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HomeMy WebLinkAbout07-0331f KEN MSHAR AND IN THE COURT OF COMMON PLEAS OF DONNA MSHAR, his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs No. 07-3.3f CIVIL TERM V. CIVIL ACTION DAVID J. WALSH, t/a YDW, CONTRACTING & CONSTRUCTION, Defendant 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 (20) 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. IF YOU CANNOT AFFORD A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ON AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Court Administrator 4"' Floor, Cumberland County Carlisle, PA 17013 (717) 240-6200 i U, mie. Richard P. Mislitsky, Esquire Attorney ID #28123 One West High Street P. O. Box 1290 Carlisle, PA 17013 (717) 241-6363 4 KEN MSHAR AND DONNA MSHAR, his wife, Plaintiffs V. DAVID J. WALSH, t/a YDW, CONTRACTING & CONSTRUCTION, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : No. O7 - 331 CIVIL TERM CIVIL ACTION PETITION TO APPOINT AN ARBITRATOR AND NOW comes the Plaintiff by and through their attorney, Richard P. Mislitsky, and request this Honorable Court to appoint an arbitrator on behalf of the Defendant and in support thereof avers as follows: 1. Plaintiffs are individuals, husband and wife, residing at 1059 D York Road, Dillsburg, Pennsylvania. 2. The Defendant is a contractor with a principal place of business of PO Box 519, Etters, Pennsylvania. 3. The parties entered into a contract for the construction of a home. A copy of the contract is attached hereto and marked Exhibit A. 4. Various disputes arose during the construction of the residence. 5. Paragraph 11.1 of the attached agreement provides that all disputes will be arbitrated. 6. Despite repeated requests to the Defendant and to Defendant's counsel, Kevin R. Helm, Defendant has refused to appoint an arbitrator. 7. It is believed and therefore averred that Defendant and counsel are attempting to delay this matter. 8. By correspondence dated October 12, 2006, attached hereto and marked Exhibit B, Plaintiffs have demanded arbitration and have appointed an arbitrator to act on their behalf. WHEREFORE, Plaintiffs pray this Honorable Court to appoint an arbitrator on behalf of the Defendants. Date: ( I Idl Richard P. Mislitsky, Esquire Supreme Court ID #28123 1 West High Street, Suite 208 Carlisle, PA 17013 717-241-6363 Attorney for the Plaintiffs ]C) ?XT C tl ZS 7t oT? 11c)-naes General Contracting & Architectural Design C O NS T R U C T I O N A G R EEMENT THIS AGREEMENT made this day of Lau s+ , 20_21 between David J. Walsh, t/a YDW Contracting & Construction (hereinafter referred to as "CONTRACTOR" and k-e " JV4,S),ja j- (hereinafter referred to as "BUYER"). WITNESSETH.- That in consideration of the mutual covenants and agreements here in contained, the parties hereto agree to the following terms and conditions: ARTICLE I THE CONSTRUCTIONAGREEMENT 1.1 The contract Documents consist of the Agreement, the Drawings, the Specifications, all Addenda issued prior to and all Modifications issued after execution of this Agreement. These form the Contract, and all are a fully a part of the Contract as if attached to the agreement or repeated herein. 1.2 Contract Work. The Contractor agrees to furnish all the material and labor necessary for the construction of a single family dwelling upon the property of Buyer. The said work shall be performed in accordance with certain plans and specifications known and identified as set forth in the addenda attached hereto and made a part hereof. 1.3 Allowances to Buyer. See Spec Sheet ARTICLE 2 CONTRACT PRICE Buyer agrees to make progress payments on account of the Contract Price of $160.000.00 Dollars, within seven (7) days of delivery of written applications for payment submitted to Buyer as per the bank or mortgage company's Draw Schedule. PO Box 519 Etter. s, PA 17319-0519 Phone: 717-932-2424 Fax: 717-932-4449 a PLAINTIFF'S W EXHIBIT a A J J - - Q ARTICLE 3 FINAL PAYMENT 3.1 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, ready for beneficial occupancy, or when the Buyer occupies the Project, whichever event first occurs, provided that the Project is then substantially completed and this Agreement substantially performed. H there should remain minor items to be completed the Contractor shall deliver in writing, his guarantee to complete said items within a reasonable time thereafter. 3.2 The making of final payment shall constitute a waiver of all claims by the Buyer except those arising from (1) unsettled liens, (2) faulty or defective work appearing within one (1) year after Substantial Completion, (3) failure of the work to comply with the requirements of the Contract Documents, or (4) those claims made in writing by Buyer prior to final payment. The acceptance of final payment shall constitute a waiver of all claims by the Contractor except those previously made in writing. ARTICLE 4 TIME OF COMMENCEMENT AND SUBSTATML COMPLETION 4.1 The work to be performed under this Contract shall be commenced on or about Mortgage Obtained by Buyer or thirty (30) days after the date Buyer has fulfilled all obligations required by Article 5 of this Contract, and except as otherwise provided or permitted by the Contract, shall be substantially completed not later than (4 rm ghs C-nn, Lutz n-?frj :491-c A: }. _ -V- - k( IV Loa Cor\+ m d' f S 1 rv ecP &--,t, I ? ? .? ? C 4.2 The Date of Substantial Completion of the Contract Work is the date when construction is sufficiently completed in accordance with the contract Documents and a Certificate of Occupancy has been issued so the Buyer can occupy the construction work. Warranties called for by this Agreement shall commence on the Date of Substantial Completion of the construction work. ARTICLE S INFORMATIONAND SERVICES REQUIRED OF THE BUYER 5.1 The Buyer, shall at the request of the Contractor, furnish to the Contractor reasonable evidence that he has made financial arrangements to fulfill his obligations under the Contract. Unless such reasonable evidence is furnished, the Contractor is not required to commence the Work. A lender commitment letter shall satisfy this requirement. 5.2 Prior to the commencement of construction, Buyer shall obtain and deliver to Contractor an attorney's certificate of title to the property which certificate shall be in the proper form, or other proof of Buyer's ownership of the premises which is satisfactory to Contractor and its counsel. 5.3 Buyer shall review the plans and specifications submitted by Contractor and shall give prompt written notice to the Contractor of any fault of defect in the said plans and specifications. 5.4 Information or services under the Buyer's control shall be furnished by the Buyer with reasonable promptness to avoid delay in the orderly progress of the work. ARTICLE 6 OBLIGATIONS OF CONTRACTOR 6.1 Contractor will provide all construction, supervision, inspection, labor, materials, tools, equipment, and subcontracted items necessary for the execution and completion of the contract work. 6.2 Contractor will pay all sales, use, gross receipts and similar taxes related to the contract work to be provided by the Contractor, which taxes have been legally enacted at the time of execution of the agreement. 6.3 The Contractor warrants to the buyer that all materials and equipment incorporated into the contract work will be new unless otherwise specified, and that all contract work will be performed in a good and workmanlike manner, in conformance with the contract Documents. 6.4 Contractor shall be responsible for the acts and omissions of its employees and all subcontractors engaged by the Contractor, their agents and employees, and all other persons performing any of the work under the contract on behalf of or with the Contractor. 6.5 Contractor shall execute a Stipulation Against Liens and Provide to Buyer. ARTICLE 7 CHANGES The Contractor is under no obligation to make any changes, additions, or alterations in the work provided in the Contract Documents unless upon reasonable request of the Buyer, Contractor will make changes, additions, or alterations, but the contractor shall not be required to do so until the parties have executed a written Change Order, which will become part of this Contract, and the Buyer has agreed to pay the Contractor for changes in the work on the same basis as the cost of the work as defined in this Contract. An equitable adjustment will be made for any deletions in the Contract. The Buyer agrees to make requests concerning any changes, additions, or alterations in work to the Contractor and not to the workers, including subcontractors on the job. No extension of the Date of Substantial Completion will be made for changes unless the Change Order so specifies. ARTICLE 8 CORRECTION OF WORK 8.1 The Contractor shall correct any work that fails to conform to the requirements of the Contract Documents where such failure to contractor assigns to the Buyer, to the extent they are assignable, all rights under manufacturer's warranties on appliances, equipment, fixtures, and consumer products included in the house and located on the Buyer's property. The Contractor provides no warranties relating to manufactured or consumer products after the aforementioned one-year period. THIS CONTRACT CONTAINS ALL OF THE REPRESENTATIONS, WARRANTIES, AND PROMISES OF THE CONTRACTOR. NO AGENT OR REPRESENTATIVE OF THE CONTRACTOR IS AUTHORIZED TO MAKE ANY REPRESENTATION OR PROMISE ON BEHALF OF THE CONTRACTOR OTHER THAN THOSE CONTAINED HEREIN, AND THE CONTRACTOR MAKES NO OTHER EXPRESS WARRANTIES. ARTICLE 9 RELEASE OF LIENS If a Stipulation Against Liens has not been filed, the Contractor, with his request for final payment, shall deliver to the Buyer, a complete Release of Liens arising out of this contract and, if required, shall furnish an affidavit that the Releases include all the labor and material for which a lien could be fled through it as Contractor. If a Stipulations Against Liens has been filed, The Contractor shall be under no obligation whatsoever, to furnish a Release of Liens. ARTICLE 10 ASSIGNMENT OF MORTGAGE PROCEEDS It is agreed by the Buyer that the proceeds of any construction mortgage are hereby assigned, transferred and set over to the Contractor and payable to said Contractor in accordance with the terms of payment as herein provided. ARTICLE 11 SUBCONTRACTORS 11.1 All claims, disputes, and other matters in question between the parties of the Contract, arising out of or relating to the Contract of any breach or alleged breach of this Contract, will be decided by arbitration unless the parities otherwise mutually agree in writing. 11.2 The parties may agree upon one arbitrator; otherwise there shall be three, on named in writing by each party of the Contract within ten days after notice of arbitration is served by either party upon the other, and a third arbitrator selected by these two arbitrators within ten days thereafter. No one shall serve as an arbitrator who is in any way financially interested in the Contract or in the affairs of either party hereto. 11.3 This agreement to arbitrate shall be specifically enforceable under the. prevailing arbitration laws. The award rendered by the arbitrator(s) will be final and binding, and judgment may be entered upon it in accordance with the applicable law in any court that has jurisdiction over the decision. ARTICLE 12 INSURANCE 12.1 Indemnity. The Contractor agrees to indemnify and hold the Buyer harmless from all claims for bodily injury and property damage (other than the work itself and other property insured under paragraph 14.2) that may arise from the Contractor's operations under this Agreement. 12.2 Contractor's Liability Insurance. The Contractor shall purchase and maintain such insurance as will protect it from claims under workmen's compensation acts and other employee benefit acts, from claims for damages because of bodily injury, in death, and from claims for damages to property which may arise out of or result from the Contractor's operation under this Contract, whether such operations be by it or by any subcontractor or anyone directly or indirectly employed by any of them. The insurance shall be written for not less then $1,000,000 single limit shall include contractual liability insurance as applicable to the Contractor's obligations under this Agreement. 12.3 Buyer's Liability Insurance. 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 which may arise from operations under this Contract. 12.4 Buyer's Property Insurance. Unless otherwise provided, the buyer shall purchase and maintain property insurance upon the entire contract work at the site to the full insurable value thereof. This insurance shall include the interests of the Buyer, the Contractor, and shall insure against the perils of fire, extended coverage, vandalism and malicious mischief. Any insured loss is to be adjusted with the buyer and made payable to the buyer as trustee for the insured as their interests may appear, subject to the requirements of any mortgage clause. The Buyer shall provide a copy of all policies to the Contractor prior to the commencement of the work. The Buyer and Contractor waive all rights against each other for damages caused by fire or other perils to the extent covered by insurance provided under this paragraph. The Contractor shall require similar waivers by subcontractors and sub-subcontractors. ARTICLE 13 CONCEALED OR UNgNOWN CODITITIONS 13.1 The Contract Price is for the materials and labor in construction of the contract work. The Contractor has inspected the construction site and knows of no abnormal or unusual subterranean conditions. The Buyers shall pay for any additional costs involved in providing extra engineering or foundation work which may be required if the Contractor encounters unforeseen abnormal or unusual subterranean conditions during the course of construction including but not limited to: (A) Cost of removal of any rock in making excavation for foundation wall, sewage or water tines (B) Extra concrete block and labor necessary to install the same for the construction of foundation that may be required in excess of blueprint specifications. (C) The cost of labor and materials needed to divert or control subsurface water found during the course of construction. 13.2 The Contractor shall, before such conditions are disturbed, notify the Buyer of (1) subsurface or latent physical conditions at the site differing materially form those indicated in this Contract or (2) unknown physical conditions at the site of an unusual nature. The Buyer shall promptly investigate the conditions, and if he finds that such conditions do materially so differ and cause in increase in the Contractors costs, or the time required for performance of any part of the work under this Contract, whether or not changed as a result of such conditions, a specific cost adjustment shall be made and the Contract Price adjusted by Change Order. ARTICLE 14 DELAYS AND EXTENSION OF TIME If the Contractor is delayed at any time in the progress of the construction work by any act, failure or neglect of the Buyer of by changes ordered in the Project or by labor disputes, fire, unusual delay in transportation, adverse weather conditions not reasonable anticipatable, unavoidable casualties, or any causes beyond the Contract's control, or a delay authorized by the Buyer, then the Date for Substantial Completion shall be extended for the period of such delay. ARTICLE IS RIGHT OF INGRESS AND REGRESS It is a covenant of the Contract that the Buyer does hereby grant and convey to the Contractor, its successors and assigns, full and complete rights of ingress, regress and such occupancy or possession of the construction. Any refusal thereof, it is agreed, is a default by the Buyer whereupon the full amount of the contract Price shall become immediately due and payable. ARTICLE 16 DEFAULT 16.1 Default By Buyer. N the buyer shall default hereunder prior to the beginning of construction work, Contractor shall retain the money paid by the Buyer, if any, as liquidated damages; and this Contract shall thereupon terminate. N the buyer fails to make a Progress Payment to Contractor as herein provided through no fault of the Contractor, the Contractor may, upon seven 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 construction equipment and machinery, including reasonable profit and damages. 16.2 Default By Contractor. If the Contractor is adjudged a bankrupt, or if he makes a general assignment for the benefit of his creditors, or if a receiver is appointed on account of his insolvency, or if he persistently or repeatedly refuses or fails, except in cases for which extension of time is provided, to supply enough properly skilled workmen or proper materials, or if he fails to make prompt payment to Subcontractors for materials or labor, or persistently disregards laws, ordinances, rules, regulations or order of any public authority having jurisdiction, or otherwise is it of substantial violation of provision of the Contract Documents, then the Buyer, may, without prejudice to any t or remedy an after giving Contractor seven days' written note, terminate the employment of the contractor and take possession of the site and of all materials and may finish the work by whatever method he may deem expedient. In such case the Contractor shall not be entitled to receive any further payment until the work is finished. If the unpaid balance of the Contract Price exceeds the costs of finishing the work, such excess shall be paid to the Contractor. ARTICLE 17 OWNERSHIP OF MATERIALS It is mutually agreed that all materials delivered upon said premises shall be regarded as the property of the Contractor until paid for by the Buyer, and shall not be removed without the consent of the Contract. ARTICLE 18 POSSESSION 18.1 It shall be the duty of the Buyer or his agent to inspect the house in the presence of the Contractor or the Contractor's authorized representative and to give the Contractor at that time a signed punch list of any deficiencies in workmanshi or material 18.2 As to any items on the list prepared by the Buyer that are reasonable deficiencies in workmanship and/or materials by the standards of construction relevant in area where the property is located, the Contractor shall correct those defects at his cost within a reasonable period of time, as set forth in the Limited Warranty. Except with respect to any latent defects covered by our Limited Warranty, the Contractor has no obligation to make any repairs that are not included on the Buyer's punch list. On substantial completion of the work, Buyer shall execute a Completion Certificate. ARTICLE 19 GENERAL PROVISIONS 19.1 All rights and liabilities herein give to, or imposed upon, the respective parties hereto shall extend to and bind the several and respective heirs, executors, administrators, successors and assigns of said parties, and it may not be changed except by written agreement duly executed by the same parties. 19.2 Severability. Each provision of this Contract is separable from every other provision of this Contract, and if any provision is determined to be unenforceable or is revised, it will have no effect of the enforceability or validity of any other provision. 19.3 The applicable law governing this agreement will be the law of the jurisdiction where the property is located. 19.4 This agreement may not be assigned without the written consent of the Contractor which shall not be unreasonably withheld. 19.5 Written notice shall be deemed to have been duly served if delivered in person to the Buyer or, if to the Contractor, to an officer of the Corporation, or if delivered at or sent by registered mail to the last business address know to him who gives the notice. 19.6 Wherever used in this Agreement, the singular shall include the plural, the plural the singular and the use of any gender shall be applicable to all gender. This agreement and all its terms and conditions shall extend to and be binding upon the parties hereto and upon their respective heirs, executors, administrators, successors and assigns. IN WITNESS WHEREOF, the parties, intending to be legally bound hereby, have hereunto set their hands and seals to the day and year first above written. ATTEST: CONTRACTOR: David J. Walsh tla YDW Contracting & Cons on avi J. alsh BUYER(S): WITNESS: *Richard P. Mislitsky Law Office of Richard P. Mislitsky One West High Street P.O. Box 1290 Carlisle, Pennsylvania 17013 Telephone (717) 241-6363 Fax (717) 249-7073 offices in: Carlisle Chambersburg York October 12, 2006 Via Certified Mail David J. Walsh P.O. Box 519 Etters, PA 17319-0519 RE: Mshar v. Walsh/YDW Contracting & Construction Dear Mr. Walsh: Please be advised that I represent Ken Mshar and his wife, Donna. Pursuant to Article 11 of the contract executed on or about August 14, 2004, I hereby demand arbitration. Please turn this over to your attorney and have him or her contact me within the next ten days as required by the terms of the contract. Please be advised that I hereby appoint Stephen M. Greecher, Jr., Esquire of Tucker Arensberg PC, 111 North Front Street, P.O. Box 889, Harrisburg, PA 17108-0889. If I do not hear from you within two weeks, I will petition the court to appoint an arbitrator on your behalf. Sincerely, t0ave' -'aL Richard P. Mislitsky RPM/jcm cc: Ken & Donna Mshar a PLAINTIFF'S W EXHIBIT a J J ,a *Certified as a Civil Trial Advocate by the National Board of Trial Advocacy A Pennsylvania Supreme Court Accredited Agency ¦ Complete items 1, 2, and 3. Also complete A. Signature item 4 if Restricted Delivery is desired. X/ ¦ Print your name and address on the reverse so that we can return the card to you. B. eived by (Printed Name), " ate ¦ Attach this card to the back of the mailpiece, ? ??? !'S or on the front if space permits. D. Is delivery address different t}+?t item 17 Yes r J 1. Article Addressed to: if YES, enter delivery addregs&.r"ow: 0 No "41 /1? Dove a VV.-L s h rte f? ?'; 1131 C11- 61 3. Service Type lacertified Mail ? Express Mail ? Registered O Return Receipt for Merchandise insured Mail 0 C.O.D. 4. Restricted Delivery? (Extra Fee) 0 Yes 2. Article Number 7006 010 0 0007 1051 9 214 (rransfer from service label PS Form 3811, February 2004 Domestic Return Receipt 102595-02-WIS40 zsl? r'^?A c C.) r .. 4.i .r_ ..1 N ao C3 O --a nzm t J{ « ? r' f KEN MSHAR and DONNA MSHAR, his wife, Plaintiffs vs. DAVID J. WALSH, t/a YDW CONTRACTING & CONSTRUCTION, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-331 CIVIL IN RE: PLAINTIFFS' PETITION TO APPOINT AN ARBITRATOR ORDER AND NOW, this Zs' day of January, 2007, a rule is issued on the defendant to show cause why the relief requested in the within petition to appoint an arbitrator ought not to be granted. This rule returnable twenty (20) days after service. BY THE COURT, ?43 r, -nu KEN MSHAR AND DONNA MSHAR, his wife, Plaintiffs V. DAVID J. WALSH, t/a YDW CONTRACTING & CONSTRUCTION, Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2007-331 CIVIL TERM CIVIL ACTION Motion to Make Rule Absolute AND NOW come the Plaintiffs, Ken and Donna Mshar, by and through their attorney, Richard P. Mislitsky, Esquire and pray this Honorable Court to appoint an arbitrator and to further order the Defendant, David J. Walsh, t/a YDW Contracting & Construction, to pay the arbitrator so appointed by the Court and in support thereof avers as follows: 1. On January 18, 2007, Petitioner filed an action requesting appointment of an arbitrator pursuant to the contract between Ken and Donna Mshar and the Defendant, David J. Walsh, t/a YDW Contracting & Construction. A copy of the Petition is attached hereto and marked exhibit A. 2. On January 25, 2007, the Honorable Kevin A. Hess executed an Order issuing a Rule to Show Cause upon the Defendant as to why the Plaintiffs' Petition should not be granted. A copy of the Order is attached hereto and marked exhibit B. 3. Defendant was properly served on February 5, 2007. Proof of service is attached hereto and marked exhibit C. 4. Defendant and Respondent herein ignored the Order issued upon him by the Court and has not provided an answer to the Petition to Appoint an Arbitrator. 5. Petitioners herein pray this Honorable Court to make the Rule Absolute and to appoint an arbitrator so that the breach of contract action against the Defendant may proceed. 6. Petitioners further pray this Honorable Court to issue an Order requiring the Defendant to pay the arbitrator appointed by this Honorable Court or to suffer sanctions as may be later determined. WHEREFORE, Petitioners pray this Honorable Court to make the Rule Absolute and further Order the Defendant to pay the arbitrator so appointed. Date: i, 'chard P. Mislitsky, Esquire Supreme Court ID #28123 One West High Street, Suite 208 P.O. Box 1290 Carlisle, PA 17013 717-241-6363 Attorney for the Plaintiffs KEN NISHAR AND DONNi A NISHAR, his wife, Plaintiffs V. DAVID J. WALSH, t'a YDW, CONTRACTING & CONSTRUCTION, Defendant IN THE COURT OF CON[NION PLEAS OF CUMBERLAND COL- TY, PENNSYLVANIA No. 0? -331 CIVIL TERM CIVIL ACTION -n -4 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 (20) 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. IF YOU CANNOT AFFORD A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ON AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Court Administrator 4`h Floor, Cumberland County Carlisle, PA 17013 (717) 240-6200 Richard P. Mislitsky Attorney ID #28123 One West High Street P. 0. Box 1290 Carlisle, PA 17013 (717) 241-6363 a PLAINTIFF'S W EXHIBIT J Q A J J Q ;- 4d 1 4 , Esquire KEN iviSHAR AND DONMN A MSHAR, his wife, Plaintiffs V. DAVID J. WALSH, tia YDW, CONTRACTING & CONSTRUCTION, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. CIVIL TERM CIVIL ACTION PETITION TO APPOLNT AN ARBITRATOR AND NOW comes the Plaintiff by and through their attorney, Richard P. Mislitsky, and request this Honorable Court to appoint an arbitrator on behalf of the Defendant and in support thereof avers as follows: 1. Plaintiffs are individuals, husband and wife, residing at 1059 D York Road, Dillsburg, Pennsylvania. 2. The Defendant is a contractor with a principal place of business of PO Box 519, Etters, Pennsylvania. 3. The parties entered into a contract for the construction of a home. A copy of the contract is attached hereto and marked Exhibit A. 4. Various disputes arose during the construction of the residence. 5. Paragraph 11.1 of the attached agreement provides that all disputes will be arbitrated. 6. Despite repeated requests to the Defendant and to Defendant's counsel, Kevin R. Helm, Defendant has refused to appoint an arbitrator. 7. It is believed and therefore averred that Defendant and counsel are attempting to delay this matter. 8. By correspondence dated October 12, 2006. attached hereto and marked Exhibit B, Plaintiffs have demanded arbitration and have appointed an arbitrator to act on their behalf. WHEREFORE, Plaintiffs pray this Honorable Court to appoint an arbitrator on behalf of the Defendants. Date: j 'Richard P. Mislitsky, Esquire Supreme Court ID #28123 1 West High Street, Suite 208 Carlisle, PA 17013 717-241-6363 Attorney for the Plaintiffs KEN NISHAR AND DONNA MSHAR, his wife, Plaintiffs 1N THE COURT OF COyIIION PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. V. DAVID J. WALSH, t/a YDW, CONTRACTING & CONSTRUCTION, CIVIL ACTION Defendant r CERTIFICATE OF SERVICE i CIVIL TERM On this day lLtif?[? 2007, I hereby certify that I served a true and correct copy of the foregoing Petition to Appoint an Arbitrator via United States Mail, postage prepaid, addressed as follows: Kevin R. Helm, Esquire 3759 Peters Mountain Road Halifax, PA 17032 David J. Walsh YDW Custom Homes PO Box 519 Etters, PA 17319-0519 ?r ?p?XT Custom 14C)II-ILes General Contracting & Architectural Design CONSTR UCTIONAGREEMENT THIS AGREEMENT made this J. Walsh, t/a YDW Contracting & Consl "CONTRACTOR" and k ?"' (hereinafter referred to as "BUYER"). day of J CGzi Lt 4 , 20_21 between David n (hereinafter referred to as R7TNESSETH. That in consideration of the mutual covenants and agreements here in contained, the parties hereto agree to the following terms and conditions: ARTICLE 1 THE CONS TR UCTION AGREEMENT 1.1 The contract Documents consist of the Agreement, the Drawings, the Specifications, all Addenda issued prior to and all Modifications issued after execution of this AgreeuteaL These 111onn Lh a Contract, Zad all are a fully a part of the Contract as if attached to the agreement or repeated herein. 1.2 Contract Work. The Contractor agrees to furnish all the material and labor necessary for the construction of a single family dwelling upon the property of Buyer. The said work shall be performed in accordance with certain plans and specifications known and identified as set forth in the addenda attached hereto and made a part hereof. 1.3 Allowances to Buyer. See Spec Sheet ARTICLE 2 CONTRACT PRICE Buyer agrees to make progress payments on account of the Contract Price of $160.000.00 Dollars, within seven (7) days of delivery of written applications for payment submitted to Buyer as per the bank or mortgage company's Draw Schedule. PO Bcx 51.9 matters, PA 17319-0519 1 a PLAINTIFF'S /. J Phone: : -- - `1 T1: l 17-93?-! t i9 W EXHIBIT Q N J J a ARTICLE 3 FINAL PA Y111IENT 3.1 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, ready for beneficial occupancy, or when the Buyer occupies the Project, whichever event first occurs, provided that the Project is then substantially completed and this Agreement substantially performed. If there should remain minor items to be completed the Contractor shall deliver in writing, his guarantee to complete said items within a reasonable time thereafter. 3.2 The making of final payment shall constitute a waiver of all claims by the Buyer except those arising from (1) unsettled liens, (2) faulty or defective work appearing within one (1) year after Substantial Completion, (3) failure of the work to comply with the requirements of the Contract Documents, or (4) those claims made in writing by Buyer prior to final payment. The acceptance of final payment shall constitute a waiver of all claims by the Contractor except those previously made in writing. ARTICLE 4 TIME OF COMMENCEMENT AND SUBSTA TML COMPLETION 4.1 The work to be performed under this Contract shall be commenced on or about Moggaae Obtained by Buyer or thirty (30) days after the date Buyer has fulfilled all obligations required by Article 5 of this Contract, and except as otherwise provided or permitted by the Contract, shall be substantially completed not later than + r LOON.; (00ra(IT 4.2 The Date of Substantial Completion of the Contract Work is the date when construction is sufficiently completed in accordance with the contract Documents and a Certificate of Occupancy has been issued so the Buyer can occupy the construction work. Warranties called for by this Agreement shall commence on the Date of Substantial Completion of the construction work ARTICLE 5 INFORMATION AND SERVICES REQUIRED OF THE BUYER 5.1 The Buyer, shall at the request of the Contractor, furnish to the Contractor reasonable evidence that he has made financial arrangements to fulfill his obligations under the Contract Unless such reasonable evidence is furnished, the Contractor is not required to commence the Work A lender commitment letter shall satisfy this requirement. 5.2 Prior to the commencement of construction, Buyer shall obtain and deliver to Contractor an attorney's certificate of title to the property which certificate shall be in the proper form, or other proof of Buyer's ownership of the premises which is satisfactory to Contractor and its counsel. 5.3 Buyer shall review the plans and specifications submitted by Contractor and shall give prompt written notice to the Contractor of any fault of defect in the said plans and specifications. 5.4 Information or services under the Buyer's control shall be furnished by the Buyer with reasonable promptness to avoid delay in the orderly progress of the work ARTICLE 6 OBLIGATIONS OF CONTRACTOR 6.1 Contractor will provide all construction, supervision, inspection, labor, materials, tools, equipment, and subcontracted items necessary for the execution and completion of the contract work. 6.2 Contractor will pay all sales, use, gross receipts and similar taxes related to the contract work to be provided by the Contractor, which taxes have been legally enacted at the time of execution of the agreement. 6.3 The Contractor warrants to the buyer that all materials and equipment incorporated into the contract work will be new unless otherwise specified, and that all contract work will be performed in a good and workmanlike manner, in conformance with the contract Documents. 6.4 Contractor shall be responsible for the acts and omissions of its employees and all subcontractors engaged by the Contractor, their agents and employees, and aU other persons performing any of the work under the contract on behalf of or with the Contractor. 6.5 Contractor shall execute a Stipulation Against Liens and Provide to Buyer. ARTICLE. 7 CHANGES The Contractor is under no obligation to make any changes, additions, or alterations in the work provided in the Contract Documents unless upon reasonable request of the Buyer, Contractor will make changes, additions, or alterations, but the contractor shall not be required to do so until the parties have executed a written Change Order, which will become part of this Contract, and the Buyer has agreed to pay the Contractor for changes in the work on the same basis as the cost of the work as defined in this Contract. An equitable adjustment will be made for any deletions in the Contract. The Buyer agrees to make requests concerning any changes, additions, or alterations in work to the Contractor and not to the workers, including subcontractors on the job. No extension of the Date of Substantial Completion will be made for changes unless the Change Order so specifies. ARTICLE 8 CORRECTION OF WORK 8.1 The Contractor shall correct any work that fails to conform to the requirements of the Contract Documents where such failure to contractor assigns to the Buyer, to the extent they are assignable, all rights under manufacturer's warranties on appliances, equipment, fixtures, and consumer products included in the house and located on the Buyer's property. The Contractor provides no warranties relating to manufactured or consumer products after the aforementioned one-year period. THIS CONTRACT CONTAINS ALL OF THE REPRESENTATIONS, WARRANTIES, AND PROMISES OF THE CONTRACTOR. NO AGENT OR REPRESENTATIVE OF THE CONTRACTOR IS AUTHORIZED TO MAKE ANY REPRESENTATION OR PROMISE ON BEHALF OF THE CONTRACTOR OTHER THAN THOSE CONTAINED HEREIN, AND THE CONTRACTOR MANS NO OTHER EXPRESS WARRANTIES. ARTICLE 9 RELEASE OF LIENS If a Stipulation Against Liens has not been filed, the Contractor, with his request for final payment, shall deliver to the Buyer, a complete Release of Liens arising out of this contract and, if required, shall furnish an affidavit that the Releases include all the labor and material for which a lien could be filed through it as Contractor. If a Stipulations Against Liens has been filed, The Contractor shall be under no obligation whatsoever, to furnish a Release of Liens. ARTICLE 10 ASSIGNMENT OF MORTGAGE PROCEEDS It is agreed by the Buyer that the proceeds of any construction mortgage are hereby assigned, transferred and set over to the Contractor and payable to said Contractor in accordance with the terms of payment as herein provided. ARTICLE 11 SUBCONTRACTORS 11.1 All claims, disputes, and other matters in question between the parties of the Contract, arising out of or relating to the Contract of any breach or alleged breach of this Contract, will be decided by arbitration unless the parities otherwise mutually agree in writing. 11.2 The parties may agree upon one arbitrator; otherwise there shall be three, on named in writing by each party of the Contract within ten days after notice of arbitration is served by either party upon the other, and a third arbitrator selected by these two arbitrators within ten days thereafter. No one shall serve as an arbitrator who is in any way financially interested in the Contract or in the affairs of either party hereto. 11.3 This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration laws. The award rendered by the arbitrator(s) will be final and binding, and judgment may be entered upon it in accordance with the applicable law in any court that has jurisdiction over the decision. ARTICLE 12 INSUR,4-NCE 12.1 Indemnity. The Contractor agrees to indemnify and hold the Buyer harmless from all claims for bodily injury and property damage (other than the work itself and other property insured under paragraph 14.2) that may arise from the Contractor's operations under this Agreement. 12.2 Contractor's Liability Insurance. The Contractor shall purchase and maintain such insurance as will protect it from claims under workmen's compensation acts and other employee benefit acts, from claims for damages because of bodily injury, including death, and from claims for damages to property which may arise out of or result from the Contractor's operation under this Contract, whether such operations be by it or by any subcontractor or anyone directly or indirectly employed by any of them. The insurance shall be written for not less then $1,000,000 single limit shall include contractual liability insurance as applicable to the Contractor's obligations under this Agreement. 12.3 Buyer's Liability Insurance. 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 which may arise from operations under this Contract. 12.4 Buyer's Property Insurance. Unless otherwise provided, the buyer shall purchase and maintain property insurance upon the entire contract work at the site to the full insurable value thereof. This insurance shall include the interests of the Buyer, the Contractor, and shalt insure against the perils of fire, extended coverage, vandalism and malicious mischief. Any insured loss is to be adjusted with the buyer and made payable to the buyer as trustee for the insured as their interests may appear, subject to the requirements of any mortgage clause. The Buyer shall provide a copy of all policies to the Contractor prior to the commencement of the work. The Buyer and Contractor waive all rights against each other for damages caused by fire or other perils to the extent covered by insurance provided under this paragraph. The Contractor shall require similar waivers by subcontractors and sub-subcontractors. ARTICLE 13 CONCEALED OR UNKOWN CODITITIONS 13.1 The Contract Price is for the materials and labor in construction of the contract work The Contractor has inspected the construction site and knows of no abnormal or unusual subterranean conditions. The Buyers shall pay for any additional costs involved in providing extra engineering or foundation work which may be required if the Contractor encounters unforeseen abnormal or unusual subterranean conditions during the course of construction including but not limited to: (A) Cost of removal of any rock in making excavation for foundation wall, sewage or water lines (B) Extra concrete block and labor necessary to install the same for the construction of foundation that may be required in excess of blueprint specifications. (C) The cost of labor and materials needed to divert or control subsurface water found during the course of construction. 13.2 The Contractor shall, before such conditions are disturbed, notify the Buyer of (1) subsurface or latent physical conditions at the site differing materially form those indicated in this Contract or (2) unknown physical conditions at the site of an unusual nature. The Buyer shall promptly investigate the conditions, and if he finds that such conditions do materially so differ and cause in increase in the Contractor's costs, or the time required for performance of any part of the work under this Contract, whether or not changed as a result of such conditions, a specific cost adjustment shall be made and the Contract Price adjusted by Change Order. ARTICLE 14 DELA YS AND EXTENSION OF TIME If the Contractor is delayed at any time in the progress of the construction work by any act, failure or neglect of the Buyer of by changes ordered in the Project or by labor disputes, fire, unusual delay in transportation, adverse weather conditions not reasonable anticipatable, unavoidable casualties, or any causes beyond the Contract's control, or a delay authorized by the Buyer, then the Date for Substantial Completion shall be extended for the period of such delay. ARTICLE 1 5 RIGHT OF INGRESS AND REGRESS It is a covenant of the Contract that the Buyer does hereby grant and convey to the Contractor, its successors and assigns, full and complete rights of ingress, regress and such occupancy or possession of the construction. Any refusal thereof, it is agreed, is a default by the Buyer whereupon the full amount of the contract Price shall become immediately due and payable. ARTICLE 16 DEFAULT 16.1 Default By Buyer. If the buyer shall default hereunder prior to the beginning of construction work, Contractor shall retain the money paid by the Buyer, if any, as liquidated damages; and this Contract shall thereupon terminate. If the buyer fails to make a Progress Payment to Contractor as herein provided through no fault of the Contractor, the Contractor may, upon seven 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 construction equipment and machinery, including reasonable profit and damages. 16.2 Default By Contractor. H the Contractor is adjudged a bankrupt, or if he makes a general assignment for the benefit of his creditors, or if a receiver is appointed on account of his insolvency, or if he persistently or repeatedly refuses or fails, except in cases for which extension of time is provided, to supply enough properly skilled workmen or proper materials, or if he fails to make prompt payment to Subcontractors for materials or labor, or persistently disregards laws, ordinances, rules, regulations or order of any public authority having jurisdiction, or otherwise is guilty of substantial violation of provision of the Contract Documents, then the Buyer, may, without prejudice to any rig t or remedy anT after giving Contractor seven days' written note, terminate the employment of the contractor and take possession of the site and of all materials and may finish the work by whatever method he may deem expedient. In such case the Contractor shall not be entitled to receive any further payment until the work is finished. If the unpaid balance of the Contract Price exceeds the costs of finishing the work, such excess shall be paid to the Contractor. ARTICLE 17 0RNERSHIP OF MATERIALS It is mutually agreed that all materials delivered upon said premises shall be regarded as the property of the Contractor until paid for by the Buyer, and shall not be removed without the consent of the Contract. ARTICLE 18 POSSESSION 18.1 It shall be the duty of the Buyer or his agent to inspect the house in the presence of the Contractor or the Contractor's authorized representative and to give the Contractor at that time a signed punch list of any deficiencies in workmanship or material. 18.2 As to any items on the list prepared by the Buyer that are reasonable deficiencies in workmanship and/or materials by the standards of construction relevant in area where the property is located, the Contractor shall correct those defects at his cost within a reasonable period of time, as set forth in the Limited Warranty. Except with respect to any latent defects covered by our Limited Warranty, the Contractor has no obligation to make any repairs that are not included on the Buyer's punch list. On substantial completion of the work, Buyer shall execute a Completion Certificate. ARTICLE 19 GENERAL PROVISIONS 19.1 All rights and liabilities herein give to, or imposed upon, the respective parties hereto shall extend to and bind the several and respective heirs, executors, administrators, successors and assigns of said parties, and it may not be changed except by written agreement duly executed by the same parties. 19.2 Severability. Each provision of this Contract is separable from every other provision of this Contract, and if any provision is determined to be unenforceable or is revised, it will have no effect of the enforceability or validity of any other provision. 19.3 The applicable law governing this agreement will be the law of the jurisdiction where the property is located. 19.4 This agreement may not be assigned without the written consent of the Contractor which shall not be unreasonably withheld. 19.5 Written notice shall be deemed to have been duly served if delivered in person to the Buyer or, if to the Contractor, to an officer of the Corporation, or if delivered at or sent by registered mail to the last business address know to him who gives the notice. 19.6 Wherever used in this Agreement, the singular shall include the plural, the plural the singular and the use of any gender shall be applicable to all gender. This agreement and all its terms and conditions shall extend to and be binding upon the parties hereto and upon their respective heirs, executors, administrators, successors and assigns. IN WITNESS WHEREOF, the parties, intending to be legally bound hereby, have hereunto set their hands and seals to the day and year first above written. ATTEST: CONTRACTOR: David J. Walsh tla YDW Contracting & Cons tion /)",/ - J -,- '1 D'avi J. alsh WITNESS: 'J BUYER(S): &V:?& le Law Office of Ric ward P. Mislitsky One West Hirsh Street P.O. Box l'-90 Carlisle, Pennsvivania 1701 *Richard P. )0islitsky Telephone (717) 11-63633 Fax (717) '?49-7,07-, Offices in: Carlisle Chambersburg York Via Certitled Mail David J. Walsh P.O. Box 519 Etters, PA 17319-0519 October 12, 21006 RE: NIshar v. `Valsh/YDNV Contracting & Construction Dear Mr. Walsh: Please be advised that I represent Ken Nishar and his wife, Donna. Pursuant to Article 11 of the contract executed on or about August 14, 2004, I hereby demand arbitration. Please turn this over to your attorney and have him or her contact me within the next ten days as required by the terms of the contract. Please be advised that I hereby appoint Stephen N1. Greecher, Jr., Esquire of Tucker Arensberg PC, 111 North Front Street, P.O. Box 889, Harrisburg, PA 17108-0889. If I do not hear from you within two weeks, I will petition the court to appoint an arbitrator on your behalf. Sincerely, RPM'jcm cc: Ken & Donna Mshar Richard P. Mislltsky r ? :? -F 7?'':?r / PLAINTIFF'S W EXHIBIT J H H J J Q `Certified as a Civil Trial Advocate by the National Board of Trial Advocacy A Pennsylvania supreme Court Accredited Agency ¦ Complete items 1, 2, and 3. Also complete item 4 if Restricted Deliver/ is desired. >• Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Anicia Adaresscd tu: VG?V1.4 b V.il Jr"1 r? A. Signore ssee B. Received by (Printed Name) ate o ry ?L 0. Is delivery address different tcmiitem 17'7 Yes If YES, enter delivery address "uw: ? No 3. Service Type 0 Certified Mail 0 Express Mail 0 Registered 0 Return Receipt for Merchandise 0 Insured Mail 0 C.O.D. 1 4. Restricted Delivery? (Extra Fee) 0 Yes 2. Article Number ?006 0100 000? 1051 9 214 (Transfer from service labeo PS Form 3811, February 2004 Domestic Return Receipt 102595-02-WI54c KEN MSHAR and DONNA MSHAR, his wife, Plaintiffs vs. DAVID J. WALSH, t/a YDW CONTRACTING & CONSTRUCTION, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 07-331 CIVIL IN RE: PLAINTIFFS' PETITION TO APPOINT AN ARBITRATOR ORDER AND NOW, this day of January, 2007, a rule is issued on the defendant to show cause why the relief requested in the within petition to appoint an arbitrator ought not to be granted. This rule returnable twenty (20) days after service. BY THE COURT, rr 1"eettmaq Wher'edt, I here unto set my h Ind the sal of Said C at Car Nis-, Pa. y etC, -7 a PLAINTIFF'S MICRO! A'11 A M W EXHIBIT J 'n Q K y v J Law Office of Richard P. Mislitsky One West High Street P.O. Box 1290 Carlisle, Pennsylvania 17013 *Richard P. Mislitsky Telephone (717) 241-6363 Fax (717) 249-7073 Offices in: Carlisle Chambersburg York January 18, 2007 David J. Walsh YDW Custom Homes P.O. Box 519 Etters, PA 17319-0519 RE: Mshar v. Walsh/YDW Contracting & Construction Dear Mr. Walsh: I have enclosed a copy of the Petition to Appoint an Arbitrator which was filed today. Sincerely, Debra L. Swigert for Richard P. Mislitsky enclosure cc: Ken & Donna Mshar (w/enclosure) Kevin R. Helm, Esquire (w/enclosure) a PLAINTIFF'S W EXHIBIT J a N J J Q *Certified as a Civil Trial Advocate by the National Board of Trial Advocacy A Pennsylvania Supreme Court Accredited Agency r • i 4 RECEIPT M (Domestic Coverage Provided) ru `n ETTR PA ? 1 ?n C3 (,¢; 0013 S ncstage i 3 Caritioci Fee $2,41) 13 ru Postmark C3 O Return Receipt Fee (Endorsement Required) l • j v Here a O Restricted Delivery Fee (Endorsement Required) ;+? Il(1 ., s". C3 I%- e & Fees f l P ta T 12 -? 111/26/2(107 ru g os ota bent 70 O Street, Apt. No.; or PO Box No. y .ity Sate, ,ZiP+4 •--•------? - i :.. , . Saloom ¦ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to. av ?? ??LS PO IE-k or A. r e UAent T ?_j x W ? Addressee B. R Ived by (Printed Name) C. Date of Delivery -7T& VAA P_ 'VA-1 ct.. i 51-, f ) C, /(, _- 7 D. Is delivery address different from Item 1? t C] Yes If YES, enter delivery address below: C] No 3. Type Certified Mail ? Express Mail C) Registered O Return Receipt for Merchandise 0 Insured Mail 0 C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 2. Article Number 7p06 2760 (J?Q2 7445 5234 (rmnster hvm service isbeq PS Fom13811, February 2004 Domestic Return Receipt 102595.02-M-1540 i KEN MSHAR AND DONNA MSHAR, his wife, Plaintiffs V. DAVID J. WALSH, t/a YDW CONTRACTING & CONSTRUCTION, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA No. ?33) CIVIL TERM CIVIL ACTION Certificate of Service On this J4 day Y0Vt,-,, rY(- 2007, I hereby certify that I served a true and correct copy of the foregoing Motion to Make Rule Absolute via certified United States Mail, postage prepaid, addressed as follows: David J. Walsh YDW Custom Homes PO Box 519 Etters, PA 17319-0519 (14 -wr Fo : Richard P. Mislitsky, Esquire Su eme Court ID #28123 One West High Street, Suite 208 P.O. Box 1290 Carlisle, PA 17013 717-241-6363 Attorney for the Plaintiffs . a .rl t' f Ce}_i .. r -fi J.1 .-._ . , ca :ern 'K t ?7 . o, NOV 151D07 ? KEN MSHAR AND DONNA MSHAR, his wife, : IN THE COURT OF COMMON PLEAS OF Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA V. No. 0 7- 3 31 CIVIL TERM DAVID J. WALSH, CIVIL ACTION t/a YDW CONTRACTING & CONSTRUCTION, Defendant O AND NOW, this da of y upon consideration of Plaintiffs' Motion to Make Rule Absolute, it is hereby ORDER AND DECREED that PIas ' ntiff's motion is granted. The Court hereby appoints 6EO ,6 r ?r. breach of contract action between as arbitrator in the Ken and Donna Mshar and David J. Walsh, t/a YDW Contracting & Construction. Defendant is further ORDERED to pay the normal hourly rate of the above-n arbitrator. Defendant's failure to pay the arbitrator shall result insanctions as hereinafter determined by this Court. BY THE COURT ALED--t 1"FlCE OF THE PR'') F"#-?ONOTAPY 2001 NOY 19 AM 11: 00 PENNSYLV,A.N'?A R R KEN MSHAR AND DONNA MSHAR, his wife, Plaintiffs V. DAVID J. WALSH, t/a YDW, CONTRACTING & CONSTRUCTION, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 07-331 CIVIL TERM CIVIL ACTION Decision and Award of Arbitrators -r< AND NOW this I day o 008 having taken testimony and accepted various Exhibits in support of the testimony and after due deliberation, we, the arbitrators in this matter, hereby enter the following Order: 1. Article 11, Section 11.4 of the contract between the parties states: This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration laws. The award rendered by the arbitrator(s) will be final and binding and judgment may be entered upon it in accordance with the applicable law in any court that has jurisdiction over the decision. (Emphasis added) 2. The Defendant(s) were served with notice of the arbitration. Notice(s) sent by Certified Mail/Return Receipt Requested were returned as "unclaimed." Notice(s) sent by regular mail are presumed delivered; no notice sent by regular mail was returned to the sender. 3. Upon the evidence presented Jamie Walsh, wife of David J. Walsh, is and has been an owner of the business together with her husband. The caption set forth above shall be amended and shall hereafter read as follows: KEN MSHAR AND DONNA MSHAR, his wife, Plaintiffs V IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 07-331 CIVIL TERM DAVID J. WALSH and JAMIE WALSH, husband and wife, t/d/b/a YDW, CONTRACTING & CONSTRUCTION, Defendants w 4. The Prothonotary is directed to index the judgment hereinafter set forth against David Walsh and Jamie Walsh, Husband and wife; and YDW, Contracting and Construction 5. Judgment in the amount hereinafter set forth shall be entered in favor of the Plaintiffs and against David Walsh and Jamie Walsh, Husband and wife; and YDW, Contracting and Construction. 6. Judgment in the amount of $57,898.40 with 6% simple interest added in the amount of $7,747.80 for a total judgment amount of $65,054.64 Date: 1 David W. Francis, Esquire Rhoads & Sinon LLP Date: Step n M. Gr e er, Jr., Esquire Tucker Arensberg PC Date: G orge aller, Jr., u e Martson Law Offices A a KEN MSHAR AND DONNA MSHAR, his wife, Plaintiffs V. DAVID J. WALSH, t/a YDW, CONTRACTING & CONSTRUCTION, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. CIVIL TERM CIVIL ACTION Certificate of Service On this JQ/Fday , ? &-/1Z49t2008, I hereby certify that I served a true and correct copy of the foregoing Decision and Award of Arbitrators an Arbitrator via United States Mail, postage prepaid, addressed as follows: David J. Walsh Jamie Walsh YDW Custom Homes P.O. Box 519 Etters, PA 17319-0519 Fof: Richard P. Misli Esquii9 `f Attorney ID #28123 One West High Street, Suite 208 P. O. Box 1290 Carlisle, PA 17013 (717) 241-6363 ? C ? ? ? .?? -? ?? ? ?, ?._ ?? ? C.-- ?. ? ?? ? c Richard P. Mislitsky, Esquire One West High Street, Suite 208 P.O. Box 1290 Carlisle, PA 17013 (717)241-6363 KEN MSHAR and IN THE COURT OF COMMON PLEAS DONNA MSHAR, his wife CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF Vs. NO.: 07-331 DAVID J. WALSH and JAMIE WALSH, Husband and wife, t/d/b/a YDW CONTRACTING & CONSTRUCTION DEFENDANT : CIVIL ACTION-LAW PRAECIPE TO ENTER JUDGMENT To the Prothonotary: Please enter judgment in favor of Ken Mshar and Donna Mshar and against David J. Walsh and Jamie Walsh, husband and wife, t/d/b/a YDW, Contracting & Construction on the Award of Arbitrators dated September 10, 2008 in the amount of SIXTY-FIVE THOUSAND FIFTY-FOUR AND 64/100 ($65,054.64) DOLLARS. A copy of the Award of Arbitrators is attached hereto as Exhibit "A." No appeal has been filed to the award and more than thirty (30) days has elapsed. Resp tfully submitted, Dated: " P, %JAL l Richard P. Mislitsky, Esquire Supreme Court ID #28123 One West High Street, Suite 208 P.O. Box 1290 Carlisle, PA 17013 (717)241-6363 KEN MSHAR AND : IN THE COURT OF COMMON PLEAS OF DONNA MSHAR, his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs No. 07-331 CIVIL TERM V. CIVIL ACTION DAVID J. WALSH, c ev ° o t/a YDW, CONTRACTING & -V r C-0 rn CONSTRUCTION, trr: r - -0 ?+- Defendant ao, Decision and Award of Arbitrators cc:5 o? AND NOW this A0 day o 008 having taken testimony and accept-td various Exhibits in support of the testimony and after due deliberation, we, the arbitrators in this matter, hereby enter the following Order: 1. Article 11, Section 11.4 of the contract between the parties states: This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration laws. The award rendered by the arbitrator(s) will be final and binding, and judgment maybe entered upon it in accordance with the applicable law in any court that has jurisdiction over the decision. (Emphasis added) 2. The Defendant(s) were served with notice of the arbitration. Notice(s) sent by Certified Mail/Return Receipt Requested were returned as "unclaimed." Notice(s) sent by regular mail are presumed delivered; no notice sent by regular mail was returned to the sender. 3. Upon the evidence presented Jamie Walsh, wife of David J. Walsh, is and has been an owner of the business together with her husband. The caption set forth above shall be amended and shall hereafter read as follows: KEN MSHAR AND DONNA MSHAR, his wife, Plaintiffs V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 07-331 CIVIL TERM DAVID J. WALSH and JAMIE WALSH, husband and wife, t/d/b/a YDW, CONTRACTING & CONSTRUCTION, Defendants U `- i 4. The Prothonotary is directed to index the judgment hereinafter set forth against David Walsh and Jamie Walsh, Husband and wife; and YDW, Contracting and Construction 5. Judgment in the amount hereinafter set forth shall be entered in favor of the Plaintiffs and against David Walsh and Jamie Walsh, Husband and wife; and YDW, Contracting and Construction. 6. Judgment in the amount of $57,898.40 with 6% simple interest added in the amount of $7,747.80 for a total judgment amount of $65,054.64 Date: /IV Sa S-f- J ?) -ZO AD Date: 0 12 d /6' David W. Francis, Esquire Rhoads & Sinon i Step WMGr4i&er, fr.,-Esquire/ Tucker Arensberg PC Date: George 13 L'V . alley, Jr., u Martson Law Offices ? . KEN MSHAR AND DONNA MSHAR, his wife, Plaintiffs V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. CIVIL TERM : CIVIL ACTION DAVID J. WALSH, t/a YDW, CONTRACTING & CONSTRUCTION, Defendant Certificate of Service 'day &P/-,e7X&9Z2008, I hereby certify that I served a true and On this /6"'a correct copy of the foregoing Decision and Award of Arbitrators an Arbitrator via United States Mail, postage prepaid, addressed as follows: David J. Walsh Jamie Walsh YDW Custom Homes P.O. Box 519 Etters, PA 17319-0519 Fof: Richard P. Misli Esquij Attorney ID #28123 One West High Street, Suite 208 P. O. Box 1290 Carlisle, PA 17013 (717) 241-6363 L. ? R N c - vs Richard P. Mislitsky, Esquire One West High Street, Suite 208 P.O. Box 1290 Carlisle, PA 17013 (717)241-6363 KEN MSHAR and IN THE COURT OF COMMON PLEAS DONNA MSHAR, his wife CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF Vs. NO.: 07-331 DAVID J. WALSH and JAMIE WALSH, Husband and wife, t/d/b/a YDW CONTRACTING & CONSTRUCTION DEFENDANT : CIVIL ACTION-LAW NOTICE OF JUDGMENT TO: David J. Walsh and Jamie Walsh t/d/b/a YDW, Contracting & Construction P.O. Box 519 Etters, PA 17319-0519 You are hereby notified that on ?2 o'Zrfi,Lk a/ , 2008 the following judgment has been entered against you in the above captioned case: Judgment in favor of Ken Mshar and Donna Mshar and against David J. Walsh and Jamie Walsh, husband and wife, t/d/b/a YDW, Contracting & Construction on the Award of Arbitrators dated September 10, 2008 in the amount of $65,054.64. Dated: // _ )_/ J_66? r Prothonotary J Cl/ r are: I hereby certify that the proper persons to receive this notice under Pa. R.C.P. 236 David J. Walsh and Jamie Walsh t/d/b/a YDW, Contracting & Construction P.O. Box 519 Etters, PA 17319-0519 A: David J. Walsh and Jamie Walsh t/d/b/a YDW, Contracting & Construction Por este medio se le esta notificando que el de 2008, el/la siguiente (Orden), (Decreto), (Fallo), ha sido anotado en contra suya en el caso mencionado en el epigrafe. Fecha: Protonotario Certifico que la siguiente direccion as la del defendido/a segun indicada en el certificado de residencia: David J. Walsh and Jamie Walsh t/d/b/a YDW, Contracting & Construction P.O. Box 519 Etters, PA 17319-0519 Respec lly submitted, Dated: Richard P. Mislitsky, Esquire Supreme Court ID #28123 One West High Street, Suite 208 P.O. Box 1290 Carlisle, PA 17013 (717)241-6363 Richard P. Mislitsky, Esquire One West High Street, Suite 208 P.O. Box 1290 Carlisle, PA 17013 (717)241-6363 KEN MSHAR and IN THE COURT OF COMMON PLEAS DONNA MSHAR, his wife CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF Vs. NO.: 07-331 DAVID J. WALSH and JAMIE WALSH, Husband and wife, t/d/b/a YDW CONTRACTING & CONSTRUCTION DEFENDANT : CIVIL ACTION-LAW PRAECIPE TO AMEND CAPTION To the Prothonotary: Please amend the caption in the above matter to reflect the defendants as follows: KEN MSHAR AND IN THE COURT OF COMMON PLEAS OF DONNA MSHAR, his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs No. 07-331 CIVIL TERM V. DAVID J. WALSH and JAMIE WALSH, husband and wife, t/d/b/a YDW, CONTRACTING & CONSTRUCTION, Defendants in accordance with the Decision and Award of Arbitrators filed in the above captioned matter a copy of which is attached hereto and marked Exhibit A. Respe lly submitted, Dated: C /j 41vu P. l ?/ Richard P. Mislitsky, Esquire Supreme Court ID #28123 One West High Street, Suite 208 P.O. Box 1290 Carlisle, PA 17013 (717)241-6363 KEN MSHAR AND IN THE COURT OF COMMON PLEAS OF DONNA MSHAR, his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs No. 07-331 CIVIL TERM V. CIVIL ACTION DAVID J. WALSH, c N t/a YDW, CONTRACTING & ro cn CONSTRUCTION, Defendant Decision and Award of Arbitrators ' /71- AND NOW this /0 day o 008 having taken testimony and accepted various Exhibits in support of the testimony and after due deliberation, we, the arbitrators in this matter, hereby enter the following Order: Article 11, Section 11.4 of the contract between the parties states: This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration laws. The award rendered by the arbitrator(s) will be final and binding and judgment may be entered upon it in accordance with the applicable law in any court that has jurisdiction over the decision. (Emphasis added) 2. The Defendant(s) were served with notice of the arbitration. Notice(s) sent by Certified Mail/Return Receipt Requested were returned as "unclaimed." Notice(s) sent by regular mail are presumed delivered; no notice sent by regular mail was returned to the sender. 3. Upon the evidence presented Jamie Walsh, wife of David J. Walsh, is and has been an owner of the business together with her husband. The caption set forth above shall be amended and shall hereafter read as follows: KEN MSHAR AND DONNA MSHAR, his wife, Plaintiffs V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 07-331 CIVIL TERM DAVID J. WALSH and JAMIE WALSH, husband and wife, t/d/b/a YDW, CONTRACTING & CONSTRUCTION, Defendants `A// 4. The Prothonotary is directed to index the judgment hereinafter set forth against David Walsh and Jamie Walsh, Husband and wife; and YDW, Contracting and Construction Judgment in the amount hereinafter set forth shall be entered in favor of the Plaintiffs and against David Walsh and Jamie Walsh, Husband and wife; and YDW, Contracting and Construction. 6. Judgment in the amount of $57,898.40 with 6% simple interest added in the amount of $7,747.80 for a total judgment amount of $65,054.64 Date: /4,S?Srl >j 40Dll Date: 8-/'n& David W. Francis, Esquire Rhoads & Sinon LLP Step n M. Gr a er, Jr., Esquire Tucker Arensberg PC Date: lJ George 13 ler, Jr., u e Martson Law Offices KEN MSHAR AND DONNA MSHAR, his wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. CIVIL TERM V. DAVID J. WALSH, t/a YDW, CONTRACTING & CONSTRUCTION, Defendant CIVIL ACTION Certificate of Service On this 16/Fday &7)7-,e7XdR2008, I hereby certify that I served a true and correct copy of the foregoing Decision and Award of Arbitrators an Arbitrator via United States Mail, postage prepaid, addressed as follows: David J. Walsh Jamie Walsh YDW Custom Homes P.O. Box 519 Etters, PA 17319-0519 Fob: Richard P. MisliEsqui{Y Attorney ID #28123 One West High Street, Suite 208 P. 0. Box 1290 Carlisle, PA 17013 (717) 241-6363 ,. KEN MSHAR and IN THE COURT OF COMMON PLEAS DONNA MSHAR, his wife CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF Vs. NO.: 07-331 DAVID J. WALSH and JAMIE WALSH, Husband and wife, t/d/b/a YDW CONTRACTING & CONSTRUCTION DEFENDANT : CIVIL ACTION-LAW Certificate of Service On this,?/? day Qj/x"&L 2008, I hereby certify that I served a true and correct copy of the foregoing Praecipe to Amend Caption via United States Mail, postage prepaid, addressed as follows: David J. Walsh Jamie Walsh t/d/b/a YDW Custom Homes P.O. Box 519 Etters, PA 17319-0519 For Richard P. MislitskyjEsquir?/ Attorney ID #28123 One West High Street, Suite 208 P. O. Box 1290 Carlisle, PA 17013 (717) 241-6363 ?;? ?-:? r..s ?.. -x? .--- ?.:?:'. a i T i 4,? =t ' ??'7 J ??