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HomeMy WebLinkAbout01-4682 ORIGINAL KELLY STANLEY and MORRlS STANLEY, Husband and Wife, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : NO. Dl - .J/~p~ CUl(:T~ V. DAVID SANDERS Vd/b/a SANDERS CONS1RUCTION, Defendants CIVIL ACTION - LAW : JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse Fourth Floor Carlisle, P A 17013 (717) 240-6200 KELLY STANLEY and MORRIS STANLEY, Husband and Wife, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs ~ NO. 01 - 4t.J>J..... C?;"t y~ V. DAVID SANDERS t/d/b/a SANDERS CONSTRUCTION, Defendants : CIVIL ACTION - LAW : JURY TRIAL DEMANDED NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siquientes, usted tiene viente (20) dias de plazo aI partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objectiones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 a1ivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTA SI NO TIENE ABODAGO 0 SI NO TIENE EL DINERO SUFICIENTE DE P AGAR TAL SERVICIO, VA Y A EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUY A DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Court Administrator Cumberland County Courthouse Fourth Floor Carlisle,PA 17013 (717) 240-6200 KELL Y STANLEY and MORRIS STANLEY, Husband and Wife, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs ~ NO. 01 - 41o?d--. Ci(.)~L ' I~ V. DAVID SANDERS tJd/b/a SANDERS CONSTRUCTION, Defendants : CIVIL ACTION - LAW : JURY TRlAL DEMANDED COMPLAINT I. Plaintiffs, Kelly and Morris Stanley, are husband and wife individuals who reside at 7000 Wertzille Road, Mechanicsburg, Cumberland County, Pa. 2. Defendant David Sanders is an adult individual who operates a general contracting business under the name of Sanders Construction with a principle place of business located at 970 York Street, Lebanon, Lebanon County, Pa. 3. In October 2000, Plaintiffs Kelly and Morris Stanley contracted with the Defendants to build an addition including two bedrooms and a bathroom on the second floor of their home, which is located at 7000 Wertzville Road, Mechanicsburg, Cumberland County, Pa. 4. An estimate dated October 2, 2000 served as the basis for the contract and work that was to be performed by the Defendants. A copy of the October 2, 2000 estimate is attached hereto as Exhibit A. 5. The contract provided that the Plaintiffs would pay one-half of the total amount due at the start of the job, one-quarter of the total when the job was halfWay finished, and the final quarter upon completion of the job. 6. The total agreed upon cost of the work to be performed by Defendant was $23,800. 7. The Plaintiffs paid a total of $20,000 to the Defendants before they were forced to terminate Defendant's services due to improper and shoddy workmanship, unfulfilled promises, and repeated requests for additional money. 8. According to promises made by Defendants to the Plaintiffs, as well as good construction practices, the new addition was to be under roof within one week. 9. Defendant failed to build the roof over the addition for a period of approximately a month, causing the new addition and an existing portion of the Plaintiffs' home to sustain water damage. 10. After finally getting the addition under roof, Defendant improperly installed the tar paper which blew off resulting in additional water damage. II. As of the time when the Plaintiffs were forced to terminate Defendants' work, there was still extensive work to be completed outside of their home including siding, roof work, and debris removaL 12. At that time, there was also incomplete work on the interior of Plaintiffs' home including drywall work, electrical work, duct work, and a bathroom that had only been roughed in. 13. In addition, Defendants failed to place a ridge vent on the roof, resulting in weather and elements coming into the top of the roof, failed to place boots or flashing around any of the vent pipes placed on the roof, and failed to complete the contract for painting. 14. Defendants also failed to complete the soffit around the outside of the house allowing cold air to blow into the house almost doubling the Stanleys' consumption of heating oil in their furnace. 15. Further, Defendant built an unsupported roof on the Stanleys' home, and some of the floor joists were not properly tied in with the old rafters and not supported by a load bearing walL 16. Plaintiffs were forced to employ other contractors to repair the unsupported roof, which necessitated removing the drywall in the kitchen so that the floor joists could be structurally anchored and supported. 17. The rafters in the roof section which was constructed by Defendant do not extend to the end of the roofing underlayment, and their lack of uniformity will require significant work to complete in a workman-like manner. 18. Defendant improperly installed windows at the Stanleys' home, placing them III a crooked position so that they are not in line with each other. 19. Defendant also improperly installed standard drywall in the bathroom, which must be replaced with water resistant drywall. 20. Defendant incorrectly installed the bathroom floor before completing any plwnbing work resulting in cutouts at each location in the floor where plwnbing was needed, causing an unstable and noisy floor that required replacement. 21. According to the contract, the Defendant was to build stairs from the first floor to the second floor. 22. Due to the fact that Defendant built the stairs improperly with step heights that are not uniform and vary from between 8 and 9 Y, inches, with the top step measuring only 5 inches, the stairs do not pass code and will have to be replaced. 23. Because of Defendant's improper installation of duct work, the Stanleys will be forced to install an additional heating and cooling system for the second floor of their home, which will increase their heating and cooling costs. 24. Due to Defendant's shoddy, improper, and incomplete work at their home, a partial list of which is noted above, the Plaintiffs have received estimates that indicates that they will be forced to spend over $18,000 to have the work redone and repaired. COUNT I - BREACH OF CONTRACT PLAINTIFFS KELLY AND MORRIS STANLEY V. DEFENDANTS DAVID ST ANDERS TID/B/A SANDERS CONSlRUCTION 25. Paragraphs I through 23 of this Complaint are incorporated herein by reference. 26. Defendants breached their contract with the Plaintiffs by performing incomplete, improper and shoddy work which included but is not limited to: (a) failing to complete siding, roof work and debris removal; (b) failing to properly complete the construction of the bathroom; (c) failing to complete and improperly performing drywall work, electrical work and duct work; (d) failing to get the new addition under roof in the agreed upon time, resulting in water damage to the new addition and the existing house structure; (e) failing to place a ridge vent on the installed roof; (f) failing to properly complete for painting in the home; (g) building an unsupported and dangerous roof structure; (h) failing to complete the soffit around the house; (i) building a roof with uneven rafters and in an otherwise unworkman-like manner; (j) improperly fastening and positioning windows on the new addition resulting in an obviously crooked alignment; (k) failing to place water resistant drywall in the bathroom; (I) constructing the bathroom floor before any plumbing work was completed, resulting in cutouts having to be made and a very weak, unstable and creaky floor; (m) improperly constructing the stairs leading to the second floor with uneven and step height, resulting in the failure of the steps to pass building code standards; (n) failing to properly install duct work for the heating/cooling system, resulting in the Stanleys having to install a second heating/cooling system to heat/cool the second floor; (0) breaching its warranty of "good quality" contract work or workmanlike performance; (P) breaching its contract with Plaintiffs by failing to provide adequate construction and construction supervision, inspection, labor, materials, tools, equipment and items necessary for the execution and completion of the contract work, for reasons aforesaid; and (q) otherwise completing, failing to complete and performing contracted for work in a shoddy or unworkman-like manner. 27. As a direct and proximate result of the Defendant's breach of contract, Plaintiffs have suffered a loss of value in their existing home structure as well as new addition, and claim is made therefor. 28. As a direct and proximate result of Defendant's breach of contract, Plaintiffs plead damages for the value of the replacing, reinforcing, or otherwise repairing the shoddy, improper work done on their home by the Defendant, and claim is made therefor. 29. As a direct and proximate result of Defendants' breach of contract, Plaintiffs lost personal property, and claim is made therefor. 30. As a direct and proximate result of Defendants' breach of contract, Plaintiffs have incurred building expenses, cleaning and repair expenses, and miscellaneous related expenses, and continue to do so, and claim is made therefor. 31. As a direct and proximate result of the Defendant's breach of contract, the Plaintiffs have been or will be forced to expend over $18,000 in an effort to put their home back into a habitable condition, and claim is made therefor. 32. As a direct and proximate result of the Defendant's breach of contract, the Plaintiffs were forced to terminate their relationship with the Defendant, resulting in the Defendant being paid $20,000 for work he had done improperly or incompletely, and claim is made therefor for the overpayments. WHEREFORE, Plaintiffs pray for judgment against the Defendants in an amount in excess of Twenty-five ($25,000) Dollars, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT II - NEGLIGENCE 33. Paragraphs I through 23 of this Complaint are incorporated herein by reference. 34. Defendants were negligent in performing incomplete, improper and shoddy work on the Stanley's home which in the following ways including but not limited to: (a) failing to complete siding, roof work and debris removal; (b) failing to properly complete the construction of the bathroom; (c) failing to complete and improperly performing drywall work, electrical work and duct work; (d) failing to get the new addition under roof for an extended period of time, resulting in water damage to the new addition and the existing house structure; (e) failing to place a ridge vent on the installed roof; (t) failing to properly complete the painting in the home; (g) building an unsupported and dangerous roof structure; (h) failing to complete the soffit around the house; (i) building a roof with uneven rafters and in an otherwise unworkman-like manner; G) improperly fastening and positioning windows on the new addition resulting in an obviously crooked alignment; (k) failing to place water resistant drywall in the bathroom; (I) constructing the bathroom floor before any plumbing work was completed, resulting in cutouts having to be made and a very weak, unstable and creaky floor; (m) improperly constructing the stairs leading to the second floor with uneven and step height, resulting in the failure of the steps to pass building code standards; (n) failing to properly install duct work for the heating/cooling system, resulting in the Stanleys having to install a second heating/cooling system to heat/cool the second floor; (P) failing to provide adequate construction and construction supervision, inspection, labor, material, tools, equipment and items necessary for the execution and completion of the contracted work on the Stanley's home; and (0) otherwise completing, failing to complete and performing contracted for work in a shoddy or unworkman-like manner. (P) failing to provide adequate construction and construction supervision, inspection, labor, material, tools, equipment and items necessary for the execution and completion of the contracted work on the Stanley's home. 35. As a direct and proximate result of the Defendants' negligence, Plaintiffs have suffered a loss of value in their existing home structure as well as new addition, and claim is made therefor. 36. As a direct and proximate result of Defendants' negligence, Plaintiffs plead damages for the value of the replacing, reinforcing, or otherwise repairing the shoddy, improper work done on their home by the Defendant, and claim is made therefor. 37. As a direct and proximate result of Defendants' negligence, Plaintiffs lost personal property, and claim is made therefor. 38. As a direct and proximate result of Defendants' breach of contract/negligence, Plaintiffs have incurred building expenses, cleaning and repair expenses, and miscellaneous related expenses, and continue to do so, and claim is made therefor. 39. As a direct and proximate result of the Defendants' breach of contract/negligence, the Plaintiffs have been and will be forced to expend over $18,000 in an effort to put their home back into habitable condition, and claim is made therefor. As a direct and proximate result of the Defendants' negligencelbreach of contract, the Plaintiffs were forced to terminate their relationship with the Defendant, resulting in the Defendants being paid $20,000 for work he had done improperly or incompletely, and claim is made therefor. WHEREFORE, Plaintiffs pray for judgment against the Defendants in an amount in excess of Twenty-five ($25,000) Dollars, exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. --"";., .~.~p ~chael E. Kosik I.D. No. 36513 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff VERIFICATION I, KELLY STANLEY, do hereby swear and affirm 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 this verification is made subject to the penalties of the Rules of Civil Procedure relating to unsworn falsification to authorities. ~&tn",Q,'f KELLY S LEY DATED: VERIFICATION I, MORRIS STANLEY, do hereby swear and affirm 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 this verification is made subject to the penalties of the Rules of Civil Procedure relating to unsworn falsification to authorities. ~' . . S. . -:? l/.~ JtU1M~ MORRIS STANLEY" L DATED:~ 1: ')--,0- ~ ~ -v- r{ --d ~ .... Q. ~ "6 u- ~ ~ ::: ~ GL1~ i'11 ; ~ S & >= r- ~ "'~ ("'; z (~ ::J<( :' .- :-=5 ~?; " .,1 -- t.::.2 '_0 :.~- (/) I .:,L: ,-,"/ ~?~ ; ~',! (Ii __ C.f~O- oro;j; ~s u C) -H VI ~g ,:- , to) " KELLY STANLEY and MORRIS STANLEY, Husband and Wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4682 CIVIL TERM v. CIVIL ACTION - LAW DAVIDSANDERSt/dIb/a SANDERS CONSTRUCTION, Defendants JURY TRIAL DEMANDED ENTRY OF APPEARANCE To the Prothonotary: Kindly enter my appearance on behalf Defendant, David Sanders t/dIb/a Sanders Construction, in the above matter. METZGER, WICKERSHAM, KNAUSS & ERB, P.c. By~<L2.6~<=-- ~ Karl R. Hildabrand, Esquire Attorney I.D. No. 30102 P.O. Box 5300 3211 North Front Street Harrisburg, PA 17110-0300 (717) 238-8187 Attorneys for Defendants Dated: 9-;0-0 I Document #: 215793.1 CERTDnCATEOFSERVlCE I, Karl R. Hildabrand, Esquire, of the law firm of Metzger, Wickersham, Knauss & Erb, P. C., hereby certify that I served a true and exact copy of the Entry of Appearance with reference to the foregoing action by First Class Mail, postage prepaid, this 10 day of September, 2001, on the following: Michael E. Kosik, Esquire Angino& Rovner,P.C. 4503 North Front Street Harrisburg, P A 17110-1708 METZGER, WICKERSHAM, KNAUSS & ERB, P.C. ~<b?~~~- Karl R. Hildabrand, Esquire c:.. - ...---. . r Document #: 2/5793.1 . ~ c::> 0 'n en ..... -0'0:;' M .}~ :D S2!B ." 111f'_ ," rn ~5; ~~o (.) 1- ~e! -0 :::-'l~? I-d ~(') :x C)(") :1>2 orn ._, ~ U1 ~ 0 -< I I I I I , I I', II I , I' ' [ I Il, I Ii; I i, I Ii' II Ii II II I I i I, I ,I Ii I i' i I 1 il '! i I ! \1 I I 1 I! i , i i I I i n , II "I I I' I j. , I Ii 11r:; ~ ~: ~ I~ ~ :Iil~ ~ ~ ",~ '" Oil 'I~ .. E:r Ie.;) ~ P!l Ir:; g ~I IE-< U' I~ Q ~ '0 I ~ ,iu " 'I'r::! ! - 9 ~~ IH U Ii :i ii" !I I' " , " , I' 'I I Ii I " I I I Ii I-t ill 'i'l :' I ill i ii Ii ,i 1',1', 'i I! 'i 111'1' :i - ii II 'j :1 I " ' ,i I :1 " i! Ii,; " i: I i: I !i:1 Ii :I~ If ':~'f Iii! .; Ii! i 'I I ;1 : , II'! 1,1 ',., ,II , , : I '.,) ;1, , 'j ;1 i 'I I Cl : ii ; i :'1 iid ,ili rll ' ;4i1 i ;1 ',~~'J i : 1 ',i,'\~il il[~i"': Ll~:" 1 'I" ' !f!~ Ir.o4:lm L)i .' ~i '11i i! I i en ,.., -U ""'lJ ::K , i; I I ::.n c:> ~...-.".""?W""_..__..______...............-.~ - .';. KELLY STANLEY and MORRIS STANLEY, Husband and Wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA NO. 01-4682 CIVIL TERM v. CIVIL ACTION - LAW DAVID SANDERS t/dIb/a SANDERS CONSTRUCTION, Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Kelly Stanley and Morris Stanley, Plaintiffs and Michael E. Kosik, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, P A 1711 0-1708 Attorneys for Plaintiffs You are hereby notified to plead to the enclosed New Matter and Counterclaim within twenty (20) days from service hereof or a default judgment may be entered against you. METZGER, WICKERSHAM, KNAUSS & ERB, P.C. By 't"':'a..<Q. c6.P-< , ~ p Karl R. Hildabrand, Esquire Attorney J.D. No. 30102 P.O. Box 5300 3211 North Front Street Harrisburg, P A 17110-0300 (717) 238-8187 -// I Attorneys for Defendants Dated: 10. z.c(- 01 KELL Y STANLEY and MORRIS STANLEY, Husband and Wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4682 CIVIL TERM v. CIVIL ACTION - LAW DAVID SANDERS t/dlbla SANDERS CONSTRUCTION, Defendants JURY TRIAL DEMANDED ANSWER, AND NEW MATTER, AND COUNTERCLAIM TO PLAINTIFFS' COMPLAINT 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted in part and denied in part. It is admitted that the estimate set forth a payment schedule requiring one-half down at the start of the job, followed by one-fourth more at the halfway point in the job, and the remaining one-fourth payment upon completion of the job. However, although Plaintiffs agreed to this payment arrangement, they failed to comply with the payment arrangement set forth. Instead, the Plaintiffs paid $8,000 down and periodic smaller cash payments as the job progressed. The total amount paid by the Plaintiffs during the course of the project to Defendants was $20,000. 6. Admitted. 7. Denied. The averments of paragraph 7 are specifically denied and proof thereof is demanded at triaL On the contrary, due to the Plaintiffs' breach of the contract in failing to issue periodic payment to Defendants for work under the contract and stopping payment on a check Document#:2176471 issued to Defendants, Defendants terminated work under the contract. Furthermore, the Plaintiffs' secret agreement with Scott Heffelfinger, one of Defendants' employees, to complete the contract for less money than originally contracted for with Defendants, led to Plaintiffs' breach of the contract with Defendants. 8. Denied. The averments of paragraph 8 are specifically denied and proof thereof is demanded at trial. 9. Denied. The averments of paragraph 9 are specifically denied and proof thereof is demanded at trial. On the contrary, due to the structural requirements of the job, it took Defendants approximately two weeks to construct the new addition under roof. Additional internal work was required thereafter to complete the addition. It is specifically denied that Plaintiffs' home sustained water damage. However, during construction there was some Inconsequential water leakage which affected several ceiling tiles. 10. Denied. The averments of paragraph 10 are specifically denied and proof thereof is demanded at trial. II. Denied. The averments of paragraph II are specifically denied and proof thereof is demanded at trial. On the contrary, it was the Defendants who terminated work on the project due to the Plaintiffs' breach of contract. Furthermore, at the time Defendants terminated work on Plaintiffs' project, there was minor finishing work to be completed under the contract. At that time Plaintiffs owed to Defendants $3,800 for the remaining finishing work together with an additional $2,500 for the installation of a cathedral ceiling and skylights which were extras contracted for by Plaintiffs in addition to the original contract price and for which the work had been completed at the time Defendants terminated work on the project. -2- Document#:lJ764~1 12. Admitted in part and denied in part. It is admitted that at the time Defendants terminated work on the project there was still some additional finishing work to be done which included finishing of the drywall, installing the electrical lights, and completion of the bathroom. It is specifically denied that Plaintiffs contracted with Defendants for any "duct work" and, in fact, this work was to be performed by other individuals hired by Plaintiffs. Furthermore, any implication that the majority of the work on the project had not been done at the time Defendants terminated work on the project is denied. In fact, the majority of the work had been completed and Defendants had yet to complete only limited finishing work. 13. Denied. The averments of paragraph 13 are specifically denied and proof thereof is demanded at trial. On the contrary, the roof work had been completed. 14. Admitted in part and denied in part. It is admitted that at the time Defendants terminated work on the project due to Plaintiffs' breach of contract, the soffit work had not yet been completed. The remaining averments of paragraph 14 are specifically denied and proof thereof is demanded at trial. 15. Denied. The averments of paragraph 15 are specifically denied and proofthereofis demanded at trial. 16. Denied. The averments of paragraph 16 are specifically denied and proof thereof is demanded at trial. On the contrary, Plaintiffs surreptitiously contracted with one of Defendants' employees to complete work originally contracted for by Defendants at a lesser cost and this led directly to Plaintiffs' breach of the contract and Defendants' termination of work on the project. It is believed that some or all of the complaints raised by Plaintiffs to work performed on the job were - 3 - Document #: 217647.1 caused directly or indirectly by the actions of the individual or individuals subsequently hired by the Plaintiffs to do work on the project after Defendants left the job site. 17. Denied. The averments of paragraph 17 are specifically denied and proofthereofis demanded at trial. On the contrary, Defendants advised Plaintiffs prior to start of work on the job that the installation of an addition to the existing structure would require splinting of the new overhang to the existing rafters. It was Plaintiffs' desire to utilize the original rafters and they were in full agreement with this process. 18. Denied. The averments of paragraph 18 are specifically denied and proof thereof is demanded at trial. 19. Denied. The averments of paragraph 19 are specifically denied and proof thereof is demanded at trial. 20. Denied. The averments of paragraph 20 are specifically denied and proof thereof is demanded at trial. On the contrary, any "cutouts" which were placed into the bathroom floor were done by individuals or contractors hired by Plaintiffs after Defendants terminated work on the project. 21. Admitted. 22. Denied. The averments of paragraph 22 are specifically denied and proof thereof is demanded at trial. On the contrary, Plaintiffs specifically requested that the steps not come out into the first floor floor area and were aware that the only way to accomplish this was to reduce the height of the topmost step. Plaintiffs' agreed to this. The bottom step was at a height of nine and a half inches to accommodate floor covering on the first floor which, when installed, would result in a uniform height of the stairs except for the top step. -4- Document #: 217647.1 23. Denied. The averments of paragraph 23 are specifically denied and proof thereof is demanded at trial. On the contrary, the Defendants were not hired to perform "duct work." 24. Denied. The averments of paragraph 24 are specifically denied and proofthereofis demanded at trial. 25. The averments of paragraphs I through 24 hereof are incorporated herein by reference. 26. Denied. The averments of paragraph 26 and subparagraphs (a) through (q) are specifically denied and proof thereof is demanded at trial. 27. Denied. The averments of paragraph 27 are specifically denied and proofthereofis demanded at trial. 28. Denied. The averments of paragraph 28 are specifically denied and proofthereofis demanded at trial. 29. Denied. The averments of paragraph 29 are specifically denied and proof thereof is demanded at trial. 30. Denied. The averments of paragraph 30 are specifically denied and proof thereof is demanded at trial. 31. Denied. The averments of paragraph 31 are specifically denied and proof thereof is demanded at trial. 32. Denied. The averments of paragraph 32 are specifically denied and proof thereof is demanded at trial. 33. The averments of paragraphs I through 23 hereof are incorporated herein by reference. - 5 - Document #: 217647.1 34. Denied. The averments of paragraph 34 and subparagraphs (a) through(p) are specifically denied and proof thereof is demanded at trial. 35. Denied. The averments of paragraph 35 are specifically denied and proofthereofis demanded at trial. 36. Denied. The averments of paragraph 36 are specifically denied and proof thereof is demanded at trial. 37. Denied. The averments of paragraph 37 are specifically denied and proofthereofis demanded at trial. 38. Denied. The averments of paragraph 38 are specifically denied and proofthereofis demanded at trial. 39. Denied. The averments of paragraph 39 are specifically denied and proof thereof is demanded at trial. NEW MATTER 40. Defendants at all times performed work on the project in question with good and reasonable workmanship and in compliance with the terms of the contract. 41. Plaintiffs breached the contract with Defendants in failing to make the required payments under the contract and in stopping payment on a performance payment made under the contract. 42. Furthermore, Plaintiffs breached the contract by secretly contracting with one of Defendants' employees to complete work under the contract with Defendants for less money, thereby depriving Defendants of work contracted for under the contract. -6- Document #: 217647.1 43. Any harm sustained by the Plaintiffs, which is denied, was caused either directly, proximately, and/or substantially by the careless and negligent conduct of the Plaintiffs and not in any way by the actions or inactions of the Defendants. 44. Plaintiffs' claims are barred by the doctrine of assumption of risk. 45. Plaintiffs' claims are barred by the doctrine of waiver and estoppel. 46. Plaintiffs have failed to mitigate their damages. COUNTERCLAIM 47. Under the terms of the contract between Plaintiffs and Defendants, Plaintiffs were to pay to Defendants the sum of $23,800 for the work described in Exhibit "A" to Plaintiffs' Complaint. 48. Defendants substantially completed the material aspects of the project. 49. Plaintiffs breached the contract with Defendants by failing to issue periodic payment to Defendants for work under the contract and stopping payment on a check issued to Defendants. 50. Plaintiffs further breached the contract by entering into a secret agreement with Scott Heffelfinger, one of Defendants' employees, for Heffelfinger to complete the contract for less money than was originally contracted for with Defendants. 51. Plaintiffs yet owe to Defendants under the terms of the contract the sum of$3,800 plus interest and costs for which claim is made herein. 52. In addition to the work described in Exhibit "A", Plaintiffs entered into an oral contract with Defendants for additional extra work which included the installation of a cathedral ceiling and skylights. For this additional work, Plaintiffs agreed to pay to Defendants the sum of - 7- Document #: 217647.1 $2,500. Defendants completed the work required but Plaintiffs failed, and have refused, to pay Defendants for said work. 53. Plaintiffs have breached the oral contract for the additional work for which Defendants make claim for $2,500 herein plus interest and costs. WHEREFORE, Defendants demand judgment against Plaintiffs in the amount of $6,300.00 plus interest and costs. METZGER, WICKERSHAM, KNAUSS & ERB, P.C. By ~Q ~~<"..~ Karl R. Hildabrand, Esquire Attorney I.D. No. 30102 P.O. Box 5300 3211 North Front Street Harrisburg, PA 17110-0300 (717) 238-8187 - - p Attorneys for Defendants Dated: 'o-2'1~~1 - 8- Document #: 217647.1 VERIFICATION I, David Sanders, do hereby verify that the facts set forth in the foregoing Answer, New Matter, and Counterclaim to Plaintiffs' Complaint are true and correct to the best of my personal knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. ~4904, relating to unsworn falsification to authorities. /) /' , / //,! ~ Dated: Document #: 2 J 7647.1 CERTDnCATE OF SERVICE I, Karl R. Hildabrand, Esquire, of the law firrn of Metzger, Wickersham, Knauss & Erb, P.C., hereby certify that I served a true and exact copy of the Answer, New Matter, and Counterclaim to Plaintiffs' Complaint with reference to the foregoing action by First Class Mail, postage prepaid, this d day of October, 2001, on the following: Michael E. Kosik, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, P A 1711 0-1708 METZGER, WICKERSHAM, KNAUSS & ERB, P.C. ~a{/~;o-~.- - p ~~R. Hildabrand, Esquire Document #: 217647.1 >- r--- ~ cr; C o:.:.:t... ...- ~~ :::> <: ,--, LU 07 C) "--"', :;'1= ' )"- c:: ""- ::{ , ~,- Cl-::J (~j -;:::-: '~ Of) .-..( 0') f.-:; N ..J ~ :1: .~ -, ~- ..... UJ LU LL W !1J Ct. I"M CJ .~:> !L ':5 C) (:) () II II II II II CIl CIl II II .... .., II II .... <= II ",<II II OM OJ II OH II .., 'tl II oo~ II <= <= II 0 II 'M al II 0 '" ;;'1::5 II OJ .... 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C> n --I >'-' Cfi r:-:> '::> ...J 52 .....) :'< KELL Y STANLEY and MORRIS STANLEY, Husband and Wife, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA ~ Plaintiffs : NO. 01-4682 V. . : CIVIL ACTION - LAW DAVID SANDERS t/dIb/a SANDERS CONSTRUCTION, Defendants : JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO DEFENDANTS' NEW MATTER AND NOW come the Plaintiffs, by and through their attorneys, Angino & Rovner, P.C., and hereby replies to the New Matter of Defendants as follows: 40. Denied. This averment is a conclusory statement unsupported by any factual allegations. To the contrary, it is averred that Defendants failed to perform the work on Plaintiffs' house with good, reasonable workmanship and did not comply with the terms of the contract as set forth in Plaintiffs' Complaint. 41. Denied. It is specifically denied that the Plaintiffs did not make the required payments under the contract. As admitted by the Defendant in paragraph 2 of their Answer, Plaintiffs paid Defendant $20,000 on the contract at the time that his work was terminated. Under the contract, Plaintiffs were obligated to pay one-half down at the start of the job, one-quarter at the half way point, with the remainder 25% being due upon completion of the work. Plaintiffs maintains that Defendant never completed the work and, in fact, had been overpaid by his own admission at the time that Plaintiffs terminated his work on the contract. 42. Denied. It is specifically denied that Plaintiffs had secretly contracted with one of Defendant's employees or anyone else at the time Defendant was still required to perform work on the contract. Plaintiffs did, subsequent to terminating Defendants work on the contract because of 238019.1\MEKIMMM his poor performance and inferior workmanship, retained the services of other individuals to complete the work on the contract. 43. Denied. This averment is a conclusion of law to which no responsive pleading is required. It is specifically denied that the Plaintiffs were or could have been negligent on Defendant's contractual obligations for which Plaintiffs had no duty or responsibility. Plaintiffs at all times cooperated with the Defendant in providing access to the job site and, in fact, assisted the Defendant when requested in performing his work. Plaintiffs maintain that they were not negligent or nor could their alleged negligence be a defense to Defendant's contractual duties, and these allegations are specifically denied. 44. Denied. This averment is a conclusion of law to which no responsive pleading is required. To the extent that a response may be deemed proper, it is specifically denied that the Doctrine of Assumption of the Risk is applicable to a breach contract claim set forth in Plaintiffs' Complaint or to Plaintiffs' negligence claim arising out of Defendant' s conduct. 45. Denied. This averment is a conclusion of law to which no responsive pleading is required. To the extent that a response may be deemed proper, it is specifically denied that the Doctrine or Waiver or Estoppel are in any way applicable to the facts of this case or to the breach of contract claim set forth in Plaintiffs' Complaint or to Plaintiffs' negligence claim arising out of Defendant's conduct. 46. Denied. This averment is a conclusion of law to which no responsive pleading is required. To the extent that a response may be deemed proper, it is specifically denied that Plaintiffs had any obligation to supervise or perform any of the work which the Defendant was required to do in the construction remodeling of their home. It was the Defendant's obligation under the contract to perform the work in a timely manner and in a reasonable workmanship 238019.IIMEK\MMM manner, and it was the Defendant's failure to perform these responsibilities and duties as set forth in Plaintiffs' Complaint which resulted in Plaintiffs damages. Plaintiffs have at all times attempted to minimize the costs of reconstruction in completing the work after Defendant was asked to leave the job site because of his failure to perform in a timely and workmanship manner or in compliance with the contract. PLAINTIFFS' REPLY TO DEFENDANTS' COUNTERCLAIM 47. Admitted. 48. Denied. This averment is denied and to the contrary it is averred that the Defendant had not completed substantial all the material aspects of the project and still had significant work as set forth in Plaintiffs' Complaint. Additionally, Defendant had completed work, but the work had been completed in an untimely, unprofessional, and unworkman-like manner and some other work had to be reconstructed or repaired after the Defendant was asked to leave the work site. 49. Denied. It is specifically denied that the Plaintiffs breached the contract with the Defendant by failing to make periodic payments and stopping payment on the check issued to the Defendant for the final payment. As set forth in paragraph 41 above, Plaintiffs were obligated to pay the Defendant one-half of the contract price at the start of work, one-quarter of the contract price at the half way point of the work completion and the remainder at the completion of work. Plaintiffs paid the Defendant $20,000 which was more than they were obligated to pay since Defendant had not yet completed work on the project and had performed untimely, unworkman- like, unprofessional work as set forth in Plaintiffs' Complaint. 50. Denied. It is specifically denied that Plaintiff had entered into a secret agreement with Scott Heffelfinger to complete the contract for less money than was originally contracted by the Defendant. The allegations of this paragraph are inconsistent with Defendant's allegation that 238019.11MEKIMMM the project was substantially complete since it would have been unnecessary for Plaintiffs to enter into any contract to have the project completed for less money than the originally contracted with the Defendant. Plaintiffs refused to pay the Defendant the final payment because they had already paid him more than they had agreed to pay him under the original contract and because of the continued late performance of the Defendant under the contract and the poor quality of the workmanship that was completed by the Defendant. Plaintiffs were forced to terminate him and bar him from the work site. Plaintiffs admit that after Defendant was barred from returning that they had Scott Heffelfmger complete some of the aforementioned work 51. Denied. It is specifically denied that the Plaintiffs owe the Defendant $3,800 under the contract. Defendant did not complete the work under the contract and therefore has no right to payment for work which he did not perform. The allegations which are made by the Defendant in this paragraph are also inconsistent with a bill he sent to the Plaintiffs following his being barred from the construction site at which time he demanded immediate payment for $1,557 which was claimed to be the amount which was owed. To the contrary, as set forth in Plaintiffs' Complaint, Plaintiffs maintain that they overpaid the Defendant for the work that he performed on the contract given the stage of construction reached at the time that he was barred from re-entering the property and based upon the unprofessional and unworkman-like work which he had done prior to being barred from the property. To the contrary, it is averred that Plaintiffs are owed for the significant amount of work that needed to be completed on the project as well as reconstruction and repair of work which had been performed by the Defendant before construction on completing the house was possible. See Plaintiffs' Complaint. 52. Denied. Plaintiff specifically deny that any oral agreement or contract existed whereby they allegedly agreed to pay for additional extra work including a cathedral ceiling and sky 238019,lIMEKIMMM lights. Plaintiff did pay for the cost of the wood and sky lights but specifically deny that there was any agreement, oral or otherwise, to pay for alleged additional work. Plaintiff specifically denies that there were any agreements for an additional $2500 over and above the written contract. 53. Denied. Plaintiff specifically deny that any oral agreement or contract existed whereby they allegedly agreed to pay for additional extra work including a cathedral ceiling and sky lights. Plaintiff did pay for the cost of the wood and sky lights but specifically deny that there was any agreement, oral or otherwise, to pay for alleged additional work. Plaintiff specifically denies that there were any agreements for an additional $2500 over and above the written contract. WHEREFORE, Plaintiffs respectfully request that this Honorable Court dismiss Defendants' New Matter enter judgment in favor of Plaintiffs and against Defendants. .c. DATED: A...... ("I U>o I ichael E. Kosik, Esquire I.D. No. 36513 4503 N. Front Street Harrisburg, P A 1711 0 (717) 238-6791 Counsel for Plaintiffs 238019.1IMEK\MMM m, ... VERIFICATION I, KELLY STANLEY, Plaintiff, have read the foregoing Reply to New Matter and do hereby swear or affirm that the facts set forth in the foregoing are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. /1/1 Lj /01 ~~~ff~ VERIFICATION I, MORRIS STANLEY, Plaintiff, have read the foregoing Reply to New Matter and do hereby swear or affirm that the facts set forth in the foregoing are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. WITNESS: ~~ MORRIS STANL CERTIFICATE OF SERVICE AND NOW, this 191h day of November, 2001 I, Michelle M. Milojevich, an employee of Angino & Rovner, P.C., do hereby certify that I have served a true and correct copy of the PLAINTIFFS' REPLY TO DEFENDANTS' NEW MATTER in the United States mail, postage prepaid at Harrisburg, Pennsylvania, addressed as follows: Karl R. Hildabrand, Esquire Metzger, Wickersham, Knauss & Erb 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 , / --mi.&Jhlfl iMtff-/ Michelle M. Miloje ich 238019.1\MEK\MMM KELLY STANLEY and MORRIS STANLEY, Husband and Wife, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA Plaintiffs : NO. 01-4682 CIVIL TERM v. CIVIL ACTION - LAW DAVID SANDERS tJd/b/a SANDERS CONSTRUCTION, Defendants : JURY TRIAL DEMANDED PRAECIPE FOR WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Please withdraw the appearance of Metzger, Wickersham, Knauss & Erb, P.C. in the above matter. METZGER, WICKERSHAM, KNAUSS & ERB, P.c. By: ~A--- Steven P. Miner Attorney LD. No. 38901 32 I I North Front Street Harrisburg, P A 17110 (717) 238-8187 PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of undersigned counsel on behalf of Defendants David Sanders t/d/b/a Sanders Construction. NESTICO, DRUBY & HILDABRAND, L.L.P. --' By: ~U6~4C"-~ Karl R. Hildabrand, Esquire ( Attorney LD. No. 30102 840 East Chocolate Avenue Hershey, PA 17033 (717) 533-5406 CERTIFICATE OF SERVICE I, Karl R. Hildabrand, of the law firm of Nestico, Druby & Hildabrand, L.L.P., hereby certify that on the /"f day of September, 2002, a copy of the foregoing document was sent via First Class U.S. Mail, postage paid, to the following: Michael E. Kosik, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110-1708 Karl R. Hildabrand -0 t:~~: ITifT ~:i' 51' ~~~ C ~~:~,:,: j; (~= ~ o c C.) f~,J :1') ." -'0 ~_>-.c :..rl en :rJ -< (') C:-J (') c:: -n ?;: ~ -:;:\ -oCl:~ -::',:> .-n mrr. ",'::' ~ \ ~~;;-. Z:T\ \"0 ~'.:'~\B ~6i: 0 ;':..~{~:' 2:'(. <..-::CJ -0 .~~~~ -";0 ~" ~ ~o :P S c ~ :.n ;? _0 :Q KELL Y STANLEY and MORRIS OF STANLEY, Husband and Wife, PENNSYLVANIA : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, Plaintiffs :NO. 01-4682 CIVIL TERM v. : CIVIL ACTION - LAW DA VlD SANDERS t/d/b/a SANDERS CONSTRUCTION, Defendants : JURY TRIAL DEMANDED PETITION OF DEFENDANT'S COUNSEL FOR LEAVE TO WITHDRAW The petition of Karl R. Hildabrand, Esquire. and Nestico, Druby & Hildabrand, L.L.P., respectfully represents the following: 1. This action was filed on August 6, 2001, and petitioner was shortly thereafter retained by defendant to represent him in the matter. 2. On October 25, 200 I, after consultation with the defendant, petitioner filed an Answer, New Matter and Counterclaim on defendant's behalf, verified by defendant. 3. In August 2002 the undersigned left his previous firm and began practice in the law firm ofNestico, Druby & Hildabrand, L.L.P. and defendant elected that the undersigned would continue to represent him. 4. Depositions of Plaintiffs and Defendant were taken on April 30, 2003. 5. Since that date, petitioner has heard nothing from the defendant. Petitioner has written several times to the last known address of the defendant, but has received no response from him. 6. Petitioner's continued representation of defendant has been rendered prevented by virtue of the client's refusal to cooperate and good cause exists therefore under Rule 1.16(c)(5) of the Pennsylvania Rules of Professional Conduct for petitioner's withdrawal of appearance in the case. 7. Furthermore, despite a fee agreement requiring payment by defendant for petitioner's services on an hourly basis plus costs and the submission of bills as well as letters asking defendant to submit payment, defendant has failed to pay the undersigned for services rendered and failed to remit payment for outstanding litigation and court reporter costs. 8. The continued representation of defendant without payment of petitioner's fees, or the prospect of such payment, has resulted and will further result in an unreasonable financial burden on petitioner, and good cause exists therefore under Rule 1.16(c)(5) of the Pelmsylvania Rules of Professional Conduct for petitioner's withdrawal. 9. Petitioner's withdrawal will not prejudice the defendant as this matter has not been listed for trial and there is ample time for Defendant to secure new counsel to represent him. WHEREFORE, petitioner requests that this Court permit the withdrawal of the undersigned as counsel for Defendant. NESTICO, DRUBY & HILDABRAND, L.L.P. ~~ ~ By: Karl R. Hildabrand, Esquire Attorney I.D. No. 30102 840 East Chocolate Avenue Hershey, PA 17033 (717) 533-5406 (717) 533-57] 7 Attorney for Defendant VERIFICA TlON I, Karl R. Hildabrand, Esquire, attorney for Defendant, have read the foregoing, and hereby affirm that it is true and correct to the best of my knowledge, information and belief. I verifY that all statements made in the foregoing are true and correct and that false statements may be subject to the penalties of 18 Pa.C.S. S4904. Date: I () I /S /.~ :5 0.~ Karl R. Hildabrand, Esquire , . CERTIFICATE OF SERVICE I, Karl R. Hildabrand, of the law firm of Nestico, Druby & Hildabrand, L.L.P., hereby certify that on the ~ day of October, 2003, a copy of the foregoing document was sent via First Class U.S. Mail, postage paid, to the following: "K~_1_ ~........-~ CERTIFICATE OF SERVICE I, Karl R. Hildabrand, of the law firm of Nestico, Druby & Hildabrand, L.L.P., hereby certify that on the ~ day of October, 2003, a copy of the foregoing document was sent via First Class U.S. Mail, postage paid, to the following: Michael E. Kosik, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 1711 0-1708 bvL~ Karl R. Hildabrand -- ( KELL Y STANLEY and MORRIS STANLEY, Husband and Wife, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA :NO. 01-4682 CIVIL TERM v. : CIVIL ACTION - LAW DAVID SANDERS t/dIb/a SANDERS CONSTRUCTION, Defendants : JURY TRIAL DEMANDED To: Kelly Stanley and Morris Stanley, Plaintiffs and Michael E. Kosik, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110-1708 Attorneys for Plaintiffs David Sanders t/dIb/a Sanders Construction 970 York Street Lebanon, PA 17042 AND NOW, this RULE TO SHOW CAUSE ~ I ,l;" day of (> ,J:11'-r ~ (/(1.3 , upon consideration of the foregoing Petition for Leave to Withdraw Appearance, it is hereby issued upon Plaintiffs and Defendant to show cause, if any they have, why the appearance of Karl R. Hildabrand, Esquire and Nestico, Druby & Hildabrand, L.L.P., on behalf of defendant David Sanders, t/d/b/a Sanders Construction, should not be withdrawn. Rule returnable ~f) days after service herc:~of. ~\ll yH............dlug~ LV ~Laj .......UIU1..l..:n... ?~ ~~~ f}) \D'~ J. IfINVII1'\,SNN3d AINr;(}r;: ., ^i",;,,',~""~?,t/'JnJ 5(,' =Cf i ~;; .lJiJ i, tJ ;\t!vJcr KELL Y STANLEY and MORRIS STANLEY, Husband and Wife, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : NO. 01-4682 CIVIL TERM v. CIVIL ACTION - LAW DAVID SANDERS t/dlb/a SANDERS CONSTRUCTION, Defendants : JURY TRIAL DEMANDED PETITION TO MAKE RULE ABSOLUTE I. On October 17,2003 the undersigned counsel petitioned for leave to withdraw as counsel for Defendants. 2. On October 21,2003 this Court issued a Rule to Show Cause returnable 20 days after service why the relief in the Petition should not be granted. (Copy attached as Exhibit A). 3. The Rule to Show Cause was served on October 23, 2003 by First Class Mail upon Plaintiffs' counsel and by First Class and Certified Mail upon Defendant David Sanders. Attached hereto, marked as Exhibit B and incorporated herein by reference is the original return receipt card signed by Mr. Sanders (undated). The First Class Mail was not returned by the post office as undelivered. 4. More than 20 days from service have passed, no cause has been shown, and it is respectfully requested that this Court enter an Order permitting the withdrawal of the undersigned counsel as attorneys for Defendants. Respectfully submitted, NESTICO, DRUBY & HlLDABRAND, L.L.P. BY:~~~ Karl R. Hildabrand, Esquire Attorney I.D. No. 30102 840 East Chocolate Avenue Hershey,PA 17033 (717) 533-5406 (717) 533-5717 Attorney for Defendants (') c ~ -om rT1fT' Z:T Z'S U)i~':" 26 :.c ;;:: --. ;,:;;('-, )>c: Z ~ o c..:> o ~ n I '" ~ :,~~ ,-":i;-::=.. ----J,n eJr :.::~C} T:fj Uo Zrn o ~ '< ::- ::It '? ""'" (Jl G' KELL Y STANLEY and MORRIS STANLEY, Husband and Wife, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : NO. 01-4682 CIVIL TERM v. : CIVIL ACTION - LAW DAVID SANDERS t/d/b/a SANDERS CONSTRUCTION, Defendants : JURY TRIAL DEMANDED ORDER AND NOW, this t4"" day of ~ , 2003. upon consideration of the foregoing Petition to Make Rule Absolute, and it appearing that no cause has been shown opposing the Motion to Withdraw, Nestico, Druby & Hildabrand, LLP and Karl R. Hildabrand, Esquire are authorized to withdraw as counsel for the Defendants. J. 'VlNV^1ASNN3d iJ.NnO:) (1IN1Y:;8VVfK) C'l :01 \.IV S'- J30 SO .u:JII.101 ' ",.. "d') ."l",:i'..",' ',' , ,..1 l~'_'",.;.J',~ ..' ,_ '" 3:)U~O-Un; KELL Y STANLEY and MORRIS STANLEY, Husband and Wife, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. :NO. 01-4682 CIVIL TERM DAVID SANDERS t/dIb/a SANDERS CONSTRUCTION, Defendants : CIVIL ACTION - LAW : JURY TRIAL DEMANDED PRAECIPE FOR WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Please withdraw the appearance of Karj R. Hildabrand, Esquire and Nestico, Druby & Hildabrand, L.L.P. on behalf of defendant David Sanders t/d/b/a Sanders Construction in the above case, pursuant to the Order of the Court of December 4,2003, allowing the same. NESTICO, DRUBY & HILDABRAND, L.L.P. BY:~a:Y~ -. Karl R. Hi]dabrand, Esquire Attorney 1.0. No. 30102 840 East Chocolate Avenue Hershey, PA 17033 (7] 7) 533-5406 (7] 7) 533-5717 Attorney for Defendants -- /? r CERTIFICATE OF SERVICE I, Karl R. Hildabrand, of the law firrn of Nestico, Druby & Hildabrand, L.L.P., hereby certify that on the 10 day of Decernber, 2003, a copy of the foregoing docurnent was sent via First Class U.S. Mail, postage paid, to the following: Michael E. Kosik, Esquire Angino & Rovner, P.C. 4503 North Front Street Harrisburg, PA 17110-1708 ~Q6~ arl R. Hlldabrand ...-:::;;> I ! (') c i.::~ ....., = = .... o r-q ,-, o -" -i ::C." nl--- r :gm 09 ~Q cj::d g~ ~:J .'..;' C"j '" ~-';) .{;.. KELLY STANLEY AND MORRIS STANLEY, Husband and Wife, vs Case No. 01-4682 DAVID SANDERS t/d/b/A SANDRRS CONSTRUCTIon Statement of Intention to Proceed To the Court: Michael E. Kosik ove captioned matter. Plaintiffs Print Name Sign Nam Date: 9/14/06 Attorney for Plaintiffs Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. I. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 190 I and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for fai!u!'e to prosecute." If a paliy wishes to pursue the matter, he o!' she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230( d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing ofthe filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. r" ""-.""\ II ~~._J L_ ANGINO & ROVNER, P.c. Michael E. Kosik, Esquire Attorney 10#: 36513 4503 North Front Street Harrisburg, PAl 711 0-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiffs E-mail: mkosik@angino-rovner.com KELLY STANLEY and MORRIS STANLEY, Husband and Wife, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : NO. 01-4682 V. : CIVIL ACTION - LA W DA VID SANDERS t/d/b/a SANDERS CONSTRUCTION, Defendants : JURY TRIAL DEMANDED PLAINTIFFS' REOUEST FOR ADMISSIONS ADDRESSED TO DEFENDANT DAVID SANDERS t/dlb/a SANDERS CONSTRUCTION PURSUANT TO Pa.R.C.P. 4014 TO: David Sanders t/d/b/a Sanders Construction 970 York Street Lebanon, Lebanon County, PA. 17042 Please take notice that you are hereby required, pursuant to Rule 4014 of the Pennsylvania Rules of Civil Procedure to serve upon the undersigned within thirty (30) days from service, your response to the admission(s) requested herein: REQUEST FOR ADMISSIONS #1: 1. Do you admit that you entered into a contract to put an addition on the home of Morris and Kelly Stanley in October of 2000 as described in the attached project description and pricing which is attached hereto as Exhibit A? Admit Deny _ SUPPLEMENTAL INTERROGATORY #1: If you do not unconditionally admit Admission 1, please set forth each and every fact which 338318 - II II supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #2: 2. Do you admit that you were paid $8,000 down payment and agreed to start the project. See page 33 of David Sanders' deposition. Admit Deny _ SUPPLEMENTAL INTERROGATORY #2: If you do not unconditionally admit Admission 2, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #3: 3. Do you admit that the estimated price for the addition before starting was given as $23,800? Admit Deny _ SUPPLEMENTAL INTERROGATORY #3: If you do not unconditionally admit Admission 3, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #4: 4. Do you admit that the $1,500-$1,800 price quoted in the contract was to move the kitchen window, repair or replace drywall, and relocate the stove, and installation of the kitchen cabinets? A copy your handwritten estimate is attached hereto as Exhibit B. Admit Deny _ SUPPLEMENTAL INTERROGATORY #4: If you do not unconditionally admit Admission 4, please set forth each and every fact which 338318 supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #5: 5. Do you admit that the payment schedule provided for one-quarter of the payment to be due upon completion of the job? Admit Deny _ SUPPLEMENTAL INTERROGATORY #5: If you do not unconditionally admit Admission 5, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #6: 6. Do you admit that you never completed the job for Plaintiffs Morris and Kelly Stanley breaching the contract? Admit Deny _ SUPPLEMENTAL INTERROGATORY #6: If you do not unconditionally admit Admission 6, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #7: 7. Do you admit that you left the job on December 27, 2000 and never returned to complete the project? Admit Deny _ SUPPLEMENTAL INTERROGATORY #7: If you do not unconditionally admit Admission 7, please set forth each and every fact which 338318 supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #8: 8. Do you admit that over the course of your work on the Morris and Kelly Stanley home, you receiving $20,000 in payments which in actuality was more than the contract said you were to receive to the point that the house was completed when you left the job? (Final ~ payment $5,950.00 not due until completion.) Admit Deny _ SUPPLEMENTAL INTERROGATORY #8: If you do not unconditionally admit Admission 8, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #9: 9. Do you admit that you originally estimated the job would take approximately six to eight weeks and that you began working on the Morris and Kelly Stanley home on October 17, 2000? Admit Deny _ SUPPLEMENTAL INTERROGATORY #9: If you do not unconditionally admit Admission 9, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #10: 10. Do you admit that although requested as part of this case, you have never supplied any of your recordkeeping, including payments for subcontractors and materials and have only provided limited paperwork concerning payments received from the Stanleys? Admit Deny _ 338318 SUPPLEMENTAL INTERROGATORY #10: If you do not unconditionally admit Admission 10, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS # 11: 11. Do you admit that you testified that you maintain your records in files by job, and that each file should contain all of the paperwork for the job? See page 17 of David Sanders' deposition. Admit Deny _ SUPPLEMENTAL INTERROGATORY #11: If you do not unconditionally admit Admission 11, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #12: 12. Do you admit that none of the paperwork identified in your deposition has been produced or provided in response to Plaintiffs' Interrogatories and Request for Production of Documents? Admit Deny _ SUPPLEMENTAL INTERROGATORY #12: If you do not unconditionally admit Admission 12, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #13: 13. Do you admit that you have not provided any documentation of payment to your employees or subcontractors, including 1099s or receipts for materials? Admit Deny 338318 SUPPLEMENTAL INTERROGATORY #13: If you do not unconditionally admit Admission 13, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #14: 14. Do you admit that the work which you performed on the Morris and Kelly Stanley home did not comply with the CABO One and Two Family Dwelling Code, 1992 Edition, which was in effect in Silver Spring Township, Cumberland County, Pennsylvania? Admit Deny _ SUPPLEMENTAL INTERROGATORY #14: If you do not unconditionally admit Admission 14, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #15: 15. Do you admit that you orally agreed to have the job finished before mid-January, 2001? Admit Deny _ SUPPLEMENTAL INTERROGATORY #15: If you do not unconditionally admit Admission 15, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #16: 16. Do you admit that you orally promised to the plaintiffs at the end of December that a large number of workers were going to come to their home and finish the work in a week? Admit Deny _ 338318 SUPPLEMENTAL INTERROGATORY #16: If you do not unconditionally admit Admission 16, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #17: 17. Do you admit that only two workers showed up on December 30, 2000 after you made an oral promise to bring a larger crew and complete the work? Admit Deny _ SUPPLEMENTAL INTERROGATORY #17: If you do not unconditionally admit Admission 17, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #18: 18. Do you admit that there were a number of tasks in the contract that were never completed before you left the job? Admit Deny _ SUPPLEMENTAL INTERROGATORY #18: If you do not unconditionally admit Admission 18, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #19: 19. Do you admit that you never finished the drywall, as required by the contract? Admit Deny _ 338318 U-T SUPPLEMENTAL INTERROGATORY #19: If you do not unconditionally admit Admission 19, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #20: 20. Do you admit that you did not put water resistant drywall in the bathroom? Admit Deny _ SUPPLEMENTAL INTERROGATORY #20: If you do not unconditionally admit Admission 20, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #21: 21. Do you admit that you never repaired or replaced damaged drywall in the kitchen, as agreed? Admit Deny _ SUPPLEMENTAL INTERROGATORY #21: If you do not unconditionally admit Admission 21, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #22: 22. Do you admit that you never painted the new rooms, as required by the contract? Admit Deny _ 338318 r SUPPLEMENTAL INTERROGATORY #22: If you do not unconditionally admit Admission 22, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #23: 23. Do you admit that the floor in the bathroom was put down improperly, before the plumbing was installed, therefore requiring you to unnecessarily cut the wood in the floor? See photographs attached as Exhibit c. Admit Deny _ SUPPLEMENTAL INTERROGATORY #23: If you do not unconditionally admit Admission 23, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #24: 24. Do you admit that you never completed the plumbing in the bathroom, as required by the contract? Admit Deny _ SUPPLEMENTAL INTERROGATORY #24: If you do not unconditionally admit Admission 24, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #25: 25. Do you admit that you never finished putting in the fixtures in the bathroom, including the vanity and the commode, as required by the contract? Admit Deny _ 338318 r SUPPLEMENTAL INTERROGATORY #25: If you do not unconditionally admit Admission 25, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #26: 26. Do you admit that you never completed installing the lighting and never finished the electrical work, as required by the contract? Admit Deny _ SUPPLEMENTAL INTERROGATORY #26: If you do not unconditionally admit Admission 26, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #27: 27. Do you admit that the windows in the Plaintiffs' home were not installed properly, leaving them misaligned and consequently not in accordance with the contract? Admit Deny _ SUPPLEMENTAL INTERROGATORY #27: If you do not unconditionally admit Admission 27, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. 338318 REQUEST FOR ADMISSIONS #28: 28. Do you admit that you never finished the siding, as required by the contract? Admit Deny _ SUPPLEMENTAL INTERROGATORY #28: If you do not unconditionally admit Admission 28, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #29: 29. Do you admit that the stairs were never properly installed, including different height risers, and other defects, and were therefore not up to code when inspected by the Code Inspector of Silver Spring Township? Admit Deny _ SUPPLEMENTAL INTERROGATORY #29: If you do not unconditionally admit Admission 29, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #30: 30. Do you admit that the rafters were installed unevenly? Admit Deny _ SUPPLEMENTAL INTERROGATORY #30: If you do not unconditionally admit Admission 30, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. 338318 REQUEST FOR ADMISSIONS #31: 31. Do you admit that you never finished the soffit? Admit - SUPPLEMENTAL INTERROGATORY #31: If you do not unconditionally admit Admission 31, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. Deny _ REQUEST FOR ADMISSIONS #32: 32. Do you admit that you never installed boots or flashing around any vent pipes? Admit _ Deny SUPPLEMENTAL INTERROGATORY #32: If you do not unconditionally admit Admission 32, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #33: 33. Do you admit that you never put in a ridge vent? Admit SUPPLEMENTAL INTERROGATORY #33: If you do not unconditionally admit Admission 33, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. Deny _ 338318 REQUEST FOR ADMISSIONS #34: 34. Do you admit that extensive debris was left at the Plaintiffs' home after you terminated your work for them? Admit Deny _ SUPPLEMENTAL INTERROGATORY #34: If you do not unconditionally admit Admission 34, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #35: 35. Do you admit that it took two to three weeks to put up the roof, which should normally take a week? Admit Deny _ SUPPLEMENTAL INTERROGATORY #35: If you do not unconditionally admit Admission 35, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #36: 36. Do you admit that because of this delay in putting up the roof, the Plaintiffs' home sustained significant water damage due to rain? Admit Deny _ SUPPLEMENTAL INTERROGATORY #36: If you do not unconditionally admit Admission 36, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. 338318 REQUEST FOR ADMISSIONS #37: 37. Do you admit that the tar paper was improperly installed on the roof, resulting in its being blow off causing additional water damage? Admit Deny _ SUPPLEMENTAL INTERROGATORY #37: If you do not unconditionally admit Admission 37, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #38: 38. Do you admit that one of your subcontractors fell through the Plaintiffs' ceiling? Admit Deny _ SUPPLEMENTAL INTERROGATORY #38: If you do not unconditionally admit Admission 38, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #39: 39. Do you admit that some of the floor joists were not properly tied in with the old rafters and not supported by a load bearing wall? Admit Deny _ SUPPLEMENTAL INTERROGATORY #39: If you do not unconditionally admit Admission 39, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. 338318 REQUEST FOR ADMISSIONS #40: 40. Do you admit that you never fmished the duct work? Admit Deny _ SUPPLEMENTAL INTERROGATORY #40: If you do not unconditionally admit Admission 40, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #41: 41. Do you admit that you told the plaintiffs their furnace would supply enough heat to heat the new addition? Admit Deny _ SUPPLEMENTAL INTERROGATORY #41: If you do not unconditionally admit Admission 41, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #42: 42. Do you admit that in fact the new addition was not provided with adequate heating? Admit Deny _ SUPPLEMENTAL INTERROGATORY #42: If you do not unconditionally admit Admission 42, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. 338318 REQUEST FOR ADMISSIONS #43: 43. Do you admit that you orally agreed to put in a cathedral ceiling and skylights for no additional labor charge if Plaintiffs purchased the material for this change? Admit Deny _ SUPPLEMENTAL INTERROGATORY #43: If you do not unconditionally admit Admission 43, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. REQUEST FOR ADMISSIONS #44: 44. Do you admit that the state the Plaintiffs' home was in when you left the job was below industry standards for workmanship and quality? Admit Deny _ SUPPLEMENTAL INTERROGATORY #44: If you do not unconditionally admit Admission 44, please set forth each and every fact which supports your denial or partial denial, including attaching any documents which support your allegations. ichael E. Kosik J.D. No. 36513 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff 338318 338318 CERTIFICATE OF SERVICE AND NOW, this 13th day of October 2006, I, Michelle M. Milojevich, an employee of Angino & Rovner, P .C., do hereby certify that I have served a true and correct copy of the PLAINTIFFS' REQUESTS FOR ADMISSIONS TO DEFENDANT in the United States mail, postage prepaid at Harrisburg, Pennsylvania, addressed as follows: CERTIFIED MAIL RETURN RECEIPT REQUESTED & REGULAR MAIL David Sanders t/d/b/a Sanders Construction 970 York Street Lebanon,PA.17042 ~ 7Y} MY!--- Michelle M. Milojevich 7J krhl'b/-f It '.<:. SANDERS CONSTRUCTIuN General Contractors 970 York Street Lebanon, P A 17042 (717) 272-1124 (717) 273-5923 Date ofEstimate: 10/2/00 These are specifications and estimates for: Morris & Kelly Stanley 766-3103 Project Location: 7000 Wartsville Rd., Mechanicsbur, P A 17050 Project description and Pricing: CQSL. Second floor addition 28' x 28'. Consisting of two bedrooms, a bathroom and an ~~rary room. All of the rooms will be finished drywall reEt . painted ~1l3tmncr.Carpet is not included. The bathroom will have all plumbing supplied but with all bathroom furniture supplied by the customer. (Tub, sink/vanity and toilet). All electrical and lighting will be installed per homeowners specs as well as all windows. The addition will be sided to match house as well as a new roof. Existing roof rafters will be reused in the new addition. A new staircase will be install. Extra costs will be included if homeowner wishes to change the staircase treads from stardard pine treads. First floor kitchen cabinets will be supplied by customer while Sanders construction will install them and repair any drywall that is damaged. Two north wall windows will be removed and sealed from the weather. One west wall window will be replaced with one of the removed windows from above. Payment will be 1/2 down at start of job, followed by 1/4 more at the half way point in the job which will be determined by Sanders construction. The remaining 1/4 payment will be due upon completion of the job stated above. ctf JD l;), fJV j1;-:57JO ~II :fL0-IJ -# -; -:: ~"CJ ~-- i Permit will be the responablity of the homeowner. Sanders Construction will supply a rough drawing of planned addition. FAST, COURTEOUS, PROFESSTIONAL WORK DONE RIGHT THE FIRST TIME. E k h/b;1 13 . ! 0 'k./ f/:fJ6 ---14tH !Arty) uZ; ({~~7?~i-I"vc~t / h c ~~~/ul_) I :5 /):61/( O ) J n "i. Iii" ; /1/ . . /7 j} . -.-- .. ~j"("Fl\: . I~)(~~I\"~ ,;ill h~/AI1f" jf.~~LIy_0;J;)J7O'J;:J . Xt1tl.f'1:!.A~/ 5--kI~Cti~d vv/1h.. ') r:~irvnM I ?(67 /~7'}1~ /- dt"))( I..:.,,/~Lf~t::( ..Gt ':7 (~. 't ~'.. ):J:;.I..-V./h....:S-k. ~--:::.. c (~\{.; \ ,~~ I \-...-s.-fA 10 1..:./ I h.O.("'E.t,/S r:..A.' I~:V.A"./ Cf..h t./ J4-vC':";.v t:'/' f: \-" cJ;}-.-L /' e l\jmh,~ 1;'",1' '5 "41 'iI. jt-tI nu;:O.-", 4l~. ,,'/p!y Ly GV.'; --h;)v-~~ r . j;;tJ : Up5~r5 D(/VlF'roh ,;"'-5 ~~ OZ%> . 9 11 #/ -C7;71 ...J..r.. Jn~\ ) ...?'--'\.../ I U U ~.- -.---- #~"3 SVv p<.... / Tii1?L-/ kv-tr/ YIUhf :2 73- s-9J-3 D.), /i57~r J[ ~ 7 J- - I J). if .sAof1. .'\ /\... I \ r\~ . , 12./1 c9- 8' 'l ~i' h' cl \v'\. .;Lc0(ir,d~ , '\ .. vc....... . C I' I ' (.,-.) ill (Jvct:.... ~R-_'./'~\'; ~h:tS i./l C{G~ \ \ \ I \ \ \ \. f x h;bl't C- . .... " , \ "'" " (') c ~ -r}t."i:: rT;r " ::'~-(.' ;:..-- ~__h ;:~! (~~ 1::": ,-) >.~ "j -, '" c::cl c:> Q" o .,., :r.." n"lF -om :u '-' C' .::iq ~?~ ("")In ..:'1 ~ -< <=) n --I co -0 :x (1'\ CO >CtJ~v- s vs Case No. _ ~ I - it ~ 'i .;t. 5-{uV\.~ I y Statement of Intention to Proceed To the Court: c' Q JCi ~, ftJ'$ ~ (i"Vl '3iv-",~ loW- Si~~:dU:;;Z:Zdnm~' / Attorney for Set d~r:s t" CJ#? sr;~ ~~ printNameJJalJltP ') Sr""wliR~ Date: II) )IY )"6 I I Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. 1. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision ofthe Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course ofthe procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "tne Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2, () c s:. '"'Ore me',', ~;;: (j) ,; .,,/ . r~r ~:\w__ ';':':';",- 2~ >-~ ~;, (;~-~ ' ~;=:;; &- =<! r-...:l e:> = c;r. o ('""') --l N +:- o ." :e m:D ',"0. r-? ~tJ 01 ...je. ~~~ (5 rr; s;! :.:0 -< :I> :x w w