HARRISBURG — A pair of homeowners lost their bid for reconsideration of a ruling granting summary judgment against them in a water-damage lawsuit because they began fixing the issue before a contractor could determine who was at fault, according to an opinion filed May 30 by the state Superior Court.

On Nov. 23, 2015, the Court of Common Pleas of Montgomery County granted a motion for summary judgment in favor of defendants Heritage-Lederach LP; HBG Lederach Inc.; Heritage-Lower Salford LP; HBG-Lower Salford Inc.; Heritage Construction Co. Inc.; Heritage Building Group Inc.; and Benchmark Real Estate Co.

In addition to the Heritage defendants, which the Superior Court order said did not take part in the physical construction of the home of plaintiffs Stephen Kinder Sr. and Debra Kinder, Heritage’s subcontractors were eventually named as defendants in the Kinders’ lawsuit.

According to the Superior Court opinion, the defendants were not able to complete their visual inspection of the Kinders’ home to determine which subcontractor may be at fault for the alleged defects because the plaintiffs hired a remediation company to address the water issues while the legal proceedings were pending.

The lawsuit filed by the Kinders alleged that the Heritage entities were responsible for construction defects that allowed “water intrusion through the exterior stucco cladding and into the interior of their home,” according to the ruling.

The Kinders also claimed that Heritage did not comply with their warranty and that Heritage should have fixed the alleged damage or offered to reimburse the Kinders for the work done by other remediation professionals.

In response to the trial court order granting the motion for summary judgment based on a “spoliation sanction,” the Kinders claimed that numerous pictures of the property were available to the defendants when the remediation efforts began.

The Kinders also argued that “appellees were or should have been aware of the remediation efforts and that less extreme sanctions by the trial court, such as a jury instruction on spoliation of evidence, were available.”

However, the Superior Court sided with the lower court.

“Indeed, it was appellants’ responsibility to preserve the areas of the alleged defects, and this responsibility was not relieved because of the lapse of time from the building of the home to the remediation,” the Superior Court said in its ruling.

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