Barbour man says wall wasn't built properly

CLARKSBURG -- A Barbour County man has filed suit against Collier Foundation Systems doing business as Superior Walls, one of its employees and a lumber store, alleging the company did not correctly build an outside wall of his home.

James Cobb claims he saw a display of a brick-work material for housing foundations by Superior Walls in a Harrison County 84 Lumber on July 17, 2007.

After learning the cost of the material, Cobb decided to purchase the advertised brick and contracted with Superior Walls to have the material installed, according to the complaint filed Feb. 24 in Monongalia Circuit Court.

In July 2007, Cobb met with a Collier sales representative who told him that he would have to pay for the materials and installation in full before Collier would begin the work, the suit states.

So Cobb says he withdrew funds from his account at his bank in Westover and paid the sales representative cash for the materials and labor that was to be performed on his home.

Superior Walls installed the foundation wall while Cobb was on business and out of state, according to the complaint.

However, when Cobb returned home, he discovered the corners of the walls were half an inch out and the seams were bowed, the suit states. In addition, the material was not brick, but was a tile substance.

After making his discoveries, Cobb met with Collier employee and defendant William Duchess, who instructed Cobb to get a price for materials and labor. Duchess told Cobb Collier would pay for the costs of brick, sand, all materials and labor, Cobb says.

Duchess also promised he would provide an angle iron for a brick ledge and beveled stone for the top layer between the brick and the house, according to the complaint.

After obtaining prices, Cobb called Duchess, but Duchess has refused to return Cobb's calls, the suit states.

"Defendant William Duchess has breached the agreement to make good on the original contract," the suit states. "Defendants Collier and William Duchess collected money from Plaintiff under false pretenses."

Collier breached its implied warranty of merchantability by failing to deliver goods within the contract description, Cobb says.

84 Lumber is liable because it allowed a display misrepresenting materials that Cobb purchased, according to the complaint.

"Plaintiff would not have purchased the product delivered and installed had he not been duped by Defendant 84 Lumber's false advertisement," the suit states.

In the two-count suit, Cobb is seeking compensation for his losses in the amount of $100,000, plus costs, attorney's fees and other relief the court deems just.

84 Lumber removed the case to federal court because it is a resident of Pennsylvania and because Cobb is a resident of West Virginia. Therefore, a diversity of citizenship exists. In addition, Cobb is seeking more than $75,000.

David M. Anderson of Fairmont will be representing Cobb.

84 Lumber is represented by Troy N. Giatras of The Giatras Law Firm in Charleston.

U.S. Federal Court case number: 1:09-CV-46