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Home My WebLink About00-02989 ~ ,~ -"'< ,~":,,,~~-, -' "-.~<-. ~ , Po CONSERVATIVE ENVIRONMENTAL SERVICES, INC. Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYL V ANlA Docket No. t"Jr. ~ :J9F1 (3'(.) ~( '7€. v. DAVID SHIREY TlDfB/AJ SHIREY'S CASH & CARRY Defendant NOTICE TO PLEAD \:' i c " 11 h " !' TO: David Shirey t/d/b/a Shirey's Cash & Carry P.O. Box 201 Geigerstown, PA 19523 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN REPLY TO THE WITHIN AMENDED COMPLAINT WITHIN TWENTY (20) DAYS OF SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. BY~' rfavid W. Francis LD. #53718 114 North Second Street Harrisburg, P A 17101 (717) 238-9300 Date: May 11, 2000 HB:39172.13503-01 ~ .~ ~--, -<. """ - - 'n '0.' =' '~~>""- ,- -""-~~.,~:< -':,','-,,-,- "-,,, -- ""';~ "'-''-<_''-'-~~'o''" -"">',_~;>:..,.",,__",,'"_~V__~' '-'0; " 0.0';__ "r'_~-"~/ Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYL V ANlA I': I, Ii ! j( " CONSERVATIVE ENVIRONMENTAL SERVICES, INC. v. DAVID SHIREY T/DIB/A/ SHIREY'S CASH & CARRY Docket No. Defendant ~' , ~ NOTICE TO DEFEND I I:' Il 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 an 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 claim or relief requested by the defendant. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LA WYERAT ONCE. IF YOU DO NOT HAVE OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, P A 17013 (717) 249-3166 1-800-990-9108 HB:39171.13503-01 ,"'~' _'_0 -,,'",', -~~~-~,' ,1'" '""-'-ll;'~'" ,-- ,_'"",'c",,-,_,,,,_~_--,_,~_.,, ,,-, "---hL'--~~. :"~~'-'-,"-' AVISO US TED HA SIDO DEMANDADO/ A EN CORTE. Si usted desea defenderse de 1as demandas que se presentan mas adelante en 1as siguientes paginas, debe tomar accion dentro de 10s proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente 0 por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, 1as demandas presentadas aqui en contra suya. Se Ie advierte de que si usted falla de tomar accion como se describe anteriormente, e1 caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda 0 cua1quier otra reclamacion 0 remedio solicitado por el demandante puede ser dictado en contra suya por 1a Corte sin mas aviso adicional. Usted puede perder dinero 0 propiedad U otros derechos importantes para usted. USTED DEME LLEV AR ESTE DOCUMENTO A 8U ABOGADO IMMEDIATAMENTE. 81 USTED NO TIENE UN ABOGADO 0 NO PUEDE PAGARLE A UNO, LLAME 0 VA Y A A LA SIGUIENTE OFICINA PARA A VERIGUAR DONDE PUEDE ENCONTRAR ASISTENC1A LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, P A 17013 (717) 249-3166 1-800-990-9108 POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. ~r ) Attorneys for Conservative Environmental Services, Inc. HB:39171,13503-01 POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P,C, DAVID W, FRANCIS, ESQ, ATTORNEY LD, #53718 114 NORTH SECOND STREET HARRISBURG, PA 17101 (717) 238-9300 FAX: (717) 238-9325 ATTORNEYS FOR CONSERVATIVE ENVIRONMENTAL SERVICES, INC. CONSERVATIVE ENVIRONMENTAL SERVICES, INC. Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYL V ANlA Docket No. HJ - ;2'1 i'9 ~ ~ I' I' I: " 1 1,1 I:i v. DAVID SHIREY T/DfB/AJ SHIREY'S CASH & CARRY Defendant COMPLAINT 1. Plaintiff is Conservative Environmental Services, Inc. ("CES"), a Pennsylvania corporation with a principal place of business located in Cumberland County, Pennsylvania. 2. Defendant is David Shirey Vd/b/a Shirey's Cash & Carry ("Shirey"), with a principal place of business located in Berks County, Pennsylvania. BACKGROUND Mandatorv Closure ofUndenrround Storage Tanks 3. In or about August 5,1989, the Commonwealth of Pennsylvania enacted Storage Tank and Spill Prevention Act. Among other things, the Act required that all persons maintaining underground storage tanks ("USTs") for the storage of gasoline, diesel, kerosene, or other hazardous materials to close the tanks by certain prescribed deadlines. 4. One of the purposes of the Act was to protect ground water supplies from contamination by leaking storage tanks. HB:39142.13503-01 ,- "- c,-" -~-,,__' II: i 5. Shirey maintained five (5) USTs on his property which were required to be closed in accordance with the act. 6. Upon information and belief, Shirey failed to close his tanks in accordance with the prescribed deadlines. Accordingly, Shirey subsequently entered into a consent order with the Commonwealth of Pennsylvania Department of Environmental Protection ("DEP") in which Shirey agreed to close his tanks in accordance with a mandatory closure date established by the 7. CES is a DEP certified UST removal and closure contractor that routinely ii Ii I:' DEP. performs closure ofUST's in accordance with the Act. The Contract 8. On or about January 5, 2000, Shirey entered into a contract with CES in which CES was to close the five (5) UST's located on Shirey's property for payment of $19,000. A copy ofthe Contract is attached as exhibit A. 9. CES project work included mobilizing men and equipment to perform the work; excavation and uncovering of the USTs; purging and cleaning the tanks; removing tanks from the excavation; backfilling to grade; sampling of soil samples to determine whether contamination was present; and preparation of a report for submission to DEP. 10. The Contract required Shirey to pay CES for the work performed within thirty (30) days after receipt of the invoice. Thereafter, a finance charge of 1.5% would be applied to outstanding balances. 11. Between January 5, 2000, and January 13, 2000, CES fully performed all the work required under the contract. HB:39142.13503-01 2 12. In accordance with the Contract, on January 13, CES properly invoiced Shirey for payment in the amount of$19,000. 13. Shirey has not paid any amounts to CES for the work CES performed. 14. The analysis report on the samples taken reflect that Shirey's property in the vicinity of the UST's was contaminated. The contamination may have infiltrated the local ground water supply. Upon information and belief, Shirey has not forwarded the report to the IS. Between February 12,2000, and March 28,2000, CES repeatedly called Shirey to I' j; I: l- I DEP nor taken any actions to remediate the potential contamination. ascertain the status of payment and resolve submission of the closure report to DEP. Messages were left on his voice mail; however no return calls were made. 16. On March 16, 2000, CES sent a letter to Shirey demanding payment; however Shirey did not respond. 17. Finally, on March 28,2000 CES was able to reach Shirey by telephone, during which time Shirey raised for the first time the vexatious and unsubstantiated claim that CES may have broken a water line on Shirey's property, and that Shirey was withholding payment until it could determine whether the pipe was broken. 18.' There is absolutely no basis for Shirey's claim that CEC might have damaged its water lines. Upon information and belief, Shirey has raised this claim as an excuse for not paying CES. 19. More recently, Shirey has now raised the spurious claim that CES somehow caused the contamination of his property, and is withholding payment on that basis. 20. Upon information and belief, when Shirey entered into the contract with CES, he HB:39142,13503-01 3 _JI ,c"c'---_, ~, ",,- , '~ ,- -c-'----, had no intention whatsoever of paying CES for the work, and wi1l1atch upon anv argument to deny payment to CES. Venue in Cumberland County 21. Pa. R. Civ. P. provides that venue in an action against an individual is appropriate in a county where the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose, 22. Venue over this action is appropriate in Cumberland County under this standard because: a. The contract was prepared and entered into in Cumberland County; b. Men and equipment were mobilized from Cumberland County to Shirey's to perform the work This was part of the contract scope of work, and remains unpaid for; c. Payment was due in Cumberland County; d. The closure report mandated by DEP was prepared entirely within Cumberland County. This was also part ofthe contract scope of work, and remains unpaid for. COUNT I - BREACH OF CONTRACT 23. CES incorporates all of the above paragraphs as if fully set forth here at length. 24. CES fully performed all of the work under its contract with Shirey. 25. By the terms ofthe contract, Shirey has require to pay CES $19,000 within 30 days of receipt of the invoice. 26. Shirey's failure to pay CES for the work is a material breach of contract. HB:39142.13503-01 4 ~' ~ :'"-;!j II ~I, ';1 Id j~ 'I I I I, I, II f~ \~ ;1 II I. i I '--"",'" 'II ~ ;1 " COUNTII-CONTRACTOWSUBCONTRACTORPAYMENTACT r, fl I' ,j II \j ! II I ! I I, I' [I " ! ., il t' " I' ! r; H \' N [1 ! " " , 'I I 'I , , 27. CES is entitled to payment in the amount of$19,000. 28. By the terms ofthe contract, CES is also entitled to receive interest at the rate of 1.5 percent per month. WHEREFORE, Conservative Environmental Services, Inc. hereby demands judgment in its favor, and against Shirey in the amount of$19,000, plus interest at the rate of 1.5 percent until paid, as well as costs, fees and attorneys fees as permitted by law. 29. CES incorporates all of the above paragraphs as if fully set forth here at length. 30. This contract falls within the purview of the contractor/subcontractor payment act 73 P.S. ~ 501 et sea. ("the Payment Act") 31. Pursuant to the terms of the Payment Act, performance by CES in accordance with its contract entitles it to payment. 32. Pursuant to the terms of the Payment Act, CES is entitled to, in addition to all other damages due, a penalty equal to 1 % per month of the amount that was wrongfully withheld. 33. Pursuant to the terms of the Payment Act, CES is entitled to recover a reasonable attorney fee, together with expenses. 34. Shirey's failure to pay CES is a violation ofthe Act. WHEREFORE, Conservative Environmental Services, Inc. hereby demands judgment in its favor, and against Shirey in the amount of$19,000, plus interest at the rate of 1.5 percent until paid, a penalty equal to 1 percent per month until paid, and a reasonable attorney's fee and expenses, as permitted by law. COUNT III - QUANTUM MERUIT HB:39142.13503-01 5 Ii l! ii i' ! 35. CES incorporates all of the above paragraphs as if fully set forth here at length. 36. At Shirey's request, between January 5, 2000, and January 13, 2000, CES provided certain environmental remediation work to Shirey, as more fully set forth herein. 37. Shirey had notice of the performance and the probable amount ofCES's work. 38. Shirey has not paid CES for the work despite the fact that the work substantially benefitted Shirey. 39. Shirey knew and reasonably expected to be required to pay for the work I! I I; r, to: performed by CES, and would be unjustly enriched if it is not required to pay for this work. , 40. The work performed by CES is reasonably worth $19,000. 41. Pursuant to the doctrine of quantum meruit, CES is entitled to judgment against Shirey. WHEREFORE, Conservative Environmental Services, Inc. demands judgment in its favor, and against Shirey in the amount of$19,000, plus costs, fees and attorney's fees as permitted by law, POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. BY~~ LD. #53718 114 North Second Street HarrisQurg, P A 17101 (717) 238-9300 Attorney for Conservative Environmental Services, Inc. Date: May 11,2000 HB:39142.13503-01 6 Mar. 28 pO 12:44p W S-ott Bur~ 717-731-6788 p.3 onservative nvironmental ervices, Inc. January 5, 2000 Shirey's Cash & Carry Geigertown Rd Geigertown, PA 19523 Attn: Mr. David Shirey Proposal I 11 79H-J , UST Closure Dear Mr, Shirey: Conservative Environmental Services, Inc. wishes to submit this proposal to Shirey's Cash & Carry for the closure of five, Underground Storage Tanks (UST) containing gasoline, diesel or kerosene. SCOPE OF WORK Conservative Environmental Services, Inc. (CES) will provide the manpower and equipment to: . Uncover and access tanks. . Remove residual product from tanks. . Purge (to <10% LEL) and access the tanks via inerting procedures and venting. . Clean the inside of the tanks. . Remove tanks from the excavation. . Transport and dispose of the tanks (as needed) and contents removed during the cleaning process, . Backfil1 excavation to grade. . Provide for all sampling, analysis and reporting to satisfY P ADEP requirements, PROJECT COST - $ 19,000.00 Additional costs: Waste Disposal Oilsludgesldebris Gasoline sludge/debris $175,00/55 gallon drum $425.00/55 gallon drum Waste Transportation $400.00 P.O. Box 745 . Mechanicsburg, PA 17055 (717)731-6799 . FAX (717) 731-6798 ~ I -. " J... , __,;< ,', ,,', '" - .-, ~ , -- '- -- ", :,,~.. ,0' '- .~....; 'ii"'''' -;, "(.. , " , ii_ Ma~ 28 00 12:45p W S-ott Bur::! 717-731-6798 p.4 ConselVative Environmental Services, Inc. All personnel, equipment and supplies utilized by CES conform to Federal, State, and Local regulations, including but not limited to OSHA, RCM., DOT and TSCA. This total project cost assumes the following conditions: 1, Shirey's Cash & Carry will be responsible for processing and obtaining all local permits. 2. The tanks are steel. 3, The tanks will be pumped down to 6 inches or less of product. 4. There is no contamination present nor will groundwater be encountered. 5. CES is not responSible for surface restoration. Should contamination be present, the following costs will apply: Excavation/stockpiling of soils and replacement with stone Contaminated soil testing, loading, transportation & disposal $ 20.00/ton $ 75.00/ton PAYMENT TERMS Payment in full shall be made by Shirey's Cash & Carry net (30) thirty days from invoice date unless otherwise arranged prior to commencement of work. Iffailure to make payment occurs and it becomes necessary for CES to collect these funds through arbitration, all reasonable costs of attorneys, collection and arbitration will be the responsibility of Shirey's Cash & Carry. Unpaid balances beyond the payment terms will accrue interest at a rate ofI.S% per month (18% per year). WASTE CHARACTERISTIC INDEMNIFICATION For any services involving sampling, packaging, loading, transferring, generating, disposing or any other form of handling waste materials, Shirey's Cash & Carry shall furnish to CES a description or identification of the waste material to be handled and existing procedures for safe handling of such materials. Shirey's Cash & Carry will certifY that all related waste material documents properly descnbe the material. If it is discovered that, any material handled or associated with services does not conform with the description and information provided by Shirey's Cash & Carry, CES will notify Shirey's Cash & Carry of any alternative handling procedures and related cost changes, Any certification of waste materials will be the expressed responSIbility of the generator. Proposal 11 1 79H" 1 Mar. 28 00 12:45p W S"ott Bur~ '/l'I-'/:.Jl-(j'/~Hj p.:> Conservative Environmental Services, Inc. INDEMNIFICATION Shirey's Cash & Carry shall indemlliJY, save harmless and defend CES's employees and subcontractors from and against all liabilities, claims, penalties, demands, fines, forfeitures, suits, causes of action and the costs and expenses incident thereto (including, without limitations, costs of defense, settlement, and reasonable attorney's fees) which they may incur, become responsible for, or payout as a result of death or bodily injury to any person, damage to any tangible property, adverse effects on the environment, or any violation of law arising out of or in connection with Sbirey's Cash & Carry's breach of any term or provision of this contract or any negligent or wi1lful act or omission of Sbirey's Cash & Carry, its employees, or subcontractors in the performance of this contract. CES shall indemnify, save harmless and defend Shirey's Cash & Carry's employees and subcontractors from and against all liabilities, claims, penalties, demands, fines, forfeitures, suits, causes of action and the costs and expenses incident thereto (including, without limitations, costs of defense, settlement, and reasonable attorney's fees) which they may incur, become responsible for, or payout as a result of death or bodily injury to any person, damage to any tangible property, adverse effucts on the environment, or any violation oflawarising out of or in connection with CES's breach of any term or provision ofthi!; contract or any negligent or willful act or omission ofCES, its employees, or subcontractors in the performance of this contract. INSURANCE CES certifies that it maintains applicable insurance coverage for the services to be provided at limits which are standard for the industry, CES will furnish upon request a certificate attesting to the existence ofW orkman's Compensation insurance comprehensive automobile, and general and pollution liability insurance. TERMINATION CES reserve,s the right to terminate this contract at any time by giving Shirey's Cash & Carry written or oral notice ifSbirey's Cash & Carry fails to observe or comply with any term or condition of this contract. FORCE MAJEURE CES's perfunnance of the work set forth in this proposal may be interrupted or delayed by OCCUlTellces outside the control of the parties, including but not limited to acts of God, acts and/or omissions of governmental authorities and regulatory agencies, war, riot, civil commotion or the conduct of third parties. In such event, CES shan be excused from performance fur as long as is reasonably necessary, and CES shall not be liable for any damages, losses or expenses arising from the interruption or delay. ~oposalll I79H-I Ma~ 28 00 12:45p W S-ott Bu...~ 717-731-6798 p.6 Conservative Environmental Services, Inc, LIABILITY OF CES CES, it's officers, agents and employees, shall not be held liable for any claims, damages, injuries to persons or property, losses or expenses arising out of the performance of the work described in this proposal except as a result from negligence of CES and it's employees acting within the scope of their employment and for which CES maintains insurance coverage, By signing below, this contract will be deemed executed. ntal Services, Inc. Shirey's Cash & Carry by: by: Name: Michael H idelbaugh Name: Title: VP, - Marketing Title: Date: 1/5/00 Date: ProposallI179H'- I ,_-J .-, ,.- ,.,-.-, -",-~,',; , Mar.- 28 _00 12: 45p W ~'":ott Bur,:! 71"'-731-6798 p.7 by: y~~ Name: Michad dbau;' by:,~~D~ Name: <>C\-.),A ~ T"JtIe: -0:: . Dat~ j J '168 ride: V.P. - Mariretiug Date; 1/5/00 Proposal 11 I 79H-I ALoool'o.,^Tn VV,I "7"r' an (IUT nn len/Tn "". -" .."..' __"ii"'''!_'''''' '" ",''''''+,','" ,,,"..""""", ""d"., VERIFICATION I verify that the statements made in the foregoing Complaint ,are true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to the penalties of 18 Pa.C.S. ~4904 relating to unsworn falsification to authorities. w~u~ SCOTT BURY Date: q/Z6!OD ( I HB:38098.10000-31 I, I -~~ -~IA04 !!!!II'!' ,-~,~".~" .~ ~..~ =~ 0 ~'_., ""_,, 1iI:~r:r..m ~ ",' ~. ~", ,'.' _...n_ " '.' l? (i. ... ""',, (J ~ ~ -bg. J:: ~ '1~~ , . 1 \) ~ Q~() I '- ~ ~ v ~C() ~ t ~ ~, , o S',:; :;'~I l,~D L.? -::u /'-,t..._. ~2~~ r:l.,.J <" 1~ ~~~ ):;'C~ Z =< <<<" C::l C'? o -n ,-{ i:rifTI -~:Jl 1-"1 <(jy (~~o :r: :f{ :.E () ~~ -,;;" '~.?-1 ~~ ~ \ ::> ~ ....t ~::;: ?:: ,'.) ~i (;) - "' !:L\.' . l SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2000-02989 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CONSERVATIVE ENVIRONMENTAL VS SHIREY DAVID ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: SHIREY DAVID T/D/B/A SHIREYS' CASH & CARRY but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of BERKS County, Pennsylvania, to serve the within COMPLAINT & NOTICE On May 26th , 2000 , this office was in receipt of the attached return from BERKS Sheriff's Costs: Docketing Out of County Surcharge Dep. Berks Co 18.00 9.00 10.00 30.75 .00 67.75 OS/26/2000 POWELL, TRACHTMAN, S~, R. 'Thomas Kline Sheriff of Cumberland County LOGAN Sworn and subscribed to before me this -<~ day o~ .2rwO A.D. ~C2 i-v"d"o,t4, Prothonotar ." ~'~~~ Jd:iirM:J..i' .. SHERIFF OF BERKS COUNTY 633 Court Street, Reading, PA 19601 Phone 610-478-6240 Fax 610-478-6222 Eric J. Weaknecht, Chief Deputy AFFIDAVIT OF SERVICE DOCKET NO. 00-2989 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF BERKS Personally appeared before me, MICHAEL KAUFMAN, Deputy for Barry J. Jozwiak, Sheriff of Berks Couuty, Pennsylvania, who being duly sworn according to law, deposes and says that on MAY 22, 2000 at 1:34 PM, he served the annexed NOTICE AND COMPLAINT upon DAVID SHIREY, tld/b/a SHlREYS' CASH AND CARRY, within named defendant, by handing a copy thereof to PAUL SHIREY, PERSON IN CHARGE, at BOX 201, GEIGERTOWN, UNION TOWNSHIP, Berks County, Pa" and made known to defendant the contents thereof. /%.V ~ __ DEPUTY..8f.IERIFF OF13E ., PA Sworn and subscribed before me this 23RO, day of MAY, 2000 CO.,PA Service made as set forth above, So Answers, ~ ~ ~.,I SHERI F OF B RKS CO Y, PA Sheriff's Costs in Above Proceedings $ 75.00 DEPOSIT $ 30.75 ACTUAL COST OF CASE $ 44.25 AMOUNT OF REFUND All Sheriff's Costs shall be due and payable when services are performed, and it shall be lawful for him to demand and receive from the party instituting the proceedings, or any part liable for the costs thereof, all unpaid sheriff's fees on the same before he shall be obligated by law to make retum thereof. _Sec, 2, Act of June 20, 1911, p.L/IOn ,~ L ~ In The Court of Common Pleas of Cumberland County, Pennsylvania , Conservative Enviromental Services. Inc. VS. David Shirey, t/d/b/a Shireys' Cash & Carry No. 20-2989 Civil; Now, 5/16/00 , 20 0 (} , I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Berks County to execute this Writ, this deputation being made at the request and risk of the Plaintiff., ~ ,,tft , . . r~.--.t:~~ Sheriff of Cumberland County, P A Affidavit of Service Now, ,20 , at 0' clock M. served the within upon at by handing to a copy of the Oliginal and made lmown to the contents thereof. So answers, Sheriff of County, P A Sworn and subscribed before me this _ day of 20 '- COSTS SERVlCE NlILEAGE AFFJDA VIT $ $ POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, p,c. DAVID W. FRANCIS, ESQ, ATTORNEY J.D. #53718 114 NORTH SECOND STREET HARRIsBURG, PA 17101 (717) 238-9300 FAX: (717) 238-9325 ATTORNEYS FOR PLAINTIFF CONSERV ATlVE ENVIRONMENTAL SERVICES, INC., Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYL V ANlA v. DOCKET NO. 00-2989 DAVID SHIREY T/D/B/A SHIREY'S CASH & CARRY, Defendant PRAECIPE FOR ENTRY OF JUDGMENT OF DEFAULT TO THE PROTHONOTARY: Please enter judgment of default in favor of plaintiff Conservative Environmental Services, Inc. and against defendant David Shirey t/d/b/a Shirey's Cash & Carry for defendant's failure to plead to the complaint in this action within the required time. The complaint contains a notice to defend within 20 days from the date of service thereof. Defendant was served with the cornplaint on May 22,2000, and defendant's answer was due to be filed on June 12, 2000. Attached as Exhibit "A" is a copy of plaintiff s written Notice of Intention to File Praecipe for Entry of Default Judgment, which I certify was mailed by regular mail to the defendant at his last known address on June 20,2000, which is at least 10 days prior to the filing of this Praecipe. Judgment should be entered as follows: Money damages ................................,.......,...... $19,000.00 Prejudgment interest at 1.5 percent permonth ...................................................... 2,194.50 Penalty at 1 % per month pursuant to contractor/ subcontractor payment act ......................................... 1,463.00 HB:40201,13503-01 '---,~ -', .", "~<1' 1 ... , -"', ,- '" ~"--'", '~!J" "-~','-'-'-;'";,,-'""" ~,&-" ;"~~"~"", ",:""," - ,-. _~_,>,,-i. ' " .O-...;;'c"' -<,',"--__-".'''.''0__'_-'' Reasonable Attorneys' fees ....................................,.... 1,000.00 Total Judgment ...........................................,... $23,657.50 Date: October 4, 2000 ! fj ~ I' f: l: I: ~ I; "I I, I i" Ii I: I"~ ~ It , li ~ HB:40201.13503-01 CONSERVATIVE ENVIRONMENTAL SERVICES, INC., Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYL V ANlA v. DOCKET NO.00-2989 Civil Term DAVID SHIREY T/D/B/A SHIREY'S CASH & CARRY, Defendant IMPORTANT NOTICE TO: David Shirey tfd/b/a Shirey's Cash & Carry P.O. Box 201 Geigerstown, PA 19523 YOU ARE IN DEF AUL T BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) PA\:'$ FROM THE DATE OF TillS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORT ANT RIGHTS. YOU SHOULD TAKE TillS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 (717) 249-3166 or 1-800-990-9108 POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. By fJ-0/1 -; David W. Francis LD. #53718 114 North Second Street Harrisburg, PA 17101 (717) 238-9300 Date: June 20, 2000 HB:39522,13503.01 ExHIBit I A , "' ~ '-' d- , - -- -'" "-'~" -,~:' CERTIFICATE OF SERVICE AND NOW, on June 20, 2000, I hereby certify that I have served a true and correct copy of the within DEFAULT NOTICE upon the following person( s) via first class U.S. Mail, postage prepaid: David Shirey tJd/b/a Shirey's Cash & Carry P.O. Box 201 Geigerstown, PA 19523 {b::l HB:39524,13503-01 -- " ~~- "~..~-~~- ~<--' ." ,,><- ';' ," ,'.", :~. ,- "< - -- ';{:,I ,", , ~ j ! i I I I; n! re h 1\ ~l: I' 'I ~ ,] ~I I) ",I i) ,I 1"1 1,1 ':1 11 II;', ~ ~ I I I'" -' CERTIFICATE OF SERVICE AND NOW, on October 4, 2000, I hereby certify that I have served a true and correct copy of the within Praecipe for Entry of Judgment of Default upon the following person(s) via first class U.S. Mail, postage prepaid: David Shirey t/d/b/a Shirey's Cash & Carry P.O. Box 201 Geigerstown, PA 19523 ~. David W. Francis HB:39524.13503-01 I'" " I ,,0'''", ~ .. " -- '" '-",~--- I,"" ,ft...:;,JI~L~">.,,o,",,__ '1 ~.f;, ,'_7__,0'\"" "-,'_'. ,_~ ' _- ~L' "',- ',"' . '.""V ~ ~ "t ~ 8 ~ "0 ~F ;v j ~ CY QJ\() ~ ;;""D .;r;:::. ~ ~ < -,~ I ". '" L, (:;:) n C:::J ~ -on'. ~~Si VJJ:": ?Cl '< )>c 2:0 )>c:::. -7 ~ :~ 'q :..., I c;'; '-I ~ -1 ,j'--) '~f'; ;---. "-- '--....C;:(j ~ilj ::IJ, -<. ~n --r~ -,:-. r:-? '..11 CQ "' '"" .-' MAR 2 8 20025> LAU & ASSOCIATES, P.c. By: Shawn J. L~u, Esquire ill No. 56071 4228 St. Lawrence Avenue Reading, PA 19606 610-370-2000 Fax 610-370-0700 Attorney for Plaintiff CONSERVATIVE ENVIRONMENTAL SERVICES, INC., Defendant, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. DAVID D. SHIREY d/b/t/aJ, SHIREY'S CASH & CARRY NO. CJo-2,;9~q Plaintiff, ORDER AND NOW, this 3 ':! day of Ar~ '/ Petition, it is hereby ORDERED that: , 2002, upon consideration of the foregoing (1) A Rule is issued upon the Respondent to show cause why the Petitioner is not entitled to the relief requested; (2) The Respondent shall file an Answer to the Petition within 2. " days of this date: (3) The Petition shall be decided under Pa.RC.P. No, 206,7; ([><) (4) Depositions shall be completed within C, 0 days of this date. ( ) (4) An evidentiary hearing disputed Issues of material fact shall be held on , 2002, at m, in Courtroom of the Cumberland County Courthouse, or other courtroom as posted; and " 1 ~ "'" -0=---'-' <-"_ '-j,C.-, -.",,",~ ,~ ," '~'" ~'," ",~,;;"" ,,<~,^,,""-- 11"'" !)'1iiI RLED-OfF1CE OF' '", ""I'~'" ''''''^T.ARY l'.-'" -.'_'" ).,~, 1""'1 . . ; '1.. I 1 tc~ - f i'~'" 'I..... 02 APR -4 AM 8: 10 CUMBERLAI'iO COIJNlY PENNSYLVANIA - ~ ~~L ~.",~ r~ ,-~ ,- ..~, '~W~~~~!mlil!'~~,""\l!!ffli~~f~!~~l!I_ '~--'~""I <~ ';-;'1 "~"F _-:'T1llIIIIi/lI "- -~ "~ .. , " i ! (l>Q (5) Argument on questions of law shall be held on ~ /'1 , 20(l.f, at q : dam., in the Courtroom '-f of the Cumberland County Courthouse. . ( ) (5) The questions oflaw presented shall be resolved by the court on briefs, without oral argument. (6) Notice of the entry of this Order shall be provided to all parties by the Petitioner. (7) All proceedings stayed pending resolution of this Petition. 1 , , I"~ Ii i1 Ii H ':j " i'i i\ .~ t~:m:;J{5 k9in~o~ p~e~ ~lJ),," dssec-. /IlL n ., I i-1 II I,; I ;1 " !: I BY THE COURT: J. ;' ;:1 Ii II " J :1 ., ,. , H " ., I I il :1 i: " " ';1 , """{, LAU & ASSOCIATES, P.C. By: Shawn J. Lau, Esquire ill No. 56071 4228 St. Lawrence Avenue Reading, P A 19606 610-370-2000 Fax 610-370-0700 Attorney for Plaintiff CONSERVATIVE ENVIRONMENTAL SERVICES, INC., Defendant, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW vs. DAVID D. SHIREY dIb/t/a1, SHIREY'S CASH & CARRY NO. Plaintiff, ORDER AND NOW this day of , 2002,upon consideration of the within matter it is hereby ORDERED that the judgment on behalf of Conservative Environmental Services, Inc, and against David D, Shirey tIb/d/a Shirey's Cash & Carry, Inc. entered on October 5, 2000 is hereby stricken, J. - ,)~ .~& LAU & ASSOCIATES, P.C. By: Shawn J. Lau, Esquire ID No. 56071 4228 St. Lawrence Avenue Fleading,PA 19606 610-370-2000 Fax 610-370-0700 Attorney for Plaintiff CONSERVATIVE ENVIRONMENTAL SERVICES, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Defendant, CIVIL ACTION - LAW vs. DAVID D. SHIREY dIbltlaJ, SHIREY'S CASH & CAlmY NO. Plaintiff, PETIDON OF DAVID D. SHIREY TO STRIKE AND VOID JUDGMENT IN THE ALTERNATIVE David D. Shirey by and through his counsel, Shawn J. Lau, ofLau & Associates, P,C., hereby avers: 1, Judgement was entered on behalf of Conservatiye Environmental Services, Inc., against Davi4 D. Shirey, tIb/d/a Shirey's Cash & Carry on October 5,2000, COUNT I PETIDON TO STRIKE OFF JUDGMENT VOID ON FACE NO NOTICE TO DEFEND ON FRONT 2. Plaintiff incorporates by reference the allegations set forth in Paragraph 1, inclusive as though set forth In full herein at length, 3. A review of the Complaint indicates that a Notice to Plead was affixed to the front of the Complaint. This is improper and did not afford David D, Shirey any information provided in a Notice to Defend and did not let him know that he was to take it to a lawyer referral service or obtain an attorney to defend himself. For the above reasons, service of the Complaint was ineffective. ,-' , , , Co . "- 4, For all the reasons aforesaid, Mr, Shirey never filed an answer to the Complaint and a Judgment was entered against him. I , !~ WHEREFORE, the judgment on behalf of Conservative Environmental Services, Inc, and against David D, Shirey tIb/d/a Shirey's Cash & Carry, Inc. on October 5, 2000 must be stricken. f i~ !t <;:OUNT n WRONG PARTY VOID ON FACE PETmON TO STRIKE r 5. Plaintiff incorporates by reference the allegations set forth in Paragraphs 1 through 4, inclusive as though set forth in full herein at length. ~ I , I i 6, The note, a copy of the Complaint attached as Exhibit "A" to this Petition reflects that a contract was never signed by David D. Shirey in his individual capacity, but rather Shirey's Cash & Carry, Inc., with David D, Shirey signing as president. 7. For this reason, on the face of the Complaint the Complaint is defective and therefore must be stricken, WHEREFORE, the judgment on behalf of Conservative Environmental Services, Inc. and against David D. Shirey tIb/d/a Shirey's Cash & Carry, Inc. on October 5, 2000 must be stricken. COUNT m PETmON TO OPEN NO NOTICE TO DEFEND AND MERITORIOUS DEFENSE 8. Plaintiff incorporates by reference the allegations set forth in Paragraphs 1 through 7, inclusive as though set forth in full herein at length, 9. Furthermore, the work that gave rise to this action, resulted in a substantial environmental spill which is a subject of a separate civil action filed at Berks County Court to Berks County Court of Common Pleas, No, 02-1984, "-,_: k ~ , ~' -~, j--~ < " w I I; 10, In order for a Judgment to be opened under Pennsylvania law, a. the Judgment must have been caused by reasonable neglect: b, the Defendant must act with reasonable promptitude. c. there should be defense on the merits, i I I I:, !, !: 11. In this matter, Defendant clearly has an excusable neglect in that he was never given a proper Notice to Defend on the fact of the Complaint. 12. Defendant has no idea when to file an Answer and in fact had notified Conservative Environmental Systems, Inc. of the presence of the spill and the fact that substantial damages were being incurred to correct the spill and for over one and one half of a year (1 1/2), no action was taken as to the improper Judgment, ! I 13. A clear defense and offset to this liability exists on the merits of the case, WHEREFORE, for all the above reasons, the above captioned action should be opened in order to allow Mr. Shirey to present his defense and execution any action thereon would be stayed the outcome of that proceeding. COUNT IV PETITION TO OPEN WRONG PARTY VOID ON ITS FACE MERITORIOUS DEFENSE 14, Plaintiff incorporates by reference the allegations set forth in Paragraphs 1 through 13, inclusive as though set forth in full herein at length, 15. The note, a copy of the Complaint attached as Exhibit "A" to this Petition reflects that a contract was never signed with David D. Shirey or with Shirey's Cash & Carry but rather with Shirey's Cash & Carry, Inc., with David D, Shirey signing as president. 16. For the reason, on the face of the Complaint the matter is defective and therefore an absolute defense on the merits exist. . .~- "", 17, A review of the Complaint indicated that a Notice to Plead was affixed to the front of the Complaint. This is improper and did not afford David D. Shirey any information provided in a Notice to Defend and did not let him know that he was to take it to a lawyer referral service or obtain an attorney to defend himself. For the above reasons, service of the Complaint was ineffective. 18. For all the reasons aforesaid, Mr. Shirey never filed an answer to the Complaint and a Judgment was entered against him. 19. In order for a Judgment to be opened under Pennsylvania law, a, the Judgment must have been caused by reasonable neglect: b. the Defendant must act with reasonable promptitude, c, there should be defense on the merits, 20. In this matter, Defendant clearly has an excusable neglect in that he was never given a proper Notice to Defend on the fact of the Complaint. 21. Defendant has no idea when to file an Answer and in fact had notified Conservative Environmental Systems, Inc. of the presence of the spill anli the fact that substantial damages were being incurred to correct the spill and for over one and one half of a year (1 1/2), no action was taken as to the improper Judgment. WHEREFORE, for all the above reasons, the above captioned action should be opened in order to allow Mr. Shirey to present his defense and execution any action thereon would be' stayed the outcome of that proceeding. Rtlspectfully submitted, l;;AU & ~~CI"TES. P,C. By: /~ 1.-/ SHAWN J. LAD Attorney 10rPlaintiff ~ ':''',~,;~,'i;;i;(,' ...-"...~; '~.,' -, ';:;;"i.,~"";"~,.. - ''',,:~'~-:;<~~:~.::;zf's:;::t\'.':;' ',', c" EXHIBIT - "A" , t-.;'':!.''';",-',,-..' '.';,..',',",vJ'!: I, , 1:1 , . '~, , CONSERVATlVEENVIRONMENTAL SERVICES, INC. Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA Docket No. Qo-;<9F{ G",i.l ~ #0/, '. v. DAVID SHIREY TfDlB/ AI SHIREY'S CASH & CARRY Defendant NOTICE TO PLEAD TO: David Shirey tJd/b/a Shirey's Cash & Carry P.O. Box 201 Geigerstown, PA 19523 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN REPLY TO THE WITHIN AMENDED COMPLAINT WITHIN TWENTY (20) DAYS OF SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. BY~ David W. Francis I.D. #53718 114 North Second Street Harrisburg, P A 1710 1 (717) 238-9300 Date: May 11, 2000 HB:39172.13503-01 TRUEOOPV FROM RECORD III TestlmGny whereof. I hef811nto set my nand and tile -' of said CGurt at Carlisle, Pa. ~~~#~ '?r~~~ fIr'oth ry ,c,>,:,^'.,' ";'.-"., ._.~............."--,- , -_.~~~.~~-..:..: " ':-::~}~~:;/:~1:iI.~~"~~.::,,.:;;ct:"'{~:~~;:-,,~:~ )~S~;.,'_.-;_~__",__ _. ~:/::~~~s:~-~;~:r{{:,~It~~;,-__" I~ , ~ . . . -/,,- ,.--: '" , CONSERVATIVE ENVIRONMENTAL SERVICES, INC. Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYL V ANlA v. DAVID SHIREY TlDfB/AJ SHIREY'S CASH & CARRY Docket No. Defendant NOTICE TO DEFEND " i~, I', ~, YOU HA VB 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 an 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 rnoney claimed in the complaint or for any claim or relief requested by the defendant. You may lose rnoney or property or other rights important to you. , r ;': " i, c' ~i f~ i f 1" YOU SHOULD TAKE THIS PAPER TOYOUR LAWYER AT ONCE. IFYOUDONOT HAVE OR KNOW ALA WYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOu CAN GET LEGAL HELP. I !' CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, P A 17013 (717) 249-3166 1-800-990-9108 HB:39171,13503-o1 -,- > . ,'; ,-,.- :~.~ ..:,<,::-4?,~j,\C ><.:_;.:.~~ -.; ," - :~~v41~':~'\'.o~!;i;_;,~, A VISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de 1as demandas que se presentan mas adelante en 1as siguientes paginas, debe tomar accion dentro de los proxirnos veinte (20) dias despues de la notificacion de esta Demanda y A viso radicando personalmente 0 por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presenfadas aqui en contra suya. Se Ie advierte de que si usted falla de tomar accion como se describe anteriormente, e1 caso puede proceder sin usted y un fallo por cua1quier suma de dinero reclarnada en la demanda 0 cualquier otra rec1amacion 0 remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicionaL Usted puede perder dinero 0 propiedad u otros derechos importantes para usted. ," , I, r: ~< t-- USTED DEME LLEV AR ESTE DOCUMENTO A SU ABOGADO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO 0 NO PUEDE PAGARLE AUNO, LLAME 0 V AY A A LA SIGUIENTE OFIClNA PARA A VERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, P A 17013 (717) 249-3166 1-800-990-9108 POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. B,{} Q ---; Attorneys for Conservative Environmental Services, Inc. HB:39171.13503-01 ~ " - :-:W_:'i-;-_;:'~' ':>~;':~;"'-':---:-, '_' - -,:: .-' _- '-~"-'s:.""-'~~~.;..___,____';:"""~,-.:,..<__ .....:.-I~~ :':''Y[;-~~::;~n~~~;: ,'--:, " , ----", , . :,,~, _d ."" -, . r~ C . POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P,C. DAVID W. FRANCIS, ESQ, A TIORNEY!.D. #53718 114 NORTH SECOND STREET HARRISBURG, PA 17101 (717) 238-9300 FAX: (717) 238-9325 ATTORNEYS FOR CONSERVATIVE ENVIRONMENTAL SERVICES, 1Ne. Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYL V ANlA i t-; I; , CONSERVATIVE ENVIRONMENTAL SERVICES, INC. I"~ V. DAVID SHIREY TfDfB/A/ SHIREY'S CASH & CARRY Docket No. H Defendant n COMPLAINT 1. Plaintiff is Conservative Environmental Services, Inc. ("CES"), a Pennsylvania corporation with a principal place of business located in Cumberland County, Pennsylvania. 2. Defendant is David Shirey tJd/b/a Shirey's Cash & Carry ("Shirey"), with a principal place of business located in Berks County, Pennsylvania. BACKGROUND Mandatorv Closure ofUndenrround Storage Tanks 3. In or about August 5, 1989, the Commonwealth of Pennsylvania enacted Storage Tank and Spill Prevention Act. Among other things, the Act required that all persons maintaining underground storage tanks (''USTs'') for the storage of gasoline, diesel, kerosene, or other hazardous materials to close the tanks by certain prescribed deadlines. 4. One of the purposes of the Act was to protect ground water supplies from contamination by leaking storage tanks. HB:39142.13503.Q1 ;,;~~,t>Jlf~i:~j~{,: ,. --.-_,-_ :_'_~- '~'_,- ,~<~rc~:~t, -'-""............-*...,"'"~, ~~-'-.","--"'..-'-""=:,'" ..~"--- " I,~ ;--~,' ~.~,::3lli~{~~lt~2~:;:,?~;~s~ ~~.~~ , c I k > .' 5. Shirey maintained five (5) USTs on his property which were required to be closed in accordance with the act. 6. Upon information and belief, Shirey failed to close his tanks in accordance with the prescribed deadlines. Accordingly, Shirey subsequently entered into a consent order with the Commonwealth of Pennsylvania Department of Environmental Protection ("DEP") in which Shirey agreed to close his tanks in accordance with a mandatory closure date established by the DEP. 7. CES is a DEP certified UST removal and closure contractor that routinely performs closure ofUST's in accordance with the Act. The Contract 8. On or about January 5, 2000, Shirey entered into a contract with CES in which CES was to close the five (5) UST's located on Shirey's property for payment of$19,000. A copy of the Contract is attached as exhibit A. 9. CES project work included mobilizing men and equipment to perform the work; r ! " excavation and uncovering of the USTs; purging and cleaning the tanks; removing tanks from the excavation; backfilling to grade; sampling of soil samples to determine whether contamination was present; and preparation of a report for submission to DEP. 10. The Contract required Shirey to pay CES for the work performed within thirty (30) days after receipt of the invoice. Thereafter, a finance charge of 1.5% would be applied to outstanding balances. 11. Between January 5, 2000, and January 13, 2000, CES fully performed all the work required under the contract. HB:39142,13503-Q1 2 , I _I ~-~~;J.:~;';Z'~:~~~~l~~~:f1'S~:1::f~~g~~t{'i',.~"-~~~~ , - ""'~;';~''',!;~~r;;\<<-~:. . _. "',, -,...-__.:.:';Q.L't.tL__~-: '. J _:,:~~t~''':~':--~/i'}}$~tf%l~!f:~~;~~~j;~{r~f.w~,~ ii:1 It! !1,] Ii:! I'; > , 12. In accordance with the Contract, on January 13, CES properly invoiced Shirey for j: 'I [: ':1 I:: !: payment in the amount of$19,000. 13. Shirey has not paid any amounts to CES for the work CES performed. tl l,j I: , I:! I' I! 1,1 I:; 1:1 II I r 14. The analysis report on the samples taken reflect that Shirey's property in the vicinity of the UST's was contaminated. The contamination may have infiltrated the local ground water supply. Upon information and belief, Shirey has not forwarded the report to the DEP nor taken any actions to remediate the potential contamination. 15. Between February 12, 2000, and March 28,2000, CES repeatedly called Shirey to ~, i I;, ~,! :!! ascertain the status of payment and resolve submission of the closure report to DEP. Messages , jl 16. On March 16, 2000, CES sent a letter to Shirey demanding payment; however II r: I;,] ':1 " "~I were left on his voice mail; however no return calls were made. Shirey did not respond. 17. Finally, on March 28, 2000 CES was able to reach Shirey by telephone, during which time Shirey raised for the first time the vexatious and unsubstantiated claim that CES may have broken a water line on Shirey's property, and that Shirey was withholding payment until it could determine whether the pipe was broken. 18.' There is absolutely no basis for Shirey's claim that CEC might have damaged its water lines. Upon information and belief, Shirey has raised this claim as an excuse for not paying CES. 19. More recently, Shirey has now raised the spurious claim that CES somehow caused the contamination of his property, and is withholding payment on that basis. 20. Upon information and belief, when Shirey entered into the contract with CES, he HB:39142.13503-01 3 , o,c' _' ~" _ _ -, i~ i had no intention whatsoever of paying CES for the work, and will latch upon anY argument to deny payment to CES. Venue in Cumberland County 21. Pa. R. Civ. P. provides that venue in an action against an individual is appropriate ~- in a county where the cause of action arose or where a transaction or occurrence took place out of a. The contract was prepared and entered into in Cumberland County; I I I 1"0 l: I I , which the cause of action arose. 22. Venue over this action is appropriate in Cumberland County under this standard' because: b, Men and equipment were mobilized from Cumberland County to Shirey's i i I"~ " !' to perform the work. This was part of the contract scope of work, and remaius unpaid for; F r c. Payment was due in Cumberland County; d. The closure report mandated by DEP was prepared entirely within i ! !: I Cumberland County. This was also part of the contract scope of work, and remains unpaid for. COUNT I - BREACH OF CONTRACT 23. CES incorporates all ofthe above paragraphs as if fully set forth here at length. 24. CES fully performed all of the work under its contract with Shirey. 25. By the terms of the contract, Shirey has require to pay CES $19,000 within 30 days of receipt ofthe invoice. 26. Shirey's failure to pay CES for the work is a material breach of contract. HB:39142,13503-01 4 , WHEREFORE, Conservative Environmental Services, Inc. hereby demands judgment in I I I"~ ! I, 1 , c_, i' i ! I I 1 I;, I. ! 27. CES is entitled to payment in the amount of$19,000. 28. By the terms of the contract, CES is also entitled to receive interest at the rate of 1.5 percent per month. its favor, and against Shirey in the amount of$19,000, plus interest at the rate of 1.5 percent until paid, as well as costs; fees and attorneys fees as permitted by law. :.',; I'; COUNTII-CONTRACTOWSUBCONTRACTORPAYMENTACT 29. CES incorporates all of the above paragraphs as if fully set forth here at length. 30. This contract falls within the purview of the contractor/subcontractor payment act 73 P.S. ~ 501 et sea. ("the Payment Act") 31. Pursuant to the terms of the Payment Act, performance by CES in accordance I I:' I' with its contract entitles it to payment. , I"~ I'; 32. Pursuant to the terms of the Payment Act, CES is entitled to, in addition to all \1 other damages due, a penalty equal to 1 % per month of the amount that was wrongfully withheld. 33. Pursuant to the terms of the Payment Act, CES is entitled to recover a reasonable attorney fee, together with expenses. 34. Shirey's failure to pay CES is a violation of the Act. WHEREFORE, Conservative Environmental Services, Inc. hereby demands judgment in its favor, and against Shirey in the amount of $19,000, plus interest at the rate of 1.5 percent until paid, a penalty equal to 1 percent per month until paid, and a reasonable attorney's fee and expenses, as permitted by law. COUNT II1- OUANTUM MERUIT HB:39142.13503-01 5 ~~.: ':,~-'-:;-:'~ -:'-;;~::~k:!!4.ti~$;~~Jf~,,~?',';1:;:->~~2__. -...... '-'--<".,-', ,:,~.._""",'.~..-- , ::"-':,~mfifW~:<;~~~:ti~?:~~\ ~ " F..; I; I" I~l: i I': '."""- ,,- - -',,- ,- ,- '-'--~""'.~-~-'~._~~- . .' 38. Shirey has not paid CES for the work despite the fact that the work substantially f I I' ,: I I' I I , I I I:, 1 b r ! ! 35. CES incorporates all of the above paragraphs as if fully set forth here at length. 36. At Shirey's request, between January 5, 2000, and January 13, 2000, CES provided certain environmental remediation work to Shirey, as more fully set forth herein. 37. Shirey had notice of the performance and the probable amount ofCES's work. benefitted Shirey. 39. Shirey knew and reasonably expected to be required to pay for the work i; i I, i: 1:" performed by CES, and would be unjustly enriched if it is not required to pay for this work. i 40. The work performed by CES is reasonably worth $19,000. ['; I f', 41. Pursuant to the doctrine of quantum meruit, CES is entitled to judgment against Shirey. WHEREFORE, Conservative Environmental Services, Inc. demands judgment in its favor, and against Shirey in the amount of$19,000, plus costs, fees and attorney's fees as permitted by law. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. By!0 ~ avid'w1irancis I.D. #53718 114 North Second Street Harrisburg, PA 17101 (717) 238-9300 Attorney for Conservative Environmental Services, Inc. Date: May 11,2000 HB:39142.13503-01 6 ~ :<_. -- '---'--~,\'., ,;,,('" " , . -jiJi-'\- . I """'''''''O&''''~''''''''",:::~:::",:: J~, EXHIBIT '?(t:};'~'!f:,ti, "A" Ii' 'I.' ;- '. -c':,.-....':.-'_',;-;o,-- ~......._"~'~-____-.........._n.~ . '--'"-<:~,!-\~(;~,i~~::'::~1i!~-'~~;~~:i1g-~ ~-.~- '.- '!).-~ [ !ii- ~i'- I ir, , Ii: Ii, I 'j~' i I i~ F 1 ~ I' i: i i. I , , Mar'~t:5" uu ~~:"t"tp "" :;......O'CT. J:lur-~ onservative nvironmental ervices, Inc. January 5, 2000 Shirey's Cash & Carry Geigertown Rd, Geigertewn, PA 19523 Attn: Mr. David Shirey Prepesal I I 179H- J. UST Closure Dear Mr, Shirey: Censervative Environmental Services, Inc. wishes to. submit this proposal to. Shirey's Cash & Carry for the closure of five. Underground Storage Tanks (UST) containing gasoline, diesel or kerosene. SCOPE OF WORK Censervative Environmental Services, Ine. (CES) will provide the lllJIllIlo.wer and equipment to.: . Uncover and access tanks.. . Remeve residual pro.duct from tanks. . Purge (to. <10% LEL) and access the tanks via inerting precedures and venting. . Clean the inside of the tanks. . Remove tanks from the excavatien. . Transpert and dispose of the tanks (as needed) and contents removed during the cleaning process. . Backfill excavation to. grade. . Provide for all sampling, analysis and reperting to. satisfY P ADEP requirements. PROJECT COST - $ 19,000.00 Additional cests: Waste Di&posal Oil sludges/debris Gasoline sludge/debris $175.00/55 gallon drum $425.00/55 gallen drum Waste Transportation $400.00 P.O. Box 745 . Mechanicsburg, PA 17055 (717)731-6799 . FAX(717)731-6798 ~ ~ < <-:m~~~~~~:-:"~Yl"-;~~,t;r.5~%~2:':f~~;,~~;_:'~,;'~;;;~!<;q~~i~::,'~.',''' Ma'r '2.8;00 1.2: 45p ld ~""'ott Bur~ 1.1'-I"'.l-oj~C:1 --' :~~!i,'1:-;:?jt:S~~:-_2_i,_-~,~{tjtt~t1~~~~;~*~~~~~~~t;;,~ Conservative Environmental Services, Inc. All personnel, equipment and supplies utilized by CES conform to Federal, State, and Local regulations, including but not limited to OSHA, RCRA, DOT and TSCA This total project cost assumes the following conditions: ' I. Shirey's Cash & Carry will be responsible for processing and obtaining aD local permits. 2. The tanks are steel 3. The tanks will be pumped down to 6 inches or less of product. 4. There is no contamination present nor will groundwater be encountered. 5. CES is not responsible for surface restoration. Should contamination be present, the following costs will apply: ExeavatioDlstockpiling of Soils and replacement with stone Contaminated soil testing, loading, transportation & disposal $ 20.oo/too $ 75.oo/ton PAYMENT TERMS Payment in fuR shaIl be made by Shirey's Cash & Carry net (30) thirty days from invoice date unless otherwise auanged prior to commencement of work. Jf&i1ure to make payment occurs and it becomes necessary for CES to collect these funds through arbitration, all reasonable costs of attorneys, collection and arbitration will be the responsibility of Shirey's Cash & Carry. Unpaid balances beyond the payment terms will accrue interest at a rate of 1.5% per month (18% per year). WASTE CHARACTERISTIC INDEMNIFICATION For any services involving sampling, packaging, loading, transferring, generating, disposing or any other form of handling waste materials, Shirey's Cash & Carry shall furnish to CES a description or identification of the waste material to be handled and existing procedures for safe handling of such materials. Shirey's Cash & Carry will certifY that all related waste material documents properly descnbe the material. If it is discovered that any material handled or associated with services does not conform with the description and information provided by Shirey's Cash & Carry, CES will notify Shirey's Cash & Carry of any alternative handling procedures and related cost changes, Any certification of waste materials will be the expressed responsibility of the generator, Proposal I Il79H-I ~ '::'>:~\:-'A~~~~:r.k~~'t,~i:({ ~ I" '" t.')";"",.',,-., ;' ,.~ "".-" ---' . ....-------...-..-.. - , , . , '~~.';~",-,_",',,:'<_,~-,-,-, , ;~i~2tJ}~.~~;tU1t';~_:! ;'.1.' _--_., ,",h't- -- ~-:; "y-, i~_ -,- -<,---,', ",:,-'-. "-.': -' -' -'-"_~'--"--~'-<-"".~,__-...." _.-,-'~=~i.,.~ :____;.: Ma'r '~8' 00 1.2: 45p . , W ~"'ott J:lur::;f ii, I'i -" , : ~ i! ;1 Conservative Environmental Services, Inc. lNDEMNIFICATION Shirey's Cash & Carry shall indelIllliiY, save harmless and defend CES's employees and subcontractors from and against all liabilities. cIaims, penalties, demands, fines. foIfeitures., suits, causes of action and the costs and expenses incident thereto (including, without limitations, costs of defense, settlement, and reasonable attorney's fees) which they may inCUl", become responsible for, or payout as a result of death or bodily injury to any person, damage to any tangIole property, adverse effects on the environment, or any violation of law arising out of or in connection with Shirey's Cash & Carry's breach of any term or provision of this contract or any negligent or willful act or omission of Shirey's Cash & Carry, its employees, or subcontractors in the performance of this contract. , if I: !i CES shall indelIllliiY, save harmless and defend Shirey's Cash & Carry's employees and subcontractors from and against all liabilities, claims, penalties, demands, fines, forfeitures, suits, causes of action and the costs and expenses incident thereto (including, without limitations. costs of defense, settlement, and reasonable attomey's fees) which they may incur, become respollSlo1e for, or payout as a result of death or bodily injw:y to any , person, damage to any tangible property, adverse effects on the environment, or any violation of law arising out of or in connection with CES's breach of any term or provision of this contract or any negligent or willful act or omission ofCES, its employees, or subcontractors in the performance of this contract. i: ( I' I I, i~ " " ii, r INSURANCE CES certifies that it maintains applicable insurance coverage for the services to be provided at limits which are standard for the industry. CES will furnish upon request a certificate attesting to the existence ofW orkman's Compensation insurance comprehensive automobile, and general and pollution liability insurance. TERMINATION CES reserves the right to terminate this contract at any time by giving Shirey's Cash & CaITy written or oral notice ifShirey's Cash & Carry fui1s to observe or comply with any term or condition of this contract. FORCE MAJEURE CES's performance of the work set forth in this proposal may be interrupted or delayed by occurrences outside the control of the parties, including but not limited to acts of God, acts and/or omissions of governmental authorities and regulatory agencies, war, riot, civil commotion or the conduct of third parties. In such event, CES shall be excused from performance fur as long as is reasonably necessary, and CES shall not be liable for any damages. losses or expenses arising from the interruption or delay. ProposallI 179H-I , ,~:;--~,:~':f,,;-~\::;;;j~~;\,ii~;';;'i-f!(i-j,;?..,\:'.f~~-i;):i..'{;~:;';:~-j . \~;~;;;" Merr 1~8 ',"? 00 " l 12:45p . W :;-ott llurl:l ,.- ". f:fI""ft1:3",;",'t~r~[UT~>(llI!f-'~'*-\,: " '~- (1. /- I.;;JJ. -0 '-.::10 l".U Conservative Environmental Services, Inc. LIABILITY OF CES CES, it's officers, agents and employees, shall not be held liable for any claims. damages, injuries to persons or property, losses or expenses arising out of the perfonnance of the work described in this proposal except as a result from negligence of CES and it's employees acting within the scope of their employment and for which CES maintains insurance coverage. By signing below, this contract will be deemed executed. ntal Services, Inc. Shirey's Cash & Carry by: by: Name: Title: V.P. - Marketing Title: Date: 1/5/00 Date: Proposall1l79H- I <)." ..-, -",',,-,~:,~,\<,'-'_'~;',h';;"' " ~&r: ~al O~ 1 c: 4::'p - ; --,"1;',',"-'" ',-,ili.'::"',o--':: ~ < >L" .... :'-'-:ott J::Jur'=l . ~ .;,;.;.. . by: V~~ Name: MichadHkelb2~ rJtk: V.P. ~ Miuketiug Date: US/OO 'ProposIlll179H-I . ~ "', y .' " '" ::,L:,":C''"''''''''''''",'''''b:@!\l~<<~,sr:i\i;i'i"c'',;;';';i!~''v ,. " , '. Co \ 11. ('- /.:3J. -0 (.;;;JO ,.,. ( by:~JH~ Na_: .o<\-...)..A ~ rltle: -0::: . Date: j J tj68 .............n"P^Tn VU,I "7"7 'Qn <lUT /'In/on/TO ".~-~ ......__,.;."""_.-:..:.,~.!I.....7,.._ = ""'-'--;' '.-"-'''.-- ~ "i 4,4.... t " VERIFICATION I verifY that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to the penalties of 18 Pa.C.S. ~4904 relating to unsworn falsification to authorities. tv- ~U~ SCOTT ~y I Date: q / z6/oo ( I HB:38098.10000-31 ~- - =~~ "~, of ."," ,,/' LAU & ASSOCIATES, P.C. By: Shawn J. Lau, Esquire ill No. 56071 4228 St. Lawreuce Avenue Reading, PA 19606 610-370-2000 Fax 610-370-0700 ::'j , Attorney for Plaintiff Defendant, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW J 1;; ii: CONSERVATIVE ENVIRONMENTAL SERVICES, INC., vs. DAVID D. SBIRE";' dIb/t/aJ, SHIREY'S CASH & CARRY NO. Plaintiff, CERTIFICATE OF ADDRESS I Shawn J. Lau, Esquire ofLau & Associates, P,C., hereby certifY that a true and correct copy of the Petition of David D. Shirey to Open Judgment was served by US. First Class Mail, postage prepaid on this 26!t.day of March, 2002 upon the following parties: Anthony Potter Powell, Trachtman, Logan, Carrie. Bowman & Lombardo, P.C. 114 North Second Street Harrisburg, PA 17101 Date:jfI!C/'r/' 26 M ~f~ SHAWN J. LAlY ~~i.w...n... ~""'iMi'lNr!ll!li!ll_!tiM~8Mm!li!1il!~~'fo!H:~:/lIal-~(Q\i e:;: '1!7)! ,"_, _ _ _. . ^_~I 'Il'l.""~~ 1Idii<;1 ,~. .~,- !..-" , ,"~ " "", ilIilI ' '\" -..-.. r, ,~"--" t.: i-', !'i, " '.. ~,-- ,.~~. >;--.~ :--; L.._ J , """ '''-'') "--..; ",-., ,", ~, ,-' {:J ~:: So] -< m 1 I ",- 0- -"r.:, .. '~ By; Shawn J. Lau, Esquire ID No. 56071 4228 St. Lawrence Avenue Reading, PA 19606 610-370-2000 Fa:r. 610-370-0700 Attorney for Plaintiff CONSERVATIVE ENVIRONMENTAL SERVICES, INC., Defendant, IN THE COU}{T OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. DAVID D. SHIREY dlb/tlaJ, SHIREY'S CASH & CARRY oO-9,Q'l9 NO. 02 29111' Plaintiff, PRAECIPE TO ATTACH VERIFICATION Please attach the Verification to the above captioned Civil Action Complaint filed with the Prothonotary of Cumberland County on March 28,2002, LAU & ASSOCIATES, P.c. By: S~At;;;: ~~~~, " ~ .. '\ VERIFICATION I, ~ ! " I: j\! " l'i l: t-: ji i I,: Li i I I' I, D AVID D, SHIREY state and aver that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge information and belief I understand that false statements herein made are subject to the penalties of 18 Pa, CSA, Section 4904, relating to unsworn falsification to authorities, I, Dated: &1 t Ie> z ( J rPJ/J ~~ i ii ~ i " fi ji II !i DAVID D. SHIREY I: ~_~~"'!)"'i',ii,,,.,k;&t~"',!ii~I!iIIiJl!l~~"W>~ili&:{Or.lli"",,blilll~j~"dj~' ""'"~ " ~"""""""'lMiJil~ \'r"I'1 q , , .1 ~ .', L ,,;i /" ,)_ 4"-t \ J,t ,'i .A' - I. - j;.b.~~-~~'''. .,-, .. (") c ,_... - ,..'. s:: "'titv ~~ 1~~ ~~ '"""'~- ".. ~c; ~L-:.J; . ~C:) '_j>(..J "",',,.,','.i,~' ' c: '~Z =<! I' .iIIII.. = N , -1:.. V ;;0 . .., , o 'T1 o ::j fn;:? ~~? "".,0 -;-' -or. ---c"-n ~;:O cSr"f1 b' :0 -< -0 :::l: j:? - ~ o ,-~- ,-"~-,~-'-~"" "'~----=__">.O- ~_ ~- ,^ -, , ''''j '" ..... APR 2 4 2002 I.v'" V'" CONSERVATIVE ENVIRONMENTAL SERVICES, INC., Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA v. DOCKET NO. 00-2989 Civil Term DAVID SHIREY T/D/B/A SHIREY'S CASH & CARRY, Defendant ORDER AND NOW, this 2.'. day of ~"/ / ,2002 upon consideration of the foregoing Motion to Consolidate it is hereby Ordered that: (1) A Rule was issued upon defendant David D. Shirey t/d/b/a Shirey's Cash & Carry ("Defendant") to show cause why Conservative Enviromnenta1 Services, Inc. is not entitled to the relief requested; (2) The Defendant shall file an answer to the petition within 2.0 days of this date; (3) The petition shall be decided under Pa. Rule of Civil Procedure 206.7; (4) All proceedings in the petition to strike or open the judgment pending in the Court of Common Pleas of Berks County at Docket No. 02-284 are hereby stayed; and (5) The argument on the motion to consolidate shall be held on June 14, 2002 at 9:00 HB:44166v13503-08 11' ~I ""~ --- ' . - ". ~,,_. '~' ,--. "~ ~-~'.' -~., , ~ a.m. in Court Room 4 ofthe Cumberland County Courthouse in conjunction with the argument on the petition to strike or open the judgment. BY THE COURT The Honorable Jeffrey 1. Schmehl, J. 633 Court Street 4th Floor Services Center Reading, P A 19601 Shawn J. Lau, Esquire 4228 St. Lawrence Avenue Reading, P A 19606 Anthony S. Potter, Esquire 114 North Second Street Harrisburg, P A 17101 ~ ~ <f/:l't/o:;., ..J,:~, HB:44166v13503-08 2 , /fJ J. " ~.',~ , _,,< 0 - ., ,",j ,~!1 ':I :'d Ii 'I ~ II 'Ji " ;i ';[1 II i~1 " 1;1 hi " ,''I '';; ,.j " " :~' : , )1 1,1 h ;'1 I'll i:'J 111 'I iil :5,1 n 11:,,1 il II !" ~'I I! Iii , ~1 Iii !il I: [I 1'1 1i ;;1 '_'I ?i I tJ '1 II J 11 n II II iJ !I ----- ---" >_ ~ "" _ _' ~.>_ . '" ___.~", _ '''"..~ '" ,'_',_~_, '" _<'- .-"" '" ' . ._."__ .","M -,,, ,"~ -, -,: POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.e. David W. Francis Attorney LD. No, 53718 Anthony S. Potter Attorney LD, No, 75903 114 North Second Street Harrisburg, PA 17101 Attorneys for Conservative Environmental Services, Inc. APR 2 4 2002 oS".....'" CONSERVATIVE ENVIRONMENTAL SERVICES, INC., Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA v. DOCKET NO. 00- 2989 DAVID SHIREY T/D/B/A SHIREY'S CASH & CARRY, Defendant CONSERVATIVE ENVIRONMENTAL SERVICES. INC.'S PETITION TO CONSOLIDATE DAVID D. SHIREY TID/B/A SHIREY'S CASH & CARRY'S PETITIONS TO STRIKE AND OPEN THE JUDGMENTS Plaintiff, Conservative Enviroumenta1 Services, Inc., by and through its undersigned counsel, files this Motion to Consolidate pursuantto Pa. R.C.P. 213.1 and in support thereof avers as follows: 1. On or about May 12, 2000, Conservative Environmental Services, Inc. ("CES") filed an action against David D. Shirey t/d/b/a Shirey's Cash & Carry ("Defendant") in the Court of Common Pleas for Cumberland County, which was docketed at 00-2989. 2. The Complaint was served upon Defendant by the Sheriff of Berks County on May 22, 2000. 3. Both a Notice to Plead and a Notice to Defend were affixed to the front of the Complaint. HB:44162v13503-08 r" ~----' '" ,.-",- - ',--,-. ',- ,- ,~ ~",.-""" ,"~ 'Y,~~ ,_~,,,,,~--,",,'~'~""~~';.-T-,'-, .~_,,' ,~" ",'", 4. Defendant failed to file an answer in response to CES' s Complaint. 5. On June 20, 2000, CES served a ten-day notice of default upon Defendant. 6. Defendant failed to respond to the notice of default. 7. CES filed a Praecipe for Entry of Judgment of Default on October 5, 2000, which again was served on Defendant. 8. On October 5, 2000, Judgment was entered in favor of CES and against Defendant in the amount of$23,657.50. 9. On October 5, 2000, notice of the judgment was mailed to the Defendant by the Prothonotary of the Court of Common Pleas of Cumberland County. 10. On or about January 7,2002, CES filed a praecipe for transfer and indexing of the Cumberland County judgment with the Prothonotary of the Court of Common Pleas of Berks County. 11. On January 8, 2002, the judgment was transferred, entered and indexed against Defendant in Berks County at docket number 02-284. 12. On January 22,2002, CES served a subpoena upon Defendant via hand delivery. The subpoena scheduled David D. Shirey's deposition in aid of execution pursuant to Pa. RC.P. 3117 for February 15,2002 and requested that Defendant produce certain documents. 13, On February 6,2002, at the request of Shawn J. Lau, Esquire, ("Attorney Lau") the undersigned counsel agreed to reschedule Defendant's deposition in aid of execution for March 15, 2002. 14. On March 14, 2002, the Defendant's deposition in aid of execution was again rescheduled at the request of Attorney Lau. The deposition was rescheduled for April 8, 2002. HB:44162v13503-08 2 ~. .~, ',-.." ,''-_''0" ",,,,,-,.,>,~-"___ "~o' '__,-~;h_;~'- ""-,,,,,-'~',,, ~,,~' -.,,".-;;"~~,;".h'," '"c.: i I I 15. On March 28, 2002, Defendant by and through his counsel filed a petition to strike or open the judgment with the Court of Common Pleas of Cumberland County. 16. On Apri13, 2002, the Honorable Kevin A. Hess issued an Rule to Show Cause upon Defendant's petition to strike or, in the alternative, to open the judgment entered at 00-2989 and staying all proceedings in the matter. 17. On or about April 4, 2002, Defendant filed a petition to strike and void the judgment that was transferred to the Court of Common Pleas of Berks County and docketed at number 02-284. 18. On or about Apri14, 2002, the Court of Common Pleas for Berks County issued an order requiring CES to respond to the Petition seeking to strike or open the transferred judgment within 20 days, to complete depositions with 60 days, and scheduled an evidentiary hearing for June 21, 2002. <A copy of the Order is attached hereto as Exhibit "A" and incorporated herein by reference). 19. CES filed an answer to Defendant's petition with this Court on or about April 22, 2002. 20. Pennsylvania Rule of Civil Procedure 213.1 expressly contemplates consolidation of matters where two petitions to open judgment are filed. In fact, the Official Comment to the rule states as follows: "[0 ]ne court will be able to oversee litigation arising from two petitions to open a judgment, one petition filed in the county in which the judgment was entered and the other in the county to which it was transferred. See Pa. R.C.P. 213.1, Civil Procedural Rules Committee Explanatory Comment (1990). 21. Here, the action was originally commenced and judgment was entered in the Court of Common Pleas for Cumberland County and subsequently transferred to the Court of Common HB:44162v13503-08 3 ,-~~~, ,_~,,'=~__~__ --,,-'z.,-'.',,-,c ',,--~__"~"',"" co''' c'" """ "'c, ~-'" '-j Pleas for Berks County. Therefore, the Court of Common Pleas for Cumberland County is the appropriate Court to consolidate the action under Pennsylvania Rule of Civil Procedure 213.1 (b). 22. The consolidation ofthese matters will avoid duplication of efforts by the Courts and the parties. 23. The undersigned counsel spoke directly with Attorney Lau on April 16,2002 to determine ifhe concurred or opposed the motion to consolidate. To date, however, Attorney Lau has not indicated whether he concurs in or opposes this motion. WHEREFORE, Conservative Environmental Services, Inc. respectfully requests that Defendant, David D. Shirey t/d/b/a Shirey's Cash and Carry's petition to strike or open the judgment entered by the Court of Common Pleas of Cumberland County at docket number 00-2989 and the judgment transferred to the Court of Common Pleas of Berks County at docket number 02-284 be consolidated pursuant to Pa. R.c.P. 213.1 and that all further proceedings in the Berks County matter docketed at 02-284 be stayed pending resolution of the Rule to Show Cause issued by Judge Hess on Apri13, 2002. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN, & LOMBARDO, P.C. By: Dated: April 22, 2002 HB:44162v13503-08 4 " -I. , ~-" , H"_'_ ,;,<,~'i'~~~,. ",,' '., _ .___. __...;...~:-...;~. J . ,;.;~~'. ~~-'--___.~. ....", . <,,--,:.<:;....' ".,Ji., LAU & ASSOCIATES, P.C. By: Shawn J. Lau, Esquire ID No. 56071 4228 Sf. Lawrence Avenue Reading, P A 19606 610-370-2000 Fax 610-370-0700 HR 1 ~ ZOOZ Attorney for Plaintiff CONSERVATIVE ENVIRONMENTAL SERVICES, INC., Plaintiff, IN THE COURT OF COMMON PLEAS OF BERKS COUNTY, PENNSYLVANIA I CIVIL ACTION - LAW I ,- I I I i iNO. I I 02.- 2.8 ~ Defendant, vs. DAVID D. SHIREY d/blt/a!, SHIREY'S CASH & CARRY ,&,SSIGNED i() JE~E'f L SCHMEH~. $ ORDER AND NOW, this '-t -r-n day ofC":' ~ ~ Petition, it is hereby ORDERED that: , 2002, upon consideration of the foregoing (1) A Rule is issued upon the Respondent to show cause why the Petitioner is not entitled to the relief requested; (2) The Respondent shall file an Answer to the Petition within ~ 0 days of this date: (3) The Petition shall be decided under Pa.R.C.P. No, 206.7; ( y:) (4) Depositions shall be completed within ~ 0 days of this date. (-..,?) (4) An evidentiary hearing disputed issues of material fact shall be held on ~v ^~ ::l f , 2002, atS' .~o A m, in Courtroom \.f.:u of the Berks County Courthouse, or other courtroom as posted; and ... EXHIBIT 4. ~~ ~ ~ ~ .. .. .~- ' ~; --_.~-- .-._--~_..,. .~.~_" -t-,.",^", " ,,'w. ':-"~~}' ~ '-;~;-f1~~ : ..~~ ... .',e.",y.,. ( ) (5) Argument on questions of law shall be held on 2002, at m., in the Courtroom of the Berks County Courthouse. ( ) (5) The questions oflaw presented shall be resolved by the court on briefs, without oral argument. (6) Notice of the entry of this Order shall be provided to all parties by the Petitioner. (7) All proceedings stayed pending resolution of this Petition. BYTHE COURT: IS! JEfFREY L. SCfIMM.. J. 1. NOTICE IS HEREBY GIVEN OF THE ENTRY.OF THIS ORDER OR DECREE PURSUANT TO RULE P .C. P. 236 YOU ARE NOTIFIED THAT THIS ORDER/DOCUMENT HAS BEEN FILED IN THE PROTHONOTARY'S OFFICE OF BERKS COUNTY AND THIS IS AN EXTRACT FROM THE RECORD OF SAID URT C RTIFIED THIS C;' DAY OF '. 20 (Y' Marianne R. 9?tton, Prot~ clary ~"'-MM ~~ Deputy J "-> ;'J CD :J ,." ,:3 "'~ "" '" x ~ (J) '" :;;0 n I .~) 0 ., c: c::> ",:.., 'J ., -, ~"" , -< :;;.;::;: - (f) "\J - ;') ~". N ."1 " 0 (') :, - ,'" . -, .." ,~" --~, v <~~-_'..._' ,.._."'" ,.~," ,Cu "'~"J"',,,,, "&-'~"''''''-~ F',i.",; '_'_""~O';~_;'_j CERTIFICATE OF SERVICE AND NOW, on April 22, 2002, I hereby certify that I have served a true and correct copy of the within Conservative Environmental Services, Inco's Petition to Consolidate David D. Shirey t/dJh/a Shirey's Cash & Carry's Petitions to Strike and Open the Judgments upon the following person(s) by regular first class United States mail, postage prepaid. Shawn 1. Lau, Esq. Lau & Associates, PC 4228 St. Lawrence Ave. Reading, PA 19606 /l~_j~ By/);.. , ' " Anthony' . Potter HB:44141v1 3503.08 HilJ1C" - ~ ~,__ '''''''''''n. __",,,,. ...... -~.. --".-. n__=, ,-, -~-' -"-' .c' --, ,,1- -, 0 c:' () C r-,.,) --n ;:~ 7~ -0(,,; ."ry ~_':l n1r"- :::''.:) ~j't~-;, j...) -r~ ,-, GO -( r~C;') C) c, :.;:.t "'."- 'c, C) C) ~~. ,-, ~'.- in \.,_.' r;-? Y c: :::-:::j '7 -po :::l -~~) ""0 -< (,.) ::<. __r_1. " > ,~- -,,- ,'-"-'-.- 'X'__," ", -;:"'- ,-" - -._, ='"._'" _" ',;.",'-i~,;- Powell, Trachtman, Logan, Carrle, Bowman & Lombardo, p,e. 114 N. Second Street Harrisburg, PA 17101 Phone: (717) 238-9300 David W. Francis, Esq. J.D. #53718 Anthony S. Potter, Esq. J.D. #75903 Attorneys for Conservative Environmental Services, Inc. CONSERV ATNE ENVIRONMENTAL SERVICES, INC., Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA v. DOCKET NO. 00-2989 Civil Term DAVID SHIREY TIDIBIA SHIREY'S CASH & CARRY, Defendant CONSERVATIVE ENVIRONMENTAL SERVICES, INCo'S ANSWER TO PETITION OF DAVID D. SHIREY TO STRIKE AND VOID JUDGMENT 1. Admitted. COUNT I PETITION TO STRIKE OFF JUDGMENT VOID ON FACE NO NOTICE TO DEFEND ON FRONT 2. No responsive pleading required because this paragraph merely incorporates prior paragraphs. 3. Denied. The Complaint, which is attached as Exhibit A to David D. Shirey tfd!b/a Shirey's Cash & Carry's ("Defendant") Petition, clearly contains both a Notice to Plead and a Notice to Defend containing all information required by the Pennsylvania Rules of Civil Procedure and the Cumberland Connty Rules of Procedure. The remainder ofthe allegations contained in paragraph 3 are legal conclusions to which no responsive pleading is required. To the extent they are deemed factual, they are denied. 4. Denied. After reasonable investigation, CES is without sufficient information or knowledge to form a belief as to why Defendant failed to file an answer to the Complaint. Strict proof of these allegations is demanded. By way of further answer, the Complaint, which is attached as Exhibit A to Defendant's Petition, clearly contains both a Notice to Plead and a HB:44135v13503-08 - &-- ., ,-, - - -.- - ._ _., 'T^" ~-- . ,_,' _ ~ '^'~-, ,-~,~, ,,-;.._,__-' __" ~"'__~'""';" ,,' ,',;_, -- - -:~-, ""~ Notice to Defend containing all information required by the Pennsylvania Rules of Civil Procedure and the Cumberland County Rules of Procedure. By way of further answer still, CES served a 10-day notice of default upon Defendant on June 20, 2000 and the Prothonotary served a copy of the default judgment upon Defendant on October 5, 2000. WHEREFORE, Conservative Environmental Services, Inc. respectfully requests that David D. Shirey tldlb/a Shirey's Cash & Carry's Petition to Strike and/or Void Judgment be denied and that Conservative Environmental Services be awarded costs and attorneys fees as authorized by law. COUNT II WRONG PARTY VOID ON FACE PETITION TO STRIKE 5. No responsive pleading required because this paragraph merely incorporates prior paragraphs. 6. Denied. The Contract is a written document which speaks for itself and Defendant's characterizations of the Contract are specifically denied. 7. Paragraph 7 is a legal conclusion to which no responsive pleading is required. To the extent it is deemed factual, it is denied. WHEREFORE, Conservative Environmental Services, Inc. respectfully requests that David D. Shirey tldlb/a Shirey's Cash & Carry's Petition to Strike and/or Void Judgment be denied and that Conservative Environmental Services be awarded costs and attorneys fees as authorized by law. COUNT III PETITION TO OPEN NO NOTICE TO DEFEND AND MERITORIOUS DEFENSE 8. No responsive pleading required because this paragraph merely incorporates prior paragraphs. 9. Denied. It is denied that the work performed by CES's work gave rise to a substantial environmental spill. Strict proof of this allegation is demanded. 10. Paragraph 10 is a legal conlcusion to which no responsive pleading is required. To the extent it is deemed factual, it is denied. II. Paragraph II is a legal conclusion to which no responsive pleading is required. By way of further answer, however, the complaint clearly contains both a Notice to Plead and a HB:44135v1 3503-08 2 . - ~", ~~~'_~_, ,- <'"-N~- ~'"~_"'=~- Notice to Defend which comply with both the Pennsylvania Rules of Civil Procedure and the Cumberland County Rules of Procedure, 12. Denied. It is denied that the defendant had no idea when to file a pleading in response to CES's Complaint. By way of further answer, the complaint contains both a Notice to Plead and a Notice to Defend which indicate that Defendant was required to file a written reply within 20 days of service of the complaint. By way of further answer still, on June 20, 2000 CES served a notice of default indicating that defendant was in default and that unless he acted within ten days from the date of the notice judgment may be entered against him. By way of further answer still, it is denied that Defendant suffered substantial damage as a result of any spill. 13. Paragraph 13 is a legal conclusion to which no responsive pleading is required. To the extent it is deemed factual, it is denied. WHEREFORE, Conservative Environmental Services, Inc. respectfully requests that David D. Shirey t/d/b/a Shirey's Cash & Carry's Petition to Strike and/or Void Judgment be denied and that Conservative Environmental Services be awarded costs and attorneys fees as authorized by law. COUNT IV PETITION TO OPEN WRONG PARTY VOID ON ITS FACE MERITORIOUS DEFENSE 14. No responsive pleading required because this paragraph merely incorporates prior paragraphs. 15. Denied. The Contract is a written document which speaks for itself and Defendant's characterizations of the Contract are specifically denied. 16. Paragraph 16 is a legal conclusion to which no responsive pleading is required. To the extent it is deemed factual, it is denied. 17. Denied. The Complaint, which is attached as Exhibit A to Defendant's petition, clearly contains a Notice to Plead and a Notice to Defend containing all information required by the Pennsylvania Rules of Civil Procedure and the Cumberland County Rules of Procedure. By way of further answer, both Notices indicate that Defendant was required to file a written reply within 20 days of service of the complaint. Byway of further answer still, on June 20, 2000 CES served a notice of default indicating that defendant was in default and that unless he acted within ten days from the date of the notice judgment could be entered against him. 18. Denied. After reasonable investigation CES is without sufficient information or knowledge to form a belief as to why Defendant failed to file an answer to the complaint after HB:44135v1 3503-08 3 ~_ __,0 receiving the complaint endorsed with a Notice to Plead, a Notice to Defend, and also receiving a 10-day notice of default. 19. Paragraph 19 is a legal conclusion to which no responsive pleading is required. To the extent it is deemed factual, it is denied. 20. Paragraph 20 is a legal conclusion to which no responsive pleading is required. To the extent it is deemed factual, it is denied. 21. Denied. It is expressly denied that Defendant had no idea when to file an answer. By way of further answer, the complaint was endorsed with both a Notice to Plead and a Notice to Defend requiring Defendant to file a written answer within 20 days. In addition, Defendant was provided with a notice of default requiring him to file an answer within 10 days. By way of further answer, it is denied that any work of CES resulted in a spill that caused substantial damages to Defendant. WHEREFORE, Conservative Enviromnental Services, Inc. respectfully requests that David D. Shirey t/d!b/a Shirey's Cash & Carry's Petition to Strike and/or Void Judgment be denied and that Conservative Enviromnental Services be awarded costs and attorneys fees as authorized by law. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C, By David Wi, Francis !.D. #5 18 Anth ny S. Potter LD. #75903 114 N. Second Street Harrisburg, P A 17101 (717) 238-9300 Attorneys for Conservative Environmental Services, Inc. Date: April 18, 2002 HB:44135v13503-08 4 _1/ - - - ."""',"" -' -~-.-. ',._--, ~,--~-~ --'._-"- ~~~', ,~".",-- , ""~.-,,,-....- -",,-,J;I<'~_h'-'~"'"~ '_ev_-",'_ " '-.''''''< CERTIFICATE OF SERVICE AND NOW, on April 18, 2002, I hereby certify that I have served a true and correct copy of the within ConseJl'Vative Environmental Services, Inco's Answer to Petition of David D. Shirey to Strike and Void Judgment upon the following person( s) by regular first class United States mail, postage prepaid. Shawn J. Lau, Esq. Lau & Associates, PC 4228 St. Lawrence Ave. Reading, PA 19606 HB:44141v1 3503-08 ... ,-~..- > .'U_I_~_~ '^ ,_,_~" -, -~;, -y- '.-- ~,- ~"" -~~"~. "-. ,~ -, ,~- .." -~ -,,,,,,- h ,- ,~ ,-- ~,,-~ -, ,--'-'" '> I 0 C'.::! C r<, -:0"" :r~ ::::"'" tJCCi ---q IT! fT, >0 ~t_~ '.0 '~", Cf) " . - .^', -<..., :\,-' r::::C) -'V ::-; ., 3> .~~, -_. () ZlJ :,~'~r;" >() r:? c -.-! c__ Z c:- o;, -:J _u -, .r. -< r ,F<"W ~ e'l "" .~', Cil!:f , . LAU & ASSOCIATES, P.C. By: Shawn J. Lan, Esquire ID No. 56071 4228 St. Lawrence Avenue Reading, P A 19606 610-370-2000 Fax 610-370-0700 Attorney for Plaintiff CONSERVATIVE ENVIRONMENTAL SERVICES, INe., Defendant, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. DAVID D. SHIREY dJh/t/a/, SHIREY'S CASH & CARRY i NO. 00-2989 Plaintiff, ANSWER OF DAVID D. SHIREY TO PETITION TO CONSOLIDATE DAVID SHIREY'S PETITIONS TO OPEN AND/OR STRIKE JUDGEMENTS AND FOR A STAY OF PRECEEDINGS I. Admitted. 2. Denied. After reasonable investigation defendant is without knowledge as to the truth of the averment in paragraph 2 and is therefore denied. 3. Denied. A notice to plead rather than to notice to defend was affixed in front of the complaint. This is clearly improper as it does not contain any of the information regarding referral to any legal services which is required by the Pennsylvania Rule. 4. Admitted in part, denied in part. It is admitted that the defendant did not file an answer. It is denied the defendant was required to file an answer since the notice to defend was not attached to the front ofCES's Complaint. 5. Denied. After reasonable investigation defendants have no knowledge as to the averments contained in paragraph 5 and is therefore denied. .~ ~- .~ , 6. Admitted in part, denied in part. It is admitted the defendant did not file a response. It is denied that the defendant legally was under an obligation to file a response as no notice to defend was attached to the complaint. 7. Admitted in part, denied in part. It is admitted that CES filed a Praecipe for Entry of Judgement as set forth in the Docket of Cumberland County. After reasonable investigation defendant is without knowledge as the truth of the remaining averments-contained in paragraph 7 and therefore denied. 8. Admitted. 9. Denied. After reasonable investigation defendant without knowledge as to truth of the averment contained in paragraph 9 and is therefore denied. 10. Admitted. II. Admitted. 12. Admitted. 13. Admitted. 14. Admitted in part, denied in part. It is admitted that the deposition was rescheduled at the request of Attorney Lau. It is denied that there was an implication that this was spurious in that Mr. Shirey had just gone though surgery and was unable to attend the deposition. 15. Admitted. 16. Admitted. 17. Admitted. 18. Admitted. 19. Admitted. 20. Denied. Pennsylvania rules and procedures does not expressly provide for consolidation of a petition to open judgement or strike judgement and a petition to strike judgement or stay proceedings where those petitions have separate allegations and filcts. The petition to open and or strike the judgement in Cumberland County is the only petition where the complaint can actually be opened and the merits of the situation be addressed. Rather, the Berks County action is the action where the execution can be stayed. These are two separate actions and require two separate proceedings in order to determine their merits. 21. Admitted in part, denied in part. It is admitted that the action was originally commenced and judgement was entered in the conrt of Common Pleas for Cumberland County and subsequently transferred from the Conrt of Common Pleas to Berks County. It is denied that I~ , ~ ~. I H..,,: the Court of Common Pleas is the appropriate court to consolidate the action. There are two separate pleadings which should be determined in two separate courts. 22. Denied. Consolidations ofthese matters will cause confusion and additional work on the part of all parties. Councel for derendant David Shirey asserts that the only reason that this petition consolidate was filed was an attempt to avoid having to come to Berks County for the hearing on this matter. 23. Denied. While it is admitted there was a conversation with regard to the motion to consolidate is denied that I ever concurred in this motion and in filet I have specifically informed council for Plaintiff that I do not concur in the motion. Wherefore, Derendant David D Shirey requests that the motion to consolidate proceedings be denied and that the petitions to open a strike judgement be allowed to proceed in Cumberland County and the petition to strike judgement and for a stay of proceedings be allowed to proceed in Berks County and be heard separately on there own merits. Date: 5/15/ GZ- p---- /---- SHAWN J. LAU Lau & Associates P.C. 4228 St. Lawrence Avenue Reading, P A 19606 ~~ , -"-- '- ." ~~ " , VERIFICATION I, DAVID D. SHIREY state and aver that the facts set forth in the foregoing Answer to Motion to Consolidate, is true and correct to the best of my knowledge information and belief. I understand that fulse statements herein made are subject to the penalties of 18 Pa. CSA, Section 4904, relating to unsworn fulsification to authorities. Dated: l~/J (I -01.. I ~~/)~ DAVID D. SHIREY LAU & ASSOCIATES, P.C. By: Shawn J. Lau, Esquire ill No. 56071 4228 St. Lawrel\ce Avenue Reading, P A 19606 610-370-2000 Fax 610-370-0700 Attorney for Plaintiff CONSERVATlVEENVIRONMENTAL SERVICES, INC., Defendant, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. DAVID D. SHIREY d/b/t/a!, SHIREY'S CASH & CARRY NO. 00-2989 Plaintiff, CERTIFICATE OF SERVICE I Shawn 1. Lau ofLau & Associates P.c. certify that I have served a true and correct copy of the Answer of David D. Shirey to Petition to Consolidate David D. Shirey's Petition to Open and/or Strike Judgement and for a Stay of Proceedings upon the following party on May IS, 2002, by regular first class United States mail, postage prepaid. POWELL,TRAC~,LOGAN,CARRLE BOWMAN & LOMBARDO, P.C. Anthony S. Potter 114 North Second Street Harrisburg, PA 17101 DateS!lsjOz-' ~/~ SHAWN J. LAUo tiiiidii~J-~~ ~'-ii~~~ilIli~nwj,~~~_Ii'-i..~=~,_...._" ""''''''' - <~-~_. .~ ~ -~ ~~-"~~," " ~u'~~~Jlm ~ .~.~.......,. "~ ".'iIiiIi'I 0 a 0 c t\.) ~n vEn 3: ---I ~m ):;-11 -'--j -< 1\;::-..::: 2C "t"'M ~::'-~ en ,-i2t;j r:- r---' ~~ S:? ~"--~' ~ ~o .....~ ::~~ -0 9 )>c Z ':=> ~;i ~ (,.) ~ ~ , ;;.11<" CONSERVATIVE ENVIRONMENTAL SERVICES, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW vs. 00-2989 CIVIL DAVID D. SHIREY t/d!b/a SHIREY'S CASH & CARRY, Defendant ORDER AND NOW, this (0" day of June, 2002, on request of the parties, the deposition schedule and the arguments set for June 14,2002, are continued generally. BY THE COURT, Anthony S. Potter, Esquire For the Plaintiff /Ii ~ ~ ~.IO-O~ ~ Shawn J. Lau, Esquire For the Defendant :r1m ~ <<"" . ,'h '",,0 , . -" -~ FlLED..{)ffICE Or: ~;4<'" p,.,I1Yllr.l.I(\-rhev r 1",t: ~_",j11'1\.j''1)1f''..n\ oz JI.l~ \ 0 M\ II: 2& C\.lM\3SRL.N~D COUNiV PENNSYLVANiA ,,~ '1- "<..' "'" ': .,...-, - -~ ~_.~ =,I~'IfII ',~ , '-" "" ,-,-. "~ " . ~~-~ - "--~- - , -. -~~-~~ ~,"~~IlJ.1fmt'\lllU ',-- -< .,.~ ,- , . ,~.' ",_ .d, ,;' _ ",_,.. _~ _ >.,Cu-- . _~ 0'''' - "-_C-' '"-,;:.-',,,,,,''', -,--.",--;! . Powell, Trachtman, Logan, CarrIe, Bowman & Lombardo, P.e. 114 N. Second Street Harrisburg, PA 17101 Phone: (717) 238-9300 David W. Francis, Esq. W. #53718 Anthony 8, Potter, Esq. W, #75903 Attorneys for Conservative Environmental Services, Inc. CONSERV ATNE ENVIRONMENTAL SERVICES, INC., Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA v. DOCKET NO. 00-2989 Civil Term DAVID SHlREYTIDIB/A SHIREY'S CASH & CARRY, Defendant PRAECIPE TO MARK JUDGMENT SATISFIED AND NOW, Conservative Environmental Services, Inc., by and through its undersigned counsel hereby files this Petition to mark the judgment satisfied and in support thereof avers as follows: I. Petitioner is the Plaintiff in the above-captioned matter. 2. Judgment was entered against Defendant David D. Shirey tfd!b/a Shirey's Cash & Carry. 3. During April 2003, the parties entered into a settlement agreement and Defendant David Shirey and Shirey's Cash & Carry made payment to Conservative Environmental Services on or about April 17, 2003. WHEREFORE, Plaintiff Conservative Environmental Services respectfully requests that the judgment entered against David Shirey tfd!b/a Shirey's Cash & Carry be marked satisfied as of record. HB:47536v1 3503-08 Date: May 5, 2003 HB:47536v1 3503-08 'J '-"e ,,' '-'c- - - _~ "~--,-~"-'. '.,"^ '1",~__~_,-,.' -','-" -".,," ::-"'-"-+"--'~.---'-"-"'''~~'"L-,:,:~~ .~t_,--,-_;<_, POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. By ~J~ D~v' W. Francis 1. . #53718 Anthony S, Potter I.D. #75903 114 N. Second Street Harrisburg, P A 17101 (717) 238-9300 , Attorneys for Conservative Environmental Services, Inc. 2 ~ -.~ '"' '" ,.-",-" ,> -..-co-- _~__~" _' ____"'c___" - o',,_~_~.,d,~~_, ,"^,__"~" -"-~~- -' '---'"" ,- ;", -~',: CERTIFICATE OF SERVICE AND NOW, on May 5, 2003, I hereby certify that I have served a true and correct copy of the within Praecipe to Mark Judgment Satisfied upon the following person(s) by first class U.S. mail. Shawn J. Lau, Esq. Lau & Associates, PC 4228 St Lawrence Ave. Reading, P A 19606 BYO~ 1~ Anthony . Potter HB:44141v13503-08 .~I iIIlliilf;jlltliiiiiili~"""""'""""'lim~II:dIIili,~~ ","''''',~_r_~-c<_ ,,-, , ,,-- ~-" _ ,......~ "'" '5 ~_,~,>j_, n_', - ',-' - '. ~~- " /;,;,;,;., " ,~ --, " 0 0 0 C <C., "n s:: :J1: :::-J Ve] :;:;:;''" :';1 -n nlfl1 -<: ,-- ;':::::r,' I 'i 21'" :;'J q ~:\: 0" ;:-~ (:J ~(~< -0 -c'-rl ~ .- 'j:!J ZC" ~. ~~....C) :C-;:2~ r:? ;--,,-,;m ,~ .,,\ Z -- =<! ~ ~ . =< it;