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HomeMy WebLinkAbout96-4713 CivilBASTIAN HOMES - MECHANICSBURG, INC., Plaintiff VS. KURT SCHUETZ and INGEBORG SCHUETZ, Defendants AND NOW, this IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 96-4713 CIVIL CIVIL ACTION - LAW IN RE: NONJURY TRIAL BEFORE HESS, J. VERDICT day of March, 1998, on the claim of Bastian Homes - Mechanicsburg, Inc., vs. Kurt Schuetz and Ingeborg Schuetz, we find in favor of the defendants and against the plaintiff. On the counterclaim ofKurt Schuetz and Ingeborg Schuetz vs. Bastian Homes - Mechanicsburg, Inc., we find in favor of the plaintiff and against the defendants. BY THE COURT, David B. Dowling, Esquire For the Plaintiff Samuel Milkes, Esquire For the Defendants A. Hess, J. :rlm BASTIAN HOMES - MECHANICSBURG, INC., Plaintiff VS. KURT SCHUETZ and INGEBORG SCHUETZ, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 96-4713 CIVIL CIVIL ACTION - LAW IN RE: NON JURY TRIAL BEFORE HESS, J. GENERAL FINDINGS AND VERDICT This matter was heard by the court sitting without a jury. The trial was of several days' duration. Needless to say, the testimony was detailed. Nonetheless, and for masons that will appear infra, we will dispose of the claims of the parties by the making of general findings only. This is expressly permitted by Pennsylvania Rule of Civil Procedure 1038. This case involves a dispute between a home construction company and individuals who contracted for the construction of a home. Bastian Homes has brought this action for amounts allegedly due and owing under the contract that remain unpaid. The defendants have counterclaimed alleging damages in excess of $200,000 to remedy various defects of workmanship in the construction of their home together with damages for delay in completion of the construction and other consequential damages. The plaintiff, since its formation in 1993, has built hundreds of homes in the mid-Atlantic area. The defendants, residents of the Federal Republic of Germany, contracted in August of 1995 for the construction of a home in South Middleton Township, Cumberland County, 96-4713 CIVIL Pennsylvania. The original price of the home was approximately $158,000. The plaintiff contends that numerous change orders were made, some of which were signed by the parties and others that were not. The defendants have paid the plaintiff the sum of $203,755 to date. By adding in the changes requested to the construction agreement and giving credit for certain remedial work and defects, the plaintiff claims the sum of $73,078.54. Initially, we reject the defendants' argument that they are not responsible to pay for change orders when the written change orders were not signed by them. Admittedly, the underlying contract requires that modifications thereto be in writing. In this case, one particularly long list of change orders had been prepared and given to the defendants. Unfortunately, they were given to Mr. Schuetz on the very day when he was leaving for Germany and he had not had the oppommity to obtain a translation. This list of change orders was never signed. Nonetheless, the defendants do not dispute that they requested the changes. The defendants, in short, take the position that they do not have to pay for changes because they did not sign the change order. By the same token, they agree, for the most part, that the changes which were made were at their request. An agreement that prohibits non-written modification may be modified by subsequent oral agreement if the parties' conduct clearly shows the intent to waive the requirement that the amendments be made in writing. Accu-Weather v. Prospect Communications~ 435 Pa. Super 93,644 A.2d 1251 (1994). Here, the intent to waive the requirement was clear. As a defense to the claim of Bastian Homes and by way of making out a counterclaim, 2 96-4713 CIVIL the defendants assert that there are numerous defects in the subject home that have resulted in a substantial diminution in its value and which will require considerable sums of money to remedy. First, there are discrepancies between the plan agreed to by the Schuetzes and the construction eventually undertaken by Bastian Homes. The home was to be constructed using plywood. Instead, the construction consists of wafer board. Felt paper was to be installed between two rows of block in the basement. This was not done. The floors of the basement and garages were all to be sloped at two percent grade. This also was not done. The toilets were 'to be twenty inches high, a handicap height. A ten-foot wide French door was to be installed at the rear of the basement. The home was to have brass faucets. Again, these specifications were not complied In addition, we agree with the defendants that numerous prices for change orders, as outlined on pages 11 through 15 of their brief, were greatly inflated. In short, the amounts now claimed by Bastian do not comport with the amounts on the change order initially submitted to the defendants. At the outset of construction, the home was mislocated on the property. In fact, the construction encroached upon the allowable setback area. By the time the encroachment was discovered, the footers had already been poured and block foundation walls were nearly completed. This caused problems with the township not to mention an overall unflattering appearance of the home on the lot. In addition, the defendants' witnesses testified, credibly, that the posts supporting the I-beam in the basement are underrated; they are rated to carry 15,000 96-4713 CIVIL pounds each and standard load calculations show that they must be rated at a minimum of 20,000 pounds each. The wall of the basement, facing the street, is not structurally sound. In addition, the walls supporting the garage decks are also unsound. This will require either the removal of the garage decks or the installation of new I-beams and/or support block. In the opinion of one expert, the amount necessary to correct the deficiencies in the garages alone will exceed $100,000. On the other hand, the cross-examination of this very expert revealed that there were solutions to the problem that would cost much less. There is credible testimony in this case that, on the roof, them are shingles missing, that ridge vents are improperly installed, and that there was improper nailing into the roof. The chimney has been improperly protected against water infiltration. Proper step flashing was not used. The gutters of the home are not properly installed. The drainage ~om the house extends to the property line which is not permitted by the township and these lines will need to be relocated. The question of the burden of proof and measure of damages in this case is governed, we believe, by the holding in Oelschlegel v. Mutual Real Estate Investment Trust, 429 Pa. Super. 594, 633 A.2d 181 (1993). In that case, the parties entered into a written contract for the reconstruction of an apartment building. Following completion of the work, there remained due and owing on the contract an amount in excess of $46,000. Less than one year after completion of the work, the local municipality condemned the building because of structural defects. Mutual Real Estate eventually spent over $70,000 to repair the building. As in this case, the plaintiff brought an action to recover the balance left unpaid on the reconstruction contract. The 4 96-4713 CIVIL defendant filed a counterclaim for its repair costs and lost profit. After a bench trial, the judge held in favor of the defendant and awarded them some $80,000 in damages on its counterclaim. The Superior Court reversed in part saying: However, we hold that the trial court erred in failing to consider the amount remaining unpaid under the contract in calculating damages. The trial court considered only the costs of completing the work by another contractor .... We hold that the better measure of damages in this case is the cost of completing the contract minus the unpaid part of the contract... By failing to use this more precise method of calculation, the trial court created a windfall of approximately $46,000 for the nonbreaching party. Id_._~. at 599, 633 A.d at 184. Thus, were we to award an amount in favor of the defendants on b.ehalf of their counterclaim, we would subtract from that amount those amounts owed to Bastian Homes under the contract. In this case, in order for one party to recover, it must be shown that the amount owed under the contract exceeds the amount necessary to remedy the defects or vice versa. The party who fails to meet that burden cannot recover. This matter was heard in November of 1997. In early December counsel filed proposed findings of fact and conclusions of law. The evidence has been thoughtfully and thoroughly presented by counsel for both sides. That we are not convinced by one side or the other is certainly not for a want of their trying. We have thoroughly reviewed the many exhibits introduced in this case and have carefully considered the arguments advanced by counsel. No matter how often we visit the record in this case, our conclusion remains the same. Neither side 96-4713 CIVIL has established that it is owed money by the other. The plaintiff, as we have indicated, seeks between $93,000 and $73,000, depending upon an application of credits. We are satisfied, however, that the correction of defects in the home will entail outlays of at least this much money. The defendants, on the other hand, claim that they are owed a total of more than $280,000. This amount is some $80,000 more than they have already paid for the house.~ If awarded their full damages, the defendants would have received a large and perfectly livable home not only for nothing, but at a cost to the builder of $80,000. This result is patently absurd. Most importantly, the defendants have not established that the amounts necessary to remedy the defects exceed the amounts which they owe the builder under the contract. Interestingly, the more the evidence is reviewed, the more compelling becomes the conclusion that the defendants have paid, to date, an amount approximately commensurate with the value of what they have received. VERDICT AND NOW, this 2. ~," day of March, 1998, on the claim of Bastian Homes - Mechanicsburg, Inc., vs. Kurt Schuetz and Ingeborg Schuetz, we find in favor of the defendants and against the plaintiff. On the counterclaim of Kurt Schuetz and Ingeborg Schuetz vs. Bastian ~ It is more than curious that this $80,000 figure is the average of the high and low amounts sought by the plaintiff. 6 96-4713 CIVIL Homes - Mechanicsburg, Inc., we find in favor of the plaintiff and against the defendants. BY THE COURT, David B. Dowling, Esquire For the Plaintiff Samuel Milkes, Esquire For the Defendants :tim 7