Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Barker v. Hostetter

United States District Court, E.D. Pennsylvania

November 13, 2014

DANIEL AND KRISTEN BARKER, h/w, et al., Plaintiffs,
v.
WILMER L. HOSTETTER AND JOYCE L. HOSTETTER, et al., Defendants, and GARY ROEDER, et al., Third-Party Defendants.

MEMORANDUM

RONALD L. BUCKWALTER, Senior District Judge.

Currently pending before the Court are (1) the Motions by Third-Party Defendants Hugh V. Archer, individually and doing business as Mavickar Environmental Consultants, Mavickar Environmental Consultants Inc., Mavickar Environmental Engineering Consultants, LLC, and The Mavickar Group, LLC; Chesapeake Environmental Solutions, Inc. and Hugh V. Archer doing business as Chesapeake Environmental Solutions; Tri-Tech Resources, Inc. and Tri-Tech Resources, Inc., doing business as Lake, Roeder, Hillard & Associates; Dr. Hugh Archer; Terr Aqua Facility Planning Conultants, LLC; Envirotec, Inc.; Joseph Link; H&H Rock Companies; WWM, Inc.; Wastewater Monitoring, Inc.; Leo Kob Environmental, LLC; Leo Kob Co., Inc.; Leo Kob Company; Richard A. Kerb; and Hopewell Ridge Homeowners Association (collectively, "Third-Party Defendants, " to Dismiss Defendants' Joint Third-Party Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) or for a More Definite Statement pursuant to Rule 12(e); and (2) the Motion by Third Party Defendants Tri-Tech Resources, Inc., Tri-Tech Resources, Inc. d/b/a Lake, Roeder, Hillard & Associates, and Gary Roeder to Dismiss Defendants' Third-Party Complaint for failure to file a Certificate of Merit. For the following reasons, the Motions to Dismiss pursuant to Rule 12(b)(6) are granted and the Motions for a More Definite Statement and the Motion to Dismiss for failure to file a Certificate of Merit are denied as moot.

I. FACTUAL BACKGROUND[1]

Defendants Keystone Custom Homes, Inc., and Willow Creek, LLC, and Defendants Wilmer L. Hostetter and Joyce L. Hostetter (collectively "Defendants") brought a Joint Third-Party Complaint against Hugh V. Archer, individually and doing business as Mavickar Environmental Consultants, Mavickar Environmental Consultants Inc., Mavickar Environmental Engineering Consultants, LLC, and The Mavickar Group, LLC; Chesapeake Environmental Solutions, Inc. and Hugh V. Archer doing business as Chesapeake Environmental Solutions; Tri-Tech Resources, Inc. and Tri-Tech Resources, Inc., doing business as Lake, Roeder, Hillard & Associates; Gary Roeder; Terr Aqua Facility Planning Consultants, LLC; Envirotec, Inc.; Joseph Link; H&H Rock Companies; WWM, Inc.; Wastewater Monitoring, Inc.; Leo Kob Environmental, LLC; Leo Kob Co., Inc.; Leo Kob Company; Richard A. Kerb; and Hopewell Ridge Homeowners Association (collectively, "Third Party Defendants").

In the Third-Party Complaint, Defendants incorporate by reference, without providing a summary, the factual allegations set forth in Defendants Keystone Custom Homes, Inc.'s and Willow Creek, LLC's Answer to First Amended Complaint with Affirmative Defenses and Cross-claim ("Keystone Answer") and Defendants Wilmer and Joyce Hostetter's Answer to the First Amended Complaint with Affirmative Defenses and Cross-claims ("Hostetter Answer"), attached to the Joint Third-Party Complaint as Exhibit 1. (Third-Party Compl. ¶ 1.) Defendants also incorporate by reference, without admitting the truth of the averments contained therein, the factual allegations set forth in Plaintiffs' First Amended Complaint, which is attached to the Joint Third-Party Complaint as Exhibit 2. (Third-Party Compl. ¶ 2, Ex. 2.) Plaintiffs' First Amended Complaint sets forth allegations against Defendants concerning the presence of nitrate contamination on the Plaintiff homeowners' lots in the Hopewell Ridge development and Defendants' alleged misrepresentations and omissions regarding the contamination and sewage connections on the lots and in connection with Plaintiffs' purchases of their homes.[2] See Barker v. Hostetter, No. Civ.A.13-5081, 2014 WL 1464319, at *1-5 (E.D. Pa. Apr. 15, 2014).

Third-Party Defendants Hugh V. Archer ("Archer") and Mavickar Environmental Consultants, Mavickar Environmental Consultants, Inc., Mavickar Environmental Engineering Consultants, LLC, and The Mavickar Group, LLC ("Mavickar") reside and/or are registered at 5925 Stevenson Avenue, Suite A, Harrisburg, Pennsylvania. (Third-Party Compl. ¶¶ 3-8.) Archer is the President and Treasurer of Mavickar Environmental Consultants, Inc., and Defendants assert that Archer is also a shareholder/member of all the Mavickar Third-Party Defendants, directs the operations of all the Mavickar Third-Party Defendants, and operates them as a single enterprise and/or as alter egos of each other. (Id. ¶¶ 5, 9.) Archer and Mavickar designed the EnviroServer septic systems that were installed in the Hopewell Ridge development and represented to Defendants that the EnviroServers would treat and reduce the level of nitrates in the groundwater at Hopewell Ridge to the level required by the Pennsylvania Department of Environmental Protection ("DEP"). (Id. ¶ 10.) Prior to founding Mavickar, Archer worked for DEP. (Id. ¶ 11.) In his capacity as a professional engineer licensed in Pennsylvania, and as a representative of Mavickar Environmental Consultants, Archer certified that the EnviroServers were constructed in accordance with the plans and specifications that DEP had approved. (Id. ¶ 12.) On the basis of that certification, DEP authorized the Chester County Health Department to permit wells and issue Use and Occupancy Permits for the Hopewell Ridge lots Archer had certified as having properly installed EnviroServers. (Id. ¶ 13.) When DEP reviewed the EnviroServers' performance and authorized their continued use, including adjustments to alkalinity, Archer communicated with his former DEP subordinate to persuade DEP that the EnviroServers could continue to be used with minor adjustments. (Id. ¶ 14.) Archer certified that the EnviroServers were working to properly treat the nitrate levels in the groundwater at Hopewell Ridge, and, together with Third-Party Defendants Gary Roeder and Lake Roeder, required the Keystone and Hostetter Defendants to purchase the EnviroServers from a particular distributor. (Id. ¶ 15.) Defendants assert that this was done to manipulate the EnviroServers' purchase price and for the personal gain of Third-Party Defendants Archer, Mavickar, Roeder, Lake Roeder, and Chesapeake. (Id.)

According to the Third-Party Complaint, Third-Party Defendant Chesapeake Environmental Solutions is a fictitious name registered to Archer with an address at 1240 North Mountain Road in Harrisburg, Pennsylvania. (Id. ¶ 16.) Third-Party Defendant Chesapeake Environmental Solutions, Inc. is a Pennsylvania corporation registered at the same address as Chesapeake Environmental Solutions (collectively "Chesapeake"). (Id. ¶ 17.) Chesapeake was the supplier from which the Keystone Defendants were required to purchase the EnviroServers that were installed at Hopewell Ridge. (Id. ¶ 18.) The Third-Party Complaint alleges that Archer did not disclose to Defendants that Archer was an owner of, and/or affiliated with, Chesapeake. (Id. ¶ 19.) On the Purchase Agreements for the EnviroServers, Third-Party Defendant Joseph Link is identified as the President of Chesapeake, but Archer is not mentioned. (Id.)

Also according to the Third-Party Complaint, Third-Party Defendant Lake, Roeder, Hillard & Associates is a fictitious name registered to Tri-Tech Resources, Inc., with an address at 324 Beaver Valley Pike, in Willow Street, Pennsylvania. (Id. ¶ 20.) Third-Party Defendant Tri-Tech Resources, Inc. is a Pennsylvania corporation registered at the same address. (Id. ¶ 21.) Defendants assert that an internet search for Tri-Tech Resources, Inc. defaults to a website for Lake, Roeder, Hillard & Associates (collectively, "Lake Roeder"). (Id.) Gary Roeder is a principal of Lake Roeder, the engineering firm that designed the Sewage Planning Narrative for Hopewell Ridge, which served as the basis for DEP's approval of the EnviroServers. (Id. ¶¶ 22-23.) Tri-Tech reviewed the results of soils testing at Hopewell Ridge and, together with Lake Roeder, Archer, and Mavickar, proposed the use of EnviroServers at Hopewell Ridge. (Id. ¶ 24.) Lake Roeder recorded the Installation and Maintenance Agreement between the Hostetter Defendants and East Nottingham Township by which the Township obtained rights to enter, inspect, and maintain the EnviroServers and by which it was affirmed that the Hopewell Ridge Homeowner's Association was obligated to maintain the EnviroServers. (Id. ¶ 25.) Defendants allege that Roeder is a shareholder/member of all the Lake Roeder Third-Party Defendants, as well as Third-Party Defendant Terr Aqua, directs the operations of all Lake Roeder Third-Party Defendants and Terr Aqua, and operates them as a single enterprise and/or as alter egos of each other. (Id. ¶ 26.) Roeder and Lake Roeder, together with Archer, Mavickar, and Chesapeake, engineered the approval of the Sewage Planning Narrative. (Id. ¶ 27.)

Third-Party Defendant Terr Aqua, Wastewater and Water Facility Planning Consultants, LLC ("Terr Aqua") shares the same address as Lake Roeder and Gary Roeder at 313 West Liberty Street, Suite 1, Lancaster, Pennsylvania. (Id. ¶ 28.) Roeder and/or Lake Roeder are the principals of Terr Aqua. (Id. ¶ 29.) Archer and Terr Aqua prepared the EnviroServer construction detail drawings that were used to obtain construction building permits for the homes in Hopewell Ridge. (Id. ¶ 30.) Archer also served as a Project Engineer for Terr Aqua and, as a professional engineer, sealed the construction detail drawings upon which permits were issued to construct and install the EnviroServers. (Id. ¶ 31.)

Third-Party Defendant Joseph Link ("Link") of 6800 Deerpath Road, Suite 100, Elkridge, Maryland, is alleged to be a principal of Third-Party Defendants Envirotec, Inc., Wastewater Monitoring, Inc., WWM, Inc., and H&H Rock Companies, all of which share the same address, and which are collectively referred to as the "Link Entities." (Id. ¶¶ 32-36.) Defendants allege that Link is a shareholder member of all the Link Entities, directs their operations, and operates them as a single enterprise and/or as alter egos of each other. (Id. ¶ 37.) The Link Entities, together with Third-Party Defendants Kob Companies, installed the EnviroServers and monitored their performance following installation. (Id. ¶ 38.) H&H Rock Companies, one of the Link Entities, was the exclusive mid-Atlantic distributor of EnviroServer technology, trained Kob Companies on how to install and maintain the EnviroServers, and authorized the Kob Companies to provide installation and maintenance services on the EnviroServers used at Hopewell Ridge. (Id. ¶ 39.) On the Purchase Agreement for the EnviroServers between Keystone and Chesapeake, which is an Archer-owned/affiliated entity, Link is identified as Chesapeake's President; Terr Aqua is listed as the engineering firm retained to certify to DEP proper construction, installation, and start-up of the EnviroServers; and Roeder is listed as the "contact" for Terr Aqua. (Id. ¶ 40.) From 2007 onward, there is no disclosure on the Purchase Agreements, that Defendant Keystone signed in order to purchase EnviroServers from Chesapeake, that Link was also the principal of Wastewater Monitoring, Inc., the entity that entered into an "Extended Maintenance and Monitoring Agreement" (the "Maintenance Agreement") in 2004 to monitor and maintain the EnviroServers. (Id. ¶ 41.) The Maintenance Agreement was to continue for the life of the EnviroServer systems and was terminable only by Wastewater Monitoring, Inc. (Id.)

According to the Third-Party Complaint, Defendants relied on the technical expertise of Archer, Mavickar, Roeder, Lake Roeder, Chesapeake, Terr Aqua, Link, the Link Entities, Richard Erb, and the Kob Companies to design and obtain approval of the appropriate septic systems for use in Hopewell Ridge. (Id. ¶ 48.) Defendants assert that "Plaintiffs claim to have suffered certain damages as the result of issues that arose during the construction, installation, and operation of the EnviroServers and related facilities" at Hopewell Ridge. (Id. ¶ 54.) According to Defendants, "the Third Party Defendants all were responsible for the permitting, approval, design, construction, installation, operation, maintenance, and monitoring of the EnviroServers and related facilities at [Hopewell Ridge]." (Id. ¶ 55.) Defendants stated further that the damages Plaintiffs allegedly suffered "occurred while Third Party Defendants were in control of the EnviroServers and related facilities as set forth above and as set forth in the Keystone Answer and the Hostetter Answer." (Id. ¶ 56.) According to Defendants, "the Third Party Defendants acted negligently and with reckless disregard of the interests of Plaintiffs in failing to properly select, design, construct, install, operate, maintain, and monitor the EnviroServers and related facilities and in failing to take any action to address the alleged substantial deficiencies in the EnviroServers and related facilities that led to any alleged injury suffered by Plaintiffs." (Id.)

The sole Count in the Third-Party Complaint is for indemnification and contribution. Specifically, Defendants allege that "[i]f Plaintiffs sustained any damages as alleged, which is denied, such damages were caused entirely by reason of the negligence, carelessness, recklessness, breaches of express and/or implied contracts, or violation of law, by Third Party Defendants and/or the employees and/or agents of each of them, there being no active wrongdoing on the part of Defendants contributing thereto." (Id. ¶ 58.) Defendants allege that on that basis, "Third Party Defendants are alone liable to Plaintiffs, jointly and several liable with Defendants, or liable over to Defendants, any liability on behalf of Defendants being expressly denied." (Id. ¶ 59.)

Defendants filed their Joint Third-Party Complaint on May 27, 2014. Gary Roeder and Lake Roeder filed Motions to Dismiss on July 28, 2014. Tri-Tech, Archer, Mavickar, Chesapeake, and Terr Aqua filed Motions to Dismiss on July 29, 2014. Defendants filed their Joint Omnibus Response to the Third-Party Defendants' Motions to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.