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Home My WebLink About01-1830 FX 09-3-02 01- /8'30 o"vi I NOTICE/OF JUDGMENTITRANSCRIPT CIVil CASE PLAINTIFF: NAME and ADDRESS 'wHISLER'S WELL DRILLING -, 366 -1 GREENS PRING RD NEWVILLE, PA 17241 L -.J VS. COMMONWEAlTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mag. Dist. No.: DJ Name: Hon. HELEN B. SHULENBERGER Add,,,,, P.O. "BOX 155 27 W. BIG SPRING AVENUE NmfVILLE, PA Tel,ph'" (717) 776 - 3187 17241 DEFENDANT: 'HOSPELT, ROGER 115 SOUTHS IDE DR NEWVILLE, PA 17241 L NAME and ADDRESS -, WHISLER'S WELL DRILLING 366-1 GREENS PRING RD NEWVILLE, PA 17241 -.J Docket No.: cv- 0000155 - 00 Date Filed: 11/20/00 TIM IS TO NOtiFY YOU THAT: Judgment: [iJ Judgment was entered for: (Name) 00 Judgment was entered against: (Name) FOR PT.1\. TNTIFF WlIT~T.'R'R 1!=Ii WRT.T. nRTT.T.TN~ HORFRT.T, ROGRR in the amount of $ '- 01'- R7 on: (Date of Judgment) 1 I'-Ii 101 . . D "Defendants are jointlY and, severall;lliaple. , D Damages wil'l be assessedbn: (Date &Time) D This case dismissed without prejudice: Amount of JUdgment Judgment Costs Interest on Judgment Attorney Fees Total $ 1.925.27 $ 87.60 $ .00 $ .00 $ 2.012.87 D Amount of Judgment Subject to Attachment/Act 5 of 1996 $ Levy is stayed for days or 0 generally stayed. Post Judgment Credits $ Post Judgment Costs $ D D ------------ ------------ Certified Judgment Total $ Objection to levy h~s been filed and hearing will be held: Date: Place: Time: ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITHTHE PROTHONOTARY/CLERK OF THE COURT OF COMMONPLEp,S. CIVIL DIVISION. YOU MUST INCLUDE .ACOP~ /A~~~E~~D~.NTrTRANSCRIPT F : R.M~ITHXOUBN0T~CE OF ApPEAL. //;!l::r~ol Date '..,: ,DistrictJustice I certirythatthis isa true andcorrecl cOPY0/~tie ~eco~d of the proceedings contai~ing the judgment. , ?~(5::-01 'Date ~(J~~ ' "District,Justice My commission expires first Monday of January, Aope 315-99 2006 SEAL ~,,.-" i ,.',t' ; ~ " ,'",~,-' !!~Jlljiiil!llilflHI.Uib:j~jj;~+h..u;l--l/1,Mm~Wiiln:;;;~!II<""",,,,,,",,",,~,,,,,;,,,,Gl~''''"tA';!~iv"'\'~~i4'lci~,t;,;&'ili,Mil.~-;''"''''''':IIIi!ilIi1ll 11 .ilt1wlt!~a.Ll "" l~lWWl~~!ii ~"i1i -'" IIItitF (\0 'I~ ...... " 0 \t:~ , ~" C ", ~ ;:::: :J~ 'tt:. \~. ~ -o..."~ , .r,'" -.." ~ ' ) rnrYj >J C) 2:1:::, ~' "'I S "'"' 6} ~,~~ N -'-',;'j --s:, \D CJ ~ '1 -<...-~.. :~~~ ~--! ~ ~ 01 ~ ~o ~. " ,'!j ~ it >C' r ,~_ ~ Z ,< ~-"" 2~F;~ "" --0 9 " )>C ~ -., ~ Z 0-' :p; =< w :0 -=i::) eJ1 -< +-;, ,!~I[!lj,~jL, e, ._~.." , ~ f'(g~',~.. ~. ~''''''''.."",," ~~.~.~, .,.~,,~-,,~ " ~~-,~~," - = .. , ~ -. , , "-6 ~ ~, ,[I I","",'. I, ue-o,l < ,,' ',",',-",.-... .," . :.of wmSLER'S WELL DRILLING, Plaintiff :IN THE COURT OF COMMON PLEAS :OF CUMBERLAND COUNTY, :PENNSYL VANIA v. ROGER HOSFELT, : NO. 2001-1830 CIVIL TERM Defendant ORDER OF COURT AND NOW this day ofJune, 2001, upon consideration of the within Petition to Open Judgment and/or Allow Filing of a Notice of Appeal from District Justice Judgment Nunc Pro Tunc, and upon motion of Sally J. Winder, Esquire, it is hereby ORDERED and DIRECTED that the Judgment entered to the above-captioned number and term be opened and that Petitioner, Roger L. Hosfelt be allowed to file a Notice of Appeal from the District Justice judgment within ten (10) days of the date of this Order, or, alternatively, ORDERED and DIRECTED that a Rule to Show Cause is hereby issued upon Plaintiff Respondent Whisler's Well Drilling to show cause if any it shall have why the Judgment should not be opened and the Appeal Nunc Pro Tunc not be allowed. This Rule shall be served upon Counsel for Whisler's Well Drilling, Jason Kutalakis, Esquire by hand delivery of a copy of the Petition and Rule at his office address. By the Court, J. \ WHISLER'S WELL DRILLING, PLAINTIFF : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYL VANIA V. : NO. 2001-1830 CIVIL TERM ROGER HOSFELT, DEFENDANT PLAINTIFFS' BRIEF IN SUPPORT OF THEIR OPPOSITION TO DEFENDANT'S MOTION TO REOPEN THE JUDGMENT I. FACTUAL AND PROCEDURAL HISTORY Plaintiff, Whislers' Well Drilling, is a sole proprietorship, owned and operated by Richard Whisler. Notes of Deposition of Defendant on July 18, 2001 (hereinafter, "N.D.") at page 17, lines 3-7. Defendant, Roger Hosfelt, is self-employed as a general contractor. N.D. at 4. On or about November 1999, defendant asked-Ronald Annolt, plaintiffs' excavator, to deliver sand to defendant's lot #9 at Deer Crossing Estates. Notes of Testimony of Ken Whilser (hereinafter referred to as "N. T. ") at 8, lis. 3-10. Defendant planned to utilize the sand for a sandmound septic system. Defendant never provided a septic design to plaintiff for a sandmound on lot 9. N.T. 11, lis. 19 - N.T. 13, lis. 10. , ." Defendant has never paid plaintiff for the sand. Plaintiff additionally provided excavating services for defendant on a Franklin County property owned by defendant. Defendant admits the excavation was satisfactorily and timely completed. He also admits that he did not pay plaintiff for the excavation. N.D. at 18-19. Defendant admits the value of the sand is $950.00. On January 25, 2001, a hearing was held before District Justice Harold Bender, who is substituting for Helen B. Shu1enberger in the above- captioned matter. N.D. at 5. Janet Whisler appeared to present the factual basis of plaintiffs' claim at that hearing. N,D.5-6. Roger Hosfelt appeared on his own behalf at the hearing on January 25, 2001. N.D. at 17, lis. 12-14. Neither party appeared with legal counsel. N.D. 17-18. A Judgment was entered against the Defendant in the amount of Two Thousand Twelve Dollars and Eight-seven Cents ($2,012.87) on that date. N.D. at 5, lis. 20- 24. Also see, Notice of Judgment, attached hereto as Plaintiff's Exhibit A. The Notice of Judgment clearly provides standard notice at the bottom of the judgment. It states that, "ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF COURT OF COMMON PLEASE, CIVIL DIVISION. . . " I , f~~ ,.'" ~ Defendant admits receiving the Notice of Judgment. N.D. at 12, lis.21-25. On or about March 29, 2001, the Judgment was entered against the Defendant, Roger Hosfelt. See, Prothonotary's Office Notice, dated March 29, 2001, attached hereto as Plaintiff's Exhibit B. On or about June 1,2001, the Defendant by and through his counsel, Sally Winder, Esquire, filed a Petition To Open Judgment, or alternatively, allow filing of a notice of appeal from District Justice Complaint Nunc pro Tunc requesting this Honorable Court to reopen this matter. This Honorable Court directed that depositions to be completed within forty-nine (49) days from June 4, 2001. Depositions were conducted on July 18, 2001. Briefs were directed to be filed on or before August 22, 2001. This Brief arises from said Order. II. ISSUE Whether the defendant should be precluded from reopening the Judgment entered against him? Suggested Answer: In the affirmative. III. ARGUMENT The sole issue this Honorable Court is whether or not this Court may allow Defendant to reopen the Jud~ent entered against him. The Superior Court has ruled that where a Defendant fails to plead sufficiently that a Defendant did not file a timely appeal due to a breakdown or a fraudent activity within the court system, an appeal Nunc pro Tunc will be denied. Goldberg v. Goldberg. 461 A.2nd 1037,315 Pa. Super. 333 (1983). and 42 Pa.C.S.A. S 1002. A Defendant may only be permitted to reopen a Judgment against him when he shows that his failure to file a timely appeal was an administrative error, negligence or fraud. Goldberg citing Conrad v. Keemmer, 447 A.2nd 1032 (1982). The sole issue before this Honorable Court is whether or not the Defendant, Roger L. Hosfelt's, failure to file a timely appeal was due an administrative error, negligence or fraud. Defendant has failed to plead such a failure. He also has failed to provided a sufficient factual basis at the depositions conducted on July 18, 2001, to support the reopending ofthe judgment. Mr. Hosfelt's asks that This Honorable Court should allow him to reopen the Judgment entered against him based upon his contention that preceding, during and following the hearing before District Justice Bender, he entered into a contractual relationship with Whisler's Well Drilling to put a well and septic system in on his property located at Lot 9 at Deer Crossing Estates in the amount of $8,500. Following the hearing, District Justice Harold Bender entered a judgment on behalf of Whisler's Well Drilling and against Mr. Hosfelt. Both in his pleadings and at his deposition, defendant states that District Justice Bender witnessed the negotiations between defendant and plaintiff. N.D. at 6, lis. 3-12; at 7, lis. 18-25; at 8, lis. 1-9. Also see, Petition to Open Judgment, paragraph 7. In fact, defendant claims that District Justice Bender mediated an agreement between the parties. N.D. at 6, lis. 8-12; at 8, lis. 7-9. District Justice Bender has provided an Affidavit that defendant admitted as his exhibit "D-A" during the deposition on July 18,2001. His affidavit states that Janet Whisler never entered into discussions in attempts to resolve this case; never admitted to this matter being a part of any uncompleted contract; nor never agreed or bound Whisler's to install a sandmound septic system and well for defendant. He states that, "Iilo the contrary, Janet Whisler informed Roger Hosfelt that she would have to discuss this matter with her husband, Richard Whisler." See, District Justice Bender Affidavit, attached hereto as Plaintiff's Exhibit C.I 1 Because credibility is important to this matter, the court should note that the defendant in his pleading and verification made under threat of unsworn falsification, on May 3 I, 200 I, that the well and septic were not yet installed as ofthat date. At deposition, defendant admitted that on May 20, 200 I, Adams Well Drilling installed the well on the lot at issue. D.T. at 22. Ken Whisler testified that the well had been installed and Ken Whisler testified that the first time that the defendant and he discussed the installation of a well and septic system on lot #9, was in late winter, when defendant telephoned him. N.T. at 10, lis. 18-22. Ken informed defendant that Dick Whisler refused to perform any more work for defendant. N.T. at 14, lis. 22-25. Ken also testified that his mother, Janet Whisler, informed him that she never entered into any agreement with defendant to install a well or septic system. N.T. at 16. Defendant claims that District Justice Bender, a sworn office of the court, must be lying. N.D. at 9, lis. 7-20. He also believes that Janet Whisler, Ken Whisler and Ron Armolt, the excavator, are lying. When the thirty-day (30) appeal period approached, defendant did not both to contact an attorney nor did he file the appeal. He has been through numerous hearinR before district justices where he has both won and lost cases. He is fully aware that you may appeal a district justice's ruling. N,D. at 24, lis. 15 - N,D. at 25, lis. 7. Defendant had not even filed an appeal by April 30, 2001. Defendant stakes for the septic system had been placed. N.T. 14. <. states that he had no reason for not filing the appeal. N.D. at 27, lis. 19-23. Defendant should not be provided the opportunity to benefit from his own lack of diligence. In defendant's Petition to Open Judgment, he clearly is attempting to use this Petition to gain the opportunity to counter-claim for breach of contract and damages. See, Defendant's Petition to Open Judgment, paragraph 18. To allow the defendant to reopen this matter will completely circumvent the Pennsylvania Rules of Civil Procedure. IV. CONCLUSION WHEREFORE, Plaintiff prays that This Honorable Court deny defendant's Motion to Open Judgment. Respectfully submitted, ABOM & KUTULAKIS, L.L.P. ~~ a L _'~' l 'I ~,,~ , -"'~--""~, CERTIFICATE OF SERVICE AND NOW, this 22th day of August, 2001, I, Jason P. Kutulakis, Esquire, hereby certify that I did serve a true and correct copy of the foregoing PLAINTIFFS BRIEF IN SUPPORT OF THEIR OPPOSITION TO DEFENDANT'S MOTION TO REOPEN THE JUDGMENT upon Sally Winder, Esquire, Defendant, first class mail at the following: Sally Winder, Esquire 701 East King Street Shippensburg, PA 17257 ABOM & KUTULAKIS, L.L.P. _, __??$;:0o n P. Kutulakis A J.D. #: 80411 8 South Hanover Street, Suite 204 Carlisle, PA 17013 Attorney for Plaintiff - , , ; '"', < ~~'~" l "", Jun-01-01 07:51A P.09 OJI\';!IM, liun. 01 " /30 c../ c iJ NOTICE OF JUDGMENTrrRANSCRIPT CIVIL CASE PI A1NTIFF: NAME i3u'lIJAOORE.SS. 'wHISLER'S WELL DRILLING I 366.1 GRBENSPRING RD NEWVILLE, PA 17241 ~EALTH OF PENNSYLVANIA ...,aNTY OF' CUMBERLAND ..Jo.:..::.;;---- Mag. Oi~tNo.. ~. 09-3-02 HELEN B. SHULENBERGER ""'"". P.O. BOX 155 27 W. BIG SPRING AVENUE NEWVILLE. PA TO.""''''' (717) 776.3187 17241 L ..J D(':'f-!::NDANT: NAME illldAOOHf::5S 'HOSPELT. ROGER 115 SOUTHS IDE DR NEWVILLE, PA 17241 I V$. -I WHISLER'S WELL DRILLING 366-1 GRBENSPRING RD NEWVJ:LLB, PA 17241 Docket No.; ey.0000155-00 Date Flied; 11/20/00, ..J .,...q.......... .... '" . '," ,,""', .. THIS IS TO NOTIFY-YOU THAT: Judgment: FOR PT.A TNTTFF [iJ Judgment was entered for: (Name) WffI!11,F.R I A W"RT.r. nRTr.r.Tl\l"t: [i] Judgment was entered against: (Name) IIOAll'RT.'I' RnaRR in the amount of $ '2 nl'2 11'1 on: (Date of Judgment) 1/?'i/n1 D Defendants are jointly and severally liable. D Damages will be assessed on: (Date /I Time) O Amount of Judgment SUbject to AllachmentJ Act 5 of 1996 $ Amount of Judgment $ 1.925.2.7 Judgment Costs $ 87.60 Intetest on JUdgment $ .00 Attorney Fees $ .00 Total $ 2.012.87 Post Judgment Ctedits $ .. Post Judgment Costs $ ------_.......-.-- ------------ Certified Judgment Total $ .. o Thi~ case dismissed without prejudice. o Levy is slayed for days or D generally stayed. -0 Objection 10 leVy has been filM and hearing will be held: .. Dale; Place: _.- Time: ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOT ARYICLERK OF THE COURT OF COMMON PLEAS. CIVIL DIVISION. YOU MUST INCLUDE A COPY O~~S NOTICE~~D:E.NTrrRANSCRIPT F RM WITH YOUR NOTICE OF APPEAL. . ~?" /'.,./""}7~ 1~~f~(I/ Dale~... . District Justice I certify that this is a true and correct copy ~ --15-0L Date ~ (J. the record of the proceedings containing Ihe judgment .......~ . District .Justice "' EXHIBIT I My commission expires first Monday of January. 2006 SEAL " . p- A , ,. AOPC 31S.9. -- CvJ.:Lf . 1J. .. 1/ ., J Jun-01-01 07:51A PROTHONO'fARY'S OF1"ICE Cuurl House. Curlisle, PA 17013 .' In accordanl.:c with Rule 2360frhe Pennsylvania Supreme Court, this is to notify you that the following (order) (decree) UlIdgmenr) was entered aguinsryoll in this office. Dd"cnuanl t1'r- /losFe (I- ,__ Plaintiff JVI, Jj/er ~ l;tJtI/._ _ai!J~ . .__" Dale 01-;1.17/ ...J9_..._ # '7 J::"v;h iL.d- A PromolluUlry P.10 "' 0\ EXHIBIT !?-B I . -", ~, - "I ' ,~ . _I I. "I ". '-- .~\.",t~ 07/18/01 08:20 FAX 717 532 3308 DJ 09-3-01 ~002 WHISLER'S WELL DplT.T.~G. l':LAINTIF.I!' ; IN THE COVRT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : nNN"SYLVANIA . . Y. : NO. 1001.1830 CIVIL TERM : ROGER HOSFELT, : DEFENDANT AFFIDAVIT I, District Justice Harold Bender, to hereby Awear-8l1daffirm-that, in substituting for Pistdct Justice Shulenbl!l'ger on Ja:oUBty 25,2001, I presided at the hearing between the above-captioned parties. At no time did I witness Janet Whisler enter into discussions in attempts to resolve this case. She never admit1:ed to tbis m.dtR'(" being a part of any 'UIICOID.pleted contract. Janet Whisler never agreed or bound Whisler's to install a sandmound septic system and well for the defendant. To the oonttary. Janet Whisler informed Roger Hm:felt that she would have to diSC1.lSS this matter with her husband, Richard Whisler. To no avail, Roger Hosfelt coD1il1ued to attempt to have Janet Whisler commit Whisler's to compromise the judgment. Date: July Lt'" 2001 lt~~ ~~ ~ Distri Ustice Harold Bender NOTA,R.YPUBUC My cam.....<riOll. expin:s: }- O;l, ~(, HAROLD E. Bl:NO"R Qa~ JllstlCl:! 0S03-01 ... P,O. SCX'3a1 ~f Wafl'lU[ i)oaorn Ad I Mv~'Pi?Crt!ibUr5J. PA 17257 , 1$Si0ll Scpjre!; Janui:!:y ,-, ~ ~ EXHIBIT I !D-A I '- 07/17/01 17:11 TX/RX NO..2108 P.002 . <Q_..-'-'-'-- , - ~ L'I,d ", ,,' ""'""~~< j,~~~ WHISLER'S WELL DRILLING, PLAINTIFF : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYL VANIA V. : NO. 2001-1830 CIVIL TERM ROGER HOSFELT, DEFENDANT PLAINTIFFS' BRIEF IN SUPPORT OF THEIR OPPOSITION TO DEFENDANT'S MOTION TO REOPEN THE JUDGMENT I. FACTUAL AND PROCEDURAL mSTORY Plaintiff, Whislers' Well Drilling, is a sole proprietorship, owned and operated by Richard Whisler. Notes of Deposition of Defendant on July 18, 2001 (hereinafter, ''N.D.'') at page 17, lines 3-7. Defendant, Roger Hosfelt, is self-employed as a general contractor. N.D. at 4. On orabQut NQvember 1999, defendantasked-RQnald Arm{)1t, plaintiffs' excavator, to deliver sand to defendant's lot #9 at Deer Crossing Estates. Notes of Testimony of Ken Whilser (hereinafter referred to as "N.T.") at 8, lis. 3-10. Defendant planned to utilize the sand for a sandmound septic system. Defendant never provided a septic design to plaintiff for a sandmound on lot 9. N.T. 11, lis. 19 - N.T. 13, lis. 10. . . ,~ -, Defendant has never paid plaintiff for the sand. Plaintiff additionally provided excavating services for defendant on a Franklin County property owned by defendant. Defendant admits the excavation was satisfactorily and timely completed. He also admits that he did not pay plaintiff for the excavation. N.D. at 18-19. Defendant admits the value of the sand is $950.00. On January 25,2001, a hearing was held before District Justice Harold Bender, who is substituting for Helen B. Shulenberger in the above- captioned matter. N.D. at 5. Janet Whisler appeared to present the factual basis of plaintiffs' claim at that hearing. N.D. 5-6. Roger Hosfelt appeared on his own behalf at the hearing on January 25,2001. N,D. at 17, lis. 12-14. Neither party appeared with legal counsel. N.D. 17-18, A Judgment was entered against the Defendant in the amount of Two Thousand Twelve Dollars and Eight-seven Cents ($2,012.87) on that date. N.D. at 5, lis. 20- 24, Also see, Notice of Judgment, attached hereto as Plaintiff's Exhibit A. The Notice of Judgment clearly provides standard notice at the bottom of the judgment. It states that, "ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF COURT OF COMMON PLEASE, CIVIL DIVISION. . . " - ',"~ ", , '1.cl'~;, Defendant admits receiving the Notice of Judgment. N.D. at 12, lis.21-25. On or about March 29, 2001, the Judgment was entered against the Defendant, Roger Hosfelt. See, Prothonotary's Office Notice, dated March 29,2001, attached hereto as Plaintiff's Exhibit B. On or about June 1, 2001, the Defendant by and through his counsel, Sally Winder, Esquire, filed a Petition To Open Judgment, or alternatively, allow filing of a notice of appeal from District Justice Complaint Nunc pro Tunc requesting this Honorable Court to reopen this matter. This Honorable Court directed that depositions to be completed within forty-nine (49) days. from June 4, 2001. Depositions were conducted on July 18,2001. Briefs were directed to be filed on or before August 22, 2001. This Brief arises from said Order. II. ISSUE Whether the defendant should be precluded from reopening the Judgment entered against him? Suggested Answer: In the affirmative. III. ARGUMENT The sole issue this Honorable Court is whether or not this Court may allow Defendant to reopen the Judgment entered against him. The Superior . "" , ,< '""',,' . . '"'r. Court has ruled that where a Defendant fails to plead sufficiently that a Defendant did not file a timely appeal due to a breakdown or a fraudent activity within the court system, an appeal Nunc pro Tunc will be denied. Goldberg v. Goldberg, 461 A.2od 1037,315 Pa. Super. 333 (1983). and 42 Pa.C.S.A. S 1 002. A Defendant may only be permitted to reopen a Judgment against him when he shows that his failure to file a timely appeal was an administrative error, negligence or fraud. Goldberg citing Conrad v. Keemmer, 447 A.2od 1032 (1982). The sole issue before this Honorable Court is whether or not the Defendant, Roger L. Hosfelt's, failure to file a timely appeal was due an administrative error, negligence or fraud. Defendant has failed to plead such a failure. He also has failed to provided a sufficient factual basis at the depositions conducted on July 18, 2001, to support the reopending of the judgment. Mr. Hosfelt's asks that This Honorable Court should allow him to reopen the Judgment entered against him based upon his contention that preceding, during and following the hearing before District Justice Bender, he entered into a contractual relationship with Whisler's Well Drilling to put a well and septic system in on his property located at Lot 9 at Deer Crossing Estates in the amount of$8,500. Following the hearing, District Justice , , - ,,-,', ~,' , " ,.~, Harold Bender entered a judgment on behalf of Whisler's Well Drilling and against Mr. Hosfelt. Both in his pleadings and at his deposition, defendant states that District Justice Bender witnessed the negotiations between defendant and plaintiff. N.D. at 6, lis. 3-12; at 7, lis. 18-25; at 8, lis. 1-9. Also see, Petition to Open Judgment, paragraph 7. In fact, defendant claims that District Justice Bender mediated an agreement between the parties. N.D. at 6, lis. 8-12; at 8, lis. 7-9. District Justice Bender has provided an Affidavit that defendant admitted as his exhibit "D-A" during the deposition on July 18, 2001. His affidavit states that Janet Whisler never entered into discussions in attempts to resolve this case; never admitted to this matter being a part of any uncompleted contract; nor never agreed or bound Whisler's to install a sandmound septic system and well for defendant. He states that, "[t]o the contrary, Janet Whisler informed Roger Hosfelt that she would have to discuss this matter with her husband, Richard Whisler." See, District Justice Bender Affidavit, attached hereto as Plaintiff's Exhibit C.I I Because credibility is important to this matter, the court should note that the defendant in his pleading and verification made under threat of unsworn falsification, on May 31, 2001, that the well and septic were not yet installed as of that date. At deposition, defendant admitted that on May 20, 2001, Adams Well Drilling installed the well on the lot at issue. n.T. at 22. Ken Whisler testified that the well had been installed and Ken Whisler testified that the first time that the defendant and he discussed the installation of a well and septic system on lot #9, was in late winter, when defendant telephoned him. N.T. at 10, lis. 18-22. Ken informed defendant that Dick Whisler refused to perform any more work for defendant. N.T. at 14, lis. 22-25. Ken also testified that his mother, Janet Whisler, informed him that she never entered into any agreement with defendant to install a well or septic system. N.T. at 16, Defendant claims that District Justice Bender, a sworn office of the court, must be lying. N.D. at 9, lis. 7-20. He also believes that Janet Whisler, Ken Whisler and Ron Armolt, the excavator, are lying. When the thirty-day (30) appeal period approached, defendant did not both to contact an attorney nor did he file the appeal. He has been through numerous hearing before district justices where he has both won and lost cases. He is fully aware that you may appeal a district justice's ruling. N.D. at 24, lis. 15 - N.D. at 25, lis. 7. Defendant had not even filed an appeal by April 30, 2001. Defendant stakes for the septic system had been placed. N.T. 14. . . I . ~ . " ' I states that he had no reason for not filing the appeal. N.D. at 27, lis. 19-23. Defendant should not be provided the opportunity to benefit from his own lack of diligence. In defendant's Petition to Open Judgment, he clearly is attempting to use this Petition to gain the opportunity to counter-claim for breach of contract and damages. See, Defendant's Petition to Open Judgment, paragraph 18. To allow the defendant to reopen this matter will completely circumvent the Pennsylvania Rules of Civil Procedure. Iv. CONCLUSION WHEREFORE, Plaintiff prays that This Honorable Court deny defendant's Motion to Open Judgment. Respectfully submitted, ABOM & KUTULAKIS, L.L.P. - "~, ~_ , "' I ", ..l;l -'" ;'"".".,'" ,- - ,~-" : CERTIFICATE OF SERVICE AND NOW, this 22th day of August, 2001, I, Jason P. Kutu1akis, Esquire, hereby certify that I did serve a true and correct copy of the foregoing PLAINTIFFS BRIEF IN SUPPORT OF THEIR OPPOSITION TO DEFENDANT'S MOTION TO REOPEN THE JUDGMENT upon Sally Winder, Esquire, Defendant, first class mail at the following: Sally Winder, Esquire 701 East King Street Shippensburg, PA 17257 ABOM & KUTULAKIS, L.L.P. Ja n P: Kutu1akis A J.D. #: 80411 8 South Hanover Street, Suite 204 Carlisle, PA 17013 Attorney for Plaintiff - ,- ~I ~,:;~ Jun-01-01 07:51A P.09 09-3-0:1 o ( " /30 (./ c 1/ ' NOTICE OF JUDGMENTITRANSCRIPT " CIVIL CASE p, AINTIFF: NAME arltJAODRE.!iS fWHISLERl S WELL DRILLING I 366-1 GRBENSPRING RD NEWVILLE, PA 17241 ".. ~EALTH OF PENNSYLVANIA .--oNTY OF: COHBERLAND ;:-;~..,Y' MiI,9. Dill\. No.. OJ ~arnl:!, 111111. HELEN B" SHULQBERGER Ana"", P.O. BOX 155 27 W. BIG SPRING AVENUE NEWVILLE, PA T.",,,,,.., (717) 776-3187 11241 L [)I-:f-1::NDANT: NAME ~fld ADDHc5S 'HOSFELT, ROGER IlS SOUTHSIDE DR NEHVILLE, PA 17241 I V$. ...J WHISLER'S WELL DRILLING 366-], GREENS PRING RD NBWVLLLB, PA 17241 Docket No,; cv- 0000155 - 00 Date Filed: 11/20/00, ...J .' , J', ",'",';"::"" ... . " .. nIlS-IS'TONOTIPlYOl;nflAT: Judgmont: FOR PI.Anl'PTFF [!] Judgment was entered for: (Name) WlfTRT.'RA I A WTlT.T. nllTT.T"TlJ~ [iJ Judgment was entered against: (Name) RORIl'RT.T ROGRR in the amount of $ 2 012 A7 on: " (Date of Judgment) 1/'2'; /01 . o Defendants are jointly and severally liable. o Damages will be assessed on: (Date & Time) O Amount of Judgment SUbject to AllachmenllAct 5 of 1996 $ Amount of Judgment $ 1.925.21 Judgment Costs $ 87.60 Interest on Judgment $ .00 Allorney Fees $ .0(1 Total $ 2.012.87 Post Judgment Credits $ " Post Judgment Costs $ ------_...._~-- ------------ Cenified Judgment Total $ ,"- o Thi~ case dismissed without prejudice. o Levy is stayed for days or 0 generally stayed. o Objection to levy has been filed and hearing will be held: 10'" Time: r~ ANY PARTY HAS THe RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT ilY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION, YOU MUST INCLUDE A COPY 7~et:)'~D~!;.NTfTRANSCRIPT F AM WITH yOUR NOT~CE OF APPEAL. /-:;/-f~Q/ Date ~ "..,' District Justice I certify that this is a true and correct copy ~....15-01 Date~ fJ. the record of the proceedings containing the judgment ....,,~..~ ,District.lustice My commission expires first Monday of January, 2006 SEAL : EXHIBIT i P- A i AOPC 3,S.S9 7/ cllJ.:,LJ Ll ,~.' ~- ~ , - Jun-Ol-0l 07,5lA _"';",.','_'"i, P.lO PROTHONO'fARY'$ OFFICE Coufl House - Curlisle, PA 17013 .' In accordanl.:c with Rule 2360flhe Pennsylvania Supreme Court, this is to notify you that the following (order) (decree) Uudgmcnr) was clllered agllinst you in this office. D\:lcndam f?r_ /-tsFe (/- .__ -.rAJA IJl~r ~ L11-lIl__ _j),;/h~ . ___" Plaintiff Dale ()j-;1 -17/ ..._19 _... _ # --12L~L2?Q..- " EXHIBIT 11 1?-13 1/ ,c"h iLl- p., ....~' " '" ",,- --,",""',,-"., ~ - "., ",'.. , 07/18/01 08:20 FAX 717 532 3308 bj 09-3-01 WHISLElt's WELL Dprr.T .T1'lfG, PLAINTIFF : IN 1'BE comrr OF COMMON PLEAS : OF CUMBENLAl'lJ) COUNTY, : PENNSYLVANIA . . v. : NO. 2001.1830 avn. TEltM : ROGER HOSFELT, DEFENDANT . . AFFIDAVIT I, District Justice Harold Bender, to hereb;y'A_r "Del "f'F;=t-tbat, in substitu1ing for Pistrict Justice Shulenberger on Jll.I1UBty 25, 2001, I presided at the hearing between the above-captioned partie.s. At no time did I wi1ness Janet Whisler enter into discussions in attempts to resolve this case. She never ad:mitted to this mAft~ Qeing a part: of :my lttlCO!llpleted contract. Janet Whisler never agreed or bOWld Whisler's to iOilltAIl a sandmound septic system and well fur the defendant. To the oonttary, Janet Whisler informed Roger Hosfelt that she would b.ave to discuss this matter with her husband, Richard Whisler. To no avail, Roger Hosfelt coD1il1ued to attempt to have Janet Wbisler commit Whisler's to compromise the judgment. Da.te: July Lt" 2001 ..a~~ ~~ Distrl Ustice Harold Bender NOTARY PUBliC My com.....cion expi:l:es: ~ (J;J. ..:l6,pc, HAROLD E Bl:ND"R Drama JII~Cc ~3-0' ... Bf.J:,o.atl)(3O'1 I . il.Inut ntlllQrn f1d Mv~3nsburjJ. Po'. rr:is7 I gn E"cpjre: Janue:y '-!, ~ .. ~ EXHIBIT !O-A J '- 07/17/01 17:11 TX/RX NO.2108 P.002 '""~,,~ 141002 .",..< Lt#' .~'!f.. ) . > . "."-",,,l ~ 'n' ;, ,I . , WHISLER'S WELL DRILLING, Plaintiff :IN THE COURT OF COMMON PLEAS :OF CUMBERLAND COUNTY, :PENNSYL VANIA v. ROGER HOSFELT, : NO. 2001-1830 CIVIL TERM Defendant DEFENDANT'S BRIEF IN SUPPORT OF PETITION TO OPEN JUDGMENT, or AL TERNATIVEL Y, ALLOW FILING OF A NOTICE OF APPEAL FROM DISTRICT JUSTICE COMPLAINT NUNC PRO TUNC Statement of the Case. Defendant Roger Hosfelt file this Petition to either Open Judgment or Allow Filing of A Notice of Appeal Nunc Pro Tunc on or about June 1, 2001, with respect to a District Justice Judgment which was filed in the Prothonotary's Office in early April 2001. Facts are recited in the Petition concerning the reason for the passage of time until this Petition was filed June 1, 200 I. The issue before the Court is whether or not the Defendant! Petitioner has shown good cause for not timely filing his Notice of Appeal and whether or not he may have a meritorious defense which would justify the Court opening the Judgment or Allowing an Appeal such that the equitable powers of the Court are exercised in the interest of promoting a fair and equitable resolution of this dispute between the parties. The Court has discretion in granting equitable relief and permitting a waiver of strict enforcement of the Rules of Court where it appears that the PlaintiID Respondent will not suffer prejudice and where fairness requires that the Court exercise its discretion to grant such petitions and motions as presented here. This discretion is granted the Court in Pa R.C.P. Rule 1003. Waiver of Rules. Extension of Time....." The Court on cause shown may extend or shorten the time within which pleadings shall be filed or process served. " AUG 2 2 2001 ,~~ ,,-'~-~ ,I " if: ~- Argument. Defendant Roger Hosfelt believes that the Court should grant relief and open the Judgment and Allow an Appeal Nunc Pro Tunc based upon the facts alleged in Defendant's Petition and further supported by the Deposition of Roger Hosfelt when he relates on page 15 ( lines 6 through 24) that he was under the misapprehension that this matter was resolved and that there was an agreement to complete the contract originally entered into between Whisler's and Hosfelt. It was only after the appeal period had run and the Notice sent from the Prothonotary's Office that Defendant became aware of any unresolved issue with Whisler's. Defendant clearly thought he had resolved the matter with Whisler's and that there was no need to file an appeal or deal with the judicial system any further. See Hosfelt deposition page 25, lines 8 throughl5, a copy of which is attached. This Court may exercise its discretion in granting or denying the kinds of petitions filed in this action. In the Francisco v. Ford Motor Comnany (Pa Super. 1990) 580 A.2d 374, case the Court stated "We must evaluate appellant's claim of error within the constraints of the abuse of discretion standard." ( at page 3 75). The late filing of answers and counterclaims has been upheld where extensive periods of time have passed and the late filing party has not shown a cause or reason for such a delay. In this case, the Defendant Petitioner has clearly shown his cause and reason for not filing a notice of appeal from District Justice Judgment. He clearly believed that he had settled the matter and he anticipated that Plaintiff was going to finish the job and that he was going to pay the whole contract price when the work was completed. He diligently pursued the matter when he became aware that his understanding might be a misapprehension. Where a party pursues its legal rights in a manner which does not cause extensive delays and which dictates that justice requires an extension of time limitations, . , ll,,"" . . the Court should exercise its discretion and permit the fair resolution of a legal dispute within the framework of the judicial system. In this instance, Defendant has set forth his belief that the matter was settled and resolved and that he had an agreement; he was not represented by counsel at the district justice level; he pursued this matter when he became aware that Whisler's were not going to honor what he thought was an agreement and had in fact entered a judgment. See Allison v Merris 342 Pa Super. 571,493 A.2d 738 (1985). For these reasons, Defendant Roger Hosfelt is entitled to relief from the Court. Respectfully submitted, E&:l,~~ Attorney for Roger Hosfelt 701 East King Street Shippensburg, PAl 7257 ,'.~ ,.,~~.;, '-I I , I i i .._ ,~JtI,,~WOlIJld~~ .2 12 13 14 18 I ' ;,1 'I.......~ ' ~,1 ~' 'c' ~~"", -..... 'j,_~" 25 . 1 Q. More than five? A. Yes. Q. Less than 50? 4 A. Yes. 5 Q. And do you understand that you can appeal from 6 that hearing? 7 A. Yes. 8 Q. Which means you can get relief; if you don't 9 agree with the ruling, you can ask the higher court, the Court of Common Pleas, to give you a new hearing. Do you understand that? A. Yes. .The only reason why I didn" t appeal nothing there was what we had agreed upon right there in :: the courtroom with Mr. Bender and Mrs. Whisler. I had no i ~ !1 reason to appeal that. I took them for their word. Q. So when they -- okay. I'm going to give it to you this way. I'm going to assume that -- I don't know when you received notice and you can't tell me when you t' 19 received notice of the judgment entered by District Justice ; 20 Bender, so can we agree that it was around January 25th? 21 22 A. For what? Q. That the judgment was entered by District 23 ,Justice Bender. 24 25 ell" .. "~' A. No. Q. Do you want to tell me when you think it was Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com "'. ,) " , f~ j,\ J,I =""" " .:.o,~ ""~'~':"~"if;; . . .. WHISLER'S WELL DRILLING, PLAINTIFF : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYL VANIA V. : NO. 2001-1830 CML TERM ROGER HOSFELT, DEFENDANT PLAINTIFF'S ANSWER TO RULE TO SHOW CAUSE WHY DEFENDANT IS NOT ENTITLED TO REOPEN THE JUDGMENT AGAINST DEFENDANT AND NOW, this 25th day of June, 2001, comes Whisler's Well Drilling, by and through their counsel, Jason P. Kutulakis, Esquire, of Abom & Kutulakis, L.L.P., and answer Defendant's Rule to Show Cause why his Petition to Open Judgment should not be granted, and is support thereof avers the following: 1. It is believed and therefore averred that defendant has failed to plead sufficiently that defendant did not file a timely appeal due to a breakdown or fraudulent activity within the court system as required by the Pennsylvania Rules of Court. 42 Pa. C.SA S 1 002. Goldberg v. Goldberg, 461 A.2d 1037,315 Pa. Super. 333 (1983). 2. Defendant has failed to plead that his failure to file a timely appeal was due to administrative error, negligence or fraud. Goldberg citing Conrad v. Kemmerer, 447 A.2d 1032 (1982). WHEREFORE, plaintiff prays This Honorable Court deny defendant's Petition to Reopen or Appeal Nunc Pro Tunc and to affirm the judgment against defendant. Respectfully submitted, ABOM & KUTULAKlS, L.L.P. ~-~ Jaso P. Kutulakis '"= L , I ,J {,I ^ I ;;;." ,- "'; '~'-'tt.r, . , , . .. CERTIFICATE OF SERVICE AND NOW, this 25th day of June, 2001, I, Jason P. Kutulakis, Esquire, hereby certify that I did serve a true and correct copy of the foregoing Answer to Rule to Show Cause upon Sally Winder, Esquire, Defendant, first class mail at the following: Sally Winder, Esquire 701 East King Street Shippensburg, PA 17257 ABOM & KUTULAKIS P. Kutulakis 8 S th Hanover Street, Suite 204 Carlisle, PA 17013 Attorney for Plaintiff ....... . ",J ,I .--. 1"1'1 , ,,'j "I, " .". --""''''' ~-, &, h_-"; ~, WHISLER'S WELL DRILLING, PLAINTIFF : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYL VANIA V. : NO. 2001-1830 CIVIL TERM ROGER HOSFELT, DEFENDANT PLAINTIFF'S ANSWER TO PETITION TO OPEN JUDGMENT, or ALTERNATIVELY, ALLOW' FILING OF A NOTICE OF APPEAL FROM DISTRICT JUSTicE COMPLAINT NUNC PRO TUNC AND NOW, this 25th day of June, 2001, comes Whisler's Well Drilling, by and through their counsel, Jason P. Kutulakis, Esquire, of Abom & Kutulakis, L.L.P., and answerd Defendant's Petition to Open Judgment, as follows: 1. Admitted. 2. Admitted. By way of further clarification, District Justice Bender was substituting for District Justice Shulenberger. 3. Admitted in part and denied in part. It is admitted that Janet Whisler appeared at the hearing on January 25, 2001, as the sole witness for the plaintiff. It is specifically denied that she is a principle in the business. Defendant correctly avers in paragraph one (1) of it Petition that Whisler's Well Drilling is a sole proprietorship. 4. Plaintiff is without sufficient knowledge to answer what defendant believes, therefore no answer is required. In the alternative, to the extent that an answer is deemed to be required, it is specifically denied that Janet Whisler or any other individual informed defendant that she had the authority to bind the business to contractual obligations. Strict proof to the . . J I ,'- -,j',11 - ,U' ~ J'." c '-':" I:: I, ....,'. contrary is demanded. 5. Denied. It is specifically denied that Janet Whisler, either at the time of or after the hearing, ever discussed resolution of this matter with defendant. To the contrary, defendant attempted to resolve this matter however was told by Janet Whisler that she could not speak for Mr. Whisler.. It is further specifically denied that the claim in question was part and parcel of a total contract job to be performed by plaintiff and that plaintiff was to complete any other job. It is admitted that part of plaintiff's claim was for time billed to defendant for excavating at another location, ", ,Ii i" F,j " t )I) 6. Admitted. 7. Denied. It is specifically denied that Janet Whisler agreed that Whisler's would perform any work for defendant. It is further denied that any agreement was made in the presence of District Justice Bender or at all. Janet Whisler did not offer to compromise the judgment entered before District Justice Bender. 8. Plaintiff is without sufficient knowledge to answer what defendant believes, therefore no answer is required. In the alternative, to the extent that an answer is deemed to be required, it is specifically denied. 1 I' i'i 9. Denied. It is specifically denied that Janet Whisler agreed that Whisler's would perform any work for defendant. I I' I" II I' I :'1 10. Plaintiff is without sufficient knowledge to answer what defendant believes, therefore no answer is required. Furthermore, the averments contained in paragraph ten (10) of the Petition are conclusions oflaw to which no answer is required. In the alternative, to the extent that an answer is deemed to be required, it is specifically denied. 11. Plaintiff is without sufficient knowledge to answer what defendant believes, therefore no answer is required. Furthermore, the averments contained in paragraph eleven (11) ofthe Petition are conclusions oflaw to which no answer is required. In the alternative, to the extent that an answer is deemed to be required, it is specifically denied. 12. Admitted in part and denied in part. It is admitted that defendant was I J ""I, notified of the judgment by postcard dated March 29, 2001. Plaintiff is without sufficient knowledge when defendant received the notice. 13. Plaintiff is without sufficient knowledge to answer whether or not defendant attempted to reach plaintiff, therefore no answer is required. 14. Denied. It is specifically denied that defendant did not speak with a representative of Whisler's. To the contrary, defendant did speak with Ken Whisler, who specifically declined defendant's offer to engage Whisler's in a contract to resolve the claim against defendant. 15. Plaintiff is without sufficient knowledge to answer whether or not defendant went to DJ. Bender's office, therefore no answer is required. It is specifically denied that DJ. Bender requested Whisler's to contact defendant. 16. Admitted in part and denied in part. It is admitted that defendant called Ken Whisler and Ken told defendant that Whisler's would not compromise the judgment entered by DJ. Bender. It is specifically denied that Janet Whisler entered into any agreement or contract with defendant. 17. Denied. It is specifically denied that defendant could not have filed an appeal on the thirtieth (30th) day. He was informed by plaintiff that they would not be performing any work for him, period. He has plenty of notice and opportunity to file an appeal. 18. The averments contained in paragraph eighteen (18) are conclusions of law to which no response is required. To the extent that an answer is deemed necessary, it is specifically denied that there are any counter claims possible in this matter. If there were, they would have been raised at the district justice level. 19. Plaintiff is without sufficient knowledge to answer whether or not defendant has had perspective buyers, It is specifically denied that the well is not completed. To the contrary, Adams Well Drilling has completed that job. 20. The averments contained in paragraph eighteen (18) are conclusions of law to which no response is required. To the extent that an answer is .:,i: J f~'l'"'';';'' <' r;.;; , I J ,1'.11., deemed necessary, it is specifically denied that there are any affirmative defenses in this matter. 21. Admitted in part and denied in part. It is admitted that defendant attempted to contact Whisler's to attempt to resolve the judgment against him. It is specifically denied good faith efforts are a defense for failing to file a timely appeal. It is denied that Janet Whisler entered into a contract with defendant. 22. Admitted. WHEREFORE, plaintiff prays This Honorable Court will deny defendant's Petition to reopen or grant a Nunc Pro Tunc Appeal. Respectfully submitted, ABOM & KUTULAKIS, L.L.P. Jas n P. Kutulakis 8 uth Hanover St., Suite 204 Carlisle, PA 17013 (717) 249-0900 ';,' " '.,"';i.- c. '-, , "'~l' ,~'" -~ ,,; ""L, .~- ,'.'I~ --,,,, .,1" J"I" ,- ""'","', ,1,0.";-,<..",,,,__,,1,1',',_ '.'"''';'''.. WHISLER'S WELL DRJLLING, PLAINTIFF : IN ')'HE COURT OF COMMON PLEAS : OF CUMBERLANlJ COt'Nn', I PENNSYLV ANlA v. : NO. 01-1830 CIVIL TERM R.OGER HOSJELT, DEFENDANT . . Y.ERIF~{;ATIOl'1 1, Kenneth Whistler, hereby veritY that the facts set forth in the foregoing Answer are true and correct to the best of my knowledge. infonnation and belief. I understand that (alse statem.ents herein are made subject to the penGlues of 18 Pa.C.S. ~4904, relating to unswoI1'l falsification to authorities. Date: tJ4?-~t;-(J1 .~ .~ ,-" , c '_" ,j. '" . ~ ,.~:" - '",- liiillifil~~,i , , . . CERTIFICATE OF SERVICE AND NOW, this 25th day of June, 2001, I, Jason P. Kutulakis, Esquire, hereby certify that I did serve a true and correct copy of the foregoing PLAINTIFF'S ANSWER TO PETITION TO OPEN JUDGMENT, or ALTERNATIVELY, ALLOW FILING OF A NOTICE OF APPEAL FROM DISTRICT JUSTICE COMPLAINT NUNC PRO TUNC upon Sally Winder, Esquire, Defendant, first class mail at the following: Sally Winder, Esquire 701 East King Street Shippensburg, PA 17257 ABOM & KUTULAKIS Jas n P. Kutulakis 8 S uth Hanover Street, Suite 204 Carlisle, PA 17013 Attorney for Plaintiff WHISLER'S WELL DRILLING, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW ROGER HOSFELT, Defendant NO. 01-1830 CIVIL TERM ORDER OF COURT AND NOW, this 4th day of June, 2001, upon consideration of Defendant's Petition To Open Judgment, or Alternatively, Allow Filing of a Notice of Appeal from District Justice Complaint Nunc pro Tunc, it is ordered that: 1. A Rule is issued upon Plaintiff to show cause why Defendant is not entitled to the relief requested; 2. Plaintiff shall file an answer to the motion within 21 days of the date of this order; 3. The petition shall be decided under Pa. R.C.P. 206.7; 4. Depositions shall be completed within 49 days of the date of this order; 5. Argument shall be held on Wednesday, August 29, 2001, at 2:30 p.m., in Courtroom No.1, Cumberland County Courthouse, Carlisle, Pennsylvania. \t1NI;;'l\l;\SNN3d I /INn"',] O'I'r" .~.,,,~,, I\.U ij j, '1\':] i'''i .''-[:''''1' , ...., oj" ">--'-"_.11.V ;( -~~ C" ?-D\ 6. Briefs shall be submitted at least seven days prior to argument. BY THE COURT, L.. ." "J C ',"1'-' I Q- .,.t, N. .;.;- f\;il i i AWIONCH.JJ.:.-! ~,. ~O :1:'';)..).II'"'),-,('r-:--:;.1 .:h.,.......-,... '"'-'10 -~ ~ .'" "< ".1 ,-- .;O~ _I I L'I~ .'_ ;--~',-;'.':'< ",;',,,-,. Jason Kutu1akis, Esq. 8 South Hanover Street Suite 204 Carlisle, PA 17013 Attorney for Plaintiff Sally J. Winder, Esq. 701 East King Street Shippensburg, P A 17257 Attorney for Defendant :rc :."~ "\, ~_"~.JiiI~ijjilf,"fIi>i!'i;,~~;'''''l\<t~'i~~!l\iiii~i\'1iiii,Q;::,;,;,>\',ik"",,\~&;@ltit)~i'#<l''~-';;:,1'''''1llit,@lM~~illfiIIl! ~ -~ ''''',",,'_1~ ,c" ~,_" ~~_ ~.,~^-, .,,~, __'''I,~-'_ -,?, .- illi_lt1"l~-llIiIil!iMitr~~~'- - ~'" - .' ,~ . ~ .',-" '~,i i! :,j H 1'1 Ii 'I "I , '! :1 II i'! Ii II " ~I ",~~- ,,'"',=~,= -~ ... ~ ',.- o r: }-.../' 12 15 16 17 18 19 20 21 22 23 24 "..., 25 ~, , , , " "\.'1_ "I ~ I.~ L I iI /.lUG 2 2 200,w 1 1 WHISLER'S WELL DRILLING, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 2 vs. NO. 2001-1830 CIVIL TERM 3 ROGER HOSFELT, 4 Defendant. 5 'OR'G . ,. ~ l I INtJ, 6 7 8 9 10 Deposition of: KENNETH WHISTLER 11 Taken by: Defendant Before: Amy R. Fritz, Notary Public Registered Professional Reporter 13 14 Date: July 18, 2001, 10:00 a.m. Place: Abom & Kutulakis 8 South Hanover Street, Suite 204 Carlisle, Pennsylvania APPEARANCES: ABOM & KUTULAKIS, L.L.P. BY: JASON P. KUTULAKIS, ESQUIRE FOR - PLAINTIFF BY: SALLY J. WINDER, ESQUIRE FOR - DEFENDANT Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com .1.~".- I.L,. ,- 2 C 1 INDEX TO TESTIMONY 2 DEPONENT EXAMINATION PAGE 3 Kenneth Whistler By Mr. Kutulakis 3,43 4 By Ms. Winder 34 5 6 7 8 9 10 11 INDEX TO EXHIBITS 12 NO. DESCRIPTION PAGE C 13 (None. ) 14 15 16 17 18 19 20 21 22 23 24 C 25 Central Pennsylvani~ Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com ,. '" ..1 , I "I '." ~ - I ~,,' 11 , ,i ~_ 3 c....' --, , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I r " "'o;,'1!l<>"'- o STIPULATION It is hereby stipulated by and between the respective parties that signing, sealing, certification and filing are waived; and that all objections except as to the form of the question are reserved until the time of trial. KEN WHISLER, called as a witness, being duly sworn, was examined and testified as follows: EXAMINATION BY MR. KUTULAKIS: Q. right? A. Q. A. Q. A. Q. relationship? You're Ken Whisler, W-h-i-s-l-e-r. Is that That's correct. And how are you employed? Whisler's Well Drilling. And Dick and Janet Whisler are your parents? That's correct. And you know Mr. Hosfelt from a previous working A. That's correct. Q. And the only thing we're here for today you've been sitting here for Mr. Hosfelt's deposition -- is whether or not this case should be reopened following the hearing that took place on January Central Pennsylvani~ Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com ;.~w== c ,....., c' , '",. . ",.~" o ~- " I" Iii 11, I' 'ift~~~ 4 1 25th of 2001. I'm going to direct your attention back to 2 about that point in time. Your mother, Janet Whisler, you 3 had her attend a hearing before -- it was at District 4 Justice Shulenberger's office in Newville but District 5 Justice Bender presided. Is that right? 6 A. That's right. Why did you have her attend that hearing? At the time, she was secretary; everybody was 9 working and we figured instead of losing a day of work, we 7 Q. 10 would let her do it. 8 A. Is she your bookkeeper, or what does she do for 12 the business? 11 Q. 13 A. She answers the phone, does inventory, things of 17 A. 14 that nature. And who made the decision to have her attend 16 that hearing? 20 21 22 15 Q. 18 Q. 19 A. Q. A. Q. 23 business? 24 A. I think it was my father. And that's Dick Whisler? Yes. Who's the owner of Whisler's Well Drilling? My father, Richard Whisler. Are you familiar with the daily workings of the Now? I am, yes. When did you become -- well, let me ask you 25 Q. Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com ~-' .-- ~~ "--, , , ~ ~~-- o ~, "'-. ~ v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 I. 23 24 25 ;'1 I ~~ 1,1 I ,_,~" """"- " i~ 5 this. Before today, or before this point in time, you were primarily responsible for drilling the wells for the business? A. That's correct. Q. At some point in time you started to merge out of that. What are your responsibilities now? A. Now I do collecting bills, selling jobs, running jobs. Q. Are you -- A. Basically everything that needs taken care of. Q. So you're managing the business? A. At this point in time, yes. Q. When did you really start doing that? Was it the beginning of this year or last year? A. I would say it's been a year and, I would say, three or four months, that nature, maybe a year. Q. But just because you're managing it, your father still has a significant role in making the decisions of the business? A. I run every-day operations. If there's a problem, he comes to me and I go to the guys. Q. And when you say a problem, a problem on-site? A. Anything that he sees that he doesn't like or dislike throughout the course of the day. Q. And you take care of the employees? . Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com -.............~~=~ c f"\ \""",....-- ~ <,,~ ~ ~" I : 1_1 j -~-'" ........ - ;- 6 1 2 A. Yes. Q. Back in November of 2000 Mr. Hosfelt informed us 3 that you have an employee, Ron, the excavator. What's 4 Ron's last name? 5 6 7 8 A. Armold. Q. A-r-m-o-l-t? A. A-r-m-o-l-d, I believe, yes. Q. That he delivered some sand to lot number 9 in 9 Deer Crossing Estates November of 2000. Are you aware of 10 that? 11 12 13 14 15 16 17 A. Yes. Q. Did you contract with Mr. Hosfelt to have that sand delivered at that site? A. No. Q. Did your father contract to do that? A. No. MS. WINDER: I object. 18 BY MR. KUTULAKIS: 19 Q. Back in November, did your mother or anybody 20 else contract to deliver sand there? 21 22 MS. WINDER: I object. THE DEPONENT: No. 23 BY MR. KUTULAKIS: 24 25 Q. How did it come to have the sand -- what we'll do here, Ken, is we're going to let Ms. Winder object as Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com " :-;-~ c 1"""'. \".,.;' o 2 3 - " i ~ i- :,1 _ 1.:[ " 7 1 much as she wants to and then you can go ahead and answer anyway. Okay? Back in November of last year the sand was 4 delivered to lot number 9, Deer Crossing Estates. How did 5 that come to be? What's your understanding of that? 6 A. My personal understanding of that is we were 7 working next door on lot number 8 and Ron was there running 8 equipment. Roger came to him, said I want to get the sand 9 in on lot number 9 before winter sets in so when I build, 10 we can finish the septic and it doesn't matter what time of 11 the year it is. And I think there was specific questions 12 about that earlier. 13 14 Q. And once the sand is on-site, you believe that you can go ahead and have the sand mound put in at any 15 time? 16 A. The sand mound can be installed as long as it is 17 not wet. Once the sand is hard -- freezing does not effect 18 it once the sand is hard. 19 Q. Are you familiar with the installation of sand 20 mounds? 21 22 A. Yes. Q. Why would the sand -- is there any other reason 23 the sand would have been delivered in November other than 24 what you explained here already? 25 A. Well, I certainly wouldn't know why I would I Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com , .~ ~~ o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I c; 0'..1 .". -~ L-I,I:I , !.,~~ 8 deliver sand and not get paid for it for a year and a half on my own accord. Q. Was the sand delivered last winter or the winter before? Do you remember? A. Well, it wasn't this past winter. I believe it was the winter before. Q. So it would have been '99? A. It's been awhile. And winter is not a good time to be setting a big amount of money in the construction business of any sort. Q. Following -- let me ask you this. January 25th after the hearing before District Justice Bender did you talk to your mother that day? A. Yes. Q. Back at the office? A. Yes. Q. Did she inform you what happened at the hearing? MS. WINDER: I would object. That's hearsay. BY MR. KUTULAKIS: Q. You can answer that. A. My mother came home from the hearing. Q. Did she come home or come to the office? A. Came to the office from the hearing. And I guess they had their hearing, and that was pretty much the end of it until we had the notice from District Justice . Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com ;--.... c ("":, ........ c >4... "~I~ '__~ ~_ u . ,." ~, ' >--, -';'. 0"' "'. 9 1 Bender. And you said Mr. Hosfelt and your mom before 3 District Justice Bender had the hearing regarding this 2 Q. Right. What did she tell you was the outcome of the MS. WINDER: I would object. That's hearsay. THE DEPONENT: She really didn't say. 10 BY MR. KUTULAKIS: 11 4 matter? 5 A. Did she tell you that she entered into a 12 contract with Mr. Hosfelt? 13 14 6 Q. No. Nor would she. Did she tell you that she had any conversation 15 with Mr. Hosfelt regarding -- 16 17 7 hearing? 8 9 Q. A. Q. MS. WINDER: I'll object. MR. KUTULAKIS: I'll just give her an ongoing 18 objection regarding hearsay, if that's okay, so we can 19 continue. 20 BY MR. KUTULAKIS: 21 Q. Did your mother tell you regarding any 22 conversations she had with Mr. Hosfe1t regarding this 23 matter and a contract or relationship that he had proposed 24 that day? 25 A. The day of the hearing, I wouldn't know what Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com ~-< o i""":, 'ie,.. .' ~" ~ "-" - ~-~~~ 1,1 L_L.I-I~ , " 'H.......""'''''' ,.. lO 1 they No, you wouldn't because you weren't there, Right. But did she come back to the office afterward 6 and talk to you at all 2 Q. About a contract with Roger to finish the work, Did she tell you anything about what happened 10 during that hearing? 13 15 16 3 right? 4 A. 5 Q. 7 A. 8 no. 9 Q. 11 A. 12 Q. Not a whole lot. Did she tell you that Mr. Hosfe1t was interested in resolving this matter by having you install a sand mound 14 and well? A. Q. 17 that? 18 A. Not that I recall. When's the first time that you learned about The first time that we had -- Roger had called 19 me on the phone and said that he wanted us to finish the 20 work; he wasn't going to pay us until we finished the work. 21 And at that point in time, my dad was in the background, as 22 he said, and he said, we're not doing no more work. 23 24 25 Q. A. Why not? He did not pay his bill, I don't need the aggravation. And this stems back from some other stuff. Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com ;= ~"~ ". o c IfI1i"I>.. U ~~ JI -l. ''-'~na;,Ioll.''''' .1 ,1.:1 1- ~. 11 1 . Q. Does it stem back to some of the other stuff I asked Mr. Hosfe1t about where you had to collect money at 3 his bar and other times you had problems? 2 4 A. We didn't get paid for the full amount on some 5 of that. Roger wouldn't show up on job sites until late 6 morning and then expect my guy to sit there and wait on him 7 for two hours and then not want to pay us for it, things of 8 that nature. 9 Q. Your father made a decision that he's capable of 10 making as the owner that he didn't want to do any more 11 work? 12 Absolutely. A. 13 Q. Was that the first time you heard about doing 14 work on lot number 9? 15 No. The sand was the first when I realized that A. 16 my guy had hauled the sand in on lot number 9. 17 Did you talk to Mr. Hosfelt about putting in a Q. 18 sand mound and well? 19 I have never seen a septic design for lot number A. 20 9 yet or have I still. I only have the septic papers for 21 the sand. 22 Do you have septic designs for other lots other Q. 23 than 24 Absolutely. A. 25 Are you familiar with them? Q. Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com .=~. ~ Cl C1 c ~ --" . 1 2 3 4 5 6 7 8 9 10 11 I 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I I_,.c 1,-1 . !--, .0_ 12 A. Absolutely. Q. Well, are you familiar with them because you have to coordinate employees to go do those jobs and make sure you have materials? A. Absolutely. Q. Are you aware of all the other septic designs you have for pending jobs? A. Yes. Q. Can you explain why you wouldn't be aware of having a septic design for lot number 9? A. No. Q. To the best of your knowledge, does Whisler's excavation have septic design for lot number 9? A. To the best of my knowledge, no. Q. Did Ron Armold ever tell you that he received MS. WINDER: I would object as hearsay. BY MR. KUTULAKIS: Q. -- the septic design from -- it's not being offered for the truth of the matter; it's being offered to show the conduct afterwards. MS. WINDER: I still object. THE DEPONENT: I never had -- whenever the septic is designed, in which it's paid for by the person that owns the lot, they have a design. The person that designs that septic comes out and stakes it off. So there Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com :~... _ J 1""\." '.' '. ~! 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I C,:." , ,,' c - L....... l.lUI , ~- ~~ J ~ - I _I.. ~~. """"-""'~ 13 were actual stakes in the ground where the septic was to go. At that point in time, my understanding was that Ron was working on this lot. Roger said, hey, let's get -- Q. And you're saying lot number 8? A. Lot 8. Let's get the sand in lot 9 so I can continue on with this house right through the winter. Q. Did Ron ever tell you that he was provided a septic design for lot number 9? A. No, nor have I ever seen one. Q. How long has this Ron worked for you folks? A. I'm going to say approximately seven or eight years. Q. Is he reliable? A. Yes. Q. If he were given important paperwork such as a septic design, would he be reliable to give it to you? A. Yes. Q. Does Ron have the ability to contract on behalf of Whisler's Excavation or Well Drilling? A. Ron makes decisions about the jobs on the job that he's on. Q. Does he have the ability to bind Whisler's to do jobs? A. No, absolutely not. Central Pennsy1van~a Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@ao1.com ~~~= ~.~o,.",j~ . c c ~ ~. " --,. u ~, .dt"', 14 1 2 3 4 Q. Who has that authority? A. At this point in time my father and myself. Q. None of the other employees have that? A. Absolutely not; nor have they ever, to the best 5 of my knowledge. 6 Q. The stakes that you speak of regarding the 7 septic system on lot number 9, I asked you to go out and 8 photograph that property from the road, didn't I? 10 11 12 13 14 9 A. Um-hum. Q. And you did that? A. Yes. Q. And you observed the well had been put in? A. Yes. Q. I didn't ask you to, nor did you bring those 15 pictures for today's purposes? 16 17 18 19 A. A. No. Q. You still have them? Yes. Q. Do you recall getting a telephone call from 20 Mr. Hosfe1t regarding this matter? 21 22 A. Yes. Q. And I think you already testified that you told 23 him that your father wasn't interested in contracting to do 24 any more work for him? 25 A. Yes, that's correct. Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com - C1 , , c.'..'..\ '~ j ci....' " ~ - ,1:1 -~," "i"' '"" ", 15 1 Q. Do you remember when that was? Can you give us 2 a month? Let's say January. 3 A. No. It was March or April, I believe. . 4 Q. Can you give us a -- if I said was it around 5 Valentine's Day, would you say it was closer to that or 6 closer to st. Patrick's Day or closer to Easter or closer 7 to Memorial Day? Are you able to link it to one of those? 8 A. It would be in the late winter to spring would 9 be the time of year. 10 Q. For you that's clear. Just for the record and 11 the Court, you say late winter early spring? 13 14 12 A. I would say March, April, sometime in that range. Q. Do you believe it could have been before March; 15 it could have been February? 16 17 18 19 A. It could have been. Q. It could have been before February? A. No, I don't believe it was before February. Q. Is there any doubt in your mind that you told 20 Mr. Hosfelt that he couldn't or that you wouldn't do any 21 more work for him, period? Is there any doubt about that? 22 23 A. There's no doubt about that. Q. Did you have the opportunity to discuss this 24 matter with your mother, Janet Whisler? 25 A. Did I or do I still? Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com o:y C'.' , , f""'1 ",-.' o ~ ~ -->n-... "I id ' ,,," I"""""''''' 16 1 2 with her? Q. Have you had the opportunity to discuss this A. I have discussed it with her. 3 4 5 Q. And did you -- A. She said that she would Dever go over my 6 father's head in terms of 7 8 A. Q. Contracting? Answering for him in a business sense. And I 9 know that to be fact. That's not just an employee, but 10 also a family member. 11 Q. And by that, just so we're real clear, did she 12 indicate to you whether or not she agreed at any point in 14 15 16 13 time to perform any other contractual work on lot number 9 for Mr. Hosfe1t? MS. WINDER: I object. THE DEPONENT: Absolutely not. 17 BY MR. KUTULAKIS: 18 19 Q. A. 20 Bender. 21 22 hearsay. 23 She told you that? She told me that, as did District Justice MS. WINDER: And I object. I believe that's MR. KUTULAKIS: I'll acknowledge an ongoing 24 objection without agreeing to it. 25 BY MR. KUTULAKIS: Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@ao1.com j.~-.. o o 0' ~... ~...-l l.,il ." ',", ~[ li[";." 17 1 2 Bender? Q. You had a conversation with District Justice Yes. Q. And did he inform you whether or not he observed 3 A. 5 Mr. Hosfelt and your mother talking before, during and 4 6 after a hearing on January 25th? 7 A. Yes, he did. Q. Did he acknowledge whether or not he observed 8 9 your mother agree to Mr. Hosfe1t's ~roposed resolution to 10 the case? 11 12 13 14 A. He told me that at no time did he -- MS. WINDER: I object. THE DEPONENT: -- hear my mother enter into a contract, verbal or otherwise, in his courtroom that day. 15 BY MR. KUTULAKIS: 16 Q. Have you ever been before District Justice 17 Bender on any other hearings? 18 19 A. No. Q. Have you been before District Justice 20 Shu1enberger? 21 22 23 24 25 A. A. Yes. Q. How many times? I would say roughly four or five times. Q. Regarding the invoices submitted to Mr. Hosfe1t for the work done, I want to direct your attention to the Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@ao1.com ..it o o ~. I,i~ I, I -L ILL ,.--._10,-1 - --...~' < ^.~ 18 . ,." "'_~"O/ ,_d.,,",> _',".,,~_: 1 excavation that's been acknowledged to be completed 2 satisfactorily in Franklin County. Are you aware of 3 whether or not invoices were sent for those jobs? 4 5 sent. 6 A. To the best of my knowledge, yes, they were Q. Did you send invoices out to Mr. Hosfelt for the 7 sand that was delivered? 8 A. To the best of my knowledge, yes, they were 9 sent. The sum is on the judgment. 10 11 MS. WINDER: Objection. THE DEPONENT: That was all already 12 predetermined at the last hearing. 13 14 15 16 BY MR. KUTULAKIS: Q. Before that were invoices sent out? A. Yes. Q. And you're aware of that because you're familiar 17 with the business operations? 18 19 A. Yes. Q. It's your responsibility to, in fact, collect 20 accounts receivable? 21 22 A. Yes. Q. So you would have knowledge of whether or not 23 invoices were sent, etcetera? 24 25 A. Yes. Q. You called them sieve papers? Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com "-~ c..'.'. ' , o f""l ~' .~~~ ~.1 ; J ,I w_ .b ".0, 19 1 A. Yeah. Well, they're -- Q. Explain this real quick. Is that just the 2 3 paperwork you get to certify that it's DEP-approved sand 4 for sand mounds? Is that essentially what that means? 5 A. Yes. Did you or did Ron, the excavator, Armold, did 7 he receive sieve papers when he picked up the sand for 11 12 13 14 15 16 6 Q. Yes. Do you know where that stuff is right now? Yes. If Mr. Hosfelt were to pay you the outstanding amount due, would you be willing to give him those sieve A. Q. A. A. case? Yes. And the reason you're holding the sieve papers 17 is because the ongoing problems that you've had with 8 Mr. Hosfelt? 9 A. 10 Q. 18 Mr. Hosfe1t regarding payment of bills? 19 20 21 22 A. Q. papers? A. Q. Yes. In particular in this case? Yes. Q. Did you at any time ever tell Mr. Hosfelt not to 23 appeal this case? 24 25 Did I ever tell Mr. Hosfelt not to appeal .this Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@ao1.com -~~ ~ c o ~ \_/ I ,._1 LL~ . - , ~ ~. ,-J - ,.i_ .-. ~ '...."'-'"-'__ " 20 1 Q. Yes. No. Did you ever tell him something to the effect of 4 don't worry about appealing, we'll take care of you or 2 3 A. Q. S anything of that nature? 6 A. No. Do you know of any reason why he shouldn't have 8 appealed if that was what he desired to achieve? 10 7 Q. If he wanted to appeal, he's a grown man. Did any employee of your office, to the best of 11 your knowledge, inform Mr. Hosfe1t that he should not 9 A. 12 appeal because that Whisler's Well Drilling Excavation 13 14 Q. would be completing a job on lot number 9? A. Nobody in my company told him not to appeal 15 anything. 16 Q. I don't have anything further. Let me just ask 17 you this. I'm going to show you Plaintiff's Exhibit A. 18 Does that look familiar to you at all? 19 20 21 22 A. Q. A. Q. Yes. It's a judgment. And have you seen these before? Yes. Does it acknowledge the time frame in which to 23 appeal this particular case? 24 25 A. Q. Yes. Does it say 30 days? Well, it speaks for Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com ~~~ -~ o o ~ '-' ... 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 . 23 24 25 ~" ~, I ~. 1;1 ~ ,~_,_. , -J:;- "... '" 21 itself. Did you go to the Court of Common Pleas here in Carlisle to execute the judgment against Mr. Hosfe1t? A. Yes. Q. And when did you do that? A. 3/29/01. Q. And you're basing that on the exhibit we've marked as Plaintiff's Exhibit B? A. Yes. Q. Did you do that yourself? A. Yes. MR. KUTULAKIS: That's all. EXAMINATION BY MS. WINDER: Q. Mr. Whisler, you acknowledge you've been the manager of Whisler's Well Drilling for approximately one year. Is that correct? A. Yes, ma'am. Q. And you would have been working on lot 8 at Deer Crossing prior to that time. Is that also a fair statement? A. At the time lot 8 was being done, I was drilling wells at that time, yes. Q. So you weren't the general manager? A. Not at that time. Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com _-..~_. o o "..,.. ' v .. ._~" .i ....1_- 1,1 , "" ~ - .,~ """., ,",'-~i~'", ~~" 22 1 Q. So there would have been no reason why 2 Mr. Hosfelt would give you the septic design papers at that 3 point? 4 A. Not at that point in time, that's correct. And you weren't sending out invoices at that 6 time, were you? 5 Q. No, ma'am, I was not. And at this point; although you are the general 9 manager -- and as part of that job you oversee collection 7 A. 10 of invoices? 11 12 13 14 8 Q. A. Q. A. Q. 15 yourself? 16 17 18 20 21 A. Q. A. 19 them. Q. A. That's part of my responsibilities, yes. Do you actually mail out the invoices? Yes, I have. I have mailed out invoices. Do you generally do all of the invoices No, ma'am, I do not. Who does those? Well, my secretary mails them out. I oversee So the secretary is responsible for that? They do inventory. They do payroll. They do 22 general basic office procedure. 23 Q. 24 A. Who is the secretary? Marie Bitner and my mother. How long has Marie Bitner been a secretary? I 25 Q. Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com . ~~~ '_J c C'" , . o - 1,1 fl~, ."~ 23 1 A. I don't think it's been longer than a year. I '. believe at the time, actually, Kathy Kyle may have been the 2 3 secretary. 4 Q. Do you know how to spell that? 5 A. No, I do not. 6 Q. So she was also employed as a secretary by 7 Whisler's Well Drilling at the time that, what, lot 8 was 8 being done? Is that what you're saying? 9 A. It may have been after that even. It may have 10 just been my mother. 11 Q. So it was around that time that -- it may have 12 been shortly after that? Is that what you're saying? 13 14 A. It's been a couple of years. It's hard to put a number on it. But I would say either my mother or well, 15 my mother has always been a part of, you know, part of the 16 office. So I would have to say my mother. 17 Q. Are you saying she, at that time, would have 18 been responsible for preparing invoices and then mailing 19 them out? 20 A. My mom would be the supervisor over the 21 secretarial type of things. Do you understand what I'm 22 saying? 23 24 25 Q. She would be in the office? A. Yes. Q. Every day? Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@ao1.com .._C"~... c o c : I ];1 L . ~ , '''~, 24 1 A. Yeah. 2 Q. And she would take phone calls and requests or 3 orders for jobs? 4 A. Service business, yeah. You need somebody 5 answering the phone. 6 Q. And if I were a contractor and I called and said 7 I need to have something excavated, I need a machine for 8 two or three hours to do such and such a jOb, she would 9 take that information and make that arrangement? 10 A. She would write down on a work order, like a 11 little note, a message to myself or my father or whoever 12 was going to call that person back, give us the note; and 13 14 then we would call that person, set up a time and ask them because she doesn't get into the operation on the job sites 15 or anything like that; she strictly stays with the message 16 taking, things of that nature; And then we call the person 17 back and we set up with them. 18 Q. Did you always have some other secretary in the 19 office? 20 21 A. Not at all, no, not all our life. MR. KUTULAKIS: I'm going to object to the form 22 of the question. 23 24 25 THE DEPONENT: Not all our life. MS. WINDER: I have no other questions. MR. KUTULAKIS: Nothing else. Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@ao1.com ................~" o o f"'1 '.~...-' -.... -~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .' I_~ I~,,~-.! 1,:1 "'-i<_ ~ "(, 25 (Whereupon, the deposition was concluded at 10:25 a.m.) Central Pennsylvania Court Reporting Services (800) 863-3657 or (717) 258-3657 or courtreporters4u@aol.com ;.;i~~-;-- c eel '\ " c , . - "~I "illllliIlliI'" lLAi;I.t.: I 'L >~ . ~, 26 1 COMMONWEALTH OF PENNSYLVANIA SS. 2 COUNTY OF CUMBERLAND 3 4 I, AMY R. FRITZ, R.P.R., a Court 5 Reporter-Notary Public authorized to administer oaths and 6 take depositions in the trial of causes, and having an 7 office in Carlisle, Pennsylvania, do hereby certify that 8 the foregoing is the testimony of KENNETH WHISLER. 9 I further certify that before the taking of 10 said deposition the witness was duly sworn; that the 11 questions and answers were taken down stenotype by the said 12 Reporter-Notary, approved and agreed to, and afterwards 13 14 reduced to computer printout under the direction of said Reporter. 15 I further certify that the proceedings and 16 evidence are contained fully and accurately in the notes 17 taken by me on the within deposition, and that this copy is 18 a correct transcript of the same. 19 In testimony whereof, I have hereunto 20 inscribed my hand 8th day of August, 2001. 21 22 23 24 25 NOTARIAL SEAL AMY FRITZ. Notary Public Carlisle, Cumberland County My Commission Expires February 9, 2002 Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@ao1.com ". 7' 1-_...;1") ,l'\ ~ " ---- . ~ t, C' r-::' ""'~ c' r';, 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ,. , .", _, ~ L 'J',' I_~__I 1-<1 < AUG 2 ,2 2001/P 1 1 '-'- WHISLER'S WELL DRILLING, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 2 vs. NO. 2001-1830 CIVIL TERM 3 4 ROGER HOSFELT, Defendant. : ORIGINI:\P; 5 6 7 8 9 10 Deposition of: ROGER L. HOSFELT Taken by: Plaintiff Before: Amy R. Fritz, Notary Public Registered Professional Reporter Date: July 18, 2001, 8:50 a.m. Place: Abom & Kutulakis 8 South Hanover Street, Suite 204 Carlisle, Pennsylvania APPEARANCES: ABOM & KUTULAKIS, L.L.P. BY: JASON P. KUTULAKIS, ESQUIRE FOR - PLAINTIFF BY: SALLY J. WINDER, ESQUIRE FOR - DEFENDANT 25 Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com ~~.~ c.......... ~, ' c 10 11 12 13 14 15 , , , ,- ~ ' "' ~<:', j 'UI , 2 1 INDEX TO TESTIMONY 2 DEPONENT EXAMINATION PAGE 3 Roger L. Hosfelt By Mr. Kutulakis 3,43 4 By Ms. Winder 34 5 6 7 8 9 INDEX TO EXHIBITS PLAINTIFF DESCRIPTION PAGE A Judgement dtd 1/25/01 by DJ Bender 12 B Notice of Judgement dtd 3/29/01 13 16 DEFENDANT 17 18 19 20 21 22 23 24 r: 25 -. A Affidavit signed by DJ Bender 41 Central Pennsylvani& Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com c.... . c.........'.' . ~ ~ "' .. J'~ ,-I 'dd ~- 1- , ~,-,~ 3 1 ROGER L. HOSFELT, called as a witness, being 2 duly sworn, was examined and testified as follows: 3 4 MR. KUTULAKIS: Just so we're clear, we can 5 proceed, I guess, under regular standard stipulations? 6 MS. WINDER: Which would be what? 7 (Whereupon, the reporter recited the standard stipulation.) 8 9 MS. WINDER: We will agree to that. 10 STIPULATION 11 It is hereby stipulated by and between the 12 respective parties that signing, sealing, certification and 13 14 15 16 filing are waived; and that all objections except as to the form of the question are reserved until the time of trial. MR. KUTULAKIS: And just so we're clear before 17 we start, are you proceeding as if this is your deposition 18 at this time, or do you want me to proceed on cross? 19 MS. WINDER: You requested the deposition, so I 20 think it's your deposition. 21 MR. KUTULAKIS: All right. 22 EXAMINATION 23 BY MR. KUTULAKIS: 24 25 Q. Mr. Hosfelt, do you want to state your full name for the record? Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@ao1.com .~... c c ~ ~i . =- ~. Iii ., '" :, , ~ -"'- -' ~'" ~ -l~l 4 10 1 A. Roger Leroy Hosfelt. And how are you employed? Self. You're self-employed? Yes. Where is the address that your business is 119 Southside Drive, Newville, Pennsylvania And the nature of that business is a general 11 construction business? 12 13 14 15 16 2 Q. Yes. Q. How long have you been the proprietor of that A. Q. A. Q. A. Since '97. And you've utilized Whisler's Well Drilling 17 Excavation numerous times prior to this incident involving 3 A. 4 Q. 18 excavation at lot 9 Deer Crossing Estates. Is that right? 19 20 5 A. Yes. And you've used them to install other septic 21 systems and wells for your various construction sites? 22 23 6 Q. Yes. Have you had problems with payments being made 24 to Whisler's in the past? 25 7 located? 8 A. No. 9 17241. Q. A. business? A. Q. Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@ao1.com ....... ~. f"'" ,-" c >"~ ~~ " '" "~ '" -'"Ulii."C",_ 5 1 Q. You've never had outstanding bills to Whisler's 2 in the past that went before any kind of formal court 3 setting? 4 A. No. 5 Q. In your petition, you indicate -- I'm going to 6 direct your attention back to January of this year during a 7 hearing because the only issue we're really looking at is 8 whether or not the judgment entered by District Justice 9 Harold Bender should be reopened due to the fact that the . 10 appeal date, which would have been about February 24th or 13 15 16 11 25th, ran, why it ran and whether or not the judgment 12 should be reopened. You were at the preliminary hearing on January 14 25th, right? A. Yes. Q. And District Justice Bender was substituting for 17 Helen Shu1enberger in Newville for that hearing. Is that 18 right? 19 20 A. Yes. Q. And in your petition you indicate that -- well, 21 first of all, you understand a judgment was entered against 22 you in this case in the amount of $2,012.87? Do you 23 understand that? 24 25 A. Yes. Q. And it's your contention that you and Janet Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com c c' c --.- , " "_, , " ~'~ "L:", 6 1 Whisler -- and she was present at the hearing? 2 3 A. Yes. Q. That she entered into some kind of negotiation 4 with you to contract to install a sand mound and well and 5 compromise the judgment that was entered by District 6 Justice Bender. Is that right? 7 8 A. Yes. Q. In fact, I think you state in your petition that 9 at the convening of the hearing and through the hearing it 10 indicates that you negotiated this with Mrs. Whisler in 11 front of District Justice Bender? 12 13 14 A. Yes. Q. And I assume that if this goes to blows and we go into court before Judge Oler you would have District A. 15 Justice Bender come in and testify as a witness for you? A. Yes. 16 17 18 19 Q. And what would District Justice Bender tell us? MS. WINDER: I would object. THE DEPONENT: I have no idea what he would say. 20 BY MR. KUTULAKIS: 21 Q. Well, is it your contention -- let me ask you 22 this: District Justice -- 23 24 25 A. Can I just say something? Q. Sure. During the course of the hearing, Mrs. Whisler Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com --..........."..... .....,. c' ~""'. If ' ~/ c> , , .",. .jll L"J.---"-,; '''~-';'h' "" ~ lii;--:. 7 1 was present and the -- we were negotiating over the sand 2 mound septic and the well. And also there was a small 3 labor cost on two different other jobs, which I never did 4 get a bill on them. And after the hearing, she told me 5 that she would definitely send me a bill, and I still have 6 never got that excavating bill. I told her I would agree 7 to pay that excavating bill at any time. I never got that. 8 And way prior to that Kenny Whisler and I 9 talked. In fact, we met at another establishment, and we 10 tried to get this thing worked out, put the sand mound in. 11 And really it wasn't between Kenny and I; it was Dick and I 12 that agreed upon these sand mounds. 13 Q. Just so the record is clear, when you say 14 Dick 15 Dick Whisler. The gentleman, I guess, that owns A. 16 the property. 17 He owns the business, rather? Q. 18 Well, the business, yeah. Anyhow, at the A. 19 hearing, Mr. Bender asked me if I had any problems with 20 Whisler's to put the sand mound in, put the well in. I 21 said, I have no problem with that at all, go ahead and put 22 it in; I'll pay you upon completion of the sand mound with 23 the inspection and with the well being done and good water. 24 Now, was Mrs. Whisler present? Q. 25 Yes. Mr. Bender asked me this, if I would do A. Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com ~. .~ c'....' ~ ! c' C' , , ,":,.--- -" . -'-- ~ , ,I", L'Lc... ",,' ,,~,,' ;"'\;, , , 8 1 this. And he, in turn, asked Mrs. Whisler if that was 2 okay. And I had no problem with that, and she had no 3 problem with that. She said that they would put it in but 4 they couldn't put it in right away because they were busy. 5 And I said it was wet weather, and I said, well, at your 6 earliest convenience, go ahead and put it in. 7 So it's your testimony that District Justice Q. 8 Bender kind of acted as a mediator for you? 9 A. Yes. 10 And that whatever he accomplished was something Q. 11 to the effect that they would put the sand mound and well 12 in for -- I think you even put in your pleadings here, for 13 the cost of $8,500? 14 A. Yes. They put three other sand mounds and wells 15 in for $8,500. I've got cancelled checks on those when I 16 paid them when they were done. And the reason why that 17 they dumped the sand there was their employee, Ron -- I 18 think that's his name. Yeah, I know it was Ron. 19 Ron, when he was hauling the sand in for the lot 20 right beside that, he said about this next one because 21 we're getting ready to dig it. I said, yes, go ahead. He 22 had all the sand in, go ahead and put it in. Winter set in 23 on us, bad weather. You can't put it in in bad weather. 24 So then it went into the next spring and they 25 never came back and didn't come back and put it in. And Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@ao1.com -.............~ c' c C) , -, ~ ]1>,,1..1' l.' " ~,. 9 1 that's when Ken called and wanted money for the sand. I 2 said, I'm not paying you for the sand until you complete 3 the job. And that's when it stopped right there. 4 Q. And it's your testimony that Janet Whisler 5 accepted what you say District Justice Bender proposed? 6 7 A. Yes. Q. Would it surprise you if I told you that 8 District Justice Bender said that that couldn't be farther 9 from the truth? 10 11 12 13 14 15 A. Well, then he would be lying. Q. District Justice Bender would be lying? A. Yes. Q. Why would he do that? A. Oh, I don't know. Q. If I told you he signed an affidavit saying that 16 was nothing further from the truth 17 A. He can sign anything he wants to sign. I was 18 there as God as my witness; Mrs. Whisler was there, and she 19 agreed upon putting that in. I don't lie. I have no 20 reason to lie. 21 22 23 24 25 Q. Well, you have $2,000 outstanding. A. I've paid much bigger bills than that. Q. I'm sure you do. Now, this sand that you're talking about, you say that one of the Whisler employees with a first name Ron Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com -.._......w ~ __ C<." , c c: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I "~- J" ---+f" 1.,........' ,j-ll, 10 was delivering a sand mound to a site adjacent to lot 9? A. Yes. Q. And what were they doing at that site there? Were they putting a sand mound in there? A. Yes. Q. And you asked him to, while he was getting the sand for the adjacent lot, to go ahead and get you sand for lot 9? A. No. He said that he had part of a day left, are we going to be putting the next sand mound in. I said, yes. He said, do you mind if I haul the sand in here to finish the day up. I said, I have no problem with that. Q. So it's your testimony that he's the one that suggested hauling the sand in? A. Yeah, because we were just going from lot to lot to lot. We were going up one street and putting them in; then we were on the next street, putting them in, going right back out again. Q. Do you have any kind of purchase order or anything of that nature for that material? A. No. They bill me when the job is done. Q. Any written contract for any of the jobs? A. No. There was never a written contract for any of them. Dick Whisler and I agreed upon it when we first started that development over there on Antler Court. And I Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com -.-- Co c c ~ . , s._.1 '. '" '-, ", t-',- 11 got the canceled checks from the other ones that I paid, and that was the agreed-upon figure. 1 2 3 Q. Is that a development that you exclusively build 4 in, or are there other builders? 5 A. No. Anyone can build in it. How many homes did you build in that Antler Everything on Antler Court. I built everything 9 on Antler Court. 10 6 Q. 7 Court? 8 A. Q. 11 chose? 12 13 14 15 16 17 18 19 A. Q. A. Q. A. Q. A. Q. But other builders could have built if they so Yes. How many homes would that be? Five. Is Antler Court a part of a larger development? Yes. Deer Crossing Estate. How many homes did you build in Deer Crossing? I'm building my tenth one right now. So that would have been five other ones in the 20 remainder of Deer Crossing then? If you had five in Antler 21 Court, do you have five in the remainder of Deer Crossing, 22 or do you have ten additional in Deer Crossing? 23 A. That I have built or total lots that's 24 available? 25 Q. No, that you built. Central Pennsylvania Court Reporting Services (600)863-3657 or (717)258-3657 or courtreporters4u@aol.com ........... ,~~ '""'"~_. ,'J 1.liI . ,I "-.........1' 'i_ ,~' "'f,,, ' 12 1 Yes. A. Q. A. three. Q. A. Q. A. Q. c' Five and five? 2 3 Five and five. Whisler's done them all but 4 10 are under way at some point in time here? They're under construction right now. 11 A. 12 Now, January 25th a judgment was entered Q. was a judgment entered on the 25th against you at the time of 13 c the hearing, or was it suspended until a later time? 14 Oh, I don't know. 15 A. 16 Do you recall receiving notice that judgment was Q. 17 entered against you? 18 No. A. 19 (Plaintiff's Deposition Exhibit A was marked.) 20 BY MR. KOTULAKIS: I'm going to show you what we'll go ahead and 21 Q. 22 mark as our Exhibit A. I'm going to show you the judgment 23 entered by District Justice Bender on behalf of Helen 24 Shu1enberger. Do you recall receiving that document? Yes. That wasn't there at the hearing. That 25 A. ,..".... '... '. ~' Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258~3657 or courtreporters4u@aol.com -..............< c c c -- ~ 'j 'I ~-, ,;..:~~",<,',. 1--"'"';); , , 13 1 was after that. 2 Q. Do you remember when you received it? 3 A. No. 4 (Plaintiff's Deposition Exhibit B was marked.) 5 BY MR. KUTULAKIS: 6 Q. I'm going to show you this document we've marked 7 as Exhibit B. Do you recall receiving this document titled 8 Prothonotaries Office at the top and it's a notice of the 9 judgment dated March 29th, 2001? 10 I can't remember if I got that or not. I A. 11 remember getting that. 12 Q. Okay. 13 But I'm not sure about this. A. 14 Q. Do you remember what prompted you to contact 15 Ms. Winder? 16 Yeah. When I stopped in Mr. Bender and asked A. 17 him when I tried to get a hold of Whisler's, I called a 18 couple different times and talked to either a secretary or 19 whoever was answering the phone for them. And I wanted 20 either Dick or Ken to get back in touch with me because I 21 wanted to know when we were going to put this sand mound in 22 and the well in, and no one ever returned my phone call. 23 So I finally got a hold of them one day when I 24 was leaving the development down there, and I was talking 25 to Ken. And Ken said, I don't know, I've got to talk to my Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com c.... -'--' c e . . ~ "," ~ - . fl~.'-''''-~' 'M' -,,' -~:i 14 1 dad. And they negotiated, and he come back, and he said, 2 Rog, Dad said no and my hands are tied and I can't do it. 3 And I said, well, you know, I've got to get 4 something done here. I said, your mother agreed upon 5 putting the sand mound in and this well in and I agreed 6 upon paying her at completion. 7 Did you ever contract with Mrs. Whisler in the Q. 8 past? 9 I'm sorry? A. 10 Did you ever contract with Mrs. Whisler in the Q. I. 11 past? 12 13 14 15 A. Did I contract with her? Q. Yes. A. What do you mean? Q. Did you ever enter into a contract with 16 Mrs. Whisler in the past? 17 A. Well, yes, if I called in there and talked to 18 her if she answered the phone. If I ordered equipment or 19 whatever, she's the one that took the order and whoever 20 took charge from there. 21 22 Q. What equipment did you order from Whisler's? A. Well, they used to do all my excavating work. 23 They used to do all my high-lift work, all my backhoe work. 24 25 Q. When you say you ordered equipment, do you mean you ordered services from them? Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com ~~~- c: ~, ~",' ~.'.'..'., """,. , .1 III , , ,-, .-,'" . . 15 1 A. Yeah. 2 Q. Because they don't sell excavation equipment? 3 A. No. 4 Q. And you said you called in and talked to 5 Mrs. Whisler; I interrupted you there. Did you finish what 6 you wanted to say? 7 A. No. You asked me about Mrs. Whisler. Your 8 question that I was trying to answer and you changed it was 9 that why I contacted Sally Winder was because of when Ken 10 said no he wouldn't do it -- because that was the agreement 11 that Mrs. Whisler and I had the day that we were in there 12 with Mr. Bender. 13 Because he was the one that asked me if I had a 14 problem with them finishing it, and I said no, I didn't 15 have a problem with them finishing it; why should I, 16 they've done all my other ones. I had no problems with 17 . their work or their service so just go ahead and finish it. 18 Q. Isn't it true that, in fact, in front of 19 District Justice Bender Mrs. Whisler said something to the 20 effect of that she'd have to talk to Dick before she could 21 agree to do that? 22 23 24 25 A. No. Q. She didn't say that? A. No. Q. If I told you District Justice Bender is Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com . e" ,.~~~ "'--- c) C' 0,,'\ , -,j' ,- ' " . "' ,- ,~ - .," 0"' ~ ",', """\' 16 1 prepared to testify to that effect, as well as Mrs. 2 Whisler, both of them would be lying too? 3 A. Well, that wouldn't -- we agreed upon that in 4 their courtroom or whatever you want to call it. Why would 5 I have any reason to doubt either one of them when 6 Mr. Bender is the one that asked me at the very beginning 7 if I would accept them doing the service~ over there and I 10 11 12 13 14 15 8 said yes? 9 Q. Would both of them being lying then? A. Well, yes, they would be. Q. And you indicated that you A. Because from the very beginning if they weren't going to do it, well, then, I would have went on and had it done. Q. Well, why would she compromise a judgment she 16 just received in front of District Justice Bender? 17 18 A. I have no idea. Q. You indicated in your pleadings that you called 19 and spoke to Ken Whisler the some point in time? 20 21 22 23 A. A. Yes. Q. Do you remember when that was? Q. I don't know. Probably about April. And what did he tell you during that 24 conversation? 25 A. He said I got to talk to my dad. He was there . Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@ao1.com ~........ Ci c o ~l 10 , , J, I,j[ '<<. ," '''", ,'" 17 1 -c talking to him. I could hear him in the background. And 2 he come back on the phone and said nope, Dad won't do it. 3 Q. And Dad, just so the record is clear, is Dick 4 Whisler? 5 A. Yes. 6 Q. And he's the sole proprietor of that business? 7 A. Yes, I guess. 8 Q. You have no reason to disbelieve that if I told 9 you he was the sole proprietor? A. No. I've dealt with Dick throughout all the 11 years. 12 13 14 15 Q. Number 8 says that you weren't represented at the hearing before District Justice Bender. Is that right? A. That's right. Q. And you appear to be relying on the fact that 16 because you didn't have counsel with you that was to a 17 disadvantage for you? 18 19 A. Excuse me? Q. I don't understand the purpose of your Pleading 20 Number 8. Would you like to look at it? I don't see that 21 you have a copy. 22 23 A. So what's the question? Q. I'm confused about the purpose of Pleading 24 Number 8 in your petition to reopen this case. It says 25 that you weren't represented by counsel. Are you saying Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com -~~ ~- "--',~ '" -'-- .... c c e 11 12 13 14 15 " ". ."" .~'~--'. 18 1 that you were at a disadvantage because of that? 2 A. Well, I took Mrs. Whisler and Mr. Bender at 3 their word. And when we agreed upon doing the sand mound, 4 septic and the well, that I expected for them to do it. 5 Q. But the purpose by saying you weren't 6 represented is what? 7 I didn't have no one there to represent me. A. 8 So do you feel you were at a disadvantage? Q. 9 Yes. A. 10 Mrs. Whisler wasn't represented either? Q. A. No. Q. In fact, Dick Whisler wasn't present at that hearing at all? A. No. Q. And the only witness they had was Mrs. Whisler 16 presenting the facts of the case? A. Yes. 17 18 Q. In your pleadings here, Number 5 talks about 19 this claimant issue here, this $2,000 is part of two jobs; 20 one is dealing with the sand mound on lot 9, which we've 21 already talked about, and the other one deals with 22 excavation done at another location. I assume that was the 23 one in Franklin County? 24 25 A. Yes. Q. And you admit that money is owed and the job is Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com .Of. c.....-', . . c...... , .' c' "~~ '~ ' ~ , '. j ,J,l -I"~ " '." J ., llfiji'K 19 1 completed regarding the excavation? 2 A. Yeah. I told Mrs. Whisler that day of the 3 hearing in front of Mr. Bender to go ahead and send me a 4 bill on that, I'll pay you for the excavation, and I never 5 got a bill on that yet. 10 11 12 13 14 15 16 17 18 19 6 7 8 Since 1988. 9 Q. How long have you been building? Since 1997? A. No. Under Roger Hosfelt Construction, yes. Q. Quite some time? A. Yes. Q. You're familiar with sand mounds and the costs? A. Yes. Q. Are you able to generally guess the cost of the sand that was delivered to lot 9? A. Can I guess? Q. Yeah, estimate. A. On how much sand? Q. The cost of it. A. Oh, yes. It's the same size as the one we put 20 in lot 10, within a couple of inches. 21 22 23 24 25 Q. How much was that? A. The whole cost or the cost of the sand? Q. Just the cost of the sand that's there now. A. About $950. Q. And Whisler's are claiming that there's an Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com <i~.._. c c......". ., ""'.'. . ~ - ," -~ " ., "-~"" .];.,"': 20 1 outstanding cost due of approximately $2,000, right? 2 A. That's what they're saying, yes. 3 Q. And if you were to subtract $950 from that, you 4 would be left with roughly a thousand dollars which I think 5 you can assume is the bill for the excavation done on the 6 site in Franklin County? 7 A. No. The job in Franklin County, she said there 8 was one for 100 and some dollars and there's one for almost 9 $200 or something like that. I don't know exact numbers. 10 Yes, I did agree with her that there were two 11 small jobs done down there, and I never received a bill on 12 them. T asked her to send me a bill, and she's never sent 13 14 me a bill on them. So the difference between the two small 15 excavating jobs in Franklin County and the cost of the sand 16 I would say is profit. 17 18 19 Q. You make profit on your jobs? A. Yes. Q. You're not debating whether or not they should 20 make some profit? 21 A. When the job is completed, yes. Every man is 22 entitled to make money. That job was never completed. 23 Q. Did you ever enter into a contractual 24 relationship with Dick Whisler for the sand mound and well 25 to be put on lot 9? Central Pennsy1van~a Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@ao1.com I~...."."..~. c' ,.", '"-' 0....', - -, 15 I'^' Ill' '. ~ JiIIj ',"-" " wJ- 21 1 A. Did I do what? 2 Q. Did you ever enter into either an oral or a 3 written contract with Dick Whisler to put in the sand mound 4 and well o.n lot number 9 at Deer Crossing Estates? 5 A. We never entered into a written contract on no 6 job on Antler Court or Deer Crossing. 7 Q. Did you speak to him over the phone or in person 8 about entering into a contract on lot number 9 Deer 9 Crossing Estates? 10 A. When we were over there doing lot 16, I took Dick over and showed him where lot 8 was and where lot 9 was; Kenny and his other guys were putting the well in at the time. And Dick and I went over there, and I showed him where the two sand mounds were going in. 11 12 13 14 And at that time he used to put them in for 16 me for $7,500. And then he come back to me when we started 17 over there; he said, we got to put them in at $8,500 18 because the cost of sand went up. I said, right, I have no 19 problem with that. I said, I know the DER-approved sand 20 did go up. 21 So then we went down there to lot 8. I showed 22 him where the perc was to put the lot 8 in, and I showed 23 him where the perc was on lot 9. And we were just sitting 24 there in his vehicle, and he looked at them, and he said, 25 when are we going to start these. I said, whenever we come Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com ~G<.. ~ ~..",.. r, "'-~ C;", - C;" '- -~' JE, 'I 1_,111 ,---:,L, J-<'"'" ',-" 22 1 off the other street over there. 2 Q. Was that before or after the sand was delivered? 3 A. That was before. We were still on Antler Court. 4 Then he went over there, and we started lot 8. When we 5 were done with lot 8, we moved right on to lot 9. And I 6 paid him for lot 8 when it was done. 7 I mean, Kenny is sitting right here. He drilled 8 the well from job to job to job. They put the sand mounds 9 in from job to job to job, just kept right on continuing. 11 Q. right? A. Q. A. Q. A. Q. 5/20/01. 12 Yes. It does now. 13 When was that installed? 14 16 Yes. 18 Now, in your pleading petition to reopen that 19 you verified on May 31st, you indicate that the septic and 20 well were not yet installed. Was that a mistake? 21 A. On what date? 22 Q. Well, I'll show it to you. This is your 23 pleadings. The last page is the verification. You signed 24 it and dated it May 31st indicating that the well had not 25 yet been installed. Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com 1If1."\.. ........ ~' ,...., "'-, c l .1, ~_ <I d' , J _~_ . '~. . "'~~f',&(! i ~ . 23 1 A. It wasn't completed, no. Q. It wasn't completed. When was it completed? 2 3 A. I would say about three weeks -- no, about a So it took them a month to get the well in? Well, they had an accident. What kind of accident did they have? They rolled the well driller over. So they pulled the well driller on-site and set . 10 up the tower on May 20th? 11 12 13 14 15 4 month ago. 5 Q. 6 A. 7 Q. 8 A. 9 Q. A. Q. else? A. Q. 16 it until 17 A. Right. And then pulled it off site and went somewhere Yes. And rolled the rig and never came back to finish No. They drilled that, but they didn't have the 18 pump in or the line in or none of thpt. 19 20 21 22 Q. A. Q. A. But the well wps in? Yeah. The hole was in the ground. And it was sleeved? Yes. But upon completion. It's not completed 23 until the water is in the house. 24 25 Q. A. Did you sell that house yet? No. Central Pennsylvania Court Reporting Services (800)663-3657 or (717)258-3657 or courtreporters4u@ao1.com --. ~- c c e. ,/':",1 _,I J J'I,_, , ~"-;.,, ~'"",,,,'.l"""i; 24 1 Q. It says in your pleadings that it's on the 2 market and you've had several interested buyers but none of 3 them have made offers. Is that right? 4 5 6 A. A. Th,at's right. Q. Do you have names of those people? No. The realtors don't give me names; they just 7 call and set up the showing. I never ask for no names. 10 11 12 13 14 8 9 A. Q. How many showings did they make? A. A. Q. Altogether? I really don't know. Q. More than five? Oh, yes. Q. More than 50? No. Have you ever been to a hearing before a 15 district justice in the past? 16 17 A. Q. 18 them? 19 20 A. Q. Yes. Have you ever won or lost a hearing in front of Both. Are you aware how long it takes or how long you 21 have to appeal a case following a judgment? 22 23 A. Q. 24 justice? 25 A. No. How many times have you been before a district I don't know exactly. Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com ~ '"', "". c. C".'J .-- , : I 10 l IL. " ,~ ',-" 25 1 2 3 4 .5 Q. More than five? A. Yes. Q. Less than 50? A. Yes. Q. And do you understand that you can appeal from 6 that hearing? 7 8 A. Yes. Q. Which means you can get relief; if you don't 9 agree with the ruling, you can ask the higher court, the 10 Court of Common Pleas, to give you a new hearing. Do you 11 understand that? 12 13 14 A. Yes. The only reason why I didn't appeal nothing there was what we had agreed upon right there in 21 22 24 25 the courtroom with Mr. Bender and Mrs. Whisler. I had no 15 reason to appeal that. I took them for their word. Q. So when they -- okay. I'm going to give it to 16 17 you this way. I'm going to assume that -- I don't know 18 when you received notice and you can't tell me when you 19 received notice of the judgment entered by District Justice 20 Bender, so can we agree that it was around January 25th? A. For what? Q. That the judgment was entered by District 23 . Justice Bender. A. No. Q. Do you want to tell me when you think it was Central Pennsylvania Court Reporting Services (800) 863-3657 or (717) 258-3657 or courtreporters4u@aol.com ~~._ ,.u ~__ ., ,," CI C...' ifP'/ c "'~ 1,1, Lll ;,:;1-, o..J' -'JIii:l4."- lt1lUlIIU,L 26 1 entered? I don't know. You asked me that, and I don't I'm going to show you what we've marked as 5 Exhibit Number 1. You acknowledged that you received that. 6 Is that right? 2 A. Right. On the bottom of that there's a signature by 9 Harold Bender. Do you see that there? 10 11 12 13 14 15 3 know. 4 Q. Yes. Do you see the date that's there? 1/25. And then there's something 3/15, yes. Q. When no equipment arrived to your job site on A. A. 23 25 February 24th, did you contact Ms. Winder? No, because when you put a sand mound and septic 16 in, you can't put it in in bad weather, mud, etcetera. And 7 A. 8 Q. 17 it was still wintertime. You can't put the sand mounds in A. Q. A. A. 18 on either mud or frozen ground. 19 20 21 22 Q. Do you recall if it was muddy or frozen? No, I don't remember. Q. Can you drill a well in January? Yes. Q. Was there any Whisler Well Drilling equipment 24 there around February 24th? A. No. Central Pennsy1van1a Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com ~, c: c o . n~ , , 1_' LI ..." ,~~, L -'"- -,t , ~, 27 1 2 A. Q. Or before? No. You indicate here that you anticipated the work 4 to be done in this case in March or April. Is that right? 10 11 12 13 14 3 Q. Yes. Well, March 31st rolled around, did you file an No. Did you contact Whisler's? Tried to. Weren't successful? No. Q. When's the first time Ken Whisler or anybody A. Q. A. Q. A. A. from Whisler's, in your mind, told you that they weren't 15 doing this job? 5 A. 16 17 18 19 6 Q. When I contacted Mr. Bender and Sally Winder. And do you recall when that was? No. April 30th rolls around, Whisler still don't 20 have equipment there, did you file an appeal? 21 22 23 24 25 7 appeal? 8 A. No. Q. Any particular reason? 9 Q. No. Q. Would it be fair to say you contacted Ms. Winder A. Q. A. after April 30th? Central Pennsylvan~!il Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@ao1.com C...i . ~ r; "",-. o 28 1 A. I'm not sure exactly when that was. 2 Q. Do you recall, wasn't it in November of 2000 -- 3 I think it was 2000, now -- that the sand was hauled into 4 your lot number 9? 5 A. It would have been about November, yes. 6 Q. Why was that hauled in before wintertime? 7 A. Why was it hauled in before wintertime? Because 8 they we~e going to start it, because that was the next job 9 that was going to be under construction. 10 Q. Well, you said that you can't put a sand mound 11 in in the wintertime. 12 A. No, you can't. 13 Q. Why would they deliver sand -- why would you 14 have sand there if you can't work on a sand mound if that's 15 what the goal was? 16 You can't put a sand mound in in the wintertime A. 17 if the ground is frozen. If the sand is on the site where 18 the plot is and the perc is, yes, you can go ahead and 19 install the sand mound. 20 That's why they put the sand in there on the 21 job, and that would have been the next one started. Now, 22 if it would have been froze over, if the ground would have 23 been froze over, they couldn't have started it. 24 When's the first time you contacted Whisler's to Q. 25 ask them to put the sand mound in after the sand was Central Pennsylvanip Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com C'.", ". ,) c ' , -" , Ci "1"''''"~ ,II , -i ,--0., ~,~ i ','..k ~JW! 29 1 delivered? 2 A. I didn't. I mean, I never contacted any of the 3 other jobs. They just went ahead and done them. 4 Q. Well, isn't it true that the sand was delivered 5 at your request and the sand mound wasn't put in because 6 you never contracted with them? Isn't that the way it 7 goes? 8 A. No. 9 Q. Now, you said something that ~- I was a little 10 confused. If the sand is on the site, it's okay to put the 11 sand mound in as long as the sand is on the site? 12 A. Yes. 13 Q. Now, why wouldn't you -- if the sand is 14 delivered in November, why wouldn't you be contacting 15 Whisler's from November until the first time you contacted 16 them -- well, you say you never did put the sand mound in. 17 When we were in that development over there, we A. 18 went from job to job to job. There were several times they 19 pulled in the job, they pulled back out, they had other 20 commitments at other places, they would come back in. 21 As long as they stayed up with me -- I had the 22 holes dug -- and were doing the construction, that's just 23 the way it went. I mean, that's part of construction. So 24 it's not like, you know, we have to have a deadline when 25 the sand mound had to be in or the well had to be in. On Central Pennsy1vanip Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com ~~~~. c o c..'.'," < J ,J ',I I, ~ " j ,01. 'I:. . ~ '..~ ........~'''''!it-W'', 30 1 the Antler Court, that whole street over there, they pulled in on the job and pulled off the job if they had to, and 2 3 there was never no contact back and forth then. 4 Q. Didn't you do most of your negotiations through 5 Ron; you know, Ron, here, the next lot is ready, come work 6 on it? 7 A. Well, they all knew. Dick knew, Kenny knew, Ron 8 knew. 9 Q. Did you do most of your negotiation, you know, 10 in informing Ron, hey, here's another lot, let's get going 11 on this sand mound, it's ready to go? 12 13 A. Well, Dick already knew that that was the next lot. 14 Did you do most of your negotiation or contact Q. 15 with Ron, the excavator? 16 A. No. 17 You indicate in your pleadings that you Q. 18 attempted to contact Whisler's by telephone but you weren't 19 able to do that. Do you remember when you tried to contact 20 them? 21 A. No. 22 Did you have this -- on lot number 9, you still Q. 23 haven't sold that house. Do you have a completion date 24 that you had to have that house done? 25 Do what? A. Central Pennsylvania Court Reporting Services (800) 863-3657 or (717) 258-3657 or courtreporters4u@ao1.com ............_"..."..-~ c..'....' : ,I c o i I .i .1;1 .-- .' rIlL ,~~ 31 1 Q. Back in November when the sand was delivered, 2 did you have a completion date that you had to have the 3 house done? 4 A. No. 5 Q. And you didn't have a completion date to have a 6 sand mound in either? 7 A. No. 8 Q. How long did you expect Whisler's to sit on a 9 materials list before you had requested them to complete 10 the sand mound? 11 A. If they would have come in and done the sand 12 mound and completed it and put the well in, they would have 13 14 already been paid. It wasn't the issue of they just had to dump the sand there and wait for whenever. It was go ahead 15 and put the sand mound in, go ahead and put the well in, 16 they get paid. 21 17 And your testimony is that you had a contract Q. 18 with Whisler's for $8,500 for a complete job including sand 19 mound and well, or was the sand mound separate from the 20 well? A. Sand mound and well. 22 And really I keep getting astray from what we're Q. 23 supposed to be focusing on is whether or not this should be 24 reopened. Forgive me if I've asked this. Did you say you 25 had no idea that you had 30 days to appeal this case? Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@ao1.com c c......) , . o ~ 32 1 A. I'm sorry? Did you say that you had no idea that you had 30 3 days only to appeal this case? 2 Q. That's right, yes. Did anybody inform you that you had more time to No. Did you ever contact an attorney to ask about 9 what to do with this judgment? 10 11 4 A. No. Did District Justice Bender inform you that you 12 had a right to appeal this decision? 13 14 5 Q. No. So he wouldn't have informed you that you had 15 the time in which to appeal either? 16 17 6 appeal it? 7 A. No. So just so I'm clear, it's your testimony that 18 both District Justice Bender and Janet Whisler and 8 Q. 19 potentially Ken Whisler would all be lying if they came in A. Q. A. Q. A. Q. 20 and said District Justice Bender never witnessed or heard 21 and Janet Whisler never entered into any agreement with you 22 to put in the sand mound or well, to negotiate the 23 judgment? 24 A. He's the one who started the negotiation, if I 25 would let them finish the job if they would agree upon it, Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com _.._~~.c_ '. .i-, ~.~~ c 10 11 0- ;- lHI, I'Jd "' " " .~~,~', ".0....1."1t" 33 1 and Mrs, Whisler agreed upon it. 2 Q. If I told you that that's not what the testimony 3 would be if this comes to court, they would be lying? 4 A. Yes. 5 Q. So everyone involved in this case except for you 6 would be lying. Is that what you're saying? 7 A. Is everybody lying? 8 Q. Well, District Justice Bender, Janet Whisler and 9 Ken Whisler would all be lying? A. Ken Whisler was not there. Q. Ken Whisler, in fact, told you to the contrary 12 that, in fact, Whisler's would not do the job and they ".., ~' 13 14 15 never entered into an agreement with you. Isn't that right? A, NO, that's not right. If they would never have 16 agreed upon putting the sand mound in, why would they dump 17 sand there? 18 Q, Well, that's a good question. And I'm going to 19 tell you right now that my question to you is -- I've asked 20 it already -- is you asked Ron, the excavator, to dump the 21 sand there. 22 0,," , , A. No. He asked me if he could start hauling sand 23 in to finish the day out because they're moving to the next 24 lot. 25 So if he were to come in and testify that, in Q. Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@ao1.com c if/!""<., ~' o 13 14 U..i.1 ,~ '.., , """ <-j'j 34 1 fact, you asked him to dump the sand there, he would be 2 lying too? 3 A. Well, yes, because he said to me. 4 Q. So now we have District Justice Bender, Janet 5 Whisler and Ron, the excavator, they're lying. Is that 6 right? 7 A. Yes. 8 MR. KUTULAKIS: I don't have anything further. 9 EXAMINATION 10 BY MS. WINDER: 11 Mr. Hosfelt, you did, in fact, contact District Q. 12 Justice Bender at some point. Is that correct? A. Yes. Q. Do you recall what it was that led you to 15 contact him? 16 Because Whisler's would not return my phone call A. 17 and didn't put a sand mound in and the septic in which they 18 agreed Upon doing. 19 Had you received any notice from any source Q. 20 concerning a judgment? 21 Just that letter that I got, that Exhibit A or A. 22 whatever. 23 BY MS. WINDER: 24 Q. In your last answer, you're referring to what's 25 been marked for identification as Exhibit P-A. Is that Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@ao1.com c c: o .' 1 2 3 . 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ILl ,- < "",/ ' ~ ~'1i.f 35 . ,-",""", correct'? A. Yes. Q. When you went to talk to Mr. Bender, where did you talk to him? A. At his office. Q. In Shippensburg? A. Yes. Q. And what was the nature of your conversation with him? A. With Mr. Bender was that the Whisler's did not put the well in yet or the septic and that it was agreed upon that they would put it in and I would pay them upon completion. And then Mr. Bender said, well, I'll try to get a hold of them with that message. And I was standing right there when he called them, and he left a message. I don't know if it was with the receptionist or MR. KUTULAKIS: I'm going to object based on hearsay. THE DEPONENT: I have no idea. Then a couple weeks after that no one ever got back in touch with me yet. So then that's when I stopped back up there again to Mr. Bender's office and told him no one got a hold of me. And then after that I did get a hold of Kenny, and then he told me that, no, they would not put it in. So then I got Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@ao1.com c..... <, .' o o ~"._,,'"'"~ ~, 11 j l -, "0 ,- "~~ ~'"""J.,' 36 1 a hold of Mr. Bender again, and that's when I got a hold of 2 you. 3 BY MS. WINDER: 4 Q. Did Mr. Bender act as though he were surprised 5 that you thought Whisler's should be contacting you to put 6 in a well and septic? 7 MR. KUTULAKIS: I'm going to object. 8 BY MS. WINDER: 9 Q. Go ahead and answer the question. 10 A. It's a joke, don't worry about it. Q. Did District Justice Bender act surprised that 12 you were telling him that you thought Whisler's should be 13 14 putting in the well and septic? A. No, he wasn't surprised. The only thing he said 15 to me was 16 MR. KUTULAKIS: Again, I'm going to object based 17 on hearsay. 18 Go ahead. 19 THE DEPONENT: He just said to me the second 20 time he asked me, he said, didn't they get back in touch 21 with you yet. I said, no, not yet. 22 BY MS. WINDER: 23 Did he say anything to you about appealing any Q. 24 judgment or decision that he had made in January? 25 A. No. Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com .I.. o C,.., "- ,;' o . - I" L~_' 1.,[, ~""""'t', 1 , , "~ --~ 37 Q. And you said that your course of business with 4 correct? 5 A. 2 Whisler's was that these well and septic jobs on the lots 3 '. were discussed between you and Dick Whisler. Is that 6 Q. Yes. And that he was aware that you were building on 7 lot 8 and lot 9? 8 A. Yes. And that you showed him where the perc sites 10 were for the sand mound systems. Is that correct? 11 12 13 14 9 Q. Yes. And did he have the septic system designs? Yes. And in order to install the system, were you 15 required to have a sand mound system design? 16 17 18 19 20 21 A. Q. A. Q. A. Q. A. Q. A. Yes. For each and every lot in Deer Crossing? Yes. And where are those septic system designs now? Mr. Whisler has them. Q. Now, when you install a sand mound septic 22 system, there's a requirement that it be inspected by the 23 township sewage enforcement officer upon completion. Is 24 that correct? 25 A. Yes. Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com .......- c C, -- " o _, ~L, - ._l I ~ j :1 ~'~-I' " ~ ",-, Lwl L 38 1 Q. And before the house can be occupied, the sand 2 mound system needs to be inspected and approved. Is that 3 also correct? 4 A. Yes. Now, when the sand mound system is built, are 6 there any other certifications that are required? 5 Q. A sand certification. And who gets that sand certification? The people that's hauling the sand in, which 10 Whisler's would get the sand certification paperwork 7 A. 11 because they're the ones installing the sand. 12 13 14 15 16 8 Q. And does that paperwork need to be turned over to you, as the contractor, prior to the system being 19 Q. 9 A. To the inspector. And who would be the inspector? Tom Shelly in Southampton and Dan Danner in 18 South Newton. Q. inspected? A. Q. 17 A. And are those persons that you have named the 20 respective township sewage enforcement officers? 21 A. Q. Yes. Do you have a sand certificate for the sand that 23 was delivered to this lot 9? 22 24 A. Q. No. Do you know where that sand was purchased? 25 Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com l~~-~ 0 >. _"...h o c.... 'i' c L~ " I,," ],,1 ,l- 1,1 " ,,-- -' ~ ;.' 39 1 A. NO. And you're saying that you don't have the system 3 design for that lot. Is that correct? 2 Q. Whisler's have it. When would the sand mound system design have 6 been provided to Whisler's? 4 A. When they brought the sand -- well, I gave Dick 8 the one for lot 8. And when Ronnie was putting lot 8 in, 5 Q. 9 he asked for the one from lot 9. 10 7 A. Did you order the sand for these sand mounds, or 11 was that part of Whisler's job? 12 13 14 Q. A. That's Whisler's job. Q. On January 25th of this year at the district justice hearing, did Mrs. Whisler tell the district justice 15 that she represented Whisler's Well Drilling? 16 17 A. Q. 18 correct? 20 19 A. Yes. And that would be Janet Whisler. Is that Yes. Q. And did you tell the district justice about the 21 course of conduct previously with Whisler's Well Drilling 22 and the other lots where septic systems had been installed 23 and wells done for one contract price? 24 25 A. Yes. Q. Did Mrs. Whisler deny that that had been the Central Pennsylvania Court Reporting Services (800) 863-3657 or (717) 258-3657 or courtreporters4u@aol.com ~ .~ c~ c ~.." ~i L [ l_l.I " II ;" 40 1 course of conduct between you and Whisler's? 2 A. No. 3 Q. Did she agree that had generally been done in 4 the past? 5 A. Yes. 6 Q. You said that at some point Ken Whisler asked 7 you for money for the sand. Am I recalling that correctly? 8 A. Yes. 9 Q. Do you remember when that was in relationship to 10 any of the other matters that you've testified to today? 11 12 13 A. No. Q. You can't relate that to any particular date or put it in a series of events? 14 A. I can't remember the date when he and I talked, 15 no. 16 And you answered a question by Mr. Kutulakis, I Q. 17 believe, that you had contracted with Janet Whisler before 18 by ordering certain excavating work from Whisler's Well 19 Drilling. Is that correct? 20 A. Yes. 21 Q. And she had handled those transactions with you? 22 A. Yes. 23 Q. Over the phone? 24 A. Yes. 25 And the work had been completed? Q. Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com ~". C'.'I , , o o -~-' ' "' ..1 f,L, .;~->\: 1 A. Id " ,",,' 41 11 13 14 17 19 21 22 23 24 25 2 3 A. Yes. Q. And billed? 4 5 A. Yes. Q. And paid? 6 Yes. Q. And she didn't tell you that she needed approval 7 from anyone else in order to take the order for work? 8 A. No. 9 (Defendant's Deposition Exhibit A was marked.) 10 BY MS. WINDER: Q. I'll show you what's been marked for 12 identification as Exhibit D-A, give you an opportunity to look at that. MR. KUTULAKIS: I'll object based on hearsay for 15 any use of this document. 16 (Deponent perusing document.) THE DEPONENT: Okay. What's the question? 18 BY MS. WINDER: Q. Have you had an opportunity to read through this 20 document that's marked for identification as Exhibit D-A? A. Yes. Q. Does it appear to be titled affidavit? A. Yes. Q. And have a signature line underneath which is typed District Justice Harold Bender? Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com .r- C:" , C' le_. ' ,- I ~.'.' ~ I r, ,.1-'1 '" i , " 42 1 A. Yes. And it appears to have a signature on that line 3 immediately above that typed? 2 Q. Yes. And do you see that the contents say that -- MR. KUTULAKIS: Again, I'm going to object. 7 BY MS. WINDER: 4 A. -- the district justice is saying that Janet 9 Whisler didn't agree? 10 5 Q. It says that in that letter, but that's not what 11 was said in the courtroom. 12 13 14 15 6 8 Q. So you're saying that's not your recollection of this entire matter? A. Q. A. 23 A. A. Q. A. Exactly. Q. And that's contrary to what your belief was when 16 you went to talk to Mr. Bender in his office in 17 Shippensburg-- 18 19 20 21 Yes. -- about this matter? Yes. Q. And he never said to you, I have no knowledge of 22 any agreement? No, because he made a phone call to Whisler's 24 that day and either talked to the answering machine or 25 someone. Central Pennsylvania Court Reporting Services (800)863~3657 or (717)258-3657 or courtreporters4u@aol.com ~. o c ~ ~ J_,I ~~ _ J H ,L '" -,;;.". 43 1 MR. KUTULAKIS: I'm going to object about whatever was said by District Justice Bender that 2 3 particular day in question. 4 MS. WINDER: I have no other questions. 5 MR. KUTULAKIS: I have a couple redirect, 6 recross, whatever you call it in this case. 7 EXAMINATION 8 BY MR. KUTULAKIS: 9 There was some discussion just a moment ago Q. 10 regarding a septic design, and you provide the septic 11 design to whoever is going to put the sand mound in? 12 13 14 15 16 A. Yes. Q. And you indicate on lot number 8 that you personally gave a septic design to Dick Whisler? A. Yes. Q. And at some point in time Ron, the excavator, 17 came to you and asked you for a design for lot 9? 19 20 21 22 18 A. Yes. Q. Where is that design? A. They have it. Q. Did you give it to Ron? A. Yes. Q. What day? A. I have no idea. Q. Do you have a copy of it? 23 24 25 Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@ao1.com ~~ o c o - .1. " jj-[ - , ' 44 1 A. Yes. Do you have a copy of the sand mound design for 3 lot number 8? 2 Q. Yes. So you keep a copy of that and provide a copy to 6 your subcontractor? 4 A. Yeah. When they draw a design up, you usually 8 get two or three. 5 Q. 7 A. 9 Q. 10 yourself? 11 12 13 14 15 16 17 A. Q. And who designs that for you? Do you do that No. In this case, lot number 9, you didn't give the design to Dick yourself? A. No. Ron was there. Q. A. Q. 18 A. But on lot number 8 you gave it to Dick? Yes. And that was completed? Yes. Q. Now, you testified that Janet Whisler held 19 20 herself out to represent Whisler's Well Drilling & 21 Excavation at the hearing before District Justice Bender on 22 January 25th. Is that right? 23 A. Yes. Q. Was there context that she characterized her 24 25 representation? That was just for the hearing before Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@ao1.com - c...." , o o ',I ;..;.~) II ..........." b1' 45 1 District Justice Bender, right? Her representation at that 2 time was in the context of the hearing, right? 3 A. Yes. 4 Q. This case is not the first time that Whisler's 5 has had problems collecting outstanding debts from you, is 6 it? 7 A. This is the first time. 8 Q. This is not the first time, is it? 9 A. No. this is the first time. 10 Q. Do you recall a time when Ken -- well, let me 11 ask you this. Strike that. Did you own a bar out toward 12 Carlisle Springs at some point in time? 13 A. Yes. 14 Do you recall an evening when Ken Whisler had to Q. 15 come to that bar to collect an outstanding debt at about 16 11:00 in the evening? 17 He came out one evening because there was a A. 18 couple issues on ours on what was done and which jobs they 19 were. And he came out there, and I said, well, a couple of 20 the jobs aren't even mine, which the one that they done, 21 they billed me, which I was my father's job. 22 So we negotiated through all the jobs upon what 23 was mine and what was Paul Hosfelt and the hours of time it 24 took to put something okay. Like, the one issue is -- 25 So is it fair to say you negotiated that Q. . Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@ao1.com c c....'...' "" , , o ~-~"'>'-~\." 46 1 evening? 2 A. Yes. 3 Q. So up to that point there was a problem with 4 outstanding debt? 5 A. No, there was no problem. The only thing we had 6 to do 7 Q. Ken just showed up that night to collect money? 8 A. Yes, because -- 9 Q. Just out of the blue? 10 A. No. He called me and he said about paying them 11 on what I owed them. And I said, well, yeah, Ken, but I 12 said there's a couple of issues that I'm billed on that's 13 not right. He said, well, can we sit and go over them. I 14 said, I'll be at the bar tonight. He said, okay, fine; if 15 we can solve the problem, can you pay me. I said, yeah, I 16 have no problem with that. 17 , So he came down. And the one bill was they 18 done some work on lot 10 which was billed back to my 19 father; then they had it billed to me, which was Paul 20 Hosfe1t. And then the other issue was 21 Q. SO lot 10 was yours or your father's? 22 A. My father's. 23 Q. And this all took place sometime last fall, this 24 conversation? 25 A. Yes. Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com ~. o 0, i.-":,., o L-' J,l N,>i:d' ~ I i LL~ 47 1 Q. And just so I don't put words in your mouth, you negotiated your problems away on that particular issue? 2 3 A. Yes, and I gave him the check that night. Would it be fair to say -- strike that. 4 Q. 5 A. I paid Whisler's every time for every job 6 they've ever done for me. 7 Q. Within what time frame? 8 A. Within 30 days. 9 Q. That issue that you met with Ken at your bar 10 last fall, late last fall, was that bill more than 30 days 11 outstanding? 12 13 14 15 16 17 A. I don't know. Q. Well, you acknowledge that you owe excavation for the lot in Franklin County? 18 A. Yes. Q. I mean, it's your contention you didn't get an invoice. When was that job completed? A. I don't know. Q. Did you contact Whisler's within 30 days to try 19 20 to pay that bill? 21 No. When Mrs. Whisler was in the hearing, she A. 22 told me about the two jobs; yes, I agreed upon both jobs. 23 Then she asked me why they were never paid. I said, I 24 never got a bill. Then she told me there that day when we 25 agreed upon putting the sand mound and well in for lot 9 Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@ao1.com o o o 10 11 L H ~'~ 48 1 that she was going to send me a bill for the excavation in 2 Franklin County, and I still have not gotten a bill for 3 that. 4 Q. The sand that was delivered in November, you 5 still haven't paid for that and that's more than 30 days 6 past. 7 A. Right. The job has never been completed either. 8 Q. So there's no dispute that the sand is there and 9 it's the appropriate sand? A. I nevar saw no sand certificate on it. Q. So it might be, it might be some sand that's not 12 appropriate for a sand mound; you don't know. Is that 13 14 right? A. I'm sure they wouldn't just dump sand in there 15 that wasn't appropriate. 16 MR. KUTULAKIS: I don't have anything further. 17 MS. WINDER: I don't either. 18 (Whereupon, the deposition was concluded at 10:00 a.m.) 19 20 21 22 23 24 25 Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@ao1.com ...;._~~ c C. '. " ; -,--",.- o - 1'1 'c" I~ I'Lh ,-" "- -'......-~ "' 49 1 COMMONWEALTH OF PENNSYLVANIA SS. 2 COUNTY OF CUMBERLAND 3 4 I, AMY R. FRITZ, R.P.R., a Court 5 Reporter-Notary Public authorized to administer oaths and 6 take depositions in the trial of causes, and having an 7 office in Carlisle, Pennsylvania, do hereby certify that 8 the foregoing is the testimony of ROGER L. HOSFELT. 9 I further certify that before the taking of 10 said deposition the witness was duly sworn; that the 11 questions and answers were taken down stenotype by the said 12 Reporter-Notary, approved and agreed to, and afterwards 13 14 reduced to computer printout under the direction of said Reporter. 15 I further certify that the proceedings and 16 evidence are contained fully and accurately in the notes 17 taken by me on the within deposition, and that this copy is 18 a correct transcript of the same. 19 In testimony whereof, I have hereunto 20 inscribed my hand this 8th day of August, 2001. 21 22 23 24 25 Central Pennsylvania Court Reporting Services (800)863-3657 or (717)258-3657 or courtreporters4u@aol.com __M'..'__~_""__ ' '.L ,l 1,.'1,1 - " -. , '1' ""'" ,~ ~ me Jun-01-01 07:51A P.Og ~EALTH OF PENNSYLVANIA --oNTY OF~ COHBERLAND C..:Y' . Mag, Qillt. No.. 09-3-02 o I ., /30 (./ c iI NOTICE OF JUDGMENTITRANSCRIPT CIVIL CASE PI AINTIFF: NAME IlnrJAOORE.SS fWHISLER'S WELL DRILLING I 366-1 GRBENSPRING RD NEWVILLE, PA 17241 OJ ~afne, lioll. HELEN B _ SHULENBHRGER ...",,,,, P.O. BOX 155 27 W. BIG SPRING AVENUE NEWVILLE, PA To.,,,,,,, (717) 776.3187 17241 L --! V5. [)~ ~ ~NDANT: NAME GI\d ADOHt'5S fHOSPELT. ROGER 115 SOUTHS IDE DR NEWVILLE, PA 17241 I WHJ:SLER'S WELL DRILLJ:NG 366-1 GRSENSPRING RD N'BWVJ:LLB, PA 17241 Docket No.: cv- 0000155- 00 Date Flied: 11/20/00, --! ~...,.,...."'.....,- ~ .. THIS IS TO NOTIFY YOU THAT: Judgment: FOR PT.ATNTTFF 00 Judgment was entered fa" (Name) WR'TRT.llR I A WRT.T. n'DTT.T.TJiI't:: [i] Judgment was entered against (Name) ROl'lll'1l!T.'1' RI1r.1l!R In the amount of $ '- 01'- A7 on~ - (Date of Judgment) 1/'-" /n1 . c' D Defendants are jointly and severally liable. D Damages will be assessed on: (Date & Time) D Amount of Judgment Subject to Attachment/ActS 011996 $ Amount of Judgment $ 1.925.27 Judgment Casts $ 87.60 Interest an Judgment $ .00 Attorney Fees $ .00 Total $ 2.012.87 Past Judgment Credits $ .. Post Judgment Costs $ -------...---- ------------ Certified Judgment Total $ . o Thill case dismissed without prejudice, o Levy is stayed for days or D generally stayed, o Objection to leVy has been filed and hearing will be held: Dale: Place: ......... Time: o ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT SY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION, YOU MUST INCLUDE A 'COPY 7~e~D:E.NTITRANSCRIPT F RM WITH YOUR NOT~CE OF APPEAL. l,.;tf~QI Date~: <-,,,.DistriCIJustice I certlly that this is a true and correct copy ry ~he ~eco~d of the proceedings containing the judgment. '3....15-0Loate ~(J.~~_ . District.lustice My commission expires first Monday of January, 2006 SEAL " " EXHIBIT 1 P- A l AOPC 315.99 1/ CllJ..'Lf- IJ. ;;. , ,~ 'Ii Jun-Ol-Ol 07'SlA P.lO () PROTHON()"fARY'S OFFICE Ctlurl House - Cnrlislc, PA 17013 .' In accordance with Rule 236 of tile Pennsylvania Supreme COllrt, this is to notify you that the following (order) (decree) Uudgmcnt) was entered against YOll in this office, Ddcndant 11'r- //"sle r/- ,__ ..W/,Jj/er ~ lIJ!.ll/,_ _2Lt-;ir;; Plaintiff Dale 01-;'1-PI .._19 _" _ # -I2L~/21Q-- o o ... .. EXHIBIT I 1'?-i3 ? 'c'i:J.. ;UI- P. o o o ".., -~ , ~ 'J~I, ,,,', 07/18/01 08:20 FAX 717 532 3308 .DJ 09-3-01 WHISLER'S WELL Dprr,T .Tl\fG, PLAINTIFF : IN THE comn OF COMMON PLEAS : OFCUMB1l'.RT.It.NDCOUNTY, : l'E.N:NSVL VANIA : v. : NO. 2001.1830 CIVIL TERM : , . ROGER HOSFELT, : DEFENDANT AFFIDAVIT I, District Justice Harold Bender, to hereby swear and affirm that, in sublllituting for Pistrict Justice Shulenbarget on Janumy 25, 2001, I presided at the hearing between the above-captioned parties. At no time did I witness Janet Whisler enter into discussions in attempts to resolve this case. She never admitted to this mAtter being a part of any uncompleted contract. Janet Whisler never agreed or bound Whisler's to inOltAI1 a sandmound septic system and well for the defendant.. To the oonttary. Janet Whisler informed Roger Hosfelt that she would have to discuss this matter with her husband, Richard Whisler. To no avail, Roger Hosfe1t CODtittued to attempt to have Janet Whisler commit Whisler's to compromise the judgment. Date: July a 2001 ~~~~ ~ . Ustice Harold Bender NOTARYPUBUC My cmn...."eioo expiles: ~ (J;J. ..:l6,pc, IiAf!OLO E. BEND"R 1oJI&1na: .JlI!5tlec cs.3-01 - P,o. Sox 301 I B1 Walnut i)ollr:lrn ~d ~Co~nsbUr.D, PA 17257 , tlTI ecpjres JSlnUtll'Y:.!. ~ , - , < "'~. ~'" ~ - ~ -, ~,- -,-'''' 141002 .. " EXHIBIT I 0- A '- 07/17/01 17:11 TX/QX NO.2108 P.002 ...,... )'~ ~,,u 1"\ ... .1 d 1,"_", " -" ,". j'~:" " . '. WHISLER'S WELL DRILLING, Plaintiff :IN THE COURT OF COMMON PLEAS :OF CUMBERLAND COUNTY, :PENNSYLV ANIA v. ROGER HOSFELT, : NO. 2001-1830 CIVll.. TERM Defendant PETITION TO OPEN JUDGMENT, or ALTERNATIV]i;LY, ALLOW FILING OF A NOTICE OF APPEAL FROM DISTRICT JUSTICE COMPLAINT NUNC PRO TUNC COMES now the Defendant, Roger Hosfelt, by and through his counsel, Sally J. Winder, and does petition this Honorable Court to Open the Judgment entered to the above-captioned number and term based upon the following: 1. Plaintiff Respondent, Whisler's Well Drilling, is a sole proprietorship, having a business address of366-1 Greenspring Road, Newville, Cumberland County, Pennsylvania, 17241. 2. Petitioner, Roger Hosfelt, was the named Defendant in a District Justice claim filed by Whisler's Well Drilling, filed before District Justice Helen Shulenberger November 20, 2000, Hearing in this matter was held before District Justice Harold Bender January 25,2001. 3. At the hearing held January 25,2001, Whisler's Well Drilling was represented by Mrs, Janet Whisler in her capacity as a principal in the business, and there were no other witnesses or persons claiming to be parties to this action present on behalf of Whisler's Well Drilling, 4. Petitioner Defendant, Roger L. Hosfelt, was led to believe at that time that Mrs, Whisler represented the business, Whisler's Well Drilling, and that she had the authority to bind the business as to agreements and contracts, 5, On January 25,2001, both at the time of the convening of the hearing and after the hearing, Mrs, Whisler discussed resolution of this claim and admitted to Defendant Roger L. Hosfelt that the claim in question was part and parcel of a total contract job to be performed by Whisler's Well Drilling (hereinafter "Whisler's") which ,-,", ",",.'" . -. . " , wd>-> 'W,_' . , was not complete at the time of the hearing, as well as time billed for excavating at another location done by Whisler's for Hosfelt. 6, The original claim was for sand delivered to ajob site in Southampton Township, Deer Crossing Estates, Lot NO.9 where Petitioner Hosfelt, as general contractor was building a spec house, plus several hours of excavating time at another location in Franklin County where Hosfelt was likewise building a house. 7. Petitioner Defendant Roger L. Hosfelt believed that at the time of the hearing January 25,2001, it was agreed by Mrs, Whisler and himself in the presence of the District Justice, Harold Bender, that Whisler's would finish the original contract which called for installation of the sandmound septic system and the well for the house being constructed on Lot 9, Deer Crossing Estates, all of which would be completed and the contract price of$8,500,00 would be paid in full at the time of completion. This contract payment would include the sand which had been delivered to the job site. 8. Petitioner Defendant, who was not represented by counsel, therefore relied upon the representations of Mrs. Whisler concerning completion and did not file an appeal from the District Justice judgement entered January 25,2001, in the amount of$2,012,87, a Copy of which is attached hereto marked Exhibit ").;'. 9. Petitioner Defendant Roger L. Hosfelt and Mrs. Whisler agreed that the sandmound system would be installed and the well drilled when the Spring weather allowed for proper installation of both, and anticipated that the work would be done in March or April 200 I, 10. The weather was extremely rainy and wet in the Spring of2001 in the month of March and was not suitable of the installation ofa sandmound system, Therefore, Hosfelt did not expect Whisler's to move equipment onto the jobsite and complete the contract until early April, 2001. In reliance upon the representations of Mrs. Whisler and with the understanding that she, on behalf of Whisler' s had confirmed and ~._- .~ ,~il_"l,,', <J , ~~",:,- re-affirmed the contract for installation of the system, Hosfelt did not file an appeal from the District Justice judgment. 11. Further, in reliance upon the contract, Hosfelt did not request return of the Department of Environmental Protection paperwork approving the sewage module, the Township Sewage Enforcement Officer's permit and design for the sandmound system, or the DEP certification of the sand delivered to the jobsite, all of which remains in the possession and control ofthe installer, Whisler's. 12. In early April, 2001, Hosfelt received notice of the filing of the District Justice judgment by postcard from the Prothonotary's Office of Cumberland County, Pennsylvania, a copy of which is marked Exhibit "B" attached hereto, 13. At that time, Petitioner Defendant attempted to reach Whisler's by telephone to discuss the installation of the system and the reason for filing the judgment in the Court of Common Pleas, 14. Despite numerous attempts to reach Whisler's, Hosfelt was unable to speak with anyone concerning the intentions of Whisler's regarding installation of the system and drilling of the well, 15, Finally in mid- May, Hosfelt went to District Justice Bender's Office in Shippensburg to discuss this matter and Me, Bender agreed to call Whisler's and request that Whisler's call Hosfelt to discuss this matter. 16. Again, Hosfelt waited several days for Whisler's to call him after being advised by District Justice Bender that Whisler's would be calling him, After receiving no call, Hosfelt called and finally reached Kenny Whisler, son ofMes. Janet Whisler, on the phone, During that conversation, Hosfelt told Kenny Whisler that his mother had agreed that the contract would be completed and that Hosfelt had told her that the $8,500,00 contract price would be paid in full as soon as the job was completed. Kenny Whisler told Hosfelt the job would not be done and he would not release any of the paperwork including the DEP approval, system design, or sand certification until Hosfelt paid him the , JI =,1 ,J _II ,,-,""-'0-"-' ". -""jv, District Justice judgment all of which was contrary to the agreement reached by Hosfelt with Whisler's in the person of Mrs. Whisler on January 25,2001. 17. Based upon these averments, Hosfelt believes and therefore states that he has a meritorious defense to the claim of Whisler's and that but for the reliance upon Mrs. Whisler's representation that Whisler's would honor the contract and install the sandmound system and well, he would have timely filed a Notice of Appeal from the District Justice judgment of January 25, 2001. 18, Further, Petitioner Defendant Hosfelt has a meritorious counterclaim for breach of contract and damages arising out of Whisler's failure and refusal to turn over the various documents which are required to complete the sandmound system and have it inspected and approved by the Township Sewage Enforcement Officer so that the property may be sold, 19, The property is presently on the market and several interested Buyers have not made offers on the property because the septic system and well are not yet installed, This constitutes the basis for yet additional crossclaims and damages suffered by Hosfelt in reliance upon Whisler's representations in January 2001, all to the detriment ofHosfelt. 20. Therefore, Petitioner Defendant Hosfelt believes and avers that he has a meritorious defense to the original claim that he would have timely pursued in Court had he not relied upon the representations of Whisler' s at the time of the District Justice hearing in January 2001. 21. Further, Petitioner Defendant Hosfelt believes and avers that he has diligently pursued this matter by attempting to obtain compliance with the re-affirmation of the contract and agreement reached in January 2001, by attempting to reach Whisler's both himself and through the District Justice and since May 22, 2001, when Kenny Whisler refused to honor his mother Janet Whisler's confirmation of the contract, Hosfelt has diligently pursued his equitable remedies before the Court. ...-- ~ - - L_' I" , ,~ -'=~ 'A.. ,~ t (ll,;;; 22. Counsel for Petitioner Defendant Hosfelt has notified counsel for Whisler's, Jason Kutalakis, Esquire by telephone of her intent to file this Petition and Motion. WHEREFORE, Petitioner Defendant Roger L. Hosfelt, prays this Honorable Court enter an order opening the Judgment docketed to the above-captioned number and term or that in the alternative, this Honorable Court enter an Order allowing the filing of an Appeal from District Justice Judgment Nunc Pro Tunc, Respectfully submitted, Dated: sf '2/1 (f ( ~~~ Attorney for Roger L. Hosfelt 701 East King Street Shippensburg, P A 17257 Telephone (717) 532-9476 , " ~ " " ~, '_ .'.L ~ " ~Hl.:.;t", VERlFICATION I verifY that the statements made in this Petition are true and correct to the best of my personal knowledge 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, Date: ;;-hJ/ tJl I I ,'=~,.....~-~ ..._.~~~,,~ m_ ~II>I '~=~ "~.~ """'''''-~_W''~'illio\i'~''' ,/"" 'EALTH OF PENNSYLVANIA _ / TY OF: CUMBERLAND, ~ Mag. Ois\. No< . ~.I . 09-3-02 o I - I g'30 (./ v/ I NOTICE OF JUDGMENTITRANSCRIPT . CIVIt. CASE PLAINTIFF: NAME and ADDRESS ~ISLER'S WELL DRILLING I 366-1 GREENS PRING RD NEWVILLE, PA 17241 OJ Name: HOn. HELEN B. SHULENBERGER Add"" P.o. BOX 155 27 W. BIG SPRING AVENUE NEWvILLE, PA ''''ph,"'' (717) 776-3187 17241 L -.J VS. WHISLEa's WELL DRILLING 366-1 GREENS PRING RD NEWVILLE, PA 17241 DEFENDANT: NAME and ADDRESS ra:OSFELT, ROGER 115 SOUTHS IDE DR NEWVILLE, PA 17241 L Docket No.: CV- 0000155 - 00 Date Filed: 11/20/00, I -.J , "" THIS IS TO NOTIFY YOU THAT: Judgment: "'-'-- ' FOP. PT.AHlTIFF [!] Judgment was entered for: (Name) WH'HIT.RIl'!'I WRT.T. nIlTT.T.T1IT~ [!] Judgment was entered against: (Name) HORFRT.T. RO~RR in the amount of $ ?, n1? R7 on: (Date of Judgment) 1 I?r:, In1 . . o Defendants are jointly and severally liable. o Damages wi/I be assessed on: (Date & Time) O Amount of Judgment Subject to Attachment/Act 5 of 1996 $ , Amount of Judgment $ L925.27 Judgment Costs $ 87.60 Interest on Judgment $ .00 Attorney Fees $ .00 Total $ 2,012.87 Post Judgment Credits $ Post Judgment Costs $ ------------ ------------ Certified Judgment Total $ o Thi& case dismissed ~ithout prejudice. o o Levy is stayed for days or 0 generally stayed, Objection to levy has been filed and hearing will be held: Date: Place: Time: ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS. CIVIL DIVISION. YOU MUST INCLUDE ACOPY 7~~ N~~E~ANSCRIPT F RM WITH YOUR NOTICE OF APPEAL. / ,- l- f - (l/ Date /' . . District Justice I certify that this is a true and correct copy D/ hhe ~eco~d of the proceedings containing the judgment. ?~(5,-:-OI Date ~(J~~ ,DistrictJustice My commission expires first Monday of January, 2006 SEAL ",OPG 315;~9 ~,^-Iv~b;t A M ..~ ...L + "- ) lil~~ - -- l... ~ _1liliMiI~lliWi~j)i' , .' PROTHONOTARY'S OFFICE Court House. Carlisle, PA 17013 In accordance with Rule 236 of the Pennsylvania Supreme Court, this is to notify you that the following (order) (decree) Uudgment) was entered against you in this office. Plaintiff /A)AJ;!er j Wt.I/ Defendant fer. I*sk(f /Jrl/j~ Date O?-tlCj -171 19 # 0(- /??o -~ ~ Pro'ilionolary E xhibd:~ 13 1 WHISLER'S WELL DRILLING, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW ROGER HOSFELT, Defendant NO. 01-1830 CIVIL TERM ORDER OF COURT AND NOW, this 30th day of August, 2001, upon consideration of Defendant's Petition To Open Judgment, or Alternatively, Allow Filing of a Notice of Appeal from District Justice Complaint Nunc pro Tunc, and of the briefs submitted by the parties and the record established pursuant to the order of court dated June 4, 2001, and following oral argument held on August 29,2001, Defendant's petition is denied. BY THE COURT, Jason Kutulakis, Esq. Jay A. Abom, Esq. 8 South Hanover Street Suite 204 Carlisle, PA 17013 Attorneys for Plaintiff Sally J. Winder, Esq. 701 East King Street Shippensburg, P A 17257 Attorney for Defendant . ~ F.31-01 ~ Q.-. :rc "-,.::-. . ..,.4 ,;,..,_. 1....; '.l'~' 1 , ~ .' " ,..' -"1;,\, . WHISLER'S WELL DRILLING, PLAINTIFF : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 01-1830 CIVIL TERM ROGER HOSFELT, DEFENDANT PRAECIPE TO SATISFY JUDGMENT TO PROTHONOTARY: Please mark the judgment in this action against Defendant satisfied. Respectfully submitted, ABOM & KUTULAKIS, L.L.P. \ \ Date: April I 0, 2002 J on P. Ku lakis Sm 204 8 South Hanover Street Carlisle, P A 17013 717-249-0900 Attorney for Plaintiff ','$ \",;~ . . .1~l''';)",i~lli'I*ili~,:;If!i,I~'',~,;%I,"W;iM~~il~iIdi<iill~;&;oc",t''''''~f-k,H;''''";r:"",:;diX"c:-"Hi:"',,,HlllM~cl..~...li~ ft ,~_~ ,~;l 'jlL' l~u.nI. ",',~ ~..II': .'_'" ~.. ,,_~ ,,,,,___~, ''~," ._,_,,~_ .' " .',,~ _"I. _~,,_~"-O,"'" ."~- , ., , ,"~ ",",'-,~,.,.~, "~","""" '''''''''~~~~ . -- ,~ 1Illli' i I ! (") 0 0 c: N s: '")"1 ;:R (13 ".. ,~ -U :~i~,~ zlg = 2'r:=" cl5)o, -'::I-m -<2 0 ?SY ~G- -0 ::::,9 ~o ::;;: i.::--'--n '0 ")0 >c: 2:n., ('.... l z: ~ ~ , . =<i I;::- :n CJ -<