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Home My WebLink About00-05432 RUTH GERHARDT, Plaintiff COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-5432 CIVIL TERM KENNETH D. MUTZABAUGH, Defendant CIVIL ACTION - LAW ANSWER OF DEFENDANT KENNETH D. MUTZABAUGH COME NOW defendant Kenneth D. Mutzabaugh, by his counsel, Jerry A. Philpott, Esquire, and answers the complaint in this matter as follows: I. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Denied. At the time the work was completed, the plaintiff expressed satisfaction with the work. There were no deficiencies, but there were some deliberately unfinished items that were to be completed after plaintiffhad an electrical contractor relocated the main electric panel. Once that Vl~~ , . ,'U was done, defendant completed the patches needed in the siding to cover over the areas affected by the relocation of the main electric service. By way of further answer, the so-called "Deficiencies" (Complaint Exhibit C) were not listed until sometime in the year 2000, about a year after the contract was otherwise complete. Moreover, the "Deficiencies" do not include many of the items for which plaintiff is now claiming the cost of repair. 11. Denied. Plaintiff did contact defendant many times. Initially, defendant responded to the calls and in fact made many minor adjustments. Later, it became obvious to defendant that plaintiff just wanted someone to talk to and he began to discourage the calls. Plaintiffwould want defendant to come see her about an alleged problem, then tell defendant that he could not come for up to three weeks. Other times plaintiff would want him to come right away when he was at work on another job in Perry County and could not get away. 12. Admitted. 13. Admitted. 14. Denied for lack of knowledge. Exhibit E speaks for itself. 15. Denied for lack of knowledge. 16. Admitted. COUNT I - BREACH OF CONTRACT 17. The answers to paragraphs 1 through 16 are incorporated herein byreference as though textually set forth at length. 18. Denied. The contract is silent on the issue raised by Paragraph 18 of the complaint and in any case speaks for itself. Defendant did do all the contract work in a good and workmanlike manner, however. "'" ,,-~ 19. Denied. 20. Denied. 21. Denied. Byway of further answer, the work done by HDC includes new work, includes more expensive work than needed just t(\ repair alleged "deficiencies," and was unnecessary. COUNT II - BREACH OF IMPLIED WARRANTY I 22. The answers to paragraphs I through ~ 6 are incorporated herein by reference as though textually set forth at length. 23. Admitted. 24. Admitted. 25. Admitted. 26. Denied. 27. Denied for the reasons given in ans~erto paragraph 21. COUNT III - CONSUMER PROTECTION LAW 28. The answers to paragraphs 1 through l6 are incorporated herein by reference as though textually set forth at length. 29. Admitted. 30. Denied. Defendant made no express rflPresentations. Defendant did perform his work in a good and workmanlike manner. The alleged "deficiencies" are bogus. Accordingly, defendant misrepresented nothing and is not lIable under the Consumer Protection Law. 31. Denied for the reasons given in resI10nse to paragraph 11. , ~ -I' ,. ,- WHEREFORE defendant Kenneth D. Mutzabaugh demands that plaintiffs lawsuit be dismissed. Dated: ~ / I Lt I 0 f ! ,.- -, - -~ VERIFICATION The language of the foregoing Answer is that of counsel and not necessarily my own; however, I have read the foregoing document and to the extent that it is bas.ed upon information that I have given to counsel, it is true and correct to the best of my knowledge, information and belief; to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this verification. I understand that any false statements made herein are subjectto the penalties ofI 8 Pa.C.S. !l 4904, relating to unsworn falsification to authorities. . I'.' ~~~ ~ i; :; ~';I I' ,-! 'I :'1 ! 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NO. 2000-5432 CIVIL TERM KENNETH D. MUTZABAUGH, Defendant CIVIL ACTION - LAW PETITIONING DEFENDANT'S REPLY TO NEW MATTER COMES NOW the above defendant, petitioner in the pending Petition to Open or Strike Off Judgment and replies to the New Matter in plaintifti'respondent's Answer as follows: Preliminarily, defendant questions the right to require a response to New Matter in the Answer to a Petition, but prefers just to reply, rather than to debate the issue. 6 No response required. 7 Defendant admits receiving Exhibits A and B to the Answer to the Petition. 8 Defendant can neither admit nor deny most of the allegations of Paragraph 8, being a list of activities taken by plaintiff's counsel on certain dates. In order to round out the picture of events, however, defendant provides the following additional chronology. March 9, 2001 Defendant, Ken Mutzabaugh, calls Attorney Jerry Philpott's office and says ~. ~l,.L_" he has received papers that he has to answer in ten days and asks for an appointment; later that day he drops off the papers; an appointment is made for Monday, March 12 Attorney Philpott educates Mr. Mutzabaugh. The ten-day notice in the papers is a copy of something apparently send to Mr. Mutzabaugh earlier. The praecipe, a meaningless Latin word to the general public but of great legal significance to Pennsylvania lawyers, is the operative document and means that Mr. Mutzabaugh has lost the lawsuit by default. Mr. Mutzabaugh says he had never seen the ten-day notice until he received the praecipe that came with it. March 12-14,200 I Attorney Philpott drafts a Petition to Open or Strike Judgment and an Answer to the underlying complaint, goes over it with Mr. Mutzabaugh, and gets it March 12,2001 March 14, 2001 March 27, 2001 March 27,2001 May 8, 2001 ,.~ ~~ verified. Petition to Open or Strike Judgment, covered with a Rule, mailed to Cumberland County Prothonotary with return envelope, requesting that the time-stamped copies be returned. Plaintiff's counsel is copied. Exhibit A. Attorney Philpott receives a letter from Attorney Gilroy acknowledging receipt of the above March 14 letter and its attachments, but complaining about missing pages in the Answer to the Complaint. Exhibit B. Attorney Philpott's secretary supplies the missing pages and tries to chase down the filed petition. Exhibit C. At suggestion of someone in Prothonotary's office, in an effort to dislodge the untraceable Petition, Attorney Philpott's office prepared a praecipe to list ~" for argument and mailed it to the Prothonotary with an envelope to use to serve Attorney Gilroy. Exhibit D. May 14,2001 Attorney Philpott receives a letter from Attorney Gilroy saying that the Cumberland County Prothonotary had sent to him material that should have been sent to Attorney Philpott and asking that courtesy copies be sent directly to him in the future instead of having the Prothonotary do it. Exhibit E. Defendant does not have a clue as to what happened to the Petition with its Rule attached between March 14 and April 6 when it was recorded or May 31, when it fmally issued. 9 Admitted. 10 As the history set out in paragraph 8 above shows, from the time defendant received the copy of the praecipe to enter the default judgment on or about March 8, until he had obtained an attorney, had a Petition prepared, and mailed it off to the Prothonotary on March 14, a copy of which plaintiff's counsel admits receiving on March 16, only about six days elapsed. The exact date of mailing of the praecipe is uncertain. Defendant thought he had received a ten-day notice when he called to make an appointment with his attorney. A. The petition was timely filed under these circumstances. The delay in moving it along within the Cumberland County Courthouse should not be charged to defendant. Defendant acknowledges that this was not a "snap judgment" situation by Mr. Gilroy's office, but as soon as he, in his layman's understanding of the situation, actually received a notice with a warning of dire consequences, he contacted an attorney. ~~ , . ~ ~ ~ ,,~. B. Defendant has no good excuse for ignoring the previous letters from Mr. Gilroy or the complaint, except that it was his impression that the plaintiff was pestering him, as she had done before, because she just wanted someone to talk to. He should have paid attention to this earlier. He did not, however, receive the ten-day notice until he saw it as an attachment to the praecipe to take the default on or about March 2001. C. Defendant does offer a meritorious defense to the underlying lawsuit in that, among other items, he claims that the work done by the second contractor includes work that was not repairs of earlier work but entirely new work unrelated to the work he had done and he claims that he completed the work in a good and workmanlike manner long before any alleged deficiencies were even claimed. If allowed to defend the lawsuit, he believes he can show both that there were no serious deficiencies in his work and that the bulk of the work of the second contractor was unrelated new work on plaintiffs house. WHEREFORE, defendant/petitioner prays that his P granted and that the underlying lawsuit be allo n to Open or Strike Judgment be Dated: June 21, 2001 ,. ~~'l VERIFICATION The language of the foregoing Petitioning Defendant's Reply to New Matter is that of counsel and not necessarily my own; however, I have read the foregoing document and to the extent that it is based upon information that I have given to counsel, it is true and correct to the best of my knowledge, information and belief; to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this verification. I understand that any false statements made herein are subject to.the penalties of 18 Pa.C.S. S 4904, relating to unsworn falsification to authorities. ,^"- , , , , , rf ~ r .' t; \...-of"",,, "..r-""-,l,.,......,. ;. ' , \'"'~--<_:J !......-""'~,..",...-"...t_""'- LAW OFFICE OF J~~~V ~o ~[f{]~[L[FJ(guu Jeny A. Philpott. Esquire Kevin E. Prosser, Esquire ATTORNEYS-AT-LAW 227 No. High St.. PO Box 116 Duncannon, PA 17020-0116 717634--3087 FAX 834-5437 March 14, 2001 Prothonotary Cumberland County Courthouse South Hanover Street Carlisle, P A 17013 File no. 01-03-08 Re: Gerhardt v. Mutzabaugh 2000-5432 Dear sir or madam: Enclosed for filing is defendant's Rule to Open or Strike OffDefaultJudgment. I have enclosed a prepared envelope forreturn of the time-stamped copies. If you need anything further, please do not hesitate to contact our office. Sin7s' (. . Mindy chLles, secretary for Jerry A. Philpott Ene!.: Original and (4) Rule and Petition to Strike Off Judgment SASE cc: Hubert X. Gilroy, Esquire Mr. Mutzabaugh . "'.. ''C' ..,,,.- ."".. ,;.;"",...,.". ,-''-"c? ,~. JOHN H. BROUJOS HUBERT X. GILROY BROU}OS & GILROY, P. c. ATIORNEY$ AT LAW 4 NORm HANOVER STREET CARLISLE, PENNSYLVANIA 17013 MAR 2 7 "20m TELEPHONE' (717)-243-4574 FACSIMILE: (717) 243-8227 INTERNET: brgilroypc@aoLcom NON-ToLL FOR HARRISBURG AREA 717-766-1690 March 26, 2001 Jerry A, Philpott, Esquire 227 North High Street P.O. Box 116 Duncannon, PAl 7020-0116 Re: Gerhardt v Mutzabaugh Dear Jerry: I have received a copy of your communication to the Prothonotary in the above matter. have not yet received a formal order entering the Rule to Show Cause. The copy of the petition you filed refers to an Answer to the Complaint as attached. The only answer which is attached includes Paragraphs 1 through 10. Please forward to me a copy of the proposed answer addressing the other allegations in the Complaint. I can tel! you in advance that we will contest Mr. Mutzabaugh's claim to open the judgment. I wrote to him in September of 1 999 and received no response. I wrote to him in March 2000 and received no response, The letters were not returned. I used the same address as we used in the Complaint, and the Complaint was properly served. I can also verify that I sent the Notice of intention to Enter Default Judgment in Sept 2000 to the same address. We then waited quite a bit of _time before we proceeded with entry of the default judgment. I believe your client has had ample notice in this matter and he has simply refused to respond. Sincerely yours, dch " LAW OFFICE OF J~~[Fr{ AD ~[FO~l~~)uu Jerry A. Philpott, Esquire Kevin E. Prosser, Esquire ATTORNEYS-AT-LAW 227 No. High St.. PO Box 116 Duncannon, PA 17020-0116 717834-3087 FAX 834-5437 Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, P A 17013 March 27, 2001 VIA FAX TO 243-8227 NO HARD COPY TO FOLLOW Pile no. 01-03-08 Re: Gerhardt v. Mutzabaugh Dear Attorney Gilroy: We received your letter of March 26, and I am faxing the missing pages from your Exhibit A. Cumberland County is in possession of the Petition. I will be contacting them to see whatthe hold up is. I will get back to you as soon as 1 have any further information. Sincerely, I Mindy CharI , secretary for Jerry A. Phi ott Ene!.: Page 6 through 8 LAW OFFICE OF Jl~[Pl[f$.\{ _~o [P[]=[]~l[P(QtUlJ Jerry A. Philpott, Esquire Kevin E. Prosser, Esquire ATTORNEYS-AT-LAW 227 No. High St.. PO Box 116 Duneannon. PA 17020-0116 717 834-3087 FAX 834-5437 May 8,2001 Prothonotary Cumberland County Courthouse South Hanover Street Carlisle, PA 17013 Fileno. 01-03-08 Re: Gerhardt v. Mutzabaugh No. 2000-5432 Dear Prothonotary: 1 enclose the attached Praecipe to List for Argument Court as requested. I believe you have a prepared envelope for our office waiting with the file. I have included another prepared envelope for opposing counsel just in case. If you have any further questions, please do not hesitate to give us a calL --?L~Y' . Mindy Ch , secretary to Jerry A. P pott Ene!.: Praecipe to List for Argument Court Prepared Envelope cc: Mr. Mutzabaugh sj9- )(oSE ~ --fL.€- ~l J< ol2..L>7 . K<i.'r- c..u'f22cC by --1-1...: 1U'L'i:c.L ~ DIU WLa~ ~L.. ---I-Z-z..SL. ~ OA.JL JOHN H. BROUJOS HUBERT X. GILROY BROUJOS & GILROY, P. c. ATTORNEYS AT LAW 4 NORTH HANOVER STREET CARLISLE, PENNSYLVANIA 17013 MAY 1.4 2001 TELEPHONE: (717)243-4574 ,__ ..-EACS""lkE:_<:71{)243-S227 INTERNET: brgilroypc@aol.com .-.. .-"----~NON-TOLL FOR HARRISBURG AREA 717-76&-1690 May 11,2001 Jerry A. Philpott, Esquire 227 North high Street P.O. Box 116 Duncannon, PA 17020-0116 Re: Gerhardt v Mutzabaugh Dear Jerry: For some reason, the Prothonotary sent the enclosed information to me, but I believe it should have been sent back to you. You should be aware of the fact that I have no record of ever formally receiving a signed Rule to Show Cause entered in this matter. The only thing I received from you was a copy of your March 14, 2001 letter to the Prothonotary filing the petition to open or strike off the judgment. Attached to that petition was a proposed court order with a rule to show cause, I never received a time stamped copy of the petition nor did [ ever receive any rule to show cause issued by the court. r believe Rule 206.5(a) requires that a rule to show cause be issued after which I will be required to file an answer. After the answer is filed, the matter would then be ripe for argument, I also note that your May 8th letter to the Prothonotary whereby you attempted to list this case for argument was not copied to me, but I do acknowledge that you apparently gave the Prothonotary a self-addressed stamped envelope to mail notice of the argument to me. In the future, please copy me with all correspondence to and filings with the Prothonotary in this matter. [ look forward to hearing from you. ert X, Gilroy dca Enclosure cc: Ruth Gerhardt v : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO, 2000 - 5432 RUTH A, GERHARDT, Plaintiff KENNETH D. MUTZABAUGH, Defendant NOTICE TO PLEAD To: Kenneth D. Mutzabaugh clo Jerry A, Philpott, Esquire 227 North High Street Duncannon, PA 17020-0116 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU, Date: f.t ( 1 ( o-{ Hubert X. roy, Esquire Attorne or Plaintiff Supre e Court ID No, 29943 Broujos & Gilroy, p,c. 4 North Hanover Street Carlisle, PA 17013 (717) 243-4574 "~ -, - ~- .,.,...--<, - ," ,.,"" ,-- ~ '" v : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2000 - 5432 RUTH A, GERHARDT, Plaintiff KENNETH D, MUTZABAUGH, Defendant ANSWER TO PETITION TO OPEN OR STRIKE OFF JUDGMENT Plaintiff, Ruth Gerhardt, by her attorneys, Broujos 8r Gilroy, P.C, sets forth the following in response to the Petition to Open or Strike Off Judgment filed in the above matter: 1 Admitted. 2 Admitted, 3 Admitted. 4 Denied. On the contrary, the undersigned counsel mailed the Notice of Default Judgment to the Defendant on September 6, 2000 and the correspondence was not returned as unreceived. The address used for the mailing was the address listed by Defendant in Paragraph 1 of its Petition to Open or Strike Off Judgment and was the address where the Defendant was served with the complaint in this action, '- -- . - ~ ,.". ~" , .<-~ . - ,.< - ~ ",-, ~" e' A 5 Denied. On the contrary, Defendant has no defenses to this action that are meritorious, WHEREFORE, Plaintiff requests your Honorable Court to deny Defendant's Petition to Open or Strike Off Judgment. NEW MATTER 6 The allegations set forth in Paragraphs 1 through 5 above are incorporated herein by referenced thereto, 7 The undersigned counsel corresponded with the Defendant on two occasions prior to the commencement of litigation, with the mailing address being the stated address of 826 Church Street, Duncannon, Pennsylvania. The letters were as follows: A, Letter of September 27, 1999, a copy of which is attached hereto and marked Exhibit" A", B. Letter of March 9, 2000, a copy of which is attached hereto and marked Exhibit "B", Neither one of those letter were returned to the undersigned attorney's office as non- deliverable. I . ..,., .' ,., ~.' - , -,", ~ '" . . 8 The procedural history of this case is as follows: August 4, 2000 Complaint Filed. August II, 2000 Complaint Served on Defendant Kenneth Mutzabaugh by handing to "Luanne Kenee, Defendant's Girlfriend" by the Perry County Sheriff. Undersigned Attorney mailed Notice of Intention to Enter Default Judgment to Defendant at 826 Church September 6, 2000 February 26, 2001 March 16, 2001 * ""0" '__".,,_J;. -';'-"'",-.,-,.,.,7,", Street, Duncannon, Pennsylvania. Praecipe for Default Judgment filed, Praecipe certifying that Notice of Intention to Enter Default Judgment was sent more than ten (1 0) days prior to entering default judgment, and Notice of Default Judgment mailed to Defendant. Plaintiff's counsel receives copy of Attorney Jerry A. Philpott's March 14, 2001 correspondence to Cumberland County Prothonotary which includes copy of Petition to Open Judgment. Records in the Prothonotary's Office indicate that there was no filing with the Prothonotary in March in connection with the Petition to Open Judgment. , ~ -.,,<'- 'N -- , "-,,y.,,"_,-"_ _"_0,"' ,~"-,___,~,, ,0 - _ ".'_<_._-',__..c , ~'."': 9 There is no record in the Cumberland County Prothonotary's Office that the Defendant actually filed a Petition to Open Judgment with the Prothonotary until April 6, 2001. Plaintiff's counsel acknowledges that he received a copy of the Petition to Open Judgment on March 16, 2001 . 10 Defendant's Petition to Open or Strike Off Judgment does not meet the requirements for opening a judgment by default for the following reasons: A. The Petition was not timely tiled. Judgment was entered on February 26, 2001. Records in the Prothonotary's Office do not show that the Petition was actually filed with the Prothonotary until April 6, 2001. Plaintiff's counsel acknowledges that he received a copy of the Petition to Open Judgment on March 16, 2001 which was eighteen (18) days after entry of the Default Judgment. Furthermore, the Default Judgment was not entered in the traditional "snap judgment" method. The Complaint with the Notice to Plead was served on the Defendant in August 2000. The ten (10) day Notice of Entry of Default Judgment was served on the Defendant in September 2000. The Defendant delayed over six (6) months from date of receipt of the note of the Complaint and over five (5) months from date of receipt of the Notice of Intention to Enter Default Judgment before Defendant took any action. _-,,~__,__ -"<t_ -~,_ __--~>_" ,_,~"__"_'m_ -. - ---"-~;;- - ,- ~ - -" - -,. ." . ,-,,,'",-1 ~ ~,~- ., the work as required thereby forcing Plaintiff to retain another contractor to complete the work. WHEREFORE, Plaintiff requests your Honorable Court to enter an order dismissing the Petition to Open Judgment filed by the Defendant. Respectfully submitted, Hubert X. i1roy, Esquire Attorney for Plaintiff Supreme Court ID No. 29943 Broujos 8r Gilroy, P.c. 4 North Hanover Street Carlisle, PA 17013 (717) 243-4574 ~--1'''' 0'" " " _, l"," , ,Co'_",_, =,____=_7'_'c1nL. ,',,_, :-._'>i'''_ ,; -; ;- ~'~--; I verify that the statements made in the foregoing document are true and correct. understand that false statements herein are made subject to the penalties of 18 PA.C.S. Section 4904 relating to unsworn falsification to authorities. DATE: vis"! t') I . f ~a.~ Ruth A. Gerhardt "-= :: - JOHN H. BROUJOS HUBERT X. GILROY BROUJOS & GILROY, P.e. ATTORNEYS AT LAW 4 NORTH HANovER STREET CARUSLE, PENNSYLVANIA 17013 TELEPHONE: (717) 243-4574 FACSIMILE: (717) 243-8227 INTERNET: brgilroypc@aol.com NON-TOLL FOR HARRIsBURG AREA 717-766-1690 ~_:~ i ,.: L ..... -~ _-L;:~ September 27,1999 -"j,~~ Ken Mutzabaugh Ken-Do Contracting 826 Church Street Duncannon, P A 17020 Dear Mr. Mutzabaugh: Our office represents Ms. Ruth Gerhardt with respect to your contract with her for remodeling at the home at 381 Easy Road. Ms. Gerhardt has advised us that the majority of the work has been performed but there are a number of items that still need to be completed as set forth on the attached list. Ms. Gerhardt indicates that she has contacted you several times to come by the house. You have either told her you would come and not 'met your appointment or you have refused to respond to her calls. Ruth advises us that she has paid you over $28,000.00 for this work. Unless you contact Ms. Gerhardt with 10 days and make satisfactory arrangements to have this work completed, we will proceed with having another contractor complete the work after which a suit will be instituted against you for the costs of the other contractor's work and miscellaneous expenses. Additionally, Mrs. Gerhardt requests the original receipt for the linoleum and carpet that you picked up and installed for her along with the written guarantee on the windows that have been installed Sincerely yours, HAi,m' bc cc: Ruth Gerhardt EXHlBIT I A" "~ ".....- ~~~'~11>1.4<:' '''''''''''' . JOHN H. BROUJOS HUBERT X. GILROY BROUJOS & GILROY, P.e. ATTORNEYS AT LAw 4 NORTH HANOVER STREET CARLISLE, PENNSYLVANIA 17013 TELEPHONE: (717) 243-4574 FACSIMILE: (717) 243-8227 INTERNET:brgilroypc@aol.com NON-TOLL FOR HARRIsBURG AREA 717-766-1690 FILE March 9, 2000 Ken Mutzabaugh Ken-Do Contracting 826 Church Street Duncannon, PA 17020 Dear Mr. Mutzabaugh: I had written to you previously concerning our office's representation of Ruth Gerhardt of 381 Easy Road. Enclosed is an invoice Ms. Gerhardt received with respect to repair work that HDC Construction did at the property. On behalf of Ms. Gerhardt, we hereby demand payment from you for this work which needed to be done to fulfill your obligations under the contract and to also repair faulty work you had performed. If we do not hear from you on this matter within ten (1 0) days, we will proceed with filing the appropriate litigation. Sincerely yours, dch Enclosure cc: Ruth Gerhardt EXHIBIT I /(13)) ,.' "~ ~~ ~~)lliI~~r~0,'"H.J!1,li&~lf;);)i#.iliJ;;.~~"'1t,'jiAAlL' -"" l".._"'._ -, ~" '-='~ !!'i1ll~~iIi(Sjil;jyiiM. ~, , ". ~ ,- ,- '.. "~ " () ~ '1:.1 .:-; n'1U.i "->"fn ;? r?:l (?,:r,,, ;$"-' ~6 :!?'c' ~d Pc: Z :< ~~" - o o "'1"1 ::.:1 f~'? r:J] ."C, ", ~,.,n ,-, r ::~~~i ~.2 ') q " C",'" -.::.."... ) C) rn ::;:'-J jJ -< -- <... ~E I --.) ;::0,. ~;:: '*' .,... (;0 ~, , I ~_ ~. .-""iiIl-';' PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and sul:rnitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argm1ent Court. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) Ruth Gerhardt, (Plaintiff) vs. Kenneth D. Mutzabaugh, (Defendant) ~~ 7000 No. 5432 Civil 1. State matter to be argued (Le.. plaintiff's rrotion for new trial. defendant's danurrer to cati>laint. etc.): Defendant's Petition to Open or Strike Off Default Judgment 2. Identify counsel who will argue case: (a) for plaintiff: Hubert X. Gilroy. Esquire Address: 4 Hanover Street, Carlisle, PA. 17013 (b) for defendant: Jerry A.. Philpott, Esquire J\ddress: 227 N. High St., PO Box 116, Duncannon, PA 17020 3. I will notify all parties in writing within hlo days that this case has been listed for argunent. 4. Argunent Court Date: July 25, 2001 Dated: CL./tBii!j.l~ ;jttorn~ for. . ~ll\fil!ls''->lwtJ;-.;:l~!f-;<I'~~.iiJW5l(.!l~o#~:~1Ii '" ~ '"~ o. ~~,~ i; i' i i: I": L:! I':" I'; " fii (' r' " r,; I,' ? f I'" , (") co c c '~r~ ~-:: -- ~-, ~?8 """ -.",.~ ' .~ r:-=-" -- r~ ,,' "'."~ ~~L en :~i -" i _,i c) r;: l:-; 'j;;- .-0 , zC ~J<", :~~~ =C' N ;I>c Z ~ -, :0 -< c- -< ~ ~,., RUTH GERHARDT, Plaintiff IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-5432 CNIL TERM KENNETH D. MUTZABAUGH, Defendant CNIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that I am this day serving a true and correct copy of the Praecipe to List for Argument Court on the person at the address indicated below by first class mail from the U.S. Post Office, Duncannon, PA 17020, which service satisfies the requirements ofP. R. C. P. 440: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 Hanover Street Carlisle, P A 17013 on ~ Melinda L. Charles, secretary to Jerry A. Philpott, Esquire Supreme Court ill #47624 227 No. High Street, PO Box 116 Duncannon, P A 17020 Dated: May 14, 2001 . """""-"'~ -..... -~1i11111iilllWIU~I.'i;H'I~~,!OllillS!illll""-"""'<-".. - ~>=<. ~~ ~~ ," "'- rih.lle~M-' ""'ii_ell' L ._~- ~~~'" I~ JIllliiIiIiliil .- ~ ~ '.^- ' 0 c::> 0 C -n 7" -- -oi:tl _~l>o .~ -j V" rn n-~ .< : \^i ;:::-...: z::n 0~i-~ .~ v: ;2~ -'~'-- QC.! -0 ~2; -r, -,-- :-,::-;;(~) pj r;? Ope C z :,;:1 -, ::.Q -< .r-- -<. :.j fi i; I: Ii Ii II 'II :i I, ;] \1 'I :1 , 11 II i [I '[ I, fi :1 !i i Ii :1 " II "' i ,I 'I i] ,I lj I i i i i " i I I' 'i i, i" I] ~" - ",,,- I _, RUTH GERHARDT, Plaintiff IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-5432 CIVIL TERM KENNETH D. MUTZABAUGH, Defendant CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certifY that I am this day serving a true and correct copy of the Defendant's Petition to Open or Strike Off Judgment on the plaintiff at the address indicated below by first class mail from the U.S. Post Office, Duncannon, P A 17020. Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover St. Carlisle, PA 17013 / ~ ~ linda . Charles, seciiltary for Jerry A. Philpott, Esquire Supreme Court ID #47624 227 No. High Street, PO Box 116 Duncannon, P A 17020 Dated: March 14,2001 1m '~lill"i.;~-d,t!i;!!;r;.,1.~~~<Jj ''"''''''*~1''Jldr ....1~.'_'"JM n co C ?: :;'~ "0 c.,,' -0 rn r- :::J Z --,-. Z ~~~ , (j) '.- .< I-~ C' { .e' ).;; ,,,,-. -,-." /~ , ~> C i".) c: -:7 -. -:: \,0 'j,::! Ii! i'l t:-! 1':'1 l:!,] Iii ,I !:I [I: "I II I'i !I II Ii " ii ;1 'I i II ] I !I II .1 II II II :1 Ii !, 1 " . , .." . SHERIFF'S RETURN - OUT OF COUNTY leASE NO: 2000-05432 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GERHARDT RUTH VS MUTZABAUGH KENNETH D R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: MUTZABAUGH KENNETH D but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of PERRY County, Pennsylvania, to serve the within COMPLAINT & NOTICE On August 18th , 2000 , this office was in receipt of the attached return from PERRY Sheriff's Costs: Docketing Out of County Surcharge DEP. PERRY CO 18.00 9.00 10.00 27.04 .00 64.04 08/18/2000 BROUJOS & GILROY ~ R Thomas Kline . Sheriff of Cumberland County Sworn and subscribed to before me this 31A1k day of O"rJ~ J..cn-O A.D. ~Q~,~ Prothonotary u ~ II "" I _ ~ _ . "......,,~-,",;, -..~ ..~"',- - ,-I ",- ",. J', \ . In The Court of Comlfl!lon Pleas of Cumberland County, Pennsylvania . Ruth Gerhardt . VS. Kenneth D. Mutzabaugh No. 20-5432 Civil Now, 8/8/00 ,20 OC, I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Perry County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. . ... ~~~I! Sheriff of Cumberland County, P A Affidavit of Service Now , 1-11 ,20 00, at <6:5""5' o'clock A M. served the within ^, - , \VC:> \ lC.~ ~ e~f\OcIV'\T :::::LU!V1F'.K ClJCL \.<Eh~ ET~ ro or? A 1'30. lJeo l.J DuV\eA>'\ (\ON \6ClRO upon at by handing to ------.L.- U A ("\ \^ \ L ~ i\J 5,(; , . . I a TRue ~ A11Esn::() and made known to 1'-1 E \IZ ~ D Er_ GI~LP;(Il'NiJ ::c l> 1 f\)oT\~€ f tJ<rmpla.i;;r the contents thereof Sworn and subscribed before methis //Vildayof Il-uQi(51-- ,20~ /fLacr.~ +.'=f~f" NOTARIAL SEAL MARGARETF. FLICKINGER, N(JTARYPuBUC BlOOMFIEUl BOllO. PERRYCOIlNlY COMMI ION EXPIR f B. 6 20 Depu.~ Sberiffof DC,O I, q.OC:> COSTS SERVICE 9 ,00 IVlILEAGE 7. oLl MFIDA VIT 2-.0(') County, PA $ '9.1,OL\ $ .1 . "-.", RUTH A. GERHARDT, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 00-5432 CML TERM KENNETH A. MUTZBAUGH, : CML ACTION LAW Defendant : NOTICE OF ARBITRATION HEARING The Board of Arbitrators appointed in the above captioned case, have fixed Tuesday, July 23,2002, at 1:00 o'clock, P. M., in the Second Floor Hearing Room of the Old Courthouse, Carlisle, Pennsylvania, as the time and place for the hearing. Anyone fInding this time unsuitable will please make appropriate arrangements with all counsel involved for another time, including the scheduling of the Hearing Room. ~~L. John . Eakin, Chairman May 30, 2002 cc: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 Attorney for Plaintiff Jerry A. Philpott, Esquire Philpott & Prosser, LLP 227 North High Street Duncannon, P A 17020 Attorney for Defendant Steven Howell, Esquire 619 Bridge Street New Cumberland, P A 17070 Arbitrator Sandra L. Meilton, Esquire Tucker, Arensberg & Swartz 111 N. Front Street Harrisburg, P A 17101 Arbitrator Office of Court Administrator 1 Court House Square Carlisle, PA 17013 Bulletin Board .J ._., '"~ .-j., ~. ,. RUTH A. GERHARDT, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. NO. 00-5432 CIVIL TERM . . KENNETH A. MUTZBAUGH, CIVIL ACTION LAW Defendant NOTICE OF ARBITRATION HEARING The Board of Arbitrators appointed in the above captioned case, have fixed Tuesday, July 23,2002, at 1:00 o'clock, P. M., in the Second Floor Hearing Room of the Old Courthouse, Carlisle, Pennsylvania, as the time and place for the hearing. Anyone finding this time unsuitable will please make appropriate arrangements with all counsel involved for another time, including the scheduling of the Hearing Room. ~ May 30, 2002 cc: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, P A 17013 Attorney for Plaintiff Jerry A. Philpott, Esquire Philpott & Prosser, LLP 227 North High Street Duncannon, P A 17020 Attorney for Defendant Steven Howell, Esquire 619 Bridge Street New Cumberland, P A 17070 Arbitrator Sandra L. Meilton, Esquire Tucker, Arensberg & Swartz 111 N. Front Street Harrisburg, P A 1710 1 Arbitrator Office of Court Administrator 1 Court House Square Carlisle, PA 17013 Bulletin Board -; < ..>",-,;.,. - .'-"~';";';,~:",,,"'j ,,,',,i"'d,0,..,:,,,<,,;, "_U '-,c' .. ::i,"~':: - . RUTH A. GERHARDT, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v : NO. 00 - 5432 CIVIL TERM KENNETH A. MUTZBAUGH, Defendant : CIVIL ACTION LAW PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Hubert X. Gilroy, Esquire, counsel for the Plaintiff in the above action, respectfully represents that: 1. The above-captioned action is at issue. 2. The claim ofthe Plaintiff in the action is $9,195.00. The following attorneys are interested in the case as counselor are otherwise disqualified to sit as arbitrators: Hubert X. Gi~OY' Esquire Jerry A. ~titt, Esquire Broujos & Gilroy, P.c. Philpott & Prosser, LLP 4 North Hanover Street 227 North High Street Carlisle, P A 17013 Duncannon, P A 17020 2-'fS- L./SN g, '1- 3o~1 WHEREFORE, your petitioner prays your Honorable Court to appoint arbitrators to whom the case shall be submitted. three (3) Hubert X. Gilroy, quire Attorney for Plai tiff / , ~.df kEILlv(v' ill ;iJ I FAINA 'v ),u,6' !71 ()! -vA - LJ (z-I .:z (,,~~/(~?(l 770-12. ..,7 in c nsideration of the foregoing ORDER OF COURT/ AN petition, . Esq., and in the above-captioned actio Esq., are appointed arbitrators J. 'rf" I~P-/ i, :',""AlA.v""... I)- ~~:" 'j ~.I" - 1.",) J ,~ " e _ .~~ I I II II I i i i I ~! i i II l~ !I 'j :~ '11 ill ','1 I,; , '1: i :i !~ :;1 ill i j~ ;'1 1'1 ;':.1 I ,1 , ~ "1 "" w. cr\ ....::t >- t;: 3~ ',-'----;;0 - -.:.~!... -, }\~ c.:J l.o.~ C_j o ,~ .' " ,~,- 'd," ~ , >-- t o --..( -- o o 1.0 ~ ~- -. r<'\ "" i50 ~ .~ ~ .~. ,. n;: ',,', 02 f.F: ~~2 ""I Ir,,".':, ~~ ",' . V'-,h,'i.'~,._, .. "--',r-'I"i'~ t-C.I\'\\'i 0- :r- ~ (Y'l ~ -..... ~ ~ , -, -, ! ,~" ., ~ " It. r:: 1.', ,,;1 \"'. - ,~---, ,,- ~~ . . - _", T"~' --,~ "~ -.' - ,- ,.. L~"~~ 0" ~" J,Illt\ll_~, "' ,,,,-#It*''!~'~.rA J r-( ,_~ r~I"~'t " . ",-,-,,-, '"", ---., _' i,'.",.., ,,,,. j"',,J;i.'s;;,-";-, '("<' ' - , ,'"~)', .. RUTH GERHARDT, Plaintiff v : IN THE COURT Of COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2000 - 5432 CIVIL TERM KENNETH D. MUTZABAUGH, Defendant : CIVIL ACTION - LAW PRAECIPE Please enter judgment in favor of Plaintiff, Ruth Gerhardt, against Defendant Kenneth D. Mutzabaugh in the amount of $9,195.00 plus interest from May 1, 1999 and costs of prosecution. Judgment is entered pursuant to the Defendant's failure to file a responsive pleading to the Complaint. The undersigned counsel hereby certifies that notice of intention to enter this default judgment was sent to the Defendant Kenneth D. Mutzabaugh by regular mail on September 6, 2000 at his address at 826 Church Street, Duncannon, Pennsylvania. A copy of said notice is attached hereto and marked Exhibit "A". Respectfully submitted, Hubert . Gilroy, Esquire Attor ey for Plaintiff Broujos 8r Gilroy, P.c. 4 North Hanover Street Carlisle, PA 17013 (717) 243-4574 JOHN H. lIRouiOS HUBmrr X. GJUlOY Kenneth D. Mutzabaugh Ken-Do Contracting 826 Church Street Duncannon, P A 17020 Dear Mr. Mutzabaugh: ,- ,~. , <f::) . .~ """J..B,_"". BROUJOS &: GILROY, P.C. ATI'ORNEYS AT LAW 4 NORlH HANoVER STREET CARusLE, PENNsYLVANIA 17013 September 5, 2000 ~ TELEPHONE: (717) 243-4574 FACSIMILE: (717) 243-8227 iNTERNIrr:brgilroypc@aol.com NON-ToLL FOR HARRIsBURG AREA 717-766-1690 .~.' 1 it: Enclosed for service upon you is a Notice indicating an intention to enter judgment against you in the case of Ruth Gerhardt v. Kenneth D. Mutzabaugh. dch Enclosure EXHIBIT I (Ii )) ,~.... . " . - .......-. !ll:W~, RUTH GERHARDT, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v : NO. 2000 - 5432 CIVIL TERM KENNETH D. MUTZABAUGH, Defendant : CIVIL ACTION - LAW To: Kenneth D. Mutzabaugh Ken-Do Contracting 826 Church Street Duncannon, PA t 7020 IMPROT ANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (t 0) DAYS FROM THE DATE OF THIS NOTICE, A JUDGEMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RI.GHTS. YOU SHOULD TAKE THIS NOTICE TO A LA WYER 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 CA~ GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 717-249-3166 Hubert X. Gilroy, Esq . e Attorney for Plaintiff Broujos 8r Gilroy, P.c. 4 North Hanover Street Carlisle, PA 17013 (717) 243-4574 Date: September 6,2000 ~iI'~.~~loJ'I'.~"'~"~.fol.IliIII~""~~"j";",~'~lli!.!!I!W_~+""''''''''''''''''''ii'-'''''"'''''''"~-' n t c: ~ \) 0 7<: :-C:J IT' :f7 _. 8 r;; C> J ~ --! d 0 -l== ~ ";s? J a t t? I Q t/ ~ Q. CJ\ ~ ~ -, - 8 --< -, ~ - ,., o~'e' ,..^,",. ,'''.'~'' ~1iIIII ~~... ~,~7 (' CC -r)~':':" [fl?~..1 .~'T ftC -c :2' '-I -< - _ f~,>,_ ~"".y,' -" '. I , Ii i, I I ! C":' () 'n i; I: i,j -" ';1 '..) j\j 0--, " , to ':. (J) c"__ '-~:;, -::~'.! ;1 ,,,. ..'"",,^~-~. ,",- . d ~- , -, -~,~.,.. i Uli'-, .~ "PR ~ 92110W RUTH GERHARDT, Plaintiff IN COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-5432 CIVIL TERM KENNETH D. MUTZABAUGH, Defendant CIVIL ACTION - LAW RULE TO OPEN OR STRIKE OFF DEFAULT JUDGMENT AND NOW, this _ day of March, 2001, on motion ofJerry A. Philpott, Esquire, counsel for Kenneth D. Mutzabaugh, defendant, the Court grants arule on plaintiff to show cause why the judgment should not be opened and defendant Kenneth D. Mutzabaugh let into a defense. Rule returnable twenty (20) days from service. Proceedings to execute on the judgment to stay until determination of the rule. BY THE COURT . J. " "-'< ,_I '_M_ ._, , RUTH GERHARDT, Plaintiff COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-5432 CIVIL TERM KENNETH D. MUTZABAUGH, Defendant CIVIL ACTION - LAW PETITION TO OPEN OR STRIKE OFF JUDGMENT COMES NOW Kenneth D. Mutzabaugh, the above defendant, by his counsel Jerry A. Philpott, Esquire, and petitions the Court to open or strike off a default judgment entered against him on February 26, 2001, and in support of his petition states as follows: 1. Petitioneris Kenneth D. Mutzabaugh, residing at 826 Church St., Duncannon, Perry County, Pennsylvania 17020. He is a contractor. 2. Petitioner did the contract work that is the subject of this lawsuit. 3. Petitioner acknowledges receiving the complaint in this matter and not answering it. 4. He denies everreceiving in September 2000 the "IMPROT ANT NOTICE" [sic] or any other document letting him know that the plaintiff intended to take a default judgment. The first he became aware of the notice was when he saw it attached to the praecipe to enter judgment. He promptly contacted an attorney, thinking he had 10 days to deal with the paperwork. 5. Petitioner/defendant has numerous defenses to the complaint filed in this matter ifhe is allowed to plead. See Exhibit A hereto, the answer that he would file if the judgment is opened or stricken off. WHEREFORE defendant Kenneth D. Mutzabaugh asks for a rule to show cause why the default judgment against him should not be opened or stricken off and after a response to the rule that said ~ , , ~ "" - judgment be opened or stricken off and that he to file an answer in accord with Exhibit A. Dated: March 13, 2001 hilpott, E quire S pr e Court ill 7624 No. High Street, PO Box 116 uncannon, P A 17020 ExhibitA Proposed Answer to complaint ~ ,- , .,-"'" """'" ._d_.>_ - < -~ : VERIFICATION The language of the foregoing Petition to Open or Strike off Judgment is that of counsel and not necessarily my own; however, I have read the foregoing document and to the extent that it is based upon information that I have given to counsel, it is true and correct to the best of my knowledge, information and belief; to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this verification. I understand that any false statements made herein are subject to the penalties of 18 Pa.C.S. ~ 4904, relating to unsworn falsification to authorities. ~~~h~~~~ - RUTH GERHARDT, Plaintiff COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-5432 CIVIL TERM KENNETH D. MUTZABAUGH, Defendant CNIL ACTION - LAW ANSWER OF DEFENDANT KENNETH D. MUTZABAUGH COME NOW defendant Kenneth D. Mutzabaugh, by his counsel, Jerry A. Philpott, Esquire, and answers the complaint in this matter as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Denied. At the time the work was completed, the plaintiff expressed satisfaction with the work. There were no deficiencies, but there were some deliberately unfinished items that were to be completed afterplaintiffhad an electrical contractorrelocated the main electric panel. Once that ~< "-~ - ~> ^,"'- . - -' '-'--i . was done, defendant completed the patches needed in the siding to cover over the areas affected by the relocation of the main electric service. By way of further answer, the so-called "Deficiencies" (Complaint Exhibit C) were not listed until sometime in the year 2000, about a year after the contract was otherwise complete. Moreover, the "Deficiencies" do not include many of the items for which plaintiff is now claiming the cost of repair. 11. Denied. Plaintiff did contact defendant many times. lnitially, defendant responded to the calls and in fact made many minor adjustments. Later, it became obvious to defendant that plaintiff just wanted someone to talk to and he began to discourage the calls. Plaintiff would want defendant to come see her about an alleged problem, then tell defendant that he could not come forup to three weeks. Other times plaintiffwould want him to come right away when he was at work on another job in Perry County and could not get away. ]2. Admitted. 13. Admitted. 14. Denied for lack of knowledge. Exhibit E speaks for itself. 15. Denied for lack of knowledge. 16. Admitted. COUNT] - BREACH OF CONTRACT ] 7. The answers to paragraphs] through 16 are incorporated herein by reference as though textually set forth at length. 18. Denied. The contract is silent on the issue raised by Paragraph 18 of the complaint and in any case speaks for itself. Defendant did do all the contract work in a good and workmanlike manner, however. - ~-,-. . .-- - -. " - - '"'-, -. ~, 19. Denied. 20. Denied. 21. Denied. Byway of further answer, the work done by HDC includes new work, includes more expensive work than needed just to repair alleged "deficiencies," and was unnecessary. COUNT II - BREACH OF IMPLIED WARRANTY 22. The answers to paragraphs 1 through 16 are incorporated herein by reference as though textually set forth at length. 23. Admitted. 24. Admitted. 25. Admitted. 26. Denied. 27. Denied for the reasons given in answer to paragraph 21. COUNT III - CONSUMER PROTECTION LAW 28. The answers to paragraphs 1 through 16 are incorporated herein byreference as though textually set forth at length. 29. Admitted. 30. Denied. Defendant made no express representations. Defendant did perform his work in a good and workmanlike manner. The alleged "deficiencies" are bogus. Accordingly, defendant misrepresented nothing and is not liable under the Consumer Protection Law. 31. Denied for the reasons given in response to paragraph 11. - . , ^L. WHEREFORE defendant Kenneth D. Mutzabaugh demands that plaintiff' s lawsuit be dismissed. Respectfully submitted, Jerry A. Philpott, Esquire Supreme Court ill #47624 227 No. High Street, PO Box 116 Duncannon, P A 17020 Dated: , ~"""'" VERIFICATION The language of the foregoing Answer is that of counsel and not necessarily my own; however, I have read the foregoing document and to the extent that it is based upon information that I have given to counsel, it is true and correct to'the best of my knowledge, information and belief; to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this verification. I understand that any false statements made herein are subjectto the penalties ofl8 Pa.C.S. S 4904, relating to unsworn falsification to authorities. Kenneth D. Mutzabaugh ~,::;~;;;..,;.-, i:.~_" '''' ~"_.. >~_~~~~ll1illli -' 11III ! C) ~-,.' ') C -'n "'T.} ~~ ~... :.:,~ ["'-'j ~;:'; '.-r,-J ':-_'~ :C;J Z' l~ I ~ --,il ~J e, '=J ~ ,t ~:: ~ ....,) " - ~ ,';:" C-:j --7 ',j t y C; ~",) (3 /-11 c :,---1 :::! ::::> _r> \0 :;':'1 -< .. -~~_.~ , _~ "," _~_ _ c ".. .. .."'~ ".- -." '," , ...., -, ,- """ ._,"'-,-k.. "." ~"_~,"'<' _ ,,~.~ ,'._ .- ~<" " L__'fe.~~, . ,w <, , >...., ";C-'.' > "..--, '-.0,.'1 :1 _~."~ ,- '_, 'j"'" . ".'- RUTH A. GERHARDT, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v : NO. 2000 - 5432 CIVIL ACTION KENNETH D. MUTZABAUGH, Defendant r COURT ORDER AND NOW, this ?I day of May, 2001, upon consideration of the attached Motion to Strike Defendant's Petition to Open Judgment From the Argument Court List, and it appearing from the docket entries of this case that a Rule to Show Cause was not issued by the court on the Petition to Open Judgment as is required under Pennsylvania Rule of Civil Procedure 206.5, it is ordered and directed :s follows: _1_ _ C. e ( t. ) A. p..J..o A. .... >:> - r .,....,.-- 11-" ~ it f'1"""' ~ - "J lI-It JJ, ~ ~,~t;(J),-. ~ ~~Mr..1;J.4k~ Jo()l. The: u.herJf ila3e 13 hl.",b, I~...vy~d hUll. tin:; Jul, :S, 2991 A16\,1111~lIl Cvu. L Ibt. d-"- ~ ~Jw-~ ~ ~~-J()(JI (;t) 'J..,fu."Xf6~ r~ /; ~tt,. . ' (j ,; Deftftaant iJ d;I<:(:tea t~ I'fae<:<:a ill Q\.l\..u.dall\.c wid. '~IIII;>,hHU.i6 Ride sf Civil Pl6le:8ure ~~ J;,rt h l>E#J,6t) ...t~~1? 286.5. 0 cc: Jerry A. Philpott, Esquire Hubert X. Gilroy, Esquire ~~.o\ V~~ , J. ~<" -~ ,~. il#. <~ - " .~ ~- "."",~~. ", ~"-'"' - ." ,~, 'I;~ _, .,~d'; > ,J .,....~). ('C" ".. '~/i n: i; ) " ,) I r'-i,:~::Y t:H g: n! CUj\;ii:;!::": '; "~' CCUNTY PENNSYLV,~~Ni(:\ ;.' ~ IL ,'"' ".," ~ '".- ., ~.-1-,"-,--.;~<,;.-'-' "0_,,","_' ~.!' RUTH A. GERHARDT, Plaintiff v : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2000 - 5432 CIVIL ACTION KENNETH D. MUTZABAUGH, Defendant MOTION TO STRIKE CASE FROM ARGUMENT LIST Plaintiff, Ruth Gerhardt, by her attorneys, Broujos 8r Gilroy, P.c., sets forth the following: 1 The above captioned case involves a contract claim in which Plaintiff entered a default judgement against Defendant. 2 The default judgment was entered against the Defendant on February 26, 2001. 3 Defendant filed a Petition to Open or Strike Off the Default Judgment on April 6, 2001. 4 Defendant never' served Plaintiff's counsel with a certified copy of the Petition to Open or Strike Off Default Judgment. Defendant's counsel did provide Plaintiff's counsel with a courtesy copy of Defendant's counsel's transmission to the Prothonotary which filed the Petition to Open or Strike Off the Default Judgment. 5 The court did not issue any Rule to Show Cause upon the Plaintiff in connection with Defendant's Petition. A copy of the docket entries involved in this case are attached -,"'" '"".,"" - - '_'""'- ".> ."""",-,~ ,.:;;~-_,.c:;'>";,-'d{.':',~:,,,~,_ _-';-"c [1; hereto and marked Exhibit 1I A", said docket entries evidencing that no Rule to Show Cause was ever entered against the Plaintiff. 6 Pursuant to Pennsylvania Rule of Civil Procedure 206.5, the Rule to Show Cause procedure lIshall apply" if the relief sought by the petition is the opening of a default judgment. 7 Rule 206.5 contemplates that the Plaintiff would be afforded an opportunity to file an answer to the petition once the rule is issued. 8 Defendant has listed for argument the Petition by filing a Praecipe with the Cumberland County Prothonotary. A copy of Defendant's transmittal letter and the Praecipe is attached hereto and marked Exhibit liB". 9 Plaintiff's counsel advised Defendant's counsel of the procedural irregularities in this matter by letter of May 11, 2001, a copy of which is attached hereto and marked Exhibit "C". 10 Defendant proceeded with listing the matter for argument despite Plaintiff's counsel's request. ~, ~ ..j -'0..-' ~-__, r..' ''',. ,'""-',-, . ",." ~_.... -'"," '-'~"'-"->, 1 1 Additionally, Plaintiff's counsel is not available for Argument Court in July in the event Defendant desires to again list this matter for Argument. WHEREFORE, Plaintiff requests your Honorable Court to strike this case from the Argument Court list and direct the Defendant to proceed in a manner as required by court rules. Respectfully submitted, Hubert X. Gilroy squire Attorney for P ntiff Broujos 8r Gi roy, P.c. 4 North Hanover Street Carlisle, PA 17013 (717) 243-4574 Court ID No. 29943 Cumberland County Prothonotary's Office Civil Case Inquiry 2000-05432 GERHARDT RUTH (vs) MUTZABAUGH KENNETH D ;.<t._ii!:i"OY PYS510 . -- . . ., "'-TI~ "~-=..... t!f! Page 1 Reference No. . : Case Type.....: COMPLAINT Judgment......: 9195.00 Judge Assigned: Disposed Desc. : ------------ Case Comments ------------- Filed........ : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 8/04/2000 12:36 0/00/0000 0/00/0000 ******************************************************************************** General Index Attorney Info GERHARDT RUTH PLAINTIFF GILROY HUBERT X 381 EASY ROAD CARLISLE PA 17013 MUTZABAUGH KENNETH D DEFENDANT 826 CHURCH STREET DUNCANNON PA 17020 Judgment Index MUTZABAUGH KENNETH D Amount 9,195.00 Date Desc 2/26/2001 FAILURE TO PLEAD ******************************************************************************** * Date Entries * ******************************************************************************** 8/04/2000 8/18/2000 2/26/2001 2/26/2001 2/26/2001 4/04/2001 4/06/2001 5/15/2001 5/15/2001 FIRST ENTRY COMPLAINT - CIVIL ACTION ------------------------------------------------------------------- SHERIFF'S RETURN FILED Litigant.: MUTZABAUGH KENNETH D SERVED : 8/11/00 COMP DUNCANNON PA PERRY COUNTY Costs....: $64.04 Pd By: BROUJOS & GILROY 08/18/2000 ------------------------------------------------------------------- PRAECIPE FOR DEFAULT JUDGMENT AND DEFAULT JUDGMENT ENTERED NOTICE MAILED TO DEFENDANT IMPORTANT NOTICE FILED ------------------------------------------------------------------- CERTIFICATE OF SERVICE FOR DEFTS PETITION TO OPEN OR STRIKE OFF JUDGMENT - BY MELINDA L CHARLES PETITION TO OPEN OR STRIKE OFF JUDGMENT - BY JERRY A PHILPOTT ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFENDANTS PETITION TO OPEN OR STRIKE OFF DEFAULT JUDGMENT - BY JERRY A PHILPOTT ESQ ------------------------------------------------------------------- CERTIFICATE OF SERVICE - FOR PRAECIPE FOR ARGUMENT COURT - BY MELINDA L CHARLES ESQ - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * * Fees & Debits Beq Bal Pvmts/Adi End Bal * ******************************************************************************** ******************************************************************************** * End of Case Information * *******************************************************~*******~~A.\.~*~~~~~**** TRUE COpy ti,ll.JI ....t....t'IU.I In TesHmony whereof, I hue unto set my hand EXHIBIT and the seal of said Court at Carlisle; Pa. . This u~~uu~ clay oL~~..uuu, ~.1 ...u.,.u...~...K.p~~.~y~ COMPLAINT TAX ON CMPLT SETTLEMENT JCP FEE JDMT 35.00 .50 5.00 5.00 9.00 35.00 .50 5.00 5.00 9.00 .00 .00 .00 .00 .00 54.50 54.50 .00 .l! .D :II ((All ,.. M "... ~~l~t)l~P~~l~(Q)ut)u Jerry A. Philpott, Esquire Kevin E. Prosser, Esquire ATTORNEYS-AT-LAW 227 No. High St., PO Box 116 Duncannon, PA 17020-0116 717 834-3087 FAX 834-5437 May 14, 2001 Prothonotary Cumberland County Courthouse South Hanover Street Carlisle, P A 17013 File no. 01-03-08 Re: Gerhardt v. Mutzabaugh No. 2000-5432 Dear Prothonotary: I enclose the Praecipe to List in triplicate in the form required. I have also prepared a Certificate of Service to be filed. A prepared envelope is enclosed for the return of a time stamped copy of each of the above for our records. Once again I appreciate your kindness and attention to this matter. If you have any questions, please do not hesitate to contact the office. Sincerely, 1:::cil"'=-to Jerry A. Philpott Enc!.: Praecipe to List for Argument (in triplicate) Certificate of Service (2) SASE cc: Hubert X. Gilroy, Esquire (w/attachments) Mr. Mutzabaugh (w/attachments) '1'" ill f! EXHIBIT I r( 13 ') = ~" , ""~- -" ,~ . ........ . PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten am subiutted in duplicate) >....O~ n-' ',.~. ,.vV .'.,.' TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter f= the next Argunent Court. --------~------------------------------------------------------------------------------ CAPTION OF CASE (entire captiml must be stated in full) Ruth Gerhardt, (Plaintiff) VB. Kenneth D. Mutzabaugh, (Deferxiant) l'b. 5432 Civil ~ :;>000 1. State matter to be argued (i.e., plaintiff's ItDtion for new trial, deferxiant's demurrer to canplaint, etc.): Defendant's Petition to Open or Strike Off Default Judgment 2. Identify counsel who will argue case: (a) f=plaintiff: Hubert X. Gilroy, Esquire ~s: 4 Hanover Street, Carlisle, PA 17013 (b) f= defendant: Jerry A. Philpott, Esquire ~s: 227 N. High St., PO Box 116, Duncannon, PA 17020 3. I will notify all parties in writing within t1rlO days that this case has been listed for argtment. 4. Argunent Court Date: JUlY 25, 2001 n::.t-~. C2~ / '/ ( ,--- .' -l i . '. ./. C '..i' iAtO f= ? .-/ " ~ , '--,->, --. .~ '-'- "~- ~ -, " RUTH GERHARDT, Plaintiff OP'l ~tJ' IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYL V ANlA v. NO. 2000-5432 CIVIL TERM KENNETH D. MUTZABAUGH, Defendant CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certif'y that I am this day serving a true and correct copy of the Praecipe to List for Argument Court on the person at the address indicated below by first class mail from the U.S. Post Office, Duncannon, PA 17020, which service satisfies the requirements ofP. R. C. P. 440: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.e. 4 Hanover Street Carlisle, P A 17013 JI'/ Melinda L. Charles, secretary to Jerry A. Philpott, Esquire Supreme Court ID #47624 227 No. High Street, PO Box 116 Duncannon, P A 17020 Dated: May 14, 2001 <. ',-, I~", JOHN H. BROUJOS HuaERT X. GILROY BROUJOS & GILROY, P. e. .. . ATTORNEYS AT LAW 4 NORTH HANOVER STREET CARLISLE, PENNSYLVANIA 17013 TELEPHONE: (717) 243-j\574 FACSIMILE: (717) 243-8227 INTERNET: brgilroypc@aol.com NON-TOLL FOR HARRISBURG AREA 717-766-1690 May 11, 2001 Jerry A. Philpott, Esquire 227 North high Street P.O. Box 116 Duncannon, PA 17020-0116 Re: Gerhardt v Mutzabaugh FILE Dear Jerry: For some reason, the Prothonotary sent the enclosed information to me, but I believe it should have been sent back to you. You should be aware of the fact that I have no record of ever formally receiving a signed Rule to Show Cause entered in this matter. The only thing I received from you was a copy of your March 14, 2001 letter to the Prothonotary filing the petition to open or strike off the judgment. Attached to that petition was a proposed court order with a rule to show cause. I never received a time stamped copy of the petition nor did I ever receive any rule to show cause issued by the court. I believe Rule 206.5(a) requires that a rule to show cause be issued after which I will be required to file an answer. After the answer is filed, the matter would then be ripe for argument. I also note that your May 8th letter to the Prothonotary whereby you attempted to list this case for argument was not copied to me, but I do acknowledge that you apparently gave the Prothonotary a self-addressed stamped envelope to mail notice of the argument to me. In the future, please copy me with all correspondence to and filings with the Prothonotary in this matter. I look forward to hearing from you. dca Enclosure cc: Ruth Gerhardt EXHIBIT J (( C Jl II ~1Il1":"'- '~"'-""""II,~!!:li01Jt4it"'t~.'''-''''rWIl\~~~j~~~l1iAlIil~~_ ... .:illo ~ '"-~~ .. Iii' ~- lj C) C:J " , ----;1 )) ! Tl - .',,) ---- ;--,-, t .,.' ? -~~ [~-:;) " , ._;r_. (''-) ,"-.j CJ rn .. :-2: ..,,-! :::> )> _..~ :0 ~-< 0 ~~ "~~. "-,-~ ffi .,,-',-,-" ,_.:w,.., ._, , ,. - ~ -, "- -J:; ., '0';: ''.Cr_: #8 RUTH GERHARDT, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. KENNETH D. MUTZABAUGH : NO. 2000-5432 CIVIL TERM Defendant : CIVIL ACTION - LAW IN RE: DEFENDANT'S PETITION TO OPEN OR STRIKE OFF DEFAULT JUDGMENT BEFORE HESS. GUIDO. JJ. ORDER OF COURT AND NOW, this 30TH day of JULY, 2001, a hearing to resolve the factual issues surrounding Defendant's Motion to Open or Strike Judgment is scheduled for FRIDAY, AUGUST 10.2001. at 10:00 a.m. in Courtroom # 5 ofthe Cumberland County Courthouse, Carlisle, Pac Hubert X. Gilroy, Esquire For the Plaintiff Edwml E, Guido, ~ Jerry A. Philpott, Esquire For the Defendant :sld <\:9 <C 1 ~ ,;, .;: ''.~. ',' , ',;, -' " -; RUTH GERHARDT, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. KENNETH D. MUTZABAUGH, Defendant 00-5432 CIVIL TERM ORDER OF COURT AND NOW, this 10th day of August, 2001, after hearing and after having reviewed the briefs submitted by the parties, and it appearing that there has been, from time to time, a breakdown in the system, the Defendant's petition to open judgment is granted. Edward E. Guido, J. Hubert X. Gilroy, Esquire - NOT APPEARING For the Plaintiff lt ~ ~ f./s'.o/ 9-. Jerry A. Philpott, Esquire For the Defendant ~ '-J _ -,-" -"-"~--' ~ .. "~.. ,T _ ~_",. .,-, " . ,..' ~ ,,- \\" } ')'0 'u.? I'll r \ J " ~\\\" ' ,.\-N ,~\ ..\~ "J~\j"\\ \ \j '., ,(J l ,.;,,\1 ,\t!l. . '" W \l1'\'11f' C\)\,i'~~\.G'{\" \ "'''''''''' ..- '.>,.". _ 1'RI1_,~_~.~ .~ll-*,rkf!ll'l~'!~~~~~ ..... -........ 11 _ .. .,.Rm. !'<l1"llI~~ ,,; " ~ '.1. J_ ...- ,~. =0 _ _:'^ , Jr . . RUTH GERHARDT, Plaintiff IN COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-5432 CIVIL TERM KENNETH D. MUTZABAUGH, Defendant CIVIL ACTION - LAW PRAECIPE Pursuant to Judge Guido's Order of August 10,2001, opening the judgment, which had the same effect as striking the judgment, please strike the judgment that is on your judgment index at the above captioned docket number. l..-/' Dated: January 29, 2002 Enc!.: Copy of August 10 Order cc: Hubert X. Gilroy, Esquire Brenda Albright, Prothonotary of Perry County February 14, 2002, Judgment is Stricken. Curtis R. Long, Prothonotaxy ~ lBy:~O~~~[}.7J;/l~ r6 ~~!lij~jii<1~iE<~&8llil~~~~""'-lllfH<I#$.fu"~~' -"-,,, .'><=-'lilg~ .-~ ~'~1MllIlI!iII!l"'" ...~ -.-~ ~-iIiiiiiIl "-, , . l- i ~ 0 ~ .::::;, C ;'0 B <:'" -" l.J B\ ;~j "'1 CO ~ ...... -V D '.~ ~ I( ~ ~0 :r~"~ -J " ~ 0 1 ~, v:J " ~ :2: ---{ -.c <0 ,L ,_,_ :'J~ _ . ""u,~.._,_7.~ _ &K,_ .,_,._<"_.,. , "",.s_. .1.-'. /'-'--"-~'^ '-~'~- . ~~" "~ -,' __. ,'_o<_,'C . ., ,_ ~ ". 'l ~~" - .~~~ - ~" ~" .~-.- - , . -' It duo/-d)J V. j"'"'::::--~ IN THE COURT cftlJ;,t, ,.-'~' "'--~~~S;;-f;lK__",' CUMBERLAND COUN.T,~ Jl' YEytANIK ,',' , :::::,-, . I,. (" ' 7/.., '. --- I) ; ,:! J, r 6 2007 i IIi ~ ;' ~____ ,fir (00-5~432 CIVIL T,~ --__.,10/ u___ ~ RUTH GERHARDT, Plaintiff KENNETH D. MUTZABAUGH, Defendant ORDER OF COURT AND NOW, this 10th day of August, 2001, after ~~aring and after having reviewed the briefs submitted by the parties, and it appearing that there has been, from time to time, a breakdown in the system, the Defendant's petition to open judgment is granted. By the Court Edward E. Guido, J. Hubert X. Gilroy, Esquire - NOT APPEpRING For the Plaintiff Jerry A. Philpott, Esquire For the Defendant It HiUE COPY FROM RECORD In Testimony whereaf, I here unto set my [12M ana the seal of said Court at Carlisle, Pac This 15~ day ot.;!,::r:'" ~I (lnlL- () I ~"~r I , Prothonotart -1.- U' i{:j RUTH A. GERHARDT, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v : NO. 2000 - 5432 CIVIL TERM KENNETH D. MUTZABAUGH, Defendant : CIVIL ACTION - LAW BRIEF OF PLAINTIFF ON DEFENDANT'S MOTION TO OPEN OR STRIKE OFF JUDGMENT I. Facts and Procedural Historv. On May 17, 1999, Plaintiff Ruth Gerhardt entered into a contract with Defeudant Kenneth D. Mutzabaugh, trading as Ken-Do Contractiug, for certain renovations to Plaintiffs home at 381 Easy Road, Carlisle, Penusylvania. With some change orders, the total contract price was $28,145.64 which Plaintiff paid to Defendant. Defendant did not complete the work pursuant to the contract, and a number of deficiencies existed with respect to the work that was not completed. Prior to instituting suit, Plaintiffs counsel on September 27, 1999 wrote a letter to Defendant (Exhibit "D" of Complaint) advising Defendant of the deficiencies in the work and asking the Defendant to contact the Plaintiff. Defendant failed to respond to this letter. Plaintiff then retained another contractor and paid $9,195.00 to complete the work and rectify the deficiencies in Defendant's work (Exhibit "E" of Complaint). By letter from Plaintiffs counsel dated March 9, 2000 (Exhibit "B" of Plaintiffs Answer to Petition to Open Judgment), Plaintiff submitted the invoice of $9,195.00 to Defendant and requested reimbursement. Defendant failed to respond. 1 , I, '". 'e'Ji~ Both the September 27, 1999 letter and the March 9, 2000 letter to Defendant from Plaintiff's counsel were sent to Defendant's address of 826 Church Street, Duneannon, Pennsylvania, 17021. Neither letter was returned. Plaintiff ins.tituted suit in the above matter against the Defendant by filing a Complaint with Notice to Plead on August 4, 2000. The docket entries in this case from the Prothonotary (copy attached to this brief and marked Exhibit "A") indicated a Sheriff's return was filed on August 18, 2000 showing that Defendant was served on August 11, 2000. The Sheriff's return indicates service was accomplished at Defendant's residence at 826 Church Street, Duncannon, Pennsylvania. On September 5, 2000, Plaintiff's counsel mailed Defendant a Notice indicating an intention to enter a default judgment. Mailing was done to Defendant's same address of 826 Church Street, Duncannon, Pennsylvania. The mailing was not returned. On February 26, 2001, Plaintiff filed a Praecipe for Entry of a Default Judgment with the Prothonotary along with a certification of the Notice mailed to the Defendant in September 2000. Although the docket entries for Cumberland County do not reflect the same, Plaintiff acknowledges that Defendant's attorney copied Plaintiff's lawyer with a March 14, 2001 letter from Defendant's attorney, received on March 16, 2001, which was the Petition to Open or Strike Off Judgment (Petition) at issue. The docket entries indicate that Defendant's Petition was filed on April 6, 2001. Defendant next listed the Petition for Argument on May 15,2001. On May 25, 2001, Plaintiff filed a Petition to Strike the Case 2 1- . ~ .~.. ~ from the Argument List suggesting Defendant did not follow the appropriate rules and that all proceedings filed in this case were in violation of Pennsylvania Rule of Civil Procedure 206.5. By Order of Court dated May 31, 2001, the Honorable Edward E. Guido issued a Rule upon Plaintiff to Show Cause why the Petition should not be granted, and also denied Plaintiff's request to have the case removed from the July 25, 2001 argument court list. On June 7, 2001, Plaintiff filed an Answer to the Petition which included New Matter raising various allegations offact. Defendant filed a reply to Plaintiff's New Matter on June 22, 2001. The matter is now before the court for argument. Pursuant to Cumberland County Rule 210-6, Defendant's brief on the Petition was due to be filed with the court and opposing counsel on July 13,2001. No brief has been filed for the Defendant. II. Arl!ument. Plaintiff's Answer to the Petition alleged various disputed issues of material fact in the New Matter, the primary fact being the issue of whether Defendant received the September 5, 2001 letter of Notice of Intention to Enter Judgment. Defendant denies in his Petition having received said Notice. However, Plaintiff's counsel alleges in the New Matter that the Notice was mailed on September 5, 2000 with the mailing address being to the same address where Defendant was served with the Complaint and the same address where the Defendant received two prior letters from Plaintiff's counsel. None of the Notices sent to the Defendant were returned, and Plaintiff alleged that the September 5, 2000 Notice of Intention to Enter Default Judgment was served on the Defendant. 3 "'" ~, ~, ~ .~ I ~~~ ' 'l:t!:j Defendant filed an Answer to PI:aintifrs New Matter denying that the Defendant received the September 5, 2000 Notice of Intention to Enter Default Judgment. However, in spite of this disputed issue of a material fact, Defendant did not proceed with depositions or other such discovery as the court would allow pursuant to Pennsylvania Rule of Civil Procedure 206.7(c). Accordingly, the Petition before the court must be decided on the Petition and Answer and, pursuant to Rule 206.7(c), "...all averments of fact responsive to the Petition and properly pleaded in the Answer shall be deemed admitted..." by the Petitioner. Accordingly, for purposes of resolution of this issue, Defendant has admitted that he received the September 5, 2000 Notice of Intention to Enter Default Judgment. Based upon this admission, the history of this case turns upon the following timetable: September 27,1999 Plaintifrs Counsel's letter to Defendant - Defendant does not respond. March 9, 2000 Plaintifrs Counsel's letter to Defendant - Defendant does not respond. August 4, 2000 Complaint with Notice to Plead filed. August 11, 2000 Complaint with Notice to Plead served on Defendant - Defendant takes no action. September 5, 2000 Notice of Intention to Enter Default Judgment mailed to Defendant. February 26, 2001 Praecipe for Entry of Default Judgment filed. March 16,2001 Plaintifrs counsel receiving copy of letter from Defendant's Attorney to Cumberland County Prothonotary whereby Defendant attempts to file a Petition to Open or Strike Judgment. 4 ~"'~ '~liii April 6, 2001 Cumberland County Prothonotary records reflect that Defendant's Petition to Open or Strike Judgment was filed. May 15,2001 Defendant lists case for Argument. May 25, 2001 Plaintiff petitions to strike case from argument list May 31, 2001 Order of Court issuing a Rule upon Plaintiff to show cause why Petition should not be granted, and also denying Plaintiff's request to have case removed from argument court list. June 7, 2001 Plaintiff's Answer with New Matter to Petition. June 22, 2001 Defendant's Reply to Plaintiff's New Matter. Ordinarily, the entry of a default judgment is conclusive. A Petition to Strike the Judgment may be granted only when a fatal defect appears on the face of the record, Parliament Industries v William H. Vaue:hn & Company, 501 Pa.l, 459A.2d 720 (1983). Defendant has not alleged any fatal defect on the record and, for that reason, Defendant's Petition to Strike the Judgment must be denied. Petitioner has also requested the court to open the judgment. A Petition to Open is addressed to the equitable powers of the court. As set forth in Central Penn National Bank v Williams, 523 A.2d 1166,362 Pa.Super.229 (1987), a court should not open a judgment unless the Petitioner meets the following requirements: 1. The petition has been filed promptly. 2. The failure to act on the original complaint can be reasonably explained. 3. The petitioner avers a meritorious defense to the underlying claim. Plaintiff suggests the Defendant has failed on all three requirements. 5 "" _ J ,. .~ e "'_ PETITION NOT PROMPTLY FILED The record shows that the Default Judgment was entered on February 26, 2001. The Petition to Open Judgment was filed with the Prothonotary on April 6, 2001, thirty- nine (39) days after entry of the Judgment. Plaintifrs counsel admits that he received on March 16,2001 a copy of a letter that included a petition to open a judgment which Defendant was apparently attempting to file with the Prothonotary. Even assuming that Defendant did file on March 16th, this represented an eighteen (18) day delay from the date of entry of the judgment. Neither eighteen days nor thirty-nine days represents a prompt filing by the Petitioner, and Petitioner has not met that requirement. DEFENDANT'S FAILURE TO ACT ON THE ORIGINAL COMPLAINT HAS NOT BEEN REASONABLY EXPLAINED Defendant acknowledges in his Petition that he received the complaint and did not answer it (See paragraph 3 of Petition). However, Petitioner does not offer any reason as to why he failed to respond to the original complaint. The original Complaint included a Notice to Plead. It was served on the Defendant on August 11,2000. The default judgment was not entered for over six (6) months. This is not a situation where the Plaintiff took a snap judgment on the Defendant. The record discloses that the Defendant ignored a September 27, 1999 letter from Plaintifrs attorney, that he ignored a March 9, 2000 letter from Plaintifrs attorney, that he 6 '0. ~ ". ~"- " ." J-01 " .~,! ignored a Complaint with a Notice to Plead served on him on August 11,2000, and that he ignored a Notice of Intention to Enter Default Judgment mailed to him on September 5, 2000. Defendant had numerous opportunities to respond and failed to do so. This case is strikingly similar to Central Pennsvlvania National bank v Williams, supra. In that case, the court refused to open a $68,000.00 judgment that had been entered twelve (12) days after the Notice of Intention to Enter Default Judgment had been mailed to the Defendant even though the Defendant claimed he never received the Notice. As in this case, the Defendant in Central Pennsvlvania listed the case for Argument on Petition and Answer and the court determined pursuant to then Rule 209, now Rule 206.7, that the Phlintiffs allegations of having mailed the Notice of Intention to Enter Default Judgment must be deemed accurate and the Defendant's denial of having received the notice cannot be considered. The court went on to state in Central Pennsvlvania that even if the Defendant had supported by deposition his factual assertions that he did not receive the Notice of Intention to Enter Default Judgment, those assertions would not compel the opening or striking of a default judgment as long as the appropriate Notice under Rule 237.1 was mailed to the Defendant at a good address. There is no allegation in the Defendant's Petition that the address used by Plaintiffs counsel was not the appropriate address. The record is void of any reasonable explanation why the Defendant waited until March of 2001 to respond to a complaint that had been served upon him in August of 2000. 7 ~I ~~ L J'j;" Defendant has not met the requirement of offering a reasonable explanation for failure to act on the original Complaint. THE DEFENDANT HAS NOT ALLEGED A MERITORIOUS DEFENSE TO THE UNDERLYING CLAIM Attached to the Petition is an Answer Defendant would attempt to file in this case. The Answer merely represents a general denial of the claims of the Plaintiff in the Complaint. Defendant does not assert any unique meritorious defense. Furthermore, by virtue of Defendant's listing the case for argument and not proceeding with depositions, Defendant has again admitted the allegations of Plaintiff's Answer to the Petition in which Plaintiff asserted Defendant did not have a meritorious defense (See Paragraphs 5 and lOC of Defendant's Answer to Petition to Open or Strike Off Judgment). The Defendant has not met his burden to advance a meritorious defense to the underlying claim. 8 '. ~,.....,.' I ' ,,' l' III. Conclusion Plaintiff requests this court deny Defendant's Motion to Open or Strike Off the Judgment entered in the above matter. Respectfully submitted, t?t~ quire Attorney for Plai iff Broujos & Gilro , P.c. 4 North Hanover Street Carlisle, P A 17013 (717) 243-4574 9 ..~~ ~~ --~~~ "'.......... PYS510 Cumberland County Prothonotary's Office , Civil Case lfiquiry 2000-05432 GERHARDT RUTH (vs) MUTZABAUG~ KENNETH D Page 1 Reference No. . : Case Type.....: COMPLAINT Judgment...... 9195,00 Judge Assigned: Disposed Desc. : ------------ Case Comments ------------- Filed........ : Time......... : Execution Date Jury Trial.. . . D~sposed Date. Hlgher Crt 1.: Higher Crt 2.: 8/04/2000 12:36 0/00/0000 0/00/0000 ************************~******************************************************* General Index Attorney Info GERHARDT RUTH PLAINTIFF GILROY HUBERT X 381 EASY ROAD CARLISLE PA 17013 MUTZABAUGH KENNETH D DEFENDANT 826 CHURCH STREET DUNCANNON PA 17020 Judgment Index MUTZABAUGH KENNETH D Amount Date Desc 2/26/2001 FAILURE TO PLEAD 9,195.00 ******************************************************************************** * Date Entries * ******************************************************************************** 8/04/2000 8/18/2000 2/26/2001 2/26/2001 2/26/2001 4/04/2001 4/06/2001 5/15/2001 5/15/2001 5/24/2001 5/31/2001 6/07/2001 6/22/2001 FIRST ENTRY COMPLAINT - CIVIL ACTION SHERIFF'S RETURN FILED Litiqant.: MUTZABAUGH KENNETH D SERVED : 8111/00 COMP DUNCANNON PA PERRY COUNTY Costs....: $64.04 Pd By: BROUJOS & GILROY 08/18/2000 ------------~------------------------------------------------------ PRAECIPE FOR DEFAULT JUDGMENT AND DEFAULT JUDGMENT ENTERED ------------~-------------------------------------~---------------- NOTICE MAILED TO DEFENDANT IMPORTANT NOTICE FILED CERTIFICATE OF SERVICE FOR DEFTS PETITION TO OPEN OR STRIKE OFF JUDGMENT - BY MELINDA L CHARLES ------------~------------------------------------------------------ PETITION TO OPEN OR STRIKE OFF JUDGMENT - BY JERRY A PHILPOTT ------------~------------------------------------------------------ PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFENDANTS PETITION TO OPEN OR STRIKE OFF DEFAULT JUDGMENT - BY JERRY A PHILPOTT ESQ ------------~------------------------------------------------------ CERTIFICATE OF SERVICE - FOR PRAECIPE FOR ARGUMENT COURT - BY MELINDA L CHARLES ESQ ------------------------------------------------------------------- MOTION TO STIKE CASE FROM ARGUMENT LIST - BY HUBERT X GILROY ESQ FOR PLFF ------------------------------------------------------------------- COURT ORDER - DATED 5/31/01 - IN RE MOTION TO STRIKE DEFTS PETITION TO OPEN JUDGMENT FOR THE ARGUMENT COURT LIST AND IT APPEARING FROM THE DOCKET ENTRIES OF THAT A RULE TO SHOW CAUSE WAS NOT ISSUED BY THE COURT ON PETITION TO OPEN JUDGMENT AS IS REQUIRED UNDER PA RULE OF CIVIL PROCEDURE 206.5 IT IS ORDERED AND DIRECTED AS FOLLOWS - A RULE IS ISSUED UPON PLFF TO SHOW CAUSE WHY THE PETITION TO OPEN JUDGMENT SHOULD NOT BE GRANTED RULE RETURNABLE 6/22/01 - ARGUMENT COURT LIST IS DENIED AT THIS TIME - BY THE COURT EDWARD E GUIDO J COPIES MAILED 5/31/01 ------------------------------------------------------------------- ANSWER TO PETITION TO OPEN OR STRIKE OFF JUDGMENT - BY HUBERT X GILROY ESQ FOR PLFF ------------------------------------------------------------------- PETITIONING DEFENDANT'S REPLY TO NEW MATTER - BY JERRY A PHILPOTT ESQ - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - EXHIBIT <A )) ******* * ******************************************************** * Escrow Information ~~-' ,. l oM ~-~ =---~ ~ ~ ....~~~,. RUTH GERHARDT, Plaintiff COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-5432 CIVIL TERM KENNETH D. MUTZABAUGH, Defendant CIVIL ACTION - LAW DEFENDANT'S BRIEF ON IDS MOTION TO OPEN ORSTRIKE OFF JUDGMENT Defendant Kenneth D. Mutzabaugh disagrees with plaintiffs recitation of the facts and procedural history in only two respects: (1) he insists that he did do the work under the contract and any deficiencies were minor and hardly warrant the size of the default judgment in this matter; and (2) he never knew about the intention to take a default until he received the copy attached to the praecipe to enter judgment, which finally led him to contact an attorney. In a case riddled with misplaced mail, that is not surprising. Although plaintiffs counsel candidly admits receiving on March 16,2001, a courtesy copy of the letter mailing the petition to open or strike off the judgment, he makes an issue out of the failure of the petition to get docketed until May 31, 2001. Defendant has no explanation for that either and willjust struggle through with the argument. ARGUMENT Defendant will focus his argument on the petition to open the judgment. At this juncture, there are no irregularities or defects on the face of the record that would warrant "striking off' the judgment. The power of the Pennsylvania courts to open judgments is ample, and policy requires its ~.J ~ _ ~ "_.c.._..=_ '~ ~,', ._~, liberal use, the goal being to achieve justice between the parties. Kwasnik v. Hahn, 419 Pa.Super. 180,615 A.2d 84 (1992). The judgment in this case is a default judgment. It is the policy of the courts to be liberal in the exercise of its equity power in this area. Kwasnik v. Hahn, 419 Pa.Super. 180,615 A.2d 84 (1992). "A long line of cases has established the principles that: .., reliefwill be given to one against whom a default judgment has been taken where a petition is promptly filed, the default reasonably explained or excused, and a defense shown to exist upon the merits." Wheel v. Park Building, 412 Pac 545, 546, 195 A.2d 359,361 (1963). "PromntIv filed" Plaintiff makes much of the failure to the formal filing of the petition to appear on the docket, although she admits a courtesy copy of the petition was in her attorney's hands on March 16, only 18 days after the praecipe to take the default was filed. Defendant Mutzabaugh in his "Reply to New Matter" asserts in a verified pleading that he fIrst became aware of the praecipe to take the default on March 9 and promptly contacted an attorney, believing that such a document was actually the ten-day notice of intention to take the default, of which he had no prior awareness. Within two days of his appoinbnent with the attorney, the instant petition to open had been placed in the mail to the Prothonotary. Clearly, plaintiffs counsel received his copy; defendant has no explanation for what happened to the original, although it had to be somewhere in the Cumberland County Courthouse because, without steps being taken to file it again, it materialized on May 31. Defendant contends that equity requires that the prompt mailing of the petition properly addressed satisfies the requirement of prompt filing. "Reasonablv exnlained or excused" Defendant makes no excuses for his previous failures to respond to court papers. However, he adamantly denies ever being aware of a notice of intention ~- .-~ ~ .-~"'-=.. ~"""""'~.~ J ._ ~'~ii~- to take a default and took prompt action once he became aware of it. He does not deny that his address has been the same throughout. He does not deny receiving other items to which he did not respond, such as the initial complaint and the subsequent praecipe to take the default. What possible explanation could he give? One either receives mail or one does not. Apparently the Prothonotary did not receive a letter that plaintiff s counsel did receive. Perhaps the presumption that the postal service never fails is inappropriate in a court of equity. "A defense shown to exist noon the merits" The answer attached to the petition to open disputes several allegations of the complaint. It is easy, of course, to say that the work was done properly and there were no deficiencies. However, the answer also contains the allegation that ''the work done by [the new contractor] includes new work, includes more expensive work than needed just to repair alleged 'deficiencies,' and was unnecessary." What should most appeal to a court of equity is that plaintiff is taking a default on a claim that defendant asserts is inflated by a claim for new work. Homeowner/contractor disputes are fact-intensive and contentious. However, a homeowner who hires a replacement contractor and then tries to recover from the original contractor payment for new work that was never even part of the original contract does not come to this court with clean hands. It is a meritorious defense to a contract claim to allege that the repair bill includes work in addition to any necessary repairs. The procedural qnal!lllire in this case Counsel calls to the Court's attention that the rules for petitions were changed in 1996. See Pa.R.C.P. 206.1 - .7. Counsel readily admits that he did not know this until he started to prepare this brief. Rule 206.5 calls for a specific form of "Rule" to cover a petition. Counsel did not follow that procedure. On the other hand, when the Court issued the rule on May 31, it did not use the rule that counsel had attached. Nor does the Court's "rule" comply with Rule 206.5 any more than counsel's ~ ., ' ~ll11llil'iJtii...[."',__, did. In particular, new rule 206.5 calls for the Rule to set a deposition schedule. Counsel for plaintiff complains that no depositions have been taken. Defendant has averred in a verified pleading that he did not get the notice of intention to take a default. A deposition could have been taken to get more detail on that denial. It is hard to see what more can be said than "I never saw it." However, no depositions were taken. Another oddity of the procedural posture of this case is the plaintiff put "new matter" in her answer to the petition. The rules do not seem to contemplate that. Defendant, however, replied to the new matter in a verified pleading. If, as stated in new rule 206.7, matters pleaded in the answer are deemed admitted where depositions are not taken, what does the controversion of those matters in a reply accomplish? How can that which is denied in a reply be deemed admitted? Local rules would require that this brief be filed on July 13, twelve days before argument. On July 16, defendant's counsel received a post card calling attention to those local rules, although it is dated July 5. The plaintiff's brieffollowed by fax not long after. Counsel apologizes for any inconvenience to the Court due to the belated filing. The mails are obviously not very reliable. Counsel points these matters out because of the way the higher courts have dealt with similar glitches in the past. See, for example, Kwasnikv. Hahn, 419 Pa.Super. 180,615 A.2d 84 (1992), where the Superior Court reversed and remanded for the taking of depositions under old Rule 209, now replaced by 206.1 et seq. If the Court feels that a more thorough factual record is necessary, defendant asks for the opportunity to conduct depositions, the deadline for which was never set as required by new rule 206.5. Conclusion For the foregoing reasons, defendant Kenneth Mutzabaugh asks that his petition to have the default judgment be opened be granted and that his answer be accepted as the answer in this case. Dated: July 20,2001 cc: Ken Mutzabaugh Hubert X. Gilroy, Esquire - '. ~. ''" ~- ~ " ~ , JOHN H. BROUJOS HUBERT X. GILROY BROUJOS & GILROY, P. e. ATTORNEYS AT LAW 4 NORTH HANOVER STREET CARUSLE, PENNSYLVANIA 17013 TELEPHONE: (717) 243-4574 FACSIMILE: (717) 243-8227 INTERNET: brgilroypc@aol.com ~ NON-ToLL FOR HARRISBURG AREA 717-766-1690 August 15, 2001 The Honorable Edward E. Guido Cumberland County Courthouse Carlisle, P A 17013 ugh C/VI "L Dear Judge: I understand that there was a hearing last Friday in the above referenced case and that no one from our office was in attendance to represent the Plaintiff. First of all, I would like to apologize to theCourt for any inconvenience caused by our offices failure to appear at the hearing. We have a great deal of respect for the court's calendar, and we would not intentionally disregard a notice to appear for a hearing. I can easily say that this has never happened before in twenty-two years of practicing law. Secondly, I would like to indicate that no one in my office had any notice of the scheduled hearing date. Both my secretary, Bridget Corcoran, and I were aware that a hearing was to be scheduled in this case and we were both waiting for notice from the Court scheduling a hearing date. My secretary does not recall anything coming through the mail scheduling a hearing, I don't recall anything coming through the mail scheduling a hearing, there was nothing on my calendar indicating a hearing had been scheduled by a phone call from your office prior to the issuance of the ordelf and a check with Mr. Broujos and other staff in the office confirmed that no one in our office had notice that a hearing had been scheduled. The purpose of this letter is to formally apologize to the Court, and this letter is not intended to request the Court to reconsider its decision. ... '" The Honorable Edward E. Guido August 15, 2001 Page 2 Thank you for your attention to this matter. bc Sincerely yours, ~lrOY ~ - . --" lIiri o o ,. , RUTH GERHARDT, Plaintiff v : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2000 - 5432 CIVIL TERM k KENNETH D. MUTZABAUGH, Defendant : CIVIL ACTION - LAW PRAECIPE fi Please enter judgment in favor of Plaintiff, Ruth Gerhardt, against Defendant Kenneth D. Mutzabaugh in the amount of $9,195.00 plus interest from May 1, 1999 and costs of prosecution. Judgment is entered pursuant to the Defendant's failure to file a responsive pleading to the Complaint. The undersigned counsel hereby certifies that notice of ,t- i: I !' I;' I': I'; intention to enter this default judgment was sent to the Defendant Kenneth D. Mutzabaugh by regular mail on September 6, 2000 at his address at 826 Church Street, Duncannon, Pennsylvania. A copy of said notice is attached hereto and marked Exhibit () C-~ C~ ,.~] -r-:lf-..; '1 ,; ~It:,; ~~~] .," . f: "An. Respectfully submitted, Hubert . Gilroy, Esquire Attor ey for Plaintiff Broujos 8r Gilroy, P.c. 4 North Hanover Street Carlisle, PA 17013 (717) 243-4574 ... PETITIONER'S " ~ EXHIBIT ~ I ~ -- w~.IO'OII..-~" ,"""~ ~"- .. ..,.,~. ~ ,. JOHN H. BROU)OS HuBE1<r X. GILIlOY Kenneth D. Mutzabaugh Ken-Do Contracting 826 Church Street Duncannon, PAl 7020 Dear Mr. Mutzabaugh: BR~OS & GILROY, P.c. ATTORNEYS AT LAW 4 NOKlH HANOVER STREET CARLISLE, PENNSYLVANIA 17013 September 5,2000 I, . . -", -, o ~ TELEPHoNE: (717) 243,4574 FACSIMILE: (717) 24$-8227 INrERNEt:brgilroypdilaol.com NON-Tau. FOR HA1uusBURC AREA 717-766-1690 I' FE! Enclosed for service upon you is a Notice indicating an intention to enter judgment against you in the case of Ruth Gerhardt v. Kenneth D. Mutzabaugh. dch Enclosure . Sincerely yours, t EXHIBIT (~)) . _ --=-'"'-f'-" r-~-M ~. . --' ~ . " _,.J~ ..' ,. ,~ . o 0 RUTH GERHARDT, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v : NO. 2000 - 5432 CIVIL TERM KENNETH D. MUTZABAUGH, Defendant : CIVIL ACTION - LAW To: Kenneth D. Mutzabaugh Ken-Do Contracting 826 Church Street Duncannon, P A 17020 IMPROT ANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGEMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A 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 CA~ GET LEGAL HELP. .1 ] Cumberland County Bar Association 2 Uberty Avenue Carlisle, Pennsylvania 717-249-3166 Date: September 6,2000 . ubeit X. Gilroy, Esq . e Attorney for Plaintiff Broujos 8r Gilroy, P.c. 4 North Hanover Street Carlisle, PA 17013 (717) 243-4574 "''''''''-'~ " J\pn 0 9 20~~ . RUTH GERHARDT, Plaintiff IN COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-5432 CIVIL TERM KENNETH D. MUTZABAUGH, Defendant CIVIL ACTION - LAW RULE TO OPEN OR STRIKE OFF DEFAULT JUDGMENT AND NOW, this _ day of March, 2001, on motion ofJerry A. Philpott, Esquire, counsel for Kenneth D. Mutzabaugh, defendant, the Court grants a rule on plaintiff to show cause why the judgment should not be opened and defendant Kenneth D. Mutzabaugh let into a defense. Rule returnable twenty (20) days from service. Proceedings to execute on the judgment to stay until determination of the rule. BY THE COURT J. ~I ,~ ~1!l RUTH GERHARDT, Plaintiff COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-5432 CIVIL TERM KENNETH D. MUTZABAUGH, Defendant CIVIL ACTION - LAW 000 ~ ~ "ll -01..._'-' ~"O _c_ '"1 nlrTl ;:CJ .:~F' ~ ~.~.'.: Cl ~? --""'.cC_ _ ~: !-i ~ c:~' -0 ~. '_,-: _" ~~ c. ::h ..,;' \. " j;C;: ~ 7>5,n COMES NOW Kenneth D. Mutzabaugh, the above defendant, by his counsel Jerry~. P~ott,~ ::< <0 '< Esquire, and petitions the Court to open or strike off a default judgment entered against him on February PETITION TO OPEN OR STRIKE OFF JUDGMENT 26,2001, and in support of his petition states as follows: 1. Petitioner is Kenneth D. Mutzabaugh, residing at 826 Church St., Duncannon, Perry County, Pennsylvania 17020. He is a contractor. 2. Petitioner did the contract work that is the subject ofthis lawsuit. 3. Petitioner acknowledges receiving the complaint in this matter and not answering it. 4. He denies everreceiving in September 2000 the "IMPROT ANT NOTICE" I sic] or any other document letting him know that the plaintiff intended to take a default judgment. The first he became aware ofthe notice was when he saw it attached to the praecipe to enter judgment. He promptly contacted an attorney, thinking he had 10 days to deal with the paperwork. 5. Petitioner/defendant has numerous defenses to the complaint filed in this matter ifhe is allowed to plead. See Exhibit A hereto, the answer that he would file if the judgment is opened or stricken off. WHEREFORE defendant Kenneth D. Mutzabaugh asks for a rule to show cause why the default judgment against him should not be opened or stricken off and after a response to the rule that said -",. ~ """'=-<. judgment be opened or stricken off and that he to file an answer in accord with Exhibit A. Dated: March 13,2001 ExhibitA hilpott, E quire S pr e Court ID 7624 No. High Street, PO Box 116 uncannon, P A 17020 Proposed Answer to complaint ~,- ~ ~-- VERIFICATION The language of the foregoing Petition to Open or Strike off Judgment is that of counsel and not necessarily my own; however, I have read the foregoing document and to the extent that it is based upon information that I have given to counsel, it is true and correct to the best of my knowledge, information and belief; to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this verification. I understand that any false statements made herein are subject to the penalties of 18 Pa.C.S. 9 4904, relating to unsworn falsification to authorities. /f-"N*~_'~ "Kenneth D. Mutzab gh ~~ RUTH GERHARDT, Plaintiff COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-5432 CIVIL TERM KENNETH D. MUTZABAUGH, Defendant CIVIL ACTION - LAW ANSWER OF DEFENDANT KENNETH D. MUTZABAUGH COME NOW defendant Kenneth D. Mutzabaugh, by his counsel, Jerry A. Philpott, Esquire, and answers the complaint in this matter as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Denied. At the time the work was completed, the plaintiff expressed satisfaction with the work. There were no deficiencies, but there were some deliberately unfinished items that were to be completedafterplaintiffhad an electrical contractor relocated the main electric panel. Once that ~~ ~ " ~ , ~~, ~, "-* was done, defendant completed the patches needed in the siding to cover over the areas affected by the relocation of the main electric service. By way of further answer, the so-called "Deficiencies" (Complaint Exhibit C) were not listed until sometime in the year 2000, about a year after the contract was otherwise complete. Moreover, the "Deficiencies" do not include many of the items for which plaintiff is now claiming the cost of repair. 11. Denied. Plaintiff did contact defendant many times. Initially, defendant responded to the calls and in fact made many minor adjustments. Later, it became obvious to defendant that plaintiff just wanted someone to talk to and he began to discourage the calls. Plaintiff would want defendant to come see her about an alleged problem, then tell defendant that he could not come for up to three weeks. Other times plaintiff would want him to come right away when he was at work on another job in Perry County and could not get away. 12. Admitted. 13. Admitted. 14. Denied for lack of knowledge. Exhibit E speaks for itself. 15. Denied for lack of knowledge. 16. Admitted. COUNT I - BREACH OF CONTRACT 17. The answers to paragraphs 1 through 16 are incorporated herein by reference as though textually set forth at length. 18. Denied. The contract is silent on the issue raised by Paragraph 18 of the complaint and in any case speaks for itself. Defendant did do all the contract work in a good and workmanlike manner, however. ~ ~~ - "'l!:;' VERIFICATION The language of the foregoing Answer is that of counsel and not necessarily my own; however, I have read the foregoing document and to the extent that it is based upon information that I have given to counsel, it is true and correct to the best of my knowledge, information and belief; to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this verification. I understand that any false statements made herein are subject to the penalties ofl8 Pa.C.S. ~ 4904, relating to unsworn falsification to authorities. Kenneth D. Mutzabaugh - -,. ,0.<-,. .. APIl 0 9 20010fJ RUTH GERHARDT, Plaintiff IN COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-5432 CIVIL TERM KENNETH D. MUTZABAUGH, Defendant CIVIL ACTION - LAW RULE TO OPEN OR STRIKE OFF DEFAULT JUDGMENT AND NOW, this _ day of March, 2001, on motion ofJ erry A. Philpott, Esquire, counsel for Kenneth D. Mutzabaugh, defendant, the Court grants a rule on plaintiff to show cause why the judgment should not be opened and defendant Kenneth D. Mutzabaugh let into a defense. Rule returnable twenty (20) days from service. Proceedings to execute on the judgment to stay until determination of the rule. BY THE COURT J. ~- .=_",l, . RUTH GERHARDT, Plaintiff COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-5432 CIVIL TERM KENNETH D. MUTZABAUGH, Defendant o C) C) C ';"1 ""'i."] ;:: ,., - ~J n-!f'l ~g :."1 ~ t~~~ 6'1 -</- c:::c; --0 :~~~ -...,," )>c-:. ....""" :2 .. ;ee, COMES NOW Kenneth D. Mutzabaugh, the above defendant, by his counsel J erry?t. Pl@ott~ CIVIL ACTION - LAW Oil l::-~'.l -' ~-:) PETITION TO OPEN OR STRIKE OFF JUDGMENT ," ~,:n c"-.... :--'-\;-".(1 Esquire, and petitions the Court to open or strike off a default judgment entered against him on February 26,2001, and in support of his petition states as follows: 1. Petitioner is Kenneth D. Mutzabaugh, residing at 826 Church St., Duncannon, PenyCounty, Pennsylvania 17020. He is a contractor. 2. Petitioner did the contract work that is the subject of this lawsuit. 3. Petitioner acknowledges receiving the complaint in this matter and not answering it. 4. He denies everreceiving in September 2000 the "IMPROT ANT NOTICE" [sic] or any other document letting him know that the plaintiff intended to take a default judgment. The first he became aware of the notice was when he saw it attached to the praecipe to enter judgment. He promptly contacted an attorney, thinking he had 10 days to deal with the paperwork. 5. Petitioner/defendant has mnnerous defenses to the complaint filed in this matter ifhe is allowed to plead. See Exhibit A hereto, the answer that he would file if the judgment is opened or stricken off. WHEREFORE defendant Kenneth D. Mutzabaugh asks for a rule to show cause why the default judgment against him should not be opened or stricken off and after a response to the rule that said ,~J -_.~~-'i judgment be opened or stricken off and that he e permitte to file an answer in accord with Exhibit A. Dated: March 13,2001 , , I Respectful! y s bmi tted, ExhibitA Proposed Answer to complaint - -""~~~-, VERIFICATION The language of the foregoing Petition to Open or Strike off Judgment is that of counsel and not necessarily my own; however, I have read the foregoing document and to the extent that it is based upon information that I have given to counsel, it is true and correct to the best of my knowledge, information and belief; to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this verification. I understand that any false statements made herein are subject to the penalties of 18 Pa.C.S. S 4904, relating to unsworn falsification to authorities. /~/?~~~~~ 'Kenneth D. Mutzab gh " . ~. ,'__ .o._~ RUTH GERHARDT, Plaintiff COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-5432 CIVIL TERM KENNETH D. MUTZABAUGH, Defendant CIVIL ACTION - LAW ANSWER OF DEFENDANT KENNETH D. MUTZABAUGH COME NOW defendant Kenneth D. Mutzabaugh, by his counsel, Jeny A. Philpott, Esquire, and answers the complaint in this matter as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Denied. At the time the work was completed, the plaintiff expressed satisfaction with the work. There were no deficiencies, but there were some deliberately unfinished items that were to be completed afterplaintiffhad an electrical contractor relocated the main electric panel. Once that " . ....~~,~ .""lliil>'~-' was done, defendant completed the patches needed in the siding to cover over the areas affected by the relocation of the main electric service. By way of further answer, the so-called "Deficiencies" (Complaint Exhibit C) were not listed until sometime in the year 2000, about a year after the contract was otherwise complete. Moreover, the "Deficiencies" do not include many of the items for which plaintiff is now claiming the cost of repair. 11. Denied. Plaintiff did contact defendant many times. Initially, defendant responded to the calls and in fact made many minor adjustments. Later, it became obvious to defendant that plaintiff just wanted someone to talk to and he began to discourage the calls. Plaintiff would want defendant to come see her about an alleged problem, then tell defendant that he could not come forup to three weeks. Other times plaintiffwould want him to come right away when he was at work on another job in Perry County and could not get away. 12. Admitted. 13. Admitted. 14. Denied for lack of knowledge. Exhibit E speaks for itself. 15. Denied for lack of knowledge. 16. Admitted. COUNT I - BREACH OF CONTRACT 17. The answers to paragraphs 1 through 16 are incorporated herein byreference as though textually set forth at length. 18. Denied. The contract is silent on the issue raised by Paragraph 18 of the complaint and in any case speaks for itself. Defendant did do all the contract work in a good and workmanlike manner, however. "-. -~~'--~:!--, VERIFICATION The language of the foregoing Answer is that of counsel and not necessarily my own; however, I have read the foregoing document and to the extent that it is based upon information that I have given to counsel, it is true and correct to the best of my knowledge, information and belief; to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in makingthis verification. I understand that any false statements made herein are subject to the penalties of! 8 Pa.C.S. S 4904, relating to unsworn falsification to authorities. Kenneth D. Mutzabaugh ~J__"~"~"-~ ~_~.~~ ~~~-.~-. ~ ~. RUTH GERHARDT, Plaintiff APR 0 92001tfJ IN COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-5432 CIVIL TERM KENNETH D. MUTZABAUGH, Defendant CIVIL ACTION - LAW RULE TO OPEN OR STRIKE OFF DEFAULT JUDGMENT AND NOW, this _ day of March, 2001, on motion ofJ erry A. Philpott, Esquire, counsel for Kenneth D. Mutzabaugh, defendant, the Court grants a rule on plaintiff to show cause why the judgment should not be opened and defendant Kenneth D. Mutzabaugh let into a defense. Rule returnable twenty (20) days from service. Proceedings to execute on the judgment to stay until determination of the rule. BY THE COURT J. ~~ - ~~ . " ~ ~.' "" RUTH GERHARDT, Plaintiff COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2000-5432 CIVIL TERM KENNETH D. MUTZABAUGH, Defendant CIVIL ACTION - LAW o 0 r~ c":' .J -Dft ~ -, PETITION TO OPEN OR STRIKE OFF JUDGMENT C!)U' "" ""'--.-'<. ~~ ~;,: d.) , ~___1 .]1 COMES NOW KennethD. Mutzabaugh, the above defendant, by his counsel Je~. PhiJpott,~ \;~ ~rc ::~:;: <5;Q Esquire, and petitions the Court to open or strike off a default judgment entered against hi~ ~ Fegu~ h'i =< ~D =< 26,2001, and in support of his petition states as follows: 1. Petitionetis Kenneth D. Mutzabaugh, residing at 826 Church St., Duncannon, Perry County, Pennsylvania 17020. He is a contractor. 2. Petitioner did the contract work that is the subject of this lawsuit. 3. Petitioner acknowledges receiving the complaint in this matter and not answering it. 4. He denies everreceiving in September 2000 the "IMPROT ANT NOTICE" [sic] or any other document letting him know that the plaintiff intended to take a default judgment. The first he became aware of the notice was when he saw it attached to the praecipe to enter judgment. He promptly contacted an attorney, thinking he had 1 0 days to deal with the paperwork. 5. Petitioner/defendant has numerous defenses to the complaint filed in this matterifhe is allowed to plead. See Exhibit A hereto, the answer that he would file if the judgment is opened or stricken off. WHEREFORE defendant Kenneth D. Mutzabaugh asks for a rule to show cause why the default judgment against him should not be opened or stricken off and after a response to the rule that said ,--,- ...~, Dated: March 13,2001 to file an answer in accord with Exhibit A. judgment be opened or stricken off and that he ExhibitA Proposed Answer to complaint " rr, VERIFICATION The language of the foregoing Petition to Open or Strike off Judgment is that of counsel and not necessarily my own; however, I have read the foregoing document and to the extent that it is based upon information that I have given to counsel, it is true and Correct to the best of my knowledge, information and belief; to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this verification. I understand that any false statements made herein are subject to the penalties of 18 Pa.C.S. Ii 4904, relating to unsworn falsification to authorities. /1;A?~~~ Kenneth D. Mutzab gh ~. . = "" """"'"" RUTH GERHARDT, Plaintiff COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYL V ANlA v. NO. 2000-5432 CIVIL TERM KENNETH D. MUTZABAUGH, Defendant CIVIL ACTION - LAW ANSWER OF DEFENDANT KENNETH D. MUTZABAUGH COME NOW defendant Kenneth D. Mutzabaugh, by his counsel, Jerry A. Philpott, Esquire, and answers the complaint in this matter as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Denied. At the time the work was completed, the plaintiff expressed satisfaction with the work. There were no deficiencies, but there were some deliberately unfinished items that were to be completed afterplaintiffhad an electrical contractor relocated the main electric panel. Once that " ""' ~' ~ " . was done, defendant completed the patches needed in the siding to cover over the areas affected by the relocation of the main electric service. By way of further answer, the so-called "Deficiencies" (Complaint Exhibit C) were not listed until sometime in the year 2000, about a year after the contract was otherwise complete. Moreover, the "Deficiencies" do not include many of the items for which plaintiff is now claiming the cost of repair. 11. Denied. Plaintiff did contact defendant many times. Initially, defendant responded to the calls and in fact made many minor adjustments. Later, it became obvious to defendantthatplaintiffjust wanted someone to talk to and he began to discourage the calls. Plaintiff would want defendant to come see her about an alleged problem, then tell defendant that he could not come for up to three weeks. Other times plaintiff would want him to come right away when he was at work on another job in Perry County and could not get away. 12. Admitted. 13. Admitted. 14. Denied for lack of knowledge. Exhibit E speaks for itself. 15. Denied for lack of knowledge. 16. Admitted. COUNT I - BREACH OF CONTRACT 17. The answers to paragraphs 1 through 16 are incorporated herein byreference as though textually set forth at length. 18. Denied. The contract is silent on the issue raised by Paragraph 18 of the complaint and in any case speaks for itself. Defendant did do all the contract work in a good and workmanlike manner, however. ~ , , ~ ~ .. "'.. VERIFICATION The language of the foregoing Answer is that of counsel and not necessarily my own; however, I have read the foregoing document and to the extent that it is based upon information that I have given to counsel, it is true and correct to the best of my knowledge, information and belief; to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this verification. I understand that any false statements made herein are subject to the penalties of 18 Pa.e.S. S 4904, relating to unsworn falsification to authorities. Kenneth D. Mutzabaugh _.,- - ~~ ,. , ,,> '_' _; ..', ~ ,;,.,__",., '. "_'--' _ '~-. '-o.l-i--:; " " . ^;~'~)j , , , , , . RUTH GERHARDT, Plaintiff v. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. !!:f!.. -_ ~'!. ~~_ CIVIL KENNETH D. MUTZABAUGH, Defendant CIVIL ACTION - LAW 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. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 (717) 249-3166 -,. ,-, - ,- l~'- ~"'~, . - '=-'--""""""'> ':-,-- ',,- or- ',-1---' _ 1",_, L",:;-". ~";';:;';,,,;, l'h"",':;"';;",, ..-',~~;d~;'';;: . , . , RUTH GERHARDT, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. DOCKETNO'2iI.:..~-Y~_ CIVIL KENNETH D. MUTZABAUGH, Defendant CIVIL ACTION - LAW COMPLAINT I Plaintiff is Ruth Gerhardt ("Plaintiff"), an adult individual residing at 381 Easy Road, Carlisle, Cumberland County, PA 17013. 2 Defendant is Kenneth D. Mutzabaugh ("Defendant"), an adult individual residing at 826 Church Street, Duncannon, Perry County, Pennsylvania 17020. 3 Defendant conducts a business, upon information and belief as a sole proprietorship, under the name Ken - Do - Contracting by which Defendant performs building and construction work. 4 On May 17, 1999, Plaintiff and Defendant entered into a contract for certain renovations to Plaintiffs home located at 381 Easy Road, Carlisle, Cumberland County, PA 17013. 5 The said contract was based upon a writing titled "Purchase Order" and dated May 7, 1999 which generally enumerated the work to be performed, with the total amount of the contract being $16,855.00 (as amended and noted in Paragraphs 7 & 8, below, "Contract"). A copy ofthe said writing is attached hereto and marked as Exhibit "A". 6 Defendant commenced performance of the Contract in May of 1999. 7 .--- '_,,--,' <. , ,-. '~- ~ ~, "'"' . ",,-, ,-,'-, i. ,,- - , ,,'^ " ~ . .,<.-.,' l " '. During Defendant's performance of the Contract, the parties amended the Contract, both orally and in writing, to include additional work to be performed by Defendant ("Change Orders"). Copies of receipted Change Orders and invoices for the additional work are attached hereto and collectively marked as Exhibit "B". 8 As a result of the Change Orders, the total Contract amount was increased to $28,145.64 ("Contract Price"). 9 Plaintiff timely paid the Contract Price in full. 10 At the time Defendant determined that his work was complete, there existed a nUlllber of items which were not completed by Defendant, work that was not properly performed by Defendant, and/or problems otherwise with the workmanship which existed ("Deficiencies"). A list of the Deficiencies is attached hereto and marked as Exhibit "c" and is incorporated herin by reference as though textually set forth at length. 11 Plaintiff attempted to contact Defendant nUlllerous times, but Defendant would either not respond to Plaintiff or would set an appointment to meet with Plaintiff and, then, not meet the appointment. 12 On September 27,1999, Plaintiff, by and through her attorney, mailed a letter to Defendant requesting that Defendant rectify the Deficiencies and notifying Defendant that, if Defendant failed to correct the Deficiencies, Plaintiff would hire another contractor to do so and expect reimbursement from Defendant for any costs incurred in doing so. A copy of said letter is attached hereto and marked as Exhibit "D". 13 Defendant failed to respond to the aforesaid letter. ".- , ""' ,', '- -~,,;,- - ':0,5. '''----0:, ~_, _ ,- -, -,-, '",- i+' i'",,~;;1" -",' '"'~ - '., "">~"'-,'i , ' , , 14 On or about November 1, 1999, Plaintiff received a quotation from another contractor, HDC Construction ("HDC"), in the amount of $9, 195.00 to rectify the deficiencies. A copy of the said quotation is attached hereto and marked as Exhibit "E", 15 Plaintiff contracted the services ofHDC to rectify the Deficiencies and Plaintiff has paid HDC the sum of$9,195.00 for doing so. 16 The amount of damages claimed by Plaintiff does not exceed the jurisdictional amount requiring compulsory arbitration in Cumberland County. Count I - Breach of Contract 17 Paragraphs 1 through 16 are incorporated herein by reference as though textually set forth at length. 18 Pursuant to the Contract, Defendant agreed to complete the subject work in its entirety, and to complete all work in a professional and workmanlike manner. 19 Defendant breached the Contract by failing to complete and fully perform his said obligations. 20 Defendant breached the Contract by failing to perform his said work in a professional and workmanlike manner. 21 Defendant's breach has caused Plaintiff to incur additional and unnecessary expense in the amount of $9,195.00, in order to have the Deficiencies rectified by HDC. """"-"'-" -,-c. ";;:'L~--_ __h':' C',. "^,_,;-/-,'-i< .,'"...',,~;---- -,,~:'...- ~". i , , WHEREFORE, Plaintiff requests this Honorable Court to find in favor of the Plaintiff an award Plaintiff: 1) the sum of$9,195.00, which is the amount equal to the expense incurred in rectifying the Deficiencies; 2) interest from the date of the breach; 3) an amount equal to the costs incurred by Plaintiff in pursuing this action; and 4) any other relief the Court deems reasonable and just. Count II - Breach of Implied Warranty of Good and Reasonable Workmanship 22 / Paragraphs I through 16 are incorporated herein by reference as though textually set forth at length. 23 Defendant is a builder/vendor. 24 The Contract between the parties was for residential purposes, as the subject of the Contract was renovations to Plaintiffs home and residence. 25 As a builder/vendor contracting for residential purposes, Defendant impliedly warranted Plaintiff that the work would be completed in a good and reasonable manner. 26 Defendant breached the Implied Warranty of Good and Reasonable Workmanship by failing to perform his work under the Contract in a good and reasonable manner. 27 Defendant's breach of the Implied Warranty of Good and Reasonable Workmanship has caused Plaintiff to incur additional and unnecessary expense in the amount of$9,195.00, in order to have the Deficiencies rectified by HDC. . . ,,-, ,,' < ,',,'. -",'~ ~,'n:,~_-" '_ ~. '<, _,~;--- 0-' ,c,.)~",AJ.i' P".;,,), ,-.'. ";,;",! WHEREFORE, Plaintiff requests this Honorable Court to find in favor of the Plaintiff an award Plaintiff: 1) the sum of$9,195.00, which is the amount equal to the expense incurred in rectifying the Deficiencies; 2) interest from the date of the breach; 3) an amount equal to the costs incurred by Plaintiff in pursuing this action; and 4) any other relief the Court deems reasonable and just. COUNT III - ACTION PURSUANT TO THE PENNSYLVANIA UNFAIR TRADE PRACTICES ACT (73 P.S. ~ 201-1 et seq.) 28 Paragraphs 1 through 16 are incorporated herein by reference as though textually set forth at length. 29 Plaintiff purchased the services of Defendant primarily for personal, family and household purposes. Specifically, Plaintiff purchased Defendant's services for the construction of renovations to Plaintiff's residence. 30 Defendant represented to Plaintiff that the services to be performed in construction of renovations to Plaintiff's home were to be good and workmanlike, while the aspects of the contracted services failed to be constructed or performed in a good and workmanlike manner, as more specifically noted in Exhibit "C", which is attached hereto and incorporated herein by reference. Defendant's misrepresentations constitute a violation of the C.P.L. at 73 P.S. 9201- 2(4)(vii), and have caused Plaintiff unnecessary expense and distress. 31 Defendant's behavior has been outrageous and Defendant has shown a reckless indifference to the rights of Plaintiff, as evidenced by Defendant's poor quality of workmanship in performing his duties under the Contract; Defendant's disregard for the Plaintiff's request for assistance in rectifying the Deficiencies; Defendant's refusal to meet appointments with Plaintiff; and Defendant's refusal to, at the least, respond or acknowledge Plaintiff's communications. --..-~. .'j;." n~' ,-"._', ,_ ~,_. '--'. -,;. __r'- ,_' .,,,',,,.; ", WHEREFORE, Plaintiff requests this Honorable Court to find in favor of the Plaintiff an award Plaintiff: 1) the sum of$9,195.00, which is the amount equal to the expense incurred in rectifying the Deficiencies; 2) interest from the date of the breach; 3) an amount equal to the costs incurred by Plaintiff in pursuing this action; 4) treble damages pursuant to 73 P.S. ~ 201- 9.2(a); 5) reasonable attorneys fees in pursuit of this action, which is within the discretion of this Court to award pursuant to 73 P.S. ~ 201-9.2; and 6) any other relief the Court deems reasonable and just. r y( vb Date Hubert X. roy, Esquire Supreme ourt I.D. No. 29943 for: Broujos & Gilroy, P.C. (Attorney for the Plaintiff) 4 North Hanover Street Carlisle, P A 17013 (717) 243-4574 ~,~ -~ -- -:.-' ~,,,'. :-: ""~~--),,, - '" '""'~'i" "",_,," e6/22/2eee 16:,1$ PC :t<~,,~,,~~.., , PAGE 11 . :,'::,~"::;.::'~.'. :.),~,;, ~ "':"::~'..:.:':"':';;" ':~.., .~":~' f; ': I, ~:: " , ! k I 1 .J " ,e EXHIBIT I It A'~ '/, , ..i...L'...i~~" ~..'" 0, .~-'O ,,', PA~~ 10 " "(~~~ EXHIBIT ,I I liB " ,~~~J~,~'~:' ,I, ~,~i[ :~"-;:; '-_.-~~,,;';:'0,i'''c_ ::".<;::> ,,; .,' _.'-'0.:_:, PC :-:.:.~. ;, .~.l>'1';~'~; , " ,.... .' ~'-:';:. ~' PAGE 13 .'. ..",.:,:,;~:~~::;,~:::.- " f'" .....~ "':. '\' ,1 . ., . ; , , ; , " , .,\1'." .,'. ,. ,;", .. , ".... ': "1 " ). ..'1 :i 1:'.' . ~ ';". " ... "I ;' .'.' ti , " i." " ~:::~[~;; "'.) );., ,,;~ ~:"'I":';(: ~'t_ .:",:'~__ w_._::'~~:~..;?~~' i ~.::.k_, ',' ',. Ii .,'Ii" "':, PAGE 14 ,t'"~ :'~. :" -,::?~~~~.~::,~:,:: I . r~ . .'. I' ,.' :f':~ ,'. '\~: '; ,~. ~ Ijl~;~;"~: ....J' ",i' , ~ j,~ . ;ll1l ',,', I'.iil.. ,-/' ,1...5. ~ 0'<'" ) . ..,.,'j,' \. ".'.i.",,) " II \"rS' "'''i''f~~il\i, '. :.~,..~5f::.;, I. ,;' , ..'m..,"! "'~'''- "~I -j-' 1,) 1'+ I ~"Hri" ,,". I :~ 1 ' ," \ " .""....,. _......." '" ., "'I 'ii"~ . ;~ji~-'~ + ~ ~ ,..~_.~'j-~' 1:111''''''' ,;... ',,' ,:tj' c. ....('...' r~ . .,L} , 'I. d ,'I. ~';~;7!-"-"~ " 'I..,,, ". !,......'" .,._,......,'~....;.;...... i' ii , ~ 1< ill . t;~;~':;JI:;'.:~'''t,.,MJ",l.~~~~~;.,~';;'' 1~: " 1,1t ,~ """..,,-,,' ~;. ! ii ';"~,..~:~i :, r,' I "'.< I , IJ """:.;"1 r I I' ; "'::":'1. ,I "I , I: .'~-'I ...,~~_.2,~,~~1 ~W4",i()l.. r..1't ,.. ". rW..i(}';)':1A ","IiI .. ...~.!\ ~"".;f"o1Ii:.._.'".,... ~~.. "oj_ " . ~'l - ^ ,,~, " - , '"-~ PAGE 12 ,~~'1i-;"c;?,;::~:;,:-.:';' ',I";' " _,'.., ..~".,._ ,_, ....... 9W ~w__ _. ____..~_.,__,-- _ -'__...__"_,_,__~__,___.__,__ BLANK'S GLASS SPECIALTY LD.'1 " lCKBSBUR(;, PA 17037 (717) 438-3671 . Name _fftt _No. . i 1 \ """'II' ...... C.O.D. CIWlGf - _our Qu DESCRIPTION PllK:. """""'NT - .-rJ A 'DD SUB ...... TO TOTAL 1.596 SERVICE CJiAJlGIl TAll II'16APR TOTAl AU cloim. ".d returned pels MUST be _.....i.d by tIIit bill, R.c'd by lJ1lO THANK YOU 0G/22/2000 _1.~: U_ 2438227 ~ \: o ~ \- <: o V . o Q , ,2: Q) ~, ~ \b ~ .- \- .0 q: ~ <: o \J . o a , .7.. Q) ~ c: '" <:> ::l ,,, 111 <:> '~ :~ .. u ::I,fJ < ~ '" n. -.n ... o I) g of" ~ 0 <', ,r,::lC: <(1 "'J'1 ~ III ~ I '" I; U C:'" <l~ It) f'" ;II . Mm~ ,I; '" <:> ::l '" OIl '" _Q t" '" .. 1.1 ::l ,J .o! -,r:tn ", ,.r. ... l':11) I; .11 ~ g ...r. c: 4/ U tll <: \) c: '" c: '" ,. ::l tf";l'f'I ('l I'. N of' ... 1-. r. ... ", ... .., ... ~ '- BROUJOS & GILROY, PC PAGE 09 .; _. ss __, ~. ~ ~ ~ _, => c::o ' '>') '" Y) ~ .... z C> (: ~ 13 '" .. ; .. .. .. ~ J c f l'!: ::;) .,. -__'_"",'-.._.w_ .. i 2! .e 0 .. ~ '! . n.. ..,. --....--...., ...." -, .. ._. - ..- -. ~ ..- _. ~ -- - - - I! f'\ I"": ~. \ ,"'., .,-" -. I- - - ~ , ~ ~~ \ 1 ;~ ~ ~ f':::>~, -- -- ","", -- - I- - --- .._._, , .--,'"' ~......- --- --- ... a S ~ ~ . . . I ( 5 ~ 06122/~0€1'L"J6: 13 2438227 BROUJOS & GILROY, PC " . WORK TO BE COMPLETED AT 381 EASY ROAD, CARLISLE, PA I. Front screen door. gap under door III1d around door. cylinder does not operate correctly. This allows bees. bugs etc to enter front porch, 2. Front porch window needs attention. 3. SpQuting in front is leaking. 4, Screen door and steel door in washroom need to be set back further. Water still coming into washroom. 5. Screen doors in garage need to be COl'lected. 6. Back screen door dragging on cement. 7. Steol door on back of house has a gap in it. 8. Siding damage by washroom door. 9. Window in washroom needs attention. 10, Linoleum not glued under sink. 11. Board showing under linoleum. 12. Nail showing under linoleum. 13. Trim around windows does not meet. 14. No caulking aroWld windows 15. Trbn between living room windows and pQrch needs to be fixed. 16. Neexij channel where pQwer head used to be. 17. Siding at top of well pit doors needs attention 18. SpQuting back at field needs attention, 19. Spauting up towards harkleys needs attention. EXHIBIT I lIt Ii " , PAGE 08 07/26/2e0e le:56 2438227 BROUJOS & GILROY. PC PAGE 02 .1 'I :1 ~ , , JOHN H. IlIl<:lUJOa -.- X cuo. BRomos & GILROY, p, c. "Tl'OIlNIl'V$ AT LAW . NORTH HANOVER STRE1lT CARLlSU!. PENNSYLVANIA 17013 Tm.vHoNIl, (717) 2~7. FACS'M1LI: (717) 20-8227 IH'IIIlNlmb'llUroypdhol......, NoN-TOu. JlOa H_1U1lC AIuiA 717-766-1690 f ., '..~ ('".. ,.... September 27,1999 '" . .. ill..... Ken Mutzabaugh Ken-Do Contracting 826 Church Street DunclIMon, P A 17020 Dear Mr. Mutzabaugh: Our office represents Ms. Ruth Gerhardt with respect to your contract with her for remodeling at the home at 381 Easy Road. Ms. Gerhardt has advised us that the majority of the work has been performed but there are a nwnber of items that still need to be completed as set forth on the attached list. Ms. Gerhlll'dt indicates that she has contacted you several times to come by the house, You have either told hel' you would come and not met your appointment or you have refused to respond to her calls, Ruth advises us that she has paid you over $28,000,00 for this work. Unless you contact Ms, Gerhardt with 10 days and make satisfactory anangements to have this work completed, we will proceed with having another contractor complete the work after which a suit will be instituted against you for the costs of the other contractor's work and miscellaneous expenses, Additionally, Mrs. Gerhardt requests the original receipt for the linolewn and ClUpet that you picked up and installed for her along with the written guarantee on the windows that have been installed Sincerely yours, JL~, be cc: Ruth Gerhardt EXHIBIT l \< D ,. ; '0>":'-',-,,,"""<"7_""-'-'__' > , . ~ -. . ~ 1 06/22/2000 16:13 I'. ,,""~ .~438227 BROUJOS & GILROY, PC PAGE 04 . . . .. D C CONSTRUCTION" Phone (717) 716-6599 ~'.~'I'. \. ,-, ~ ~\ \. ~ Fax (717) 776-4332 Harold Cassell 7 Hilltop Lane NewvillePA 17241 Invoice # 30144 November 1, 1999 Mrs. Ruth Gearhart 38leasy Rd. Carlisle, Pa 17013 Doors do not open &. shut correctly. Remove 4 exterior doors. &. rehang correctly. Remove 3 storm doors. &; rehang correctly. Install I new stonn door, Concrete pads all run towards house. Tear out 4 pads &. replace, 1- 4ft x 4ft 2- 42in x 6ft 3- 4ft x 14ft 4. 4ft x 4ft Replace all metal trim around windows. tn$lAII J channel around windows. Remove soffit &; install F channel. and then replace soffit. Install new fascia around whole bouse. EXHIBIT il "t.~' ;; i __"'! ,-..,;-- If' .. f'~ 06/22/213130 16:..'2-... 2.438227 . . . '..'i. BROUJOS & GILROY, PC .. I: \ KITCHEN Rescrew kitchen floor down to concrete floor. Installlauan on top of floor. Install linoleum of owner's choit1e" glue entire floor down. Replace trim around outside perimeter of floor. Install metal trim on floor at doorways. TOTAL $ 9195.00 PAGE 05 (2) ~--- .~ . .~ "" "" I "~ -.... ~~.rr....,"""_"~ .;._~~_~ U!I<-' ~~,d- . . .. ' . VERIFICATION I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. ~ I) j.t/OO Date ~~ Ruth Gerhardt B.' ~ ~~ " .....c ......J -<) C ~ " ~ ;,-",,,} "'c _~_, ". '''__' ,~~, ,. "". ..;,;- ,- _' ',:.,' '~- -,,", . ._ ;oJ.;o.',,;" - ~. ~ ,~ , '~,--". - - ,^. .- ,~o, "'-"".'h .,,~ . "-"'~ ~:.' "~ ,,- ~ -, " '" ,"'" ~ (") c::: >- ~t;) CIinj ;?: ~"D ~r- (o,,!"- i;fb ~>c' ,sd Pc: ?;J iy c~) G~... ,,~ .,"" h_'_ ~O'j C) c) h, C:' (;') I .c.~ o -1'1 ..... i-:j'~ 2J vf-n ~1(:~ ~~;,=;:B , 'J aj~q :'iJ ~ On -< ' ::> '4 ~ f .~ -s ~~~ t r '~ , , ~, I j II \1 'I "I :1 " i RUTH A. GERHARDT, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v : NO. 00 - 5432 CIVIL ACTION - LAW KENNETH D. MUTZABAUGH, Defendant PRAECIPE Pursuant to the Board of Arbitration award issued in the above matter on July 23, 2002 and it appearing no appeal has been taken to the award, please enter Judgment in favor Plaintiff Ruth Gerhardt and against Defendant Kenneth D. Mutzabaugh in the amount of $6,222.00. Respectfully submitted, L:n Attorney for Plaintiff Broujos & Gilroy, P.c. 4 North Hanover Street Carlisle, P A 17013 (717) 243-4574 Supreme Court ID No. 29943 , . ~ ~~ "_~_~,<_ _""o~'" ...~~, il" ~- '_' ,,00 _h "~p,,~ r ,-2-; ~~ ~" ,- " c~~~ ~,))() ~ ~~fI:? j 0 l f!~ ~ r ---.. ff'- ...--, <:) c: <" '1:1-;"": ~llL.., .. r-' "";:;>'-,'-: t3,,5~-" ;$;::;; :,,--C.,i "" .z-Cj :sQ ~ ::< ~ i'\) -..; .. ~. " C, "-:, U) r"l ''0 o ." ::;:1 ,-:'1"-"1 '. r== '~')rn ~~. :"-) t1 ;;;1'-0 (jrn 35 -< i .. " ~ t:' -~~, " ~, ~~ , .'''~, ~ ) ) } ) ) ~~~ In The Court of Common Pleas of Cumberland County, Pennsylvania t- :-lo. 00, S'L/ 32... 19 n. OATH We do solemnly swear (or affirm) the Constitution of the United States ~ealth and that we will discharge the that we will support, obey and defend and the Constit1l.tioll or this C01Dl!l0n- duties 0 our office, W~lity. C air;nan We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the follOwing award: (Note: If damages for delay are awarqed, they shall be separately stated.) ~" ~ ~~ ~ ~- :: it. :.L t ~';.l-"'L'CI# :- . Arbitrator, dissents. (Insert name i= applicable. ) 7/z31{J~ !late of Hearing: , !late of Award: '7 j,... 3/ 0 2-, OF AWARD NOTICE OF Now, the <>2.J day or ~ award was entered upon the ~ockgc- and parties or their attorneys. , lIS k-,+ at ~, ..L. ~!., the above notice thereof given by mail to the Arbitrators' compensation to be paid upon appeal: $ ,2'10. =' (5..24 By: Chu- (l !( .~~ prod!;notary 11A<~;. -<... Deputy 'J"" - ~~r &' ~--~-...~'~, =~~,iJ#.;~~~~~~1.r'1~1 j <& ~ -~' "....UtI JillJ:JtIilittl~'Q''''''- -",I ~~.~ ~L'~- ~ /~. 0. I~/~~.I~ III 'J1~ j~'Sr\. JJI-?U! ~;J~ -~. 7..:<34);- ~~ -f., ~ ~E1, 'l..;r.o"--- ~ ~ luj!r!o1- (') 0 0 C N s;: ., . ;:pro := --1 ,~ " Ir~" ~ ~r-.--. z:i.! r- nl-~-I e- L'=: N ."nrn ~t- w :.:;0 (--'.i.. " ,~(.J -~ --r~ -'l'i )>c :];;: '~~ €od ~~~ r- .. ~ ~I -; 2' c...,"1 ;0 -, -< ,; _ ,~, lLUJl_~. "~ '''~, " .~ '-", -,~. q '", ,'c" '. 6? ^, .~ ;,' c -~,',"' , ~ ,..-, ?, " . -Wi, RUTH GERHARDT, Plaintiff KENNETH D. MUTZABAUGH, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : DOCKET NO. Po- ~'-~3.z.. CIVIl, ; CIVIL ACTION - LAW 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. Cumberland County Bar Association 2 Liberty Avenue Carfisle, PA 17013 (717) 249-3166 RUTH GERHARDT, Plaintiff KENNETH D. MUTZABAUGH, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : DOCKET NO..p~.~_-7_.3..L CIVIL : CIVIL ACTION - LAW COMPLAINT 1 Plaintiff is Ruth Gerhardt ("Plaintiff'), an adult individual residing at 381 Easy Road, Carlisle, Cumberland County, PA 17013. 2 Defendant is Kenneth D. Mutzabaugh ("Defendant"), an adult individual residing at 826 Church Street, Duncannon, Perry County, Pennsylvania 17020. 3 Defendant conducts a business, upon infomlafion and belief as a sole proprietorship, under the name Ken - Do - Contracting by which Defendant performs building and construction work. 4 On May 17, 1999, Plaintiff and Defendant entered into a contract for certain renovations to Plaintiff's home located at 381 Easy Road, Carlisle, Cumberland County, PA 17013. 5 The said contract was based upon a writing titled "Purchase Order" and dated May 7, 1999 which generally enumerated the work to be performed, with the total amount of the contract being $16,855.00 (as amended and noted in Paragraphs 7 & 8, below, "Contract"). A copy of the said writing is attached hereto and marked as Exhibit "A". 6 Defendant commenced performance of the Contract in May of 1999. 7 During Defendant's performance of the Contract, the parties mended the Contract, both orally and in writing, to include additional work to be performed by Defendant ("Change Orders"). Copies of receipted Change Orders and invoices for the additional work are attached hereto and collectively marked as Exhibit "B". 8 As a result of the Change Orders, the total Contract mount was increased to $28,145.64 ("Contract Price"). 9 Plaintiff timely paid the Contract Price in full. 10 At the time Defendant detemdned that his work was complete, there existed a number of items which were not completed by Defendant, work that was not properly perfoJmed by Defendant, and/or problems otherwise with the workmanship which existed ("Deficiencies"). A list of the Deficiencies is attached hereto and marked as Exhibit "C" and is incorporated herin by reference as though textually set forth at length. 11 Plaintiff attempted to contact Defendant numerous times, but Defendant would either not respond to Plaintiff or would set an appointment to meet with Plaintiff and, then, not meet the appointment. 12 On September 27, 1999, Plaintiff, by and through her attorney, mailed a letter to Defendant requesting that Defendant rectify the Deficiencies and notifying Defendant that, if Defendant failed to correct the Deficiencies, Plaintiffwould hire another contractor to do so and expect reimbursement from Defendant for any costs incurred in doing so. A copy of said letter is attached hereto and marked as Exhibit "D". 13 Defendant failed to respond to the aforesaid letter. 14 On or about November 1, 1999, Plaintiffreceived a quotation from another contractor, HDC Construction ("HDC"), in the amount of $9,195.00 to rectify the deficiencies. A copy of the said quotation is attached hereto and marked as Exhibit "E". 15 Plaintiff contracted the services of HDC to rectify the Deficiencies and Plaintiffhas paid HDC the sum of $9,195.00 for doing so. 16 The amount of damages claimed by Plaintiff does not exceed the jurisdictional amount requiring compulsory arbitration in Cumberland County. Count I - Breach of Contract 17 Paragraphs 1 through 16 are incorporated herein by reference as though textually set forth at length. 18 Pursuant to the Contract, Defendant agreed to complete the subject work in its entirety, and to complete all work in a professional and workmanlike manner. 19 Defendant breached the Contract by failing to complete and fully perform his said obligations. 20 Defendant breached the Contract by failing to perform his said work in a professional and workmanlike manner. 21 Defendant's breach has caused Plaintiffto incur additional and unnecessary expense in the amount of $9,195.00, in order to have the Deficiencies rectified by HDC. WHEREFORE, Plaintiff requests this Honorable Court to find in favor of the Plaintiff an award Plaintiff: 1) the sum of $9,195.00, which is the amount equal to the expense incurred in rectifying the Deficiencies; 2) interest from the date of the breach; 3) an amount equal to the costs incurred by Plalntiffin pursuing this action; and 4) any other reiief the Court deems reasonable and just. Count II - Breach of Implied Warranty of Good and Reasonable Workmanship 22 Paragraphs 1 through 16 are incorporated herein by reference as though textually set forth at length. 23 Defendant is a builder/vendor. 24 The Contract between the parties was for residential purposes, as the subject of the Contract was renovations to Plaintiff's home and residence. 25 As a builder/vendor contracting for residential purposes, Defendant impliedly warranted Plaintiff that the work would be completed in a good and reasonable manner. 26 Defendant breached the Implied Warranty of Good and Reasonable Workmanship by failing to perform his work under the Contract in a good and reasonable manner. 27 Defendant's breach of the Implied Warranty of Good and Reasonable Workmanship has caused Plaintiff to incur additional and unnecessary expense in the amount of $9,195.00, in order to have the Deficiencies rectified by HDC. WHEREFORE, Plaintiffrequests this Honorable Court to find in favor of the Plaintiff an award Plaintiff: 1) the sum of $9,195.00, which is the amount equal to the expense incurred in rectifying the Deficiencies; 2) interest from the date of the breach; 3) an amount equal to the costs incurred by Plaintiff in pursuing this action; and 4) any other relief the Court deems reasonable and just. COUNT III - ACTION PURSUANT TO THE PENNSYLVANIA UNFAIR TRADE PRACTICES ACT (73 P.S. § 201-1 et seq.) 28 Paragraphs 1 through 16 are incorporated herein by reference as though textually set forth at length. 29 Plaintiff purchased the services of Defendant primarily for personal, family and household purposes. Specifically, Plaintiffpurchased Defendant's services for the construction of renovations to Plaintiff's residence. 30 Defendant represented to Plaintiff that the services to be performed in construction of renovations to Plaintiff's home were to be good and workmanlike, while the aspects of the contracted services failed to be constructed or perforated in a good and workmanlike manner, as more specifically noted in Exhibit "C", which is attached hereto and incorporated herein by reference. Defendant's misrepresentations constitute a violation of the C.P.L. at 73 P.S. § 201- 2(4)(vii), and have caused Plaintiff unnecessary expense and distress. 31 Defendant's behavior has been outrageous and Defendant has shown a reckless indifference to the rights of Plaintiff, as evidenced by Defendant's poor quality of workmanship in performing his duties under the Contract; Defendant's disregard for the Plaintiff's request for assistance in rectifying the Deficiencies; Defendant's refusal to meet appointments with Plaintiff; and Defendant's refusal to, at the least, respond or acknowledge Plaintiff's communications. WHEREFORE, Plaintiffrequests this Honorable Court to find in favor of the Plaintiff an award Plaintiff: 1) the sum of $9,195.00, which is the amount equal to the expense incurred in rectifying the Deficiencies; 2) interest from the date of the breach; 3) an amount equal to the costs incurred by Plaintiff in pursuing this action; 4) treble damages pursuant to 73 P.S. § 201- 9.2(a); 5) reasonable attomeys fees in pursuit of this action, which is within the discretion of this Court to award pursuant to 73 P.S. § 201-9.2; and 6) any other relief the Court deems reasonable and just. iitted: Esquire . No. 29943 for: Broujos & Gilroy, P.C. (Attorney for the Plaintiff) 4 North Hanover Street Carlisle, PA 17013 (717) 243-4574 86/22/2888 %6:13 2438227 BROU50S & GILRO¥ PC PAGE 8G/22/2060 1G:13 2~38227 ~ROUJOS ~ GILR~¥ PC PAGE 86/22/2060 16:13 2~35227 BROUJOS & GILROY PC PAGE 8G/22/2~80 1G:13 2438227 BROUJOS & GILROY PC PAGE 14 .! 0~,/22/2800 1~::3 2439227 ~ROLUOS & G~LRO¥, FC PAGE BLANK'90LASS SFI~IALTY It.n. #1 ICIq~,~BURO, PA'17037 (717) 4~8-~71 R~d by l~ ~NK YOU 0G/22/2000 iG:~... 2439227 BROUJOS & GILROY, PC PAGE 09 06/22/200~ i6:%3 2438227 BROUJOS & GILROY, PC PAGE 88 WORK TO BE COMPLETED AT 381 EASY ROAD, CARLISLE, PA !. Front semen door, $ap under door and around door, cylinder dom not operate correetiy. This allows be~, bu~ etc to enter front po~'ch. 2. Front porv, h window n__,---~-_s attention. 3. Spouting in from is leaking. 4. Screen door and steel door in wasi~0om need to 5e set back further. Water still ~omins into washroom. 5. Screen doors in garage need to be ~or~ected. 6. Back screen door dragsins on cement. 7. Steel door on back of house has a gap in it. 8. Sidin~ damage by washroom door. 9. Window in washroom needs attention. 10. Linoleum not gl~_~O under sink. I I. Board showing under linoleum. 12. Nail showing under linoleum. 13. Trim around windows docs not meet. 14. No caulking around windows 15. Trim between livins room windows and porch needs to bc fixed. 16. Need j channel wl~re power head u.qed to be. 17. Siding at top of well pit doors needs attention 18. Spouting back at field needs a~tention. 19. Spouting up towards barkleys needs attention. 87/26/2888 18:56 2438227 BROUJOS & GILROY, PC PAGE 82 September 27, 1999 Ken Mutzahaush Ken-Do Contracting 826 Church Street Duncannon, PA 17020 Dear Mr. Mutzab~ugh: Our office reprasents Ms. Ruth Gerhardt with respect to your contract with her for remodeling at the home at 381 Easy Road. Ms. Gerhardt has advised us that the majority of the work has been performed but th~t~ are a number of items that still need to be completed as set forth on the aY, ached list. Ms. Gerhardt indicates that she has contacted you several times to come by the house. You have either told her you would come and not met your appointment or you have refvsed to respond to her calls. Ruth advisas us that she has paid you ove~ $28,000.00 for this work. Unless you contact Ms. Gerhardt with 10 days and make satisfactory arrangements to have this work completed, we will proceed with having another contractor complete the work after which a suit will be instituted against you for the costs of the other contractor's work and miscellaneous expenses. Additionally, Mrs. Gerhardt request~ thc original receipt for the linoleum and carpet that you picked up and installed for h~ along with the written guarantee on the windows that have been installed bc cc: Ruth Gerhardt Sincerely yours, H~~. Oilroy 243822? BROUJOS & GILROYt PO PAGE D coNSTRUCTION Phone (717) 776-6599 ~ Fax (717) 776-4-332 ? Hilltop Lane Newville PA 1'/241 Invoice # 30144 Novmnber 1, 1999 Mrs. Ruth Geadtm 3gl easy Rd. Carlisle, Pa 17013 Doors do not open & shut correctly. Remove 4 exterior doors, & rehang correctly. Remove 3 storm doors, & rd~n____~ correctly. Install I new sto/i~i door. Concrete pads aH mn towards house. Tm oul 4 pads & replace. 1- 4flx4fl 2- 42in x 6ft 3- 4fl x 14ft 4- 4flx4fl Re~iaco all metal trim around windows. Install J channel around windows. Remove soffit & install F channel, and lhen replace soffit. Install new fascia around whole house. 06/22/200~ 16:13 2438227 BROUJOS & GILI~¥, ~ PAGE 85 KITCHEN (2) Reso'ew kitchen floor down to concrete floor. Install 1-_,_,-,~ on top of floor. Install linoleum of owner's choice & ghe emire floor down. Replac~ trim around oulsile pedm~r of floor. lnstnll metnl ~ on floor m doorways. TOTAL $ 9195.00 VERIFICATION I verify that the statements made in the foregoing document are tree and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unswom falsification to authorities. Dat~. /~ ~oWO Ruth Gerhardt SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2000-05432 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GERHARDT RUTH VS MUTZABAUGH KENNETH D R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: MUTZABAUGH KENNETH D but was unable to locate Him deputized the sheriff of PERRY in his bailiwick. He therefore County, Pennsylvania, to serve the within COMPLAINT & NOTICE On August 18th , 2000 , this office was in receipt of the attached return from PERRY Sheriff's Costs: Docketing Out of County Surcharge DEP. PERRY CO 18.00 9.00 10.00 27.04 .00 64.04 08/18/2000 BROUJOS & GILROY Sheriff of Cumberland County Sworn and subscribed to before me this 3/~ day of ~_,~3~ A.D. Prothonotary ' . tn The can~; of Common ?leas oi" Cumberland County, Pennsylvania Ruth Gerhardt Kenneth D. Mutzabaugh ~o~ 20-5432 Civil N°w, s/s/oo ,2000, I, SHERIFF OF CLrMBERLAND COIJNT¥, PA, do hereby deputize the Sheriff of Perry County to execllte this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service NO~ within upon at o'clock A ]VI. served the by handing to a T~olE and made lmown to ! /~0~ Sheriff of g q.oo COSTS SERVICE c~ ,00 MILEAGE AFFIDAVIT 2.. 00 Sworn and subscribed before rnethis //qCl day of /}u,~4t$¢~ , 20 o* /'/ O" '" u ~f~ i ~~.e~e I Connzy, PA RUTH GERHARDT, Plaintiff KENNETH D. lvlUTZABAUGH, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 2000 - 5432 CIVIL TERM : : CIVIL ACTION - LAW : PRAECIPE Please enter judgment in favor of Plaintiff, Ruth Gerhardt, against Defendant Kenneth D. klutzabaugh in the amount of $9,195.00 plus interest from klay 1, 1999 and costs of prosecution. :Judgment is entered pursuant to the Defendant's failure to file a responsive pleading to the Complaint. The undersigned counsel hereby certifies that notice of intention to enter this default judgment was sent to the Defendant Kenneth D. l~utzabaugh by regular mail on September 6, 2000 at his address at 826 Church Street, Duncannon, Pennsylvania. A copy of said notice is attached hereto and marked Exhibit Respectfully submitted, Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 (717) 243-4574 BROLrJOS & GILROY, v.c. ATT~IU~'~ AT L~W 4 NORTH HANOVER S~ ~z.]~, ~V~ 17013 T~ ~ ('~.7) 243-4574 FACSIMILE: (71.7") 243-8227 I~ ~ m,.NET:.brgih'oyl:~c~aol.com NoN-TOLL ~ ~RG ~ ~7-7~1~ September 5, 2000 Kenneth D. Mutzabaugh Ken-Do Contracting 826 Church Street Duncannon, PA 17020 Dear Mr. Mutzabaugh: Enclosed for service upon you is a Notice indicating an intention to enter judgment against you in the case of Ruth Gerhardt v. Kenneth D. f4utzabaugh. Sincerely yours, dch Enclosure EXHIBIT RUTH GERHARDT, Plaintiff KENNETH D. MUTZABAUGH, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 2000 - 54:52 CIVIL TERM : : CIVIL ACTION - LAW : Kenneth D. Mutzabaugh Ken-Do Contracting 826 Church Street Duncannon, PA 17020 IMPROTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITI'EN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGEMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A 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. Date: September 6, 2000 Cumberland County Bar Association 2 Uberty Avenue Carlisle, Pennsylvania 717-249-:5166 Brouios & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 1701:5 (717) 24:5-4574 RUTH GERHARDT, Plaintiff KENNETH D. MUTZABAUGH, Defendant IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-5432 CIVIL TERM : CIVIL ACTION - LAW : CERTIFICATE OF SERVICE I hereby certify that I am this day serving a tree and correct copy of the Defendant's Petition to Open or Strike Off Judgment on the plaintiff at the address indicated below by first class mail from the U.S. Post Office, Duncannon, PA 17020. Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover St. Carlisle, PA 17013 Dated: March 14, 2001 l~lin~la~. Charles, secretary for Jerry A. Philpott, Esquire Supreme Court ID//47624 227 No. High Street, PO Box 116 Duncannon, PA 17020 RUTH GERHARDT, Plaintiff Vo KENNETH D. MUTZABAUGH, Defendant 'APR : IN COURT OF COMMON PLEAS FOR : CUMBERLAND COUNTY, : PENNSYLVANIA : NO. 2000-5432 CIVIL TERM CIVIL ACTION - LAW RULE TO OPEN OR STRIKE OFF DEFAULT JUDGMENT AND NOW, this day of March, 2001, on motion of Jerry A. Philpott, Esquire, counsel for Kenneth D. Mutzabaugh, defendant, the Court grants a rule on plaintiffto show cause whythcjudgment should not be opened and defendant Kenneth D. Mutzabaugh let into a defense. Rule returnable twenty (20) days from service. Proceedings to execute on the judgment to stay until determination of the rule. BY THE COURT Jo RUTH GERHARDT, Plaintiff Vo KENNETH D. MUTZABAUGH, Defendant : COURT OF COMMON PLEAS FOR : CUMBERLAND COUNTY, : PENNSYLVANIA : : NO. 2000-5432 CIVIL TERM : CIVIL ACTION - LAW : PETITION TO OPEN OR STRIKE OFF JUDGMENT COMES NOW Kenneth D. Mutzabaugh, the above defendant, by his counsel Jerry A. Philpott, Esquire, and petitions the Court to open or strike offa default judgment entered against him on February 26, 2001, and in support of his petition states as follows: 1. Petitioner is Kenneth D. Mutzabaugh, residing at 826 Church St., Duncannon, Perry County, Pennsylvania 17020. He is a contractor. 2. Petitioner did the contract work that is the subject of this lawsuit. 3. Petitioner acknowledges receiving the complaint in this matter and not answering it. 4. He denies ever receiving in September 2000 the "IMPROTANT NOTICE" [sic] or any other document letting him know that the plaintiffintended to take a default judgment. The first he became aware of the notice was when he saw it attached to the praecipe to enter judgment. He promptly contacted an attorney, thinking he had 10 days to deal with the paperwork. 5. petitioner/defendant has numerous defenses to the complaint filed in this matter ifhe is allowed to plead. See Exhibit A hereto, the answer that he would file if the judgment is opened or stricken off. WHEREFORE defendant Kenneth D. Mutzabaugh asks for a rule to show cause whythe default judgment against him should not be opened or stricken off and after a response to the rule that said judgment be opened or stricken off and that~to file an answer in accord with Exhibit A. / I .l~~ · S~r/~ne Court ID ~4.~624~.~_ _ ~ //?~No. High Stree!,_pO Box 116 //t)uncarmon, PA 17020 Dated: March 13, 2001 ExhibitA Proposed Answer to complaint VERIFICATION The language of the foregoing Petition to Open or Strike off Judgment is that of counsel and not necessarily my own; however, I have read the foregoing document and to the extent that it is based upon information that I have given to counsel, it is true and correct to the best of my knowledge, information and belief; to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this verification. I understand that any false statements made herein are subject to the penalties of 18 Pa.C.S. § 4904, relating to unswom falsification to authorities. '"K~rmeth D. M~h - RUTH GERHARDT, Plaintiff Vo KENNETH D. MUTZABAUGH, Defendant : COURT OF COMMON PLEAS FOR : CUMBERLAND COUNTY, : PENNSYLVANIA : : NO. 2000-5432 CIVILTERM : : CIVIL ACTION - LAW ANSWER OF DEFENDANT KENNETH D. MUTZABAUGH COME NOW defendant Kenneth D. Mutzabaugh, byhis counsel, JerryA. Philpott, Esquire, and answers the complaint in this matter as follows: 2. 3. 4. 5. 6. 7. 8. 9. 10. Admitted. Admitted. Admitted. Admitted. Admitted. Admitted. Admitted. Admitted. Admitted. Denied. At the time the work was completed, the plaintiffexpressed satisfaction with the work. There were no deficiencies, but there were some deliberately unfinished items that were to be completed after plaintiffhad an electrical contractor relocated the main electric panel. Once that was done, defendant completed the patches needed in the siding to cover over the areas affected by the relocation of the main electric service. By way of further answer, the so-called "Deficiencies" (Complaint Exhibit C) were not listed until sometime in the year 2000, about a year after the contract was otherwise complete. Moreover, the "Deficiencies" do not include many of the items for which plaintiff is now claiming the cost of repair. 11. Denied. Plaintiffdidcontactdefendantmanytimes. Initially, defendant responded to the calls and in fact made many minor adjustments. Later, it became obvious to defendant that plaintiffjust wanted someone to talk to and he began to discourage the calls. Plaintiff would want defendant to come see her about an alleged problem, then tell defendant that he could not come for up to three weeks. Other times plaintiff would want him to come right away when he was at work on another job in Perry County and could not get away. 12. Admitted. 13. Admitted. 14. Denied for lack of knowledge. Exhibit E speaks for itself. 15. Denied for lack of knowledge. 16. Admitted. COUNT I - BREACH OF CONTRACT 17. The answers to paragraphs 1 through 16 areincorporatedhereinbyreference as though textually set forth at length. 18. Denied. The contract is silent on the issue raised byParagraph 18 ofthe complaint and in any case speaks for itself. Defendant did do all the contract work in a good and workmanlike manner, however. 19. Denied. 20. Denied. 21. Denied. By way of further answer, the work done by HDC includes new work, includes more expensive work than needed just to repair alleged "deficiencies," and was unnecessary. COUNT II - BREACH OF IMPLIED WARRANTY 22. The answers to paragraphs 1 through 16 are incorporated herein by reference as though textually set forth at length. 23. Admitted. 24. Admitted. 25. Admitted. 26. Denied. 27. Denied for the reasons given in answer to paragraph 21. COUNT III - CONSUMER PROTECTION LAW 28. The answers to paragraphs 1 through 16 are incorporated hereinbyreference as though textually set forth at length. 29. Admitted. 30. Denied. Defendant made no express representations. Defendant did perfomi his work in a good and workmanlike manner. The alleged "deficiencies" are bogus. Accordingly, defendant misrepresented nothing and is not liable under the Consumer Protection Law. 31. Denied for the reasons given in response to paragraph 11. WHEREFORE defendant Kenneth D. Mutzabaugh demands that plaintiff's lawsuit be dismissed. Respectfully submitted, Dated: Jerry A. Philpott, Esquire Supreme Court ID #47624 227 No. High Street, PO Box 116 Duncannon, PA 17020 VERIFICATION The language of the foregoing Answer is that of counsel and not necessarily my own; however, I have read the foregoing document and to the extent that it is based upon information that I have given to counsel, it is true and correct to the best ofmyknowledge, information and belief; to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in makingthis verification. I understand that any false statements made herein are subject to the penalties of 18 Pa.C.S. § 4904, relating to unswom falsification to authorities. Kenneth D. Mutzabaugh PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and su~nitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Pl-~-~e ] i~t the within matter for the next ~t Cou~'L. CAPTION OF CASE (ent/r~ caption n~mt be stated in l%,ll ) Ruth Gerhardt, vs. ( p1 al ntiff ) Kenneth D. Mutzabaugh, ( Defendant ) No. 5432 Civil State matter to be argued (i.e., plaintiff's motion for new trial, defendant's d~,~rrer to ccmplalnt, etc.): Defendant's Petition to Open or Strike Off Default Judgment e Identify counsel who wi I 1 argue case: (a) for plaintiff: Hubert X. Gilroy, Esquire A~klress: 4 Hanover Street, Carlisle, PA 17013 (b) for defem~L~nt: Jerry A. Philpott, Esquire ~ess: 227 N. High St., PO Box 116, Duncannon, PA 17020 3. I wi 11 notify ~l I lmrties in writing within two days that tbi~ case bc~_n ]i-~ted for ar=j~ent. 4. ~t Court Date: July 25, 2001 RUTH GERHARDT, Plaintiff Vo KENNETH D. MUTZABAUGH, Defendant IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-5432 CIVIL TERM CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that I am this day serving a true and correct copy of the Praecipe to List for Argument Court on the person at the address indicated below by first class mail from the U.S. Post Office, Duncannon, PA 17020, which service satisfies the requirements ofP. R. C. P. 440: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 Hanover Street Carlisle, PA 17013 Dated: May 14, 2001 Melinda L. Charles, secretary to Jerry A. Philpott, Esquire Supreme Court ID g47624 227 No. High Street, PO Box 116 Duncannon, PA 17020 RUTH A. GERHARDT, Plaintiff KENNETH D. MUTZABAUGH, Defendant : IN THE COURT OF COMHON PLEAS OF : CUHBERLAND COUNTY, PENNSYLVANIA : : NO. 2000 - 5e,:32 CIVIL ACTION : : : AND NOW, this __ COURT ORDER ~/~day of l~ay, 2001, upon consideration of the attached I~otion to Strike Defendant's Petition to Open Judgment From the Argument Court List, and it appearing from the docket entries of this case that a Rule to Show Cause was not issued by the court on the Petition to Open Judgment as is required under Pennsylvania Rule of Civil Procedure 206.5, it is ordered and directed as follows: A ' ' ~oo I. CC: Jerry A. Philpott, Esquire Hubert X. Gilroy, Esquire RUTH A. GERHARDT, Plaintiff KENNETH D. MUTZABAUGH, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 2000 - 5432 CIVIL ACTION : : : I~IOTION TO STRIKE CASE FROM ARGUI~IENT LIST Plaintiff, Ruth Gerhardt, by her attorneys, Broujos & Gilroy, P.C., sets forth the following: 1 The above captioned case involves a contract claim in which Plaintiff entered a default judgement against Defendant. 2 The default judgment was entered against the Defendant on February 26, 2001. Defendant filed a Petition to Open or Strike Off the Default Judgment on April 6, 2001. Defendant never served Plaintiff's counsel with a certified copy of the Petition to Open or Strike Off Default Judgment. Defendant's counsel did provide Plaintiff's counsel with a courtesy copy of Defendant's counsel's transmission to the Prothonotary which filed the Petition to Open or Strike Off the Default Judgment. 5 The court did not issue any Rule to Show Cause upon the Plaintiff in connection with Defendant's Petition. A copy of the docket entries involved in this case are attached hereto and marked Exhibit "^", said docket entries evidencing that no Rule to Show Cause was ever entered against the Plaintiff. 6 Pursuant to Pennsylvania Rule of Civil Procedure 206.5, the Rule to Show Cause procedure "shall apply" if the relief sought by the petition is the opening of a default iudgment. 7 Rule 206.5 contemplates that the Plaintiff would be afforded an opportunity to file an answer to the petition once the rule is issued. 8 Defendant has listed for argument the Petition by filing a Praecipe with the Cumberland County Prothonotary. A copy of Defendant's transmittal letter and the Praecipe is attached hereto and marked Exhibit "B". 9 Plaintiff's counsel advised Defendant's counsel of the procedural irregularities in this matter by letter of May 11,2001, a copy of which is attached hereto and marked Exhibit "C". 10 Defendant proceeded with listing the matter for argument despite Plaintiff's counsel's request. 11 Additionally, Plaintiff's counsel is not available for Argument Court in July in the event Defendant desires to again list this matter for Argument. WHEREFORE, Plaintiff requests your Honorable Court to strike this case from the Argument Court list and direct the Defendant to proceed in a manner as required by court rules. Respectfully submitted, Broulos & Gl roy, P.C. 4 North Hanover Street Carlisle, PA 17013 (717) 243-e,574 Court ID No. 29943 PYS510 Cumberland County Prothonotary's Office Page 1 Civil Case Inquiry 2000-05432 GERHARDT kUTH (rs) MUTZABAUGH KENNETH D Reference No..: Case TvDe ..... : COMPLAINT Ju~gmeh% ..... ~: 9195.00 Judge Assigned: Disposed Desc.: ............ Case Comments ............. Filed ........ : Time ......... : Execution Date Jury Tr%al .... Disposed Date. Higher Crt 1.: Higher Crt 2.: 8/04/2000 12:36 o/00/o00o 0/00/oo00 General Index Attorney Info GERHARDT RUTH PLAINTIFF GILROY HUBERT X 381 EASY ROAD CARLISLE PA 17013 MUTZABAUGH KENNETH D DEFENDANT 826 CHURCH STREET DUNCANNON PA 17020 Judgment Index Amount Date Desc MUTZABAUGH KENNETH D 9,195.00 2/26/2001 FAILURE TO PLEAD * Date Entries * 8/04/2000 8/18/2000 2/26/2001 2/26/2001 2/26/2001 4/04/2001 4/06/2001 5/15/2001 5/15/2001 ............. FIRST ENTRY .............. COMPLAINT - CIVIL ACTION SHERIFF'S RETURN FILED Litigant.: MUTZABAUGH KENNETH D SERVED : 8/11/00 COMP DUNCANNON PA PERRY COUNTY Costs .... : $64.04 Pd By: BROUJOS & GILROY 08/18/2000 PP~AECIPE FOR DEFAULT JUDGMENT AND DEFAULT JUDGMENT ENTERED NOTICE MAILED TO DEFENDANT IMPORTANT NOTICE FILED CERTIFICATE OF SERVICE FOR DEFTS PETITION TO OPEN OR STRIKE OFF JUDGMENT - BY MELINDA L CHARLES PETITION TO OPEN OR STRIKE OFF JUDGMENT - BY JERRY A PHILPOTT PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFENDANTS PETITION TO OPEN OR STRIKE OFF DEFAULT JUDGMENT - BY JERRY A PHILPOTT ESQ ................................................................... CERTIFICATE OF SERVICE - FOR PRAECIPE FOR ARGUMENT COURT - BY MELINDA L CHARLES ESQ .............. LAST ENTRY .............. * Escrow Information * * Fees & Debits Beg Bal Pymts/Adj End Bal * COMPLAINT 35.00 35.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 JCP FEE 5.00 5.00 .00 JDMT 9.00 9.00 .00 54.50 54.50 .00 * End of Case Information * TRUE COPY In Testimony whereof, I here unto set my hand and the seal of said Court at Carlisle, Pa__ This ...2,.~ (;lay of...~..~. ......... ~.Z'. ~/ Prothonotary ATTORN EYS-AT-LAW Jeny A. Philpott, Esquire 227 No. High St., PO Box 116 717 834-3087 Kevin E. Prosser, Esquire Duncannon, PA 17020-0116 FAX 834-5437 May 14,2001 Prothonotary Cumberland County Courthouse South Hanover Street Carlisle, PA 17013 File no. 01-03-08 Re: Gerhardt v. Mutzabaugh No. 2000-5432 Dear Prothonotary: I enclose the Praecipe to List in triplicate in the form required. I have also prepared a Certificate of Service to be filed. A prepared envelope is enclosed for the return of a time stamped copy of each of the above for our records. Once again I appreciate your kindness and attention to this matter. If you have any questions, please do not hesitate to contact the office. Encl.: CC: Sincerely, ~rles, secretary to Jerry A. Philpott Praecipe to List for Argument (in triplicate) Certificate of Service (2) SASE Hubert X. Gilroy, Esquire (w/attachments) Mr. Mutzabaugh (w/attachments) 'PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please 1 i-~t the within matter f~r the next Argument Court. CAPTION OF CASE (e~ captiou must be stated in b,ll ) Ruth Gerhardt, ( p1 a~ ntiff ) Kenneth D. Mutzabaugh, ( Defe. naant ) No. 5432 Civil ~ 2000 State matter to be argued (i.e., plaintiff's motion for n~ ~';a], defer~ant's dem~=r to c~mplaint, etc.): Defendant's Petition to Open or Strike Off Default Judgment Identify counsel w~ w~ll argue case: (a) fcc plaintiff: Hubert X. Gilroy, Esquire ~4~v~ss: 4 Hanover Street, Carlisle, PA 17013 (b) for defe~nt: Jerry A. Philpott, Esquire A'~ess: 227 N. High St., PO Box 116, Duncannon, PA 17020 3. I w~ll nottf~ all lzrties in writing within two days that tb~-~ case ~--cn Ii-ted for ar=3%m~nt. 4. ~t Court Date: July 25, 2001 RUTH GERHARDT, Plaintiff Vo KENNETH D. MUTZABAUGH, Defendant : IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-5432 CIVIL TERM CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that I am this day serving a true and correct copy of the Praecipe to List for Argument Court on the person at the address indicated below by first class mail from the U.S. Post Office, Duncannon, PA 17020, which service satisfies the requirements ofP. R. C. P. 440: Hubert X. Gilroy, Esquire Bmujos & Gilroy, P.C. 4 Hanover Street Carlisle, PA 17013 Dated: May 14, 2001 Melinda L. Charles, secretary to Jerry A. Philpott, Esquire Supreme Court ID #47624 227 No. High Street, PO Box 116 Duncannon, PA 17020 JOHN H. BROUIOS HUBERT X. GILROY BROUJOS & GILROY, P.C. ATTORNEYS AT LAW 4 NORTH HANOVER STREET CARLISLE, PENNSYLVANIA 17013 May 11, 2001 TELEPHONE: (717) 243-4574 FACSIMILE: (717) 243-8227 INTERNET: brgilroypc@aol.com NON-TOLL FOR HARRISBURG AREA 717-766-1690 Jerry A. Philpott, Esquire 227 North high Street P.O. Box 116 Duncannon, PA 17020-0116 Re: Gerhardt v Mutzabaugh FILE Dear Jerry: For some reason, the Prothonotary sent the enclosed information to me, but I believe it should have been sent back to you. You should be aware of the fact that i have no record of ever formally receiving a signed Rule to Show Cause entered in this matter. The only thing I received from you was a copy of your March 14, 2001 letter to the Prothonotary filing the petition to open or strike off the judgment. Attached to that petition was a proposed court order with a rule to show cause. ! never received a time stamped copy of the petition nor did I ever receive any rule to show cause issued by the court. I believe Rule 206.5(a) requires that a rule to show cause be issued after which I will be required to file an answer. After the answer is filed, the matter would then be ripe for argument. I also note that your May 84 letter to the Prothonotary whereby you attempted to list this case for argument was not copied to me, but I do acknowledge that you apparently gave the Prothonotary a self-addressed stamped envelope to mail notice of the argument to me. In the future, please copy me with all correspondence to and filings with the Prothonotary in this matter. I look forward to hearing from you. dca Enclosure CC: Ruth Gerhardt ~Y #8 RUTH GERHARDT, Plaintiff KENNETH D. MUTZABAUGH Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-5432 CIVIL TERM CIVIL ACTION - LAW IN RE: DEFENDANT'S PETITION TO OPEN OR STRIKE OFF DEFAULT JUDGMENT BEFORE HESS, GUIDO, JJ. ORDER OF COURT AND NOW, this 30TH day of JULY, 2001, a hearing to resolve the factual issues surrounding Defendant's Motion to Open or Strike Judgment is scheduled for FRIDAy, AUGUST 10, 2001, at 10:00 a.m. in Courtroom # 5 of the Cumberland County Courthouse, Carlisle, Pa. Hubert X. Gilroy, Esquire For the Plaintiff Jerry A. Philpott, Esquire For the Defendant :sld Edward E. Guido, RUTH GERHARDT, : Plaintiff : : V. : : KENNETH D. MUTZABAUGH, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-5432 CIVIL TERM ORDER OF COURT AND NOW, this 10th day of August, 2001, after hearing and after having reviewed the briefs submitted by the parties, and it appearing that there has been, from time to time, a breakdown in the system, the Defendant's petition to open judgment is granted. By the Court Edward E. Guido, J. Hubert X. Gilroy, Esquire - NOT APPEARING For the Plaintiff Jerry A. Philpott, Esquire For the Defendant it RUTH GERHARDT, Plaintiff KENNETH D. MUTZABAUGH, Defendant : COURT OF COMMON PLEAS FOR : CUMBERLAND COUNTY, : PENNSYLVANIA : : NO. 2000-5432 CIVIL TERM : : CIVIL ACTION - LAW ANSWER OF DEFENDANT KENNETH D. MUTZABAUGH COME NOW defendant Kenneth D. Mutzabaugh, by his counsel, Jerry A. Philpott, Esquire, and answers the complaint in this matter as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Denied. At the time the work was completed, the plaintiffexpressed satisfaction with the work. There were no deficiencies, but there were some deliberately unfinished items that were to be completed after plaintiffhad an electrical contractor relocated the main electric panel. Once that was done, defendant completed the patches needed in the siding to cover over the areas affected by the relocation of the main electric service. By way of further answer, the so-called "Deftciencies" (Complaint Exhibit C) were not listed until sometime in the year 2000, about a year after the contract was otherwise complete. Moreover, the"Deficiencies" do not include many of the items for which plaintiff is now claiming the cost of repair. 11. Denied. Plaintiffdidcontactdefendantmanytimes. Initiaily, defendant responded to the calls and in fact made many minor adjustments. Later, it became obvious to defendant that plaintiffjust wanted someone to talk to and he began to discourage the calls. Plaintiffwould want defendant to come see her about an alleged problem, then tell defendant that he could not come for up to three weeks. Other times plaintiffwould want him to come fight away when he was at work on another job in Perry County and could not get away. 12. Admitted. 13. Admitted. 14. Denied for lack of knowledge. Exhibit E speaks for itself. 15. Denied for lack of knowledge. 16. Admitted. COUNT I - BREACH OF CONTRACT 17. The answers to paragraphs 1 through 16 areincorporatedhereinbyreference as though textually set forth at length. 18. Denied. The contract is silent on the issue raised by Paragraph 18 ofthe complaint and in any case speaks for itself. Defendant did do all the contract work in a good and workmanlike manner, however. 19. Denied. 20. Denied. 21. Denied. By way of further answer, the work done by HDC includes new work, includes more expensive work than needed just to repair alleged "deficiencies," and was unnecessary. COUNT II - BREACH OF IMPLIED WARRANTY 22. The answers to paragraphs 1 through 16 are incorporated hereinbyreference as though textually set forth at length. 23. Admitted. 24. Admitted. 25. Admitted. 26. Denied. 27. Denied for the reasons given in answer to paragraph 21. COUNT III - CONSUMER PROTECTION LAW 28. The answers to paragraphs 1 through 16 areincorporatedhereinbyreference as though textually set forth at length. 29. Admitted. 30. Denied. Defendant made no express representations. Defendant did perform his work in a good and workmanlike manner. The alleged "deficiencies" are bogus. Accordingly, defendant misrepresented nothing and is not liable under the Consumer Protection Law. 31. Denied for the reasons given in response to paragraph 11. WHEREFORE defendant Kenneth D. Mutzabaugh demands that plaintiff's lawsuit be dismissed. Resp~ Jerry~hilpot~qu_i_r~ j S34~4me Co~ XD ~4763~ //~7 No. X-Xigh ~'S~?___O Bo,, ,,//Duncannon, PA 17020 VERIFICATION The language of the foregoing Answer is that of counsel and not necessarily my own; however, I have read the foregoing document and to the extent that it is based upon information that I have given to counsel, it is true and correct to the best o fmy knowledge, information and belief; to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in makingthis verification. I understand that any false statements made herein are subject to the penalties of 18 Pa.C.S. § 4904, relating to unswom falsification to authorities. RUTH GERHARDT, Plaintiff KENNETH D. MUTZABAUGH, Defendant IN COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-5432 CIVIL TERM CIVIL ACTION - LAW PRAECIPE Pursuant to Judge Guido's Order of August 10, 2001, opening the judgmem, which had the same effect as striking the judgment, please strike the judgment that is on your judgment index at the above captioned docket number. (~es~p ctfully submitte~lq /-~ ....... J~, A. m31ifp~, Esquire PJilLPOTT & ]?ROSSER, LLP ~upreme ~)ID #47624 /227 No. High Street, PO Box 116 Duncannon, PA 17020 Dated: January 29, 2002 Encl.: Copy of August 10 Order Hubert X. Gilroy, Esquire Brenda Albright, Prothonotary of Perry County February 14, 2002, Jud~uent is Stricken. Prothonotary Curtis R. Long, ~~~~ RUTH A. GERHARDT, Plaintiff KENNETH D. MUTZABAUGH, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 2000 - 5432 CIVIL TERM .- : CIVIL ACTION - LAW BRIEF OF PLAINTIFF ON DEFENDANT'S MOTION TO OPEN OR STRIKE OFF JUDGMENT I. Facts and Procedural History. On May 17, 1999, Plaintiff Ruth Gerhardt entered into a contract with Defendant Kenneth D. Mutzabaugh, trading as Ken-Do Contracting, for certain renovations to Plaintiff's home at 381 Easy Road, Carlisle, Pennsylvania. With some change orders, the total contract price was $28,145.64 which Plaintiff paid to Defendant. Defendant did not complete the work pursuant to the contract, and a number of deficiencies existed with respect to the work that was not completed. Prior to instituting suit, Plaintiff's counsel on September 27, 1999 wrote a letter to Defendant (Exhibit "D" of Complaint) advising Defendant of the deficiencies in the work and asking the Defendant to contact the Plaintiff. Defendant failed to respond to this letter. Plaintiff then retained another contractor and paid $9,195.00 to complete the work and rectify the deficiencies in Defendant's work (Exhibit "E" of Complaint). By letter from Plaintiff's counsel dated March 9, 2000 (Exhibit "B" of Plaintiff's Answer to Petition to Open Judgment), Plaintiff submitted the invoice of $9,195.00 to Defendant and requested reimbursement. Defendant failed to respond. Both the September 27, 1999 letter and the March 9, 2000 letter to Defendant from Plaintiff's counsel were sent to Defendant's address of 826 Church Street, Duncannon, Pennsylvania, 17021. Neither letter was returned. Plaintiff instituted suit in the above matter against the Defendant by filing a Complaint with Notice to Plead on August 4, 2000. The docket entries in this case from the Prothonotary (copy attached to this brief and marked Exhibit "A") indicated a Sheriff's return was filed on August 18, 2000 showing that Defendant was served on August 11, 2000. The Sheriff's return indicates service was accomplished at Defendant's residence at 826 Church Street, Duncannon, Pennsylvania. On September 5, 2000, Plaintiff's counsel mailed Defendant a Notice indicating an intention to enter a default judgment. Mailing was done to Defendant's same address of 826 Church Street, Duncannon, Pennsylvania. The mailing was not returned. On February 26, 2001, Plaintiff filed a Praecipe for Entry of a Default Judgment with the Prothonotary along with a certification of the Notice mailed to the Defendant in September 2000. Although the docket entries for Cumberland County do not reflect the same, Plaintiff acknowledges that Defendant's attorney copied Plaintiff's lawyer with a March 14, 2001 letter from Defendant's attorney, received on March 16, 2001, which was the Petition to Open or Strike Off Judgment (Petition) at issue. The docket entries indicate that Defendant's Petition was filed on April 6, 2001. Defendant next listed the Petition for Argument on May 15, 2001. On May 25, 2001, Plaintiff filed a Petition to Strike the Case from the Argument List suggesting Defendant did not follow the appropriate rules and that all proceedings filed in this case were in violation of Pennsylvania Rule of Civil Procedure 206.5. By Order of Court dated May 31, 2001, the Honorable Edward E. Guido issued a Rule upon Plaintiff to Show Cause why the Petition should not be granted, and also denied Plaintiff's request to have the case removed from the July 25, 2001 argument court list. On June 7, 2001, Plaintiff filed an Answer to the Petition which included New Matter raising various allegations of fact. Defendant filed a reply to PlaintifFs New Matter on June 22, 2001. The matter is now before the court for argument. Pursuant to Cumberland County Rule 210-6, Defendant's brief on the Petition was due to be filed with the court and opposing counsel on July 13, 2001. No brief has been filed for the Defendant. I!. Argument. Plaintiff's Answer to the Petition alleged various disputed issues of material fact in the New Matter, the primary fact being the issue of whether Defendant received the September 5, 2001 letter of Notice of Intention to Enter Judgment. Defendant denies in his Petition having received said Notice. However, PlaintifFs counsel alleges in the New Matter that the Notice was mailed on September 5, 2000 with the mailing address being to the same address where Defendant was served with the Complaint and the same address where the Defendant received two prior letters from PlaintifFs counsel. None of the Notices sent to the Defendant were returned, and Plaintiff alleged that the September 5, 2000 Notice of Intention to Enter Default Judgment was served on the Defendant. Defendant filed an Answer to Plaintiff's New Matter denying that the Defendant received the September 5, 2000 Notice of Intention to Enter Default Judgment. However, in spite of this disputed issue of a material fact, Defendant did not proceed with depositions or other such discovery as the court would allow pursuant to Pennsylvania Rule of Civil Procedure 206.7(c). Accordingly, the Petition before the court must be decided on the Petition and Answer and, pursuant to Rule 206.7(c), "...all averments of fact responsive to the Petition and properly pleaded in the Answer shall be deemed admitted..." by the Petitioner. Accordingly, for purposes of resolution of this issue, Defendant has admitted that he received the September 5, 2000 Notice of Intention to Enter Default Judgment. Based upon this admission, the history of this case turns upon the following timetable: September 27, 1999 March 9,2000 August 4, 2000 August 11, 2000 September 5, 2000 February 26, 2001 March 16, 2001 Plaintiff's Counsel's letter to Defendant - Defendant does not respond. Plaintiff's Counsel's letter to Defendant - Defendant does not respond. Complaint with Notice to Plead filed. Complaint with Notice to Plead served on Defendant - Defendant takes no action. Notice of Intention to Enter Default Judgment mailed to Defendant. Praecipe for Entry of Default Judgment filed. Plaintiff's counsel receiving copy of letter from Defendant's Attorney to Cumberland County Prothonotary whereby Defendant attempts to file a Petition to Open or Strike Judgment. April 6, 2001 May 15, 2001 May 25, 2001 May 31, 2001 June 7, 2001 June 22, 2001 Cumberland County Prothonotary records reflect that Defendant's Petition to Open or Strike Judgment was filed. Defendant lists case for Argument. Plaintiff petitions to strike case from argument list Order of Court issuing a Rule upon Plaintiff to show cause why Petition should not be granted, and also denying Plaintiff's request to have case removed from argument court list. Plaintiff's Answer with New Matter to Petition. Defendant's Reply to Plaintiff's New Matter. Ordinarily, the entry of a default judgment is conclusive. A Petition to Strike the Judgment may be granted only when a fatal defect appears on the face of the record, Parliament Industries v William H. Vaughn & Company, 501 Pa.l, 459A.2d 720 (1983). Defendant has not alleged any fatal defect on the record and, for that reason, Defendant's Petition to Strike the Judgment must be denied. Petitioner has also requested the court to open the judgment. A Petition to Open is addressed to the equitable powers of the court. As set forth in Central Penn National Bank v Williams, 523 A.2d 1166, 362 Pa. Super.229 (1987), a court should not open a judgment unless the Petitioner meets the following requirements: 1. The petition has been filed promptly. 2. The failure to act on the original complaint can be reasonably explained. 3. The petitioner avers a meritorious defense to the underlying claim. Plaintiff suggests the Defendant has failed on all three requirements. PETITION NOT PROMPTLY FILED The record shows that the Default Judgment was entered on February 26, 2001. The Petition to Open Judgment was filed with the Prothonotary on April 6, 2001, thirty- nine (39) days after entry of the Judgment. Plaintiff's counsel admits that he received on March 16, 2001 a copy of a letter that included a petition to open a judgment which Defendant was apparently attempting to file with the Prothonotary. Even assuming that Defendant did file on March 16th, this represented an eighteen (! 8) day delay from the date of entry of the judgment. Neither eighteen days nor thirty-nine days represents a prompt filing by the Petitioner, and Petitioner has not met that requirement. DEFENDANT'S FAILURE TO ACT ON THE ORIGINAL COMPLAINT HAS NOT BEEN REASONABLY EXPLAINED Defendant acknowledges in his Petition that he received the complaint and did not answer it (See paragraph 3 of Petition). However, Petitioner does not offer any reason as to why he failed to respond to the original complaint. The original Complaint included a Notice to Plead. It was served on the Defendant on August 11, 2000. The default judgment was not entered for over six (6) months. This is not a situation where the Plaintiff took a snap judgment on the Defendant. The record discloses that the Defendant ignored a September 27, 1999 letter from Plaintiff's attorney, that he ignored a March 9, 2000 letter from Plaintiff's attorney, that he ignored a Complaint with a Notice to Plead served on him on August 11, 2000, and that he ignored a Notice of Intention to Enter Default Judgment mailed to him on September 5, 2000. Defendant had numerous opportunities to respond and failed to do so. This case is strikingly similar to Central Pennsylvania National bank v Williams~ supra. In that case, the court refused to open a $68,000.00 judgment that had been entered twelve (12) days after the Notice of Intention to Enter Default Judgment had been mailed to the Defendant even though the Defendant claimed he never received the Notice. As in this case, the Defendant in Central Pennsylvania listed the case for Argument on Petition and Answer and the court determined pursuant to then Rule 209, now Rule 206.7, that the Plaintiff's allegations of having mailed the Notice of Intention to Enter Default Judgment must be deemed accurate and the Defendant's denial of having received the notice cannot be considered. The court went on to state in Central Pennsylvania that even if the Defendant had supported by deposition his factual assertions that he did not receive the Notice of Intention to Enter Default Judgment, those assertions would not compel the opening or striking of a default judgment as long as the appropriate Notice under Rule 237.1 was mailed to the Defendant at a good address. There is no allegation in the Defendant's Petition that the address used by Plaintiff's counsel was not the appropriate address. The record is void of any reasonable explanation why the Defendant waited until March of 2001 to respond to a complaint that had been served upon him in August of 2000. Defendant has not met the requirement of offering a reasonable explanation for failure to act on the original Complaint. THE DEFENDANT HAS NOT ALLEGED A MERITORIOUS DEFENSE TO THE UNDERLYING CLAIM Attached to the Petition is an Answer Defendant would attempt to file in this case. The Answer merely represents a general denial of the claims of the Plaintiff in the Complaint. Defendant does not assert any unique meritorious defense. Furthermore, by virtue of Defendant's listing the case for argument and not proceeding with depositions, Defendant has again admitted the allegations of Plaintiff's Answer to the Petition in which Plaintiff asserted Defendant did not have a meritorious defense (See Paragraphs 5 and 10C of Defendant's Answer to Petition to Open or Strike Off Judgment). The Defendant has not met his burden to advance a meritorious defense to the underlying claim. 111. Conclusion Plaintiff requests this court deny Defendant's Motion to Open or Strike Off the Judgment entered in the above matter. Respectfully submitted, G'llro, qmre 4 North Hanover Street Carlisle, PA 17013 (717) 243-4574 PYS510 2000-05432 GERHARDT RUTH (va) MUTZABAUGH KENNETH D Reference No..: COMPLAINT ...... 9195.00 ............ Case Comments ............. Cumberland County Prothonotary's Office. civil Case Inquiry Filed ........ : Time ......... : EXecution Date Jury Trial .... Disposed Date. Higher Crt 1.: Higher Crt 2.: Page 1 8/04/2000 12:36 o/oo/oooo o/oo/oooo 5/15/2001 5/24/2001 5/31/200i 6/o7/2ool 6/22/2001 IMPORTANT NOTICE FILED .................................... ~~-6f-~-~6~-6~S PETITION TO OPEN OR STRIKE OFF JUDGMENT - BY MELINDA L CHARLES ................ PETITION TO OPEN OR STRIKE OFF JUDGMENT - BY JERRY A PHILP?~ ...... PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFENDANTS PETITION TO OPEN OR STRIKE OFF DEFAULT JUDGMENT - BY JERRY A PHILPOTT ESQ ~ERTIFICATE OF SERVICE - FOR PRAECIPE FOR ARGUMENT COURT - BY MELINDA L CHARLES ESQ .................. MOTION TO ~ ~S~ FROM ARGUMENT LIST - BY HUBERT X GILROY ESQ FOR PLFF .... - - ......................... 8{-:-i~ ~ ~8~i8~ COURT ORDER - DATED 5~1/ T AND IT APPEARING FROM TO OPEN JUDGMENT FOR ME ARGUMENT COURT LIS THE DOCKET ENTRIES OF THAT A RULE TO SHOW CAUSE WAS NOT ISSUED BY THE COURT ON PETITION TO OPEN JUDGMENT AS IS REQUIRED UNDER PA RULE OF CIVIL PROCEDURE 206.5 IT IS ORDERED AN~D DIRECTED AS FOLLOWS - A FF TO SHOW CAUSE WHY THE PETITION TO OPEN RULE IS ISSUED UPON PL ABLE 6 22 01 - ARGUMENT T BE GRANTED RULE RETURN / 0 J JUDGMENT SHOUL D AT THIS TIME - BY THE COURT EDWARD E GUID s%Jol ......................... ANSWER TO PETITION TO OPEN OR STRIKE OFF JUDGMENT - BY HUBERT X GILROY ESQ FOR PLFF ~8~NG DEFENDANT'S REPLY TO NEW MATTER - BY JERRY A PHILPOTT ESQ LAST ENTRY ......... ****** **** ***** ~ EXHIBIT /******* Escrow Information 2/26/2001 2/26/2001 2/26/2001 4/04/200i 4/06/2001 5/lS/2OOl ****** Attorney Info General Index GERHARDT RUTH pLAINTIFF GILROY HUBERT X 381 EASY ROAD CARLISLE PA 17013 MUTZABAUGH KENNETH D DEFENDANT 826 CHURCH STREET DUNCAN-NON PA 17020 Judgment Index Amount Date Desc MUTZABAUGH KENNETH D 9,195.00 2/26/2001 FAILURE TO PLEA/] * Date Entries ************************************************************ FIRST ENTRY ......... &O~PLA~N~ ~ &I~I£ [C~ION 8/04/2000 ............................................ 8/18/2000 SHERIFF'S RETURN FILED t MUTZ BAUGH KENNETH D Liti an .: CANNON PA PERRY COUNTY D · 8 11~00 COMP DUN ~ .... ~ $~4.04 Pd By: BROUJO~_~_~?~_?~?t? ............... NOTICE MAILED TO DEFENDANT ...................................... RUTH GERHARDT, Plaintiff KENNETH D. MUTZABAUGH, Defendant COURT OF COMMON CUMBERLAND PENNSYLVANIA PLEAS FOR COUNTY, NO. 2000-5432 CIVIL TERM CIVIL ACTION - LAW DEFENDANT'S BRIEF ON HIS MOTION TO OPEN OR STRIKE OFF JUDGMENT Defendant Kenneth D. Mutzabaugh disagrees with plaintiff's recitation of the facts and procedural history in only two respects: (1) he insists that he did do the work under the contract and any deficiencies were minor and hardly warrant the size of the default judgment in this matter; and (2) he never knew about the intention to take a default until he received the copy attached to the praecipe to enter judgment, which finally led him to contact an attorney. In a case riddled with misplaced mail, that is not surprising. Although plaintiff's counsel candidly admits receiving on March 16, 2001, a courtesy copy of the letter mailing the petition to open or strike off the judgment, he makes an issue out of the failure of the petition to get docketed until May 31,2001. Defendant has no explanation for that either and will just struggle through with the argument. ARGUMENT Defendant will focus his argument on the petition to open the judgment. At this juncture, there are no irregularities or defects on the face of the record that would warrant "striking off" the judgment. The power of the Pennsylvania courts to open judgments is ample, and policy requires its liberal use, the goal being to achieve justice between the parties. Kwasnik v. Hahn, 419 Pa. Super. 180, 615 A.2d 84 (1992). The judgrnent in this case is a default judgment. It is the policy of the courts to be liberal in the exercise of its equity power in this area. Kwasnik v. Hahn, 419 Pa. Super. 180, 615 A.2d 84 (1992). "A long line of cases has established the principles that:.., relief will be given to one against whom a default judgment has been taken where a petition is promptly filed, the default reasonably explained or excused, and a defense shown to exist upon the merits." Wheel v. Park Building, 412 Pa. 545, 546, 195 A.2d 359, 361 (1963). "Promptly filed" PlalntitTmakes much of the failure to the formal filing of the petition to appear on the docket, although she admits a courtesy copy of the petition was in her attorney's hands on March 16, only 18 days after the praecipe to take the default was filed. Defendant Mutzabaugh in his "Reply to New Matter" asserts in a verified pleading that he first became aware of the praecipe to take the default on March 9 and promptly contacted an attorney, believing that such a document was actually the ten-day notice of intention to take the default, of which he had no prior awareness. Within two days of his appointment with the attorney, the instant petition to open had been placed in the mail to the Prothonotary. Clearly, plaintiff's counsel received his copy; defendant has no explanation for what happened to the original, although it had to be somewhere in the Cumberland County Courthouse because, without steps being taken to file it again, it materialized on May 31. Defendant contends that equity requires that the prompt mailing of the petition properly addressed satisfies the requirement of prompt filing. "Reasonably explained or excused" Defendant makes no excuses for his previous failures to respond to court papers. However, he adamantly denies ever being aware of a notice of intention to take a default and took prompt action once he became aware of it. He does not deny that his address has been the same throughout. He does not deny receiving other items to which he did not respond, such as the initial complaint and the subsequent praecipe to take the default. What possible explanation could he give? One either receives mail or one does not. Apparently the Prothonotary did not receive a letter that plaintiff's counsel did receive. Perhaps the presumption that the postal service never fails is inappropriate in a court of equity. "A defense shown to exist upon the merits" The answer attached to the petition to open disputes several allegations of the complaint. It is easy, of course, to say that the work was done properly and there were no deficiencies. However, the answer also contains the allegation that "the work done by [the new contractor] includes new work, includes more expensive work than needed just to repair alleged 'deficiencies,' and was unnecessary." What should most appeal to a court of equity is that plaintiff is taking a default on a claim that defendant asserts is inflated by a claim for new work. Homeowner/contractor disputes are fact-intensive and contentious. However, a homeowner who hires a replacement contractor and then tries to recover from the original contractor payment for new work that was never even part of the original contract does not come to this court with clean hands. It is a meritorious defense to a contract claim to allege that the repair bill includes work in addition to any necessary repairs. The procedural quagmire in this ease Counsel calls to the Court's attention that the rules for petitions were changed in 1996. Sec Pa.R.C.P. 206.1 - .7. Counsel readily admits that he did not know this until he started to prepare this brief. Rule 206.5 calls for a specific form of"Rule" to cover a petition. Counsel did not follow that procedure. On the other hand, when the Court issued the rule on May 31, it did not use the talc that counsel had attached. Nor does thc Court's "rule" comply with Rule 206.5 any more than counsel's did. In particular, new rule 206.5 calls for the Rule to set a deposition schedule. Counsel for plaintiff complains that no depositions have been taken. Defendant has averred in a verified pleading that he did not get the notice of intention to take a default. A deposition could have been taken to get more detail on that denial. It is hard to see what more can be said than "I never saw it." However, no depositions were taken. Another oddity of the procedural posture of this case is the plalntiffput "new matter" in her answer to the petition. The rules do not seem to contemplate that. Defendant, however, replied to the new matter in a verified pleading. If, as stated in new role 206.7, matters pleaded in the answer are deemed admitted where depositions are not taken, what does the controversion of those matters in a reply accomplish? How can that which is denied in a reply be deemed admitted? Local rules would require that this brief be filed on July 13, twelve days before argument. On July 16, defendant's counsel received a post card calling attention to those local rules, although it is dated July 5. The plaintiff's brief followed by fax not long after. Counsel apologizes for any inconvenience to the Court due to the belated filing. The mails are obviously not very reliable. Counsel points these matters out because of the way the higher courts have dealt with similar glitches in the past. See, for example, Kwasnik v. Hahn, 419 Pa. Super. 180, 615 A.2d 84 (1992), where the Superior Court reversed and remanded for the taking of depositions under old Rule 209, now replaced by 206.1 et seq. If the Court feels that a more thorough factual record is necessary, defendant asks for the oppommity to conduct depositions, the deadline for which was never set as required by new rule 206.5. Conclusion For the foregoing reasons, defendant Kenneth Mutzabaugh asks that his petition to have the default judgrnent be opened be granted and that his answer be accepted as the answer in thisc~e. Dated: July 20, 2001 cc: Ken Mutzabaugh Hubert X. Gilroy, Esquire Jerry A.~P~lpott, Es'q~i~9~ Supre~r'Court ID #47f~4/~ BROUJO$ &: GILROY, ATTORNEYS AT LAW · NORTH HANOVER STREET CARLISLE, PENNSYLVANIA 17013 TELEPHONE: (7~) 243-4574 FACSIMILE: (717) 243-8227 INTERNET:brgilroypc@aol.com NoN-TOLL FOR HARRISBURG AREA 717-766-1690 August 15, 2001 The Honorable Edward E. Guido Cumberland County COurthouse Carlisle, PA 17013 RE__ugh Dear Judge: I understand that there was a hearing last Friday in the above referenced case and that no one from our office was in attendance to represent the Plaintiff. First of all, I would like to apologize to the Court for any inconvenience caused by our offices failure to appear at the hearing. We have a great deal of respect for the court's calendar, and we would not intentionally disregard a notice to appear for a hearing. I can easily say that this has never happened before in twenty-two years of practicing law. Secondly, I would like to indicate that no one in my office had any notice of the scheduled hearing date. Both my secretary, Bridget Corcoran, and I were aware that a hearing was to be scheduled in this case and we were both waiting for notice from the Court scheduling a hearing date. My secretary does not recall anything coming through the mail scheduling a hearing, I don't recall anything coming through the mail scheduling a hearing, there was nothing on my calendar indicating a hearing had been scheduled by a phone call from your office prior to the issuance of the orde~ and a check with Mr. Broujos and other staff in the office confia:med that no one in our office had notice that a hearing had been scheduled. The purpose of this letter is to formally apologize to the Court, and this letter is not intended to request the Court to reconsider its decision. The Honorable Edward E. Guido August 15, 2001 Page 2 Thank you for your attention to this matter. Sincerely yours, e~~X.~ilroy bc RUTH A. GERHARDT, Plaintiff KENNETH A. MUTZBAUGH, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 00 - 5432 CIVIL TERM : : CIVIL ACTION LAW PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Hubert X. Gilroy, Esquire, counsel for the Plaintiff in the above action, respectfully represents that: 1. The above-captioned action is at issue. 2. The claim of the Plaintiff in the action is $9,195.00. The following attorneys are interested in the case as counsel or are otherwise disqualified to sit as arbitrators: Hubert X. Gilroy, Esquire Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 Jerry A. Philpott, Esquire Philpott & Prosser, LLP 227 North High Street Duncannon, PA 17020 WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Hubert X. Gilroy, ~F~quire Attorney for Pla/i~'tiff ORDER OF COURT AND~ N~OW, ~.//~ o~_ , 2002, in consideration of the foregoing petition, ~_/.~'~ , Esq., ~ x/_f_~,~¢~¢.// Esq., and ?~ ~>~,~ Esq., are appoi-nted arbitrators in the above-captioned action as prayed for. By the C~~ · RUTH A. GERHARDT, Plaintiff KENNETH D. MUTZABAUGH, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 00 - 5432 CIVIL ACTION - LAW PRAEC1PE Pursuant to the Board of Arbitration award issued in the above matter on July 23, 2002 and it appearing no appeal has been taken to the award, please enter Judgment in favor Plaintiff Ruth Gerhardt and against Defendant Kenneth D. Mutzabaugh in the amount of $6,222.00. Respectfully submitted, ~quire Attorney for Plaintiff Broujos & Gilroy, P.C. 4 North Hanover Street Carlisle, PA 17013 (717) 243-4574 Supreme Court ID No. 29943