homes, Inc. It is further admitted that Mr.
Haubert sent an employee of S&A to inspect Plaintiffs'
residence. It is specifically denied that Plaintiffs were
informed that S&A could do nothing more to repair the alleged
water leakage problem.
17. Denied. The Defendant is without sufficient
knowledge or information to form a belief as to the truth of
whether Plaintiffs used three sump pumps, one of which was
4
obtained from a local fire department, to remove water from
the basement of the residence. The same are, therefore,
denied and strict proof thereof demanded.
18. Denied. After reasonable investigation, Defendant
is without sufficient knowledge or information to form a
belief as to the truth of the averments contained in paragraph
18 and the same are therefore denied.
19. Admitted in part; denied in part. It is admitted
that under section 8 if the Construction Contract it is stated
that "Contractor does not warrant a water proof or damp-proof
basement." The remaining averments of paragraph 19 are denied
at statements not contained in the contract. By way of
further answer, the contract speaks for itself and Defendant
denies any further interpretation thereof.
20. Admitted in part; denied in part. It is admitted
that the contract states what is quoted in paragraph 20. It
is specifically denied, however, that Defendant knew about a
severe water leakage problem, but did not properly correct the
alleged problem. By way of further answer, Defendant and
plaintiffs were aware of the high water table condition. By
way of the further answer, the remaining averments of
5
paragraph 20 are conclusions of law to which no response is
required.
21. The averments contained in paragraph 21 are
conclusions of law to which no response is required. If a
response is deemed to be require, the averments are denied.
22. Denied. The Defendant is without sufficient
knowledge or information to form a belief as to the averments
contained in paragraph 22 relating to an Installment Retail
Agreement Contract with Mid-Atlantic Waterproofing of
Delaware, Inc. The same are therefore specifically denied and
strict proof thereof is demanded at the time of trial.
23. Denied. The Defendant is without sufficient
knowledge or information to form a belief as to the truth of
the averment of paragraph 23 and same are therefore
specificallY denied. By way of further answer, it is believed
and therefore averred that there have been no high water
conditions and, therefore, no water problems at the property
recently.
24. Denied. The Defendant is without sufficient
knowledge or information to form a belief as to the truth of
6
WHEREFORE, Defendant S&A Custom Built Homes, Inc.
respectfully requests that judgment be entered in its favor
and that Plaintiffs' Complaint be dismissed with prejudice.
NEW MATTER
29. That Plaintiffs have failed to state a cause of
action for which relief may be granted.
30. That Plaintiffs failed to mitigate the damages.
31. That Plaintiffs damages, if any, were not caused by
any acts, omissions, or breaches of duty by Defendant but were
caused in whole or in part or were contributed to by the
negligence, fault or want of care of Plaintiffs.
32. That Plaintiffs' cause of action is barred, in whole
or in part, by the Pennsylvania Comparative Negligence Act or
by the Doctrine of Comparative Negligence.
33. That Plaintiffs assumed the risk of damages which
were allegedly sustained by them by reason of their own
negligence and carelessness.
8
34. That Plaintiffs' damages, if any, were caused by an
act of God.
35. That Defendant constructed Plaintiffs' home in a
reasonably workmanlike manner.
WHEREFORE, Defendant S&A Custom Built Homes, Inc.
respectfully requests that judgment be entered in its favor
and that Plaintiffs' Complaint be dismissed with prejudice.
Respectfully submitted,
GOLDBERG, KATZMAN , SHXPMAN, P.C.
320 Market street
strawberry Square
P.O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Attorneys for Defendant
DATED: 4f /13/ 1S-
USUJ9
9
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy
of the foregoing document upon all counsel of record by
depositing the same in the United states Mail, first
::S~id'
at Harrisburg, Pennsylvania, on the
, 1995, addressed as follows:
class,
t!::-
/3 day
.
Jerome J. McDonald, Esquire
Bianchini & McDonald
389 Governor Road
Hershey, PA 17033-2074
GOLDBERG, KATZMAN & SHIPMAN, P.C.
.
N J. SHIP ,ESQUIRE
orney I.D. #51785
20 Market Street
P. O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Counsel for Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CRAIG A. MURPHY and
CANDACE A. MURPHY,
No. 95-1211 CIVIL TERM
Plaintiffs
vs.
Civil Action - Law
S & A CUSTOM BUILT HOMES, INC.,
Defendant
.
.
Jury Trial Demanded
ANSWER TO NEW MA'l"I'ER
AND NOW COMES the Plaintiffs, Craig A. Murphy and Candace
A. Murphy, and file the following Answer to Defendant's New
Matter:
29. Denied. The Defendant has stated a legal conclusion
to which no response is necessary.
30. Denied.
The Plaintiffs made every effort to
mitigate the damages by having the water-leakage problem
corrected before any additional damage was done to their
residence.
31. Denied. The Plaintiffs did not contribute to the
damages in whole or in part by any negligence, default or want
of care on their part. In fact, the Plaintiffs obtained sump
pumps to remove the water from the basement and had Mid-
Atlantic Waterproofing correct the problem of the water
leakage into the basement when the Defendant refused to do so.
32. Denied. The Defendant has stated a legal conclusion
to which no response is required.
33. Denied.
The Plaintiffs were not careless or
negligent and did not assume the risk of damages. In fact,
I verify that the statements made in the foregoing Instrument
are true and correct to the best of my knowledge, information and
belief. This Verification is made only as to the factual averments
contained herein, and not to legal conclusions and averments
authored by counsel in his capacity as attorney for the party or
parties hereto. I understand that false statements herein are made
sUbject to the penalties of 18 Pa. C.S. Section 4904, relating to
unsworn falsification to authorities.
Dated:
d J./ () IJAJJJ OD
I
fvutll M- tl.
CANDACE A. MURPHY
CERTIFICATE OF SERVICE
I, JEROME J. McDONALD, ESQUIRE, do hereby certify that I
served a true and correct copy of the foregoing Answer to New
Matter upon the following below-named individual by depositing
the same in the United States' mail, postage pr~aid, at
Hershey, Dauphin County, Pennsylvania, this .(" day of
~~ ' 1995:
Jefferson J. Shipman, Esquire
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
Strawberry Square
P.O. Box 1268
Harrisburg, PA 17108-1268
Counsel for Defendant
Dated: ~~ /jj5
I df.....~.-"'
McDONALD, ESQUIRE
LD. No. 44697
387 West Governor Road
Hershey, PA 17033
Tele: (717) 533-2513
Fax: (717) 533-1241
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CRAIG A. MURPHY and
CANDACE A. MURPHY,
Plaintiffs
vs.
S & A CUSTOM BUILT HOMES, INC.,
Defendant
No. 95-1211 CIVIL TERM
CIVIL ACTION - LAW
,Jury Trial Demanded
, ANSWER TO NEW MATTER
Jerome J. McDonald, Esquire
"BIANCHINI & McDONALD
',389 West Governor Road
Hershey, PA 17033-2074,
(717) 533-2513
HAl 58 3G AH'95
:-!< ;~ :~',orF1Qf ,"
Of 7;", '. '.' l.jtJIl(f~AhY ,
C!Jr:, 'i,U,lDG';UUl'Y
f--~~(~is.rLv;\Jt~J.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CRAIG A. MURPHY and
CANDACE A. MURPHY,
Plaintiffs
No. 95-1211 CIVIL TERM
Civil Action - Law
vs.
S & A CUSTOM BUILT HOMES, INC.,
Defendant
PRAECIPE TO WITHDRAW
TO THE PROTHONOTARY:
Please mark the above-captioned matter withdrawn,
discontinued, and settled.
Respectfully submitted
BIANCHINI & McDONALD
Dated: 9/.;J.() /95
389 West Governor Road
Hershey, PA 17033
Tele: (717) 533-2513
Fax: (717) 533-1241
1
IN THE COURT OF CO~JI0N PLEAS
CU~BERLAND COUNTY, PENNSYLVANIA
CRAIG A. fo',URPHY and
CANDACE A. nUFPHY,
Plaintiffs
SEP 21 3 25 PH '95
vs.
S & A CUSTOM BUILT HOMES, INC.,
~,' I)Fi'ICE
";;jO~O'tAhY
'^!:~ ,:-::,f.110 ~rh;SrY
- ,:P;S"~ 1,.i\"1I.~
Defendant
llo. 95-1211 CIVIL TEID-l
Civil Action - Law
PRAECIPE TO WITHDRAW
Jerome J. 1!cDona1d, Esquire
BIANCHINI & ~lcDOUALD
389 West Governor Road
Hershey, Pennsylvania 17033-2074
Telephone (717) 533-2513