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HomeMy WebLinkAbout01-6898 (2)Andrew C. Sheely, Esquire 127 S. Market Street P.O. Box 95 Mechanicsburg, PA 17055 PA ID NO. 62469 717-697-7050 Attorney for Defendant IAN SMITH, Plaintiff WAYNE B. FENICLE, trading as and doing business as WAYNE'S JET SHOP, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-6898 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO WITHDRAW PRELIMINARY OBJECTIONS OF DEFENDANT, WAYNE B. FENICLE, TRADING DOING BUSINESS AS WAYNE'S JET SHOP TO: CURTIS R. LONG, PROTHONOTARY Kindly withdraw the preliminary objections filed on behalf of Defendant, Wayne B. Fenicle, trading and doing business as Wayne's Jet Shop. Date: December 11, 2002 Respectfully submitted, PA ID # 62469 Attorney for Defendant Wayne B. Fenicle, trading and doing business as Wayne's Jet Shop 127 S. Market Street P.O. Box 95 Mechanicsburg, PA 17055 717-697.-7050 717-697.-7065 (fax) CERtIFICAtE OF SERVICE I, Andrew C. Sheely, Esquire, hereby certify that I am this day serving the foregoing Defendant's Praecipe to Withdraw Preliminary Objections upon the following named individual this day by depositing same in the United States Mail, First Class, postage prepaid, at Mechanicsburg, Pennsylvania, addressed as follows: THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire P.O. Box 999 305 North Front Street Harrisburg, PA 17108-0999 Date: December 11 , 2002 Andrew C. Sheely, Esquire 127 S. Market Street P.O. Box 95 Mechanicsburg, PA 17055 PA ID NO. 62469 717-697-7050 Attorney for Defendant IAN SMITH, Plaintiff WAYNE B. FENICLE, trading as and doing business as WAYNE'S JET SHOP, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND.COUNTY, PENNSYLVANIA : 01-6898 Civil Term : CIVIL ACTION - LAW : JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT~, WAYNE B. FENICLE, TRADING DOING BUSINESS AS WAYNE'S JET SHOP Defendant, Wayne B. Fenicle, trading and doing business as Wayne's Jet Shop, hereby files this Answer and New Matter and respectfully states as follows: 1. Admitted upon information and belief. 2. Admitted with clarification. Defendant is Wayne B. Fenicle, trading and doing business as Wayne's Jet Shop. 3. Admitted upon information and belief. 4. Admitted in Part/Denied in Part. It is admitted that Plaintiff delivered the boat to Defendant's place of business. By way of further response, Defendant was out of town when the boat was delivered and Defendant does not know ~len the boat was delivered. Defendant is without sufficient information as to when the boat was delivered and Defendant is without sufficient information as to the condition of the boat when delivered, and therefore, the remaining allegations thereto are denied and strict proof thereof demanded at arbitration or trial. 5. Admitted in Part/Denied in Part. It is admitted that Plaintiff telephoned Defendant prior to November 10, 2002 and that Plaintiff advised that the boat would be dropped off at Defendant's place of business. It is specifically denied that Defendant was aware when the boat would be delivered and by way of further response Defendant was out of town when the boat was delivered. 6. Admitted upon information and belief. 7. Denied. Defendant used adequate and reasonable care at all times after discovering that Plaintiff delivered the boat to Defendant's place of business. By way of f~urther reply, any damage to Plaintiff's engine existed prior to delivery to Defendant's place of business or was caused by Plaintiff or anotlher person thereafter. 8. No response required. 9. The blanket allegations contained in paragraph 9 of Plaintiff's complaint are denied, as follows: a. Denied. To the contrary, Defendan.t properly winterized Plaintiff's boat as was requested by Plaintiff. b. Denied. Upon discovering that Plaintiff's boat was delivered to Defendant's place of business, defendant used adequate and reasonable care to properly maintain and winterize Plaintiff's boat as requested by Plaintiff. c. Denied. To the contrary, Defendant used adequate and reasonable care to maintain and winterize Plaintiff's boat while located at Defendant's place of business as requested by Plaintiff. d. Denied. To the contrary, Defendant used adequate and reasonable care after Plaintiff delivered tlhe boat and Defendant became aware of the boat's location at Defe~ndant's place of business. 10. Denied. To the contrary, any damage caused to the engine of Plaintiff's boat was caused by Plaintiff or another party prior to the boat's delivery to the Defendant's place of business or was caused by Plaintiff or another person thereafter. 11. Denied. It is specifically denied that Plaintiff's boat was damaged by Defendant and it is specifically denied that Plaintiff's boat was damaged to an amount of $4558.74 as alleged by Plaintiff and strict proof thereof is demanded at trial or arbitration. By way of further response, any damage caused to the engine of Plaintiff's boat was caused by Plaintiff or another party prior to the boat's delivery to the Defendant's place of business or was caused by Plaintiff or another person tlhereafter. 12. Denied. It is specifically denied that Plaintiff's boat was damaged by Defendant and it is specifically denied that Plaintiff's boat was damaged to an amount of $103.54 as alleged by Plaintiff and strict proof thereof is demanded at trial or arbitration. By way of further response, any damage caused to the engine of Plaintiff's boat was caused by Plaintiff or another party prior to the boat's delivery to the Defendant's place of business or was caused by Plaintiff or another person thereafter. 13. No response required. 14. Admitted in Part./Denied in Part. It is admitted that Plaintiff telephoned Defendant prior to Now~mber 10, 2002 and that Plaintiff advised that the boat would be dropped off at Defendant's place of business for winterization which would be completed by Defendant. It is specifically denied that Defendant was aware when the boat would be delivered and by way of further response Defendant was out of town when the boat was delivered. The remaining allegations contained therein are denied and strict proof thereof demanded at arbitration or trial. 15. Admitted. 16. Denied. To the contrary, any damage caused to the engine of Plaintiff's boat was caused by Plaintiff or another party prior to the boat's delivery to the Defendant's place of business or was caused by Plaintiff or another person thereafter. By way of further response, Plaintiff failed to notify Defendant when tlhe boat was be delivered. 17. The allegations contained in paragraph 17 of Plaintiff's complaint are conclusions of law to which no response is required. To the extent a response is required, the allegations are denied and strict proof demanded thereof at arbitration or trial. 18. Denied. No damage was caused to the motor while in Defendant's control and possession and Defendant completed the work as requested by Plaintiff. The remaining allegations contained in paragraph 18 of Plaintiff's complaint are conclusions of law to which no response is required. 19. Denied. It is specifically denied that Plaintiff's boat was damaged by Defendant and it is specifically denied that Plaintiff's boat was damaged to an amount of $4662.28 as alleged by Plaintiff and strict proof thereof is demanded at trial or arbitration. To the contrary, any damage caused to the engine ,Df Plaintiff's boat was caused by Plaintiff or another party prior 'to the boat's delivery to the Defendant's place of business or was caused by Plaintiff or another person thereafter. 20. No response required. 21. Denied. Defendant completed the work requested by Plaintiff in a quality and workmanlike manner, and submitted a reasonable bill for services rendered. 22. Admitted in Part/Denied in Part. It is admitted that Defendant required that Plaintiff pay for tlhe winterization requested by Plaintiff. It is specifically denied that the work was needless as winterization is customary, and Defendant completed the work requested by Plaintiff in a quality and workmanlike manner, and submitted a reasonable bill for the services rendered. 23. Denied. To the contrary, Defendant made no material misrepresentations to Plaintiff or as to any statement as alleged in subparagraphs 1, b, c, and d of Paragraph 213 of Plaintiff's complaint. By way of further response, any damage caused to the engine of Plaintiff's boat was caused by Plaintiff or another party prior to the boat's delivery to the Defendant's place of business or was caused by Plaintiff or another person thereafter. 24. Denied. To the contrary, Defendant made no material misrepresentations as to any statement as alleged in subparagraphs 1, b, c, and d of Paragraph 23 of Plaintiff's complaint. 25. The allegations contained in paragraph 25 of Plaintiff's complaint are conclusions of law to which no response is required. To the extent a response is required, the allegations are denied and strict proof demanded thereof at arbitration or trial. WHEREFORE, Defendant, Wayne B. Fenicle, trading as and doing business as Wayne's Jet Shop, respectfully requests that this Honorable Court enter judgment in favor of ]Defendant and against Plaintiff, dismissing Plaintiff's complaint in its entirety. NEW MATTER 26. Paragraphs 1 through and including 25 are incorporated herein by reference. 27. Defendant had no knowledge as to the date when Plaintiff intended to drop of the boat for winterization. 28. The engine block of the boat which is the subject of this action was not damaged by any action of Defendant. 29. Any damage to Plaintiff's boat was caused by a person other than Defendant. 30. Plaintiff failed to mitigate his damages. 31. Any acts or omissions of Defendant alleged to constitute a cause of action were not substantial factors and did not result or arise to support Plaintiff's claim for damages. 32. Paragraphs 20 - 25 of Plaintiff's Complaint fail, to set forth a cause of action for which relief can be granted. 33. Defendant made no representations or guarantees as to the work requested by Plaintiff as to the facts of this matter. WHEREFORE, Defendant, Wayne B. Fenicle, trading and doing business as Wayne's Jet Shop, respectfully requests that the Plaintiff's Complaint be dismissed, at the costs of Plaintiff. Date: December ~ , 2002 Respectfully submitted, Andrew C. Sheely, Esquire PA ID # 62469 Attorney for Defendant Wayne B. Fenicle, trading and doing business as Wayne's Jet Shop 127 S. Market Street P.O. Box 95 Mechanicsburg, PA 17055 717-697-7050 717-697-7065 (fax) VErIFiCAtiON I verify that the statements made in this Answer and New Matter are true and correct. I understand that unsworn statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. DATE: December 9, 2002 Wayn~ B. Fenicle, tra ing as and 'doing business as Wayne's Jet Shop CERTIFICATE OF SERVICE I, Andrew C. Sheely, Esquire, hereby 6ertify that I am this day serving the foregoing Defendant's Answer and New Matter to Plaintiff's Complaint upon the following named individual this day by depositing same in the united States Mail, First Class, postage prepaid, at Mechanicsburg, Pennsylvania, addressed as follows: THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire P.O. Box 999 305 North Front Street Harrisburg, PA 17108-0999 Date: December//, 2002 Andrew C Sheely, Esquire