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Home My WebLink About03-2155~a3/dAI~I~IVAAL?I4 01~ PAHIdlYLVANIA COURT OF COMMON PLEAS Cumberland JUDICIAL DISTRICT NOTICE OF APPEAL DISTRICT JUSTICE JUDGMENT NOTICE OF APPEAL Notice is ~ that the appellant has filed in the above Court of Common I~eas an appeal from the judgment reflde~d by the District Justice an the date and in the case mentioned below. Do It Outdoors 3111 Farmtrail Road, 4/14/03 09-1-02 CTTY STATE ZIP York PA 17402 CV20 LT 20 IN THE CA,~ Of (P/a~) (De/ermla~) I Quality Builders Warranty Corp. ^ ~ Do It Outdoes ~'--0~ Chris to~her L,~~~~ I ' p er . errlngton, "~squir~ This block w~l be signed ONLY when this notation is required under Pa~ R.CJ~.JJ>. No 1008B. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case S~namre of Prot~no~y or Deity If appellant was CLAIMANT (see Pa. R.C.P.J.P. No. 1001 (6) in action before District Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa. R.C.P.J.P. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee). PRAECIPE: To Prothonotary Ente~ rule upon Quality Builders Warranty Corp. , oppellee(s), to file a complaint in this opped (Common Pleas No. ha - ~/.~" ~! ~ I~L ) within tv,~-w~y (20) days of non pros. Christopher T.. Eerring',~con, Esqu-~re ~ RULE= To Quality Builders Warranty. Cn~p. , appellee(s). Name o/ap~e//ee(s) ( 1 ) You am notified that a role is hereby entered upon you to file a complaint in this appeal within twerdy (20) days after the date of service of this rule upon you by personal service or by certified or registered mail (2) If you da not file a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of mailir~ COURT FILE TO BE FILED WITH PROTHONOTARY AOPC 312°90 PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This p~oof of service MUST BE F/LED W/THIN TEN (lO) DA YS AFTER filing the notice of appeal. Check applicable boxes) COMMON WEALTH OF PENNSYLVANIA COUNTY OF ................ ; ss AFFIDAVIT: I hereby swear of affirm that I served rq a copy of the Notice of Appeal, Common Pfeas No. _, upon the District Justice designated therein (date of service) ~ 1D by personal servrCe [] by (certified) (,registered) ma/i, sender's receipt attached hereto, and upon the appetle, (name) on , 20 ID by personal service tD by (certified) (registered) mail, sender's receipt attached hereto. iD and further that I served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appellee(s) to whom the Rule was addressed on .20 ID by personaf service [] by (certified) (registered) mail, sender's receipt attached hereto. SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF Signature of affiant Signature of official before whom affidavit was made Title of official My commission expires on 2O COMMOhJWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mag. Disl. No.: 09-1-02 DJ Name: Hon ROBERT %/'. MANLOVE Address: 1901 STATE STREET CAMP HILL, PA Telephone: (717) 761- 0583 17011-0000 DIO 3111 FARMTRAIL RD YORK, PA 17402 NAUE..d ^DDRESS 3111 FARMTRAIL RD YORK, PA 17402 L VS. DEFENDANT/JUDGMENT CNRAFr~ laTn~)~ o R e Ss FQUALITY BUILDERS WARRANTY 325 N 2ND ST WORMLEYSBURG, PA 17043 L NOTICE OF JUDGMENT/TRANSCRIPT J CORP. ~!HIS!~.TO NQTJFY YOU~THAT: Judgment: ~ Judgment was entered for: (Name) __QTTAT. Tq,¥ J-~ Judgment was entered against: (Name) in the amount of $ - d0 on: '--]Defendants are jointly and severally liable. ~ Damage%will ~e assessed on: [~ This case dismissed Without prejudice. ~-~ Amount of Judgment Subject to Attachment/Act 5 of 1996 $. Docket No.: C~- 0000003 - 03 Date Filed: 2/05/03 CROSS COMPLAINT 001 'P. II'T T.I~'RI~ .q (Date of Judgment) 4/14/03 (Date & Time) Amount of Judgment $ . Od Judgmeht Costs : $,: . O0 Interest on Judgment $ .00 Attorney Fees $ .00 Total $ .00 Post Judgment Credits $... Post Judgment Costs $ Certified Judgment Total $ ' AI~JY PARTY 'HAS T~E IG ~ '" , ' ,.~ ,,,.,,~_: .~.!,_ _ R ,I-Ct TO AP[~E,~L ~IiT .H, iN 30 DAY~ AFTER T~HE ENTFJY ~F JI~[DG~I~T B~v ....... '" :~ ur ~"r'EAL WlIH THE PROTHONOTARY.~CLZERK~, -,-,~,.. ~,.,,.--L- .~ ...... "~ ~ ,~,. ~, ' - r,~-,,,~u:~:,mu; / .,..~r in: ~UUH/"UI- ~;OMMON PLEAS, CIVIL DivISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANScRiPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR DISTRICT JUSTICES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE DISTRICT JUSTICE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REOUEST FOR ENTRY OF SATiSFACTiON W~TH THE D~STR~CT JUSTICE ~F THE JUDGMENT DESTOR P FUL, SEttLES, OR OTHERWISE COMPUES W~TH THE JUDGME.T. /~ I /'~ X'~ ~ .Z~ / d' ~ Date ~'0~, ~~v'/~f,~'".// /] .... ' ' ' · ' :~ 7 ~ _ ~ ' .. 'strict Justice J I ce. rtify that this is a true.and~rel coPy of t~ recor~of '~if~pr~eedingTco~e judgment. ~/¢~l..~ v' ---"'----~-'~- %'-- ~ ~~~strictJustice My commission expires first Monday of January, :2006 . AOPC 315-03 SEAL PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of serwbe MUST BE FILED WITHIN TEN (10) DAYS AFTER filing the notice of appeal. Check app#cable boxes) COMMON WEALTH OF PENNSYLVANIA AFFIDAVIT: I hereby swear of affirm that t served , ~' a copy of the Ngtice of_.~.pplej~j~]Col-n~¢~ Pleas No~ ~- ~' / ~., ......... upo~ the District Justi~ designat~ therein on Z : fdate of service) ' ~H ~ / ~ ,'~ by Re[iona~e~i~e~ by (~ed)~regi~t~re~maii, sender's re~i~U~c~ heret~an~ ~the a~eJle, (name) ( ?~J~ t'~I .~1¢~¢:) ~~ ~ . ,on t ,..~ / ~. , 20~ D by personal se~i~'~ (cedified) (registered) mail, sender's re~ipt a~a~hed hereto. ~ and f~h~r tRa~ se~ed the Rule to Fi~a~C~plaint accompanying they.ve Noti~ of Appeal up~ the appellee(s) to whom ' the Rule was addressed on .~//Z ,20~ D by personal se~ice~by (ced,fled) (reg stered) mail, sender's receipt attached hereto. SWOR. ^mRME ,)AND SUBSCR BE ) THIS /~ DAY OF ~A_~_ ~,20 ~Z Signature of official before wt~om ~davit wa~ made ] My commi~ion expires on ,',~m~?'~n~'~,~ k.~~~ r.R Postage ITl Certified Fee Return Receipt Fee l'U (Endorsement Required) i~ Restricted Delivery Fee (Endorsement Required) Total Postage & Fees Postmark Here r--q Postage p.. Retum Receipt Fee r--~ (Endomement Required) QUALITY BUILDERS WARRANTY CORPORATION, Plaintiff VS. DO IT OUTDOORS, INC. T/A DIO. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. 03-2155 CIVIL NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days atter this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHER YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 QUALITY BUILDERS WARRANTY CORPORATION, Plaintiff VS. DO IT OUTDOORS, INC. T/A DIO Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. 03-2155 CIVIL COMPLAINT AND NOW, this 29th day of May, 2003 comes the Plaintiff, Quality Builders Warranty Corporation and files the within Complaint against the above named Defendant and avers in support hereof the following: 1. Plaintiff is Quality Builders Warranty Corporation (QBW), a Pennsylvania corporation with its principal place of business situate at 325 North Second Street, Wormleysburg, Cumberland County, Pennsylvania, 17043. 2. Defendant, Do it Outdoors, Inc. T/A DIO (DIO) is a Pennsylvania corporation operating under a fictitious name with its principal place of business at 3111 Farm Trail Road, York, Pennsylvania, 17402. 3. On August 30, 2002, the parties entered into a written contract wherein DIO agreed to re-design QBW's website. A true and correct copy of said agreement is attached hereto incorporated herein and marked as "Exhibit A". 4. The contract required DIO QBW's satisfaction. In exchange for $10,750.00. 5. to provide a re-designed website which met said work DIO was to be paid the sum of QBW paid DIO the sum of $2,687.50 as a deposit pursuant to the terms of the agreement. 6. The re-designed website was to be completed on or before October 21, 2002. 7. DIO attempted to produce a website, but did not provide a re-designed website that met the contract terms, including QBW's satisfiaction. 8. QBW expended an additional sum of $1,325.00, paid to DIO, for photographs in connection with the re-design of the website.. 9. Based on DIO's failure to perform, QBW demanded the return of the deposit monies and amounts paid for photographs. DIO has failed to return the monies pursuant to the request. 10. As of this date, QBW has paid DIO the sum of $4,012.50 as an advance to produce the website and DIO has failed to produce a useable work product in accordance with the parties' contract and QBW is entitled to the refund of the monies paid to DIO. 11. Additionally, QBW is entitled to be reimbursed for the time expended in assisting DIO as well as cost of collection. WHEREFORE, Plaintiff, Quality Builders Warranty Corporation, demands judgement against Do it Outdoors, Inc. T/A DIO in a sum not in excess of $25,000.00. Respectfully Submitted, ~ A. Gill, Esquire 325 North Second Street Wormleysburg, PA 17043 (717) 737-2522 //41532 Attorney for Plaintiff Quality Builders Warranty Corporation EXHIBIT A F~IJF}-~.0 ,?L~,~2 1.4-'4G OtJALI'IY rlUILr-~::]!~ klf4,%':ll4-rY 91.9 '~? 4~cd0 P.03x04 QIJA. LITY BU1LDERS WARRANTY £ O f~ P 0 P, A T / O N :115 N. Se~ and ~e~ Wom~I~bL~. PA 17fl4~ tdephone: 717 737-2522 f~x: 717 Au~u~t 22, 2002 ViA FA,~ (717) Ms. 'Nie.~le 1 .. Wilt 3111 Farmtrail Rord ¥o:'ic, PA 17402 '~3ear Ms, Wik: I tu~rstamt tba~ y~u have been dealing whh Jot'd~ Oishefski of o~ o ~ comng t'~ r~csign of our Webs~. I r~ ~nr cnm.~, ~h ~ ~re a~ro~ for lbo typical c~to~ whom you ~vc and is ~t ~le for o~ ~ec~e ~g~t. Yum ~,~ct indicak~ tl~t you ~ill ~ o~ agc~ to ~ ~oms s~on~m tn pe~b~ work_ We ~1t contt~ ~lh you rind m lhe e~t ~t you ne~ ,u~m~om that is ~ t~r~o~ive howov~ we w~ to ~e it ei~ly ~d~od ~t o~ d~gs will }g mi~tl2' wgh your ~m~Y- 3~cfo~, B. ~ my u~mding t~ ~ follnw~g wRl occur. din Itas w~'icw~ Wchsit,.-r, of t~awrs in oar ir.,lua~y as well as your own We~it~ m~d will ptovldo ~ vdth a comgarable sit~ aubjcct u, o~tr fm~g approval. The. re, designed Wcbsite will at a nd~imum per{btm all £an~itm.% which it o~ently doe~ and will eonluin s~l.liilmral zt3vigal[m 31~] filacfio~uality. Yott will provide the cay. alive cone. ept and material for tmtosiguing the Wcbs~. Keep ia mir~l ll-hat we ~e not "Web Gurus" but we wm~. a mw Websile with nmv creative lh~ztk~m~lity 'and a new appearance. You will he r~spo~.,fil~h: fi~r thc Uwhnleal ~1 up and provide:ag n fully functional Web, itc subject ~o our mtbfaefion, '1'1~ time iin~ ~lll be as tbllows: I. Cre,lliv¢ c.~lccpt mul concept uullinc due September 12, 2002. 2. Inp~ ou ~fi~ ~ copy for FAQ ~ t~ni~ a~m ~m QBW duo Scp~m~ 19, 2002. 3. S~o~l~m~ wi~ co~ due Se~n}~ 30. 4. F~ content ~ d~gn app~x~ by QBW d~ O~o~ 4. 5. Fill ~yout &g O~o~'/ 6. QBW ~o~l o~fl~-I layout flue ~to~r I0. 7. ('o~n of~ml Wehd~dm~ t~r 21. .r~t Jl.'~L ] TY .T21.J ! L, r,[;N,5 [..,/{.:tl~Nfil 'ITY ? l? P. ~v~t/04 QJftW' ~h,~ll o~m nil l{I c. xch~c for ~0 ~mplet~ W~itc, whi~h you t~ ~m orS1 Gill, E~luk~ JAG:dl] wilt agrw.~ in undertake thc above work re.rd will provide QBW with a redcsigT~I fully fim~:~jon~l Wt:bsi(~, wJt~t~h m~ lhc~ ~tis~io,~ on or ~r~ O~o~ 21, 2~ in cxc. haflge Q~:~W will pay dio t~ ~lm of $10,750.00, potable 25% on ~ ~fore Tarry. P. 04 VERIFICATION I, Eric W. Dethlefs, state that I am the Vice President of Operations for Quality Builders Warranty Corporation and verify that the statemems made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. The undersigned understands that false statements herein are made subject to the penalties of 18 Pa. Cons. Stat., Section 4904, relating to unswom falsification to authorities. QUALITY BUILDERS WARRANTY CORPORATION By: (A~,.t' c'~(_]~',.~~side l~ric W~ Dethlei~s - ~ic~'~ ' nt of Operations QUALITY BUILDERS WARRANTY CORPORATION, Plaintiff VS. DO IT OUTDOORS, INC. T/A DIO. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. 03-2155 CIVIL I HEREBY CERTIFY that a true copy of the foregoing documem has been duly served upon the following parties of record by depositing the same in the United States mail, postage prepaid in Lemoyne, Pennsylvania on this 29th day of May '.2003, and to the addresses listed below: Mr. Christopher L. Harrington, Esquire Countess Gilbert Andrews, PC - Attorney for Defendant 29 N. Duke Street York, PA 17401-1282 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA QUALITY BUILDERS WARRANTY CORPORATION, Plaintiff DIO, a/k/a/DO IT OUTDOORS, INC., Defendant : DOCKET NO. 03-2155 : _. : : CIVIL ACTION - LAW : NOTICE TO PLEAD TO: John A. Gill, Esquire 325 North Second Street Wormleysburg, PA 17043 You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Dated: June 27, 2003 By: CGA LAW FIRM sCuh~pir~i~lPe'h~;~u~ Hi .eDt ..~8~6Esquire 29 North Duke Street York, PA 17401 717-848-4900 Attorneys for Defendant {00110393/1} IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA QUALITY BUILDERS WARRANTY CORPORATION, Plaintiff VS. DIO, a/k/a/DO IT OUTDOORS, INC., Defendant : DOCKET NO. 03-2155 CIVIL _. .. : : CIVIL ACTION - LAW _. DEFENDANT'S ANSWER~ NEW MATTER~ AND NEW MATTER COUNTERCLAIM AND NOW, this 27th day of June, 2003, comes Defendant, by its attorneys, CGA Law Firm (Countess Gilbert Andrews P.C.), and answers the separately numbered paragraphs of the Complaint as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted in part, denied in part. It is admitted that the contract stated a completion date of October 21, 2002. However, as Defendant began performing its work on the Website, Plaintiff requested that numerous changes be made to the layout, design and contents of the Website, which caused subsequent delays. It is denied that Plaintiff ever held Defendant to that completion date. In fact, Plaintiff asked Defendant to make changes to the Website well into December 2002. {00109726/I } 7. Denied. By way of further answer, Defendant produced a quality and professional Website for Plaintiff in a workmanlike manner. Plaintiff, through its constant changes, modifications, revisions, additions, and general indecisiveness regarding the Website design, caused the delays in completion. Defendant complied with the contract by continually incorporating Plaintiff's changes, modifications, revisions and additions so that Plaintiff would be satisfied with the end result. 8. Admitted. By way of further answer, the Plaintiff agreed to purchase the photographs via a separate purchase order that was signed by the parties and was never included in the total contract price. 9. Admitted in part, denied in part. It is specifically denied that Defendant failed to perform pursuant to the contract. It is admitted that Plaintiffhas demanded the return of the deposit monies and amounts paid for the photographs. It is also admitted that Defendant has not returned those monies. 10. Admitted in part and denied in part. It is admitted that Plaintiff paid Defendant the sum of $2,687.50 as a 25% downpayment on the contract and an additional $1,325.00 for photographs. It is specifically denied that Defendant failed to produce a useable work product in accordance with the parties' contract. Moreover, it is specifically denied that Plaintiff is entitled to the refund of the $4,012.50. 11. Denied. It is specifically denied that Plaintiff is entitled to be reimbursed for any time it may have expended in assisting Defendant with this contract and/or for any costs of collection. WHEREFORE, Defendant respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff dismissing the Complaint with prejudice, {00109726/I} awarding Defendant its costs, including reasonable attorney's fees, and awarding such other further relief as may be just and appropriate. NEW MATTER Defendant, by its attorneys, CGA Law Firm, alleges for its new matters as follows: 12. The answers to the allegations set forth in the preceding paragraphs are incorporated herein by reference as if more fully set forth. 13. Prior to engaging Defendant in this contract, Plaintiff had hired another company to create its existing Website. 14. On or about July 29, 2002, the parties met to discuss how Defendant could assist Plaintiff in redesigning its existing Website. 15. On or about August 15, 2002, Plaintiff had another conference with Defendant in which Plaintiff shared with Defendant its various Website goals, vision, and desired content for the Website. 16. While Plaintiff's respresentatives maintained that they were not "Web Gums," they wanted a new Website with new creative functionality and a new appearance, and wanted Defendant to be responsible for the technical set up of the redesigned Website. 17. Defendant agreed to provide the creative concept for the Website and to incorporate the desired content into the Website design. 18. Defendant was to be paid a total of $10,750, with a 25% deposit and 75% due at the time of completion. 19. Plaintiff also agreed to pay for any custom photography which was to be included in the Website. {00109726/I} 20. Defendant informed Plaintiff that the "back end" work, i.e. the Website programming, would be performed by an independent contractor. 21. Plaintiff informed Defendant that while this was acceptable, it wanted to exclusively deal with a representative of Defendant for purposes of providing input and making changes to the Website design. See first full paragraph of the Contract, which is attached to Plaintiff's Complaint as its only exhibit. 22. Jordan Olshefski, an employee or agent of Plaintiff, was the primary contact person with whom Defandant corresponded regarding the work to be performed. 23. Nicole Wilt, an employee of Defendant at the time, was the primary contact person with whom Jordan Olshefski corresponded. 24. Defendant developed a Creative Concept and Content Outline on or about September 12, 2002, based on the information provided by the Plaintiff regarding its Website goals and desired Website content. This Creative Concept and Content Outline was reviewed and approved by 25. Plaintiff. 26. Defendant thereupon began working on the Website design according to the Outline that was approved by Plaintiff. 27. At Plaintiff's request, Defendant allowed Plaintiff to access the Website as it was being developed. 28. Defendant informed Plaintiff that the site would be a work in progress, in that that updates and revisions to the design and to content would take time. 29. On or about September 24, 2002, Jordan Olshefski expressed satisfaction with Defendant's progress, but initiated discussions with Marlin Miller, Defendant's {00109726/I} independent conla-actor who did most of the programming, to discuss various concept design changes to the Website, including the incorporation of FLASH software. 30. A dialogue thereupon ensued between Jordan Olshefski, Marlin Miller and Nicole Wilt regarding the exact nature of Plaintiff's design changes and the feasibility of incorporating those changes into the Website. 31. Later in October, after conferring with Defendant, Plaintiff decided not to incorporate these changes, including the incorporation of FLASH software, because they would be too costly and would result in longer download times. 32. On or about September 30, 2002, Jordan Olshefski sent correspondence to Marlin Miller with changes to the color schemes of the Website. 33. These color changes were implemented by Plaintiff in a timely fashion. 34. On October 4, 2002, a conference took place between representatives of the Defendant and Plaintiff to review the revisions to the creative concept design and review the first draft of the Website copy. 35. At that meeting, Joe Olshefski, an officer of the Plaintiff and Jordan's father, expressed approval of the work performed by Defendant. 36. On or about October 7, 2002, Jordan provided changes regarding the color scheme and wanted more content added to the Website, though he did not provide details on what he believed needed to be added. Moreover, Jordan Olshefski expressed satisfaction with the visual aspect of the Website. 37. On or about October 11, 2002, Marlin Miller responded to Jordan Olshefski's newest color scheme changes and advised against implementing the proposed changes, providing his reasons accordingly. {00109726/I } 38. On or about October 14, 2002, Plaintiff approved and signed a production order in the amount of $1,325 for photographs which were to be incorporated into the Website. The photographs were obtained and were subsequently given to Plaintiff so that Plaintiff could which photographs should be incorporated into the Website. A copy of the Production Order is attached to and is incorporated herein as Exhibit "A." 39. On or about October 17, 2002, Jordan Olshefski sent Defendant some of his own suggestions to be incorporated into the Website content. 40. Nicole Wilt provided Plaintiff with second drafts of the contc~nts of the Website on or about October 25, 2002. 41. On or about November 8, 2002, counsel for Plaintiff provided Nicole Wilt with some revisions to those drafts and requested that the revisions be incorporated. 42. On or about November 13, 2002, Nicole Wilt reminded Jordan Olshefski that he had not informed her whether he had decided to approve the ordering of additional photographs for the Website. On or about that same date, Nicole Wilt informed Jordan Olshefski that further revisions to the Website content would be posted on the test Website. 43. On or about November 22, 2002, Jordan Olshefski sent Nicole Wilt suggestions on incorporating various photographs and intemet links. 44. On or about November 26, 2002, Nicole Wilt asked Jordan Olshefski for additional input on one of these links. 45. On or about December 1, 2002, Jordan Olshefski responded with further revisions and changes he wanted to incorporate after reviewing the content on the test site. {00109726/I } 46. Between December 1, 2002 and December 6, 2002, various discussions took place between Nicole Wilt and Jordan Olshefski involving various pictures to be utilized in the Website. 47. On or about December 4, 2002, Nicole Wilt, after discussing the matter with programmer Marlin Miller, informed Jordan Olshefski regarding some on-line security issues that would be raised if one of Plaintiff's suggestions were implemented. 48. On or about December 6, 2002, Jordan Olshefski sent further revisions regarding interact links, pictures, fonts, and tabs contained within the Website. 49. On or about December 9, 2002, Nicole Wilt informed Jordan Olshefski that the revisions were implemented except for the incorporation of the photographs. 50. On or about December 12, 2002, Jordan Olshefski sent other revisions regarding the content to Nicole Wilt. 51. At that time, Jordan Olshefski asked that Defendant provide a completed Website on or before December 19, 2002, even though Plaintiff had not decided on key issues, including which photographs to incorporate. 52. Plaintiff's demand was unreasonable under the circumstances as Defendant could not reasonably finish the Website within the week. 53. Because Defendant was unable to provide a completed Website on or before December 19, 2002, Plaintiff made demand for the remm of the 25% downpayment, as well as the money it had authorized Defendant to spend on its behalf for the photographs. 54. Up until December 12, 2002, Plaintiff never complained about the fact that the Website was still a work in progress and that the work was being performed beyond the original deadline. {00109726/I } 55. Defendant reasonably relied on Plaintiffs promise to pay for the completed Website in that it expended approximately 123 hours of labor valued at $17,817 from the beginning of the contract formation through mid-December when Plaintiff indicated that it was terminating the conlxact. 56. Moreover, Defendant reasonably relied on Plaintiff's promise to pay for the completed Website in that it continued to employ the use of its independent contractor to perform the programming for the Website. The amount that Defendant owes the programmers is approximately $7,000. This figure represents value for services performed through December 2002. 57. Plaintiff, by continually seeking to alter the creative aspects and content of the Website, adversely affected Defendant's ability to complete a finished work product on Plaintiff's behalf within the timeframe demanded by Plaintiff. 58. Defendant has substantially performed its contractual obligation under the contract and, as such, is entitled to receive the full amount of the contract price, $10}750. 59. Plaintiff is not entitled to recoup the $1,325 for the photographs it authorized Defendant to purchase on its behalf. 60. Furthermore, Plaintiffhas the benefit of all of the copy and the creative design work that Defendant put into the Website, and Plaintiffwould be unjustly enriched without paying Defendant for the work performed pursuant to the contract. 61. Defendant justifiably and in good faith relied upon the representations of Plaintiff's agent, Jordan Olshefski, regarding the changes and/or modifications which Plaintiff wanted Defendant to incorporate into the Website. {00109726/I } 62. The representations made by Plaintiff's agent, Jordan Olshefski, estop Plaintiff from asserting its claim that the Website produced by Defendant was not satisfactory, since Defendant was attempting to satisfy Plaintiff by incorporating all of those changes, and Plaintiff's action against Defendant is accordingly barred. WltEREFORE, Defendant respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff dismissing the Complaint with prejudice, awarding Defendant its costs, including counsel fees, and awarding such other relief as may be just and appropriate. COUNTERCLAIM COUNT I - BREACH OF CONTRACT 63. Counterclaim-Plaintiff, DIO, hereby incorporates all preceding paragraphs of its Answer and New Matter as though more fully set forth herein. 64. Counterclaim-Plaintiff, DIO, and Counterclaim-Defendant, QBWC, entered into an contract whereby DIO agreed to provide QBWC with a redesigned fully-functional Website, in return for which QBWC agreed to pay DIO the sum of $10,750. 65. DIO fully and/or substantially performed all of its obligations QBWC under the contract in good faith in a timely and workmanlike manner, given the continual creative and content changes which QBWC sought DIO to incorporate into the finished Website. 66. QBWC has failed or refused to pay the balance of the amount owed to DIO for such services. 67. All conditions precedent to recovery by DIO for breach of contract by QBWC have been performed or have occurred. {00109726/I} 68. By virtue of the foregoing, QBWC is liable to DIO for breach of contract, and DIO is entitled to recover the full balance owed, plus interest, costs of collection, and reasonable attorneys' fees. WHEREFORE, Counterclaim-Plaintiff, DIO, respectfully requests that this Honorable Court enter judgment in its favor and against Counterclaim-Defendant, QBWC: (a) awarding the balance of the contract price; (b) awarding pre-judgment interest at the statutory rate of interest from the date of the filing of the District Justice Counterclaim until the date of judgment; (c) awarding post-judgment interest at the statutory rate of interest from the date of judgment until fully paid; (d) awarding reasonable attorney's fees and court costs; and (e) awarding such other and further relief as may be just and appropriate. COUNT H - PROMISSORY ESTOPPEl. 69. Counterclaim-Plaintiff, DIO, hereby incorporates all preceding paragraphs of its Answer and New Matter as though more fully set forth herein. 70. Counterclaim-Defendant, QBWC, promised to pay for the services provided by DIO. 71. 72. In so doing, QBWC intended that DIO would rely on QBWC's promise. Moreover, due to QBWC's continual creative and content changes which QBWC sought DIO to incorporate into the finished Website, the deadline for completing the work was effectively extended by the parties. {00109726/I } 73. At no time prior to December 12, 2002, when QBWC demanded a finished Website within an unreasonable period of time, did QBWC ever indicate to DIO that it would not pay DIO the full contract amount during this contract extension. 74. DIO did reasonably rely on QBWC's promise to pay the full contract amount by providing the services agreed to in the contract, even after the original deadline had expired. 75. In fact, DIO, in reasonably relying on QBWC's promise, expended approximately 123 hours of labor valued at $17,817 from the beginning of the contract formation through mid-December, when Plaintiff indicated that it was terminating the contract. 76. Moreover, DIO, in reasonably relying on QBWC's promise continued to employ the use of its independent contractor to perform the programming for the Website. The amount that DIO owes the programmers is approximately $7,000. This figure represents the value for services performed on behalf of QBWC through December 2002. 77. As a result, Plaintiff has suffered a detriment in excess of the contract amount. WHEREFORE, Counterclaim-Plaintiff, DIO, respectfully requests that this Honorable Court enter judgment in its favor and against Counterclaim-Defendant, QBWC: (a) awarding reliance damages; (b) awarding pre-judgment interest at the statutory rate of interest from the date of the filing of the District Justice Counterclaim until the date of judgment; (c) awarding post-judgment interest at the statutory rate of interest from the date of judgment until fully paid; (d) awarding reasonable attorney's fees and court costs; and {00109726/I} (e) awarding such other and further relief as may be just and appropriate. COUNT III - UNJUST ENRICHMENT 78. Counterclaim-Plaintiff DIO repeats and incorporates each of the proceeding averments as if fully set forth herein. 79. By virtue of the foregoing, DIO has conferred a benefit on Counterclaim- Defendant, QBWC, said benefit being the creative concepts of the redesigned Website, the layout of the Website, and the Website's substantive content. 80. Even though QBWC does not have the actual use of a fully-functional Website which can be accessed via the Intemet, QBWC has gained the knowledge and creative input provided by DIO in addition to hardcopies of all content that was produced and/or modified by DIO throughout the process. 81 The fair and reasonable value of the benefits conferred by the services provided is, at the very least, the balance remaining on the contract price owed to DIO, $8,062.50. 82 It would be unjust and inequitable for QBWC to retain the benefits so conferred without paying full, fair and reasonable value thereof, plus interest, costs, and attorney's fees. 83 For the foregoing reasons, QBWC is liable to DIO for unjust enrichment. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in its favor and against Defendant: (a) awarding restitutionary damages in the amount of $8,062.50, plus incidental damages; {00109726/1} (b) awarding pre-judgment interest at the statutory rate of interest from the date of the filing of the District Justice Counterclaim until the date of judgment; (c) awarding post-judgment interest at the statutory rate of interest from the date of judgment until fully paid; (d) awarding reasonable attorney's fees and court costs; and (e) awarding such other and further relief as may be just and appropriate. Respectfully submitted, CGA Law Firm /7'~ Joseph ~. Adams, Supreme Court I.D. ~g2'0218 Christopher L. Herrington, Esquire Supreme Court I.D. # 82796 29 North Duke Street York, PA 17401 (717) 848-4900 {00109726/I} VERIFICATION I, the undersigned, counsel for Do It Outdoors, Inc. t/a DIO,, hereby affirm that the facts contained in the foregoing Answer, New Matter and New Matter Counterclaim are true and correct to the best of my knowledge, information, and beliefi This statement is made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unswom falsification to authorities. Dated: June 27, 2003 By: CGA LAW FIRM Ch~ Esquire {00109726/I } Page 1 of 1 3111 Fa'mind Road YoH~ PA 1'/402 (717) ?S4-l~ (717) 764-1415 -[,, Production, Order ,, j PRODUC11ON ORDER # 0001130 CONTRACT DA 'rE: 10/14/2002 ACCOUNT ~ NLW CU~TONI~R f: 02,.QBWC TERMS: Due upon recei~l. 2?5 N..~,~mld Wormloy~burO, PA 17043 fur usc in CZBWC 'wrJ~ site ~,CiBWC,899 23.0 EA 57.61 J, 325.~0 ~[,325.5D What's yout a~g/e? TOTAL P.02 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA QUALITY BUILDERS WARRANTY : CORPORATION, : Plaintiff : : DOCKET NO. 03-2155 V. : DIO, a/k/a/DO IT OUTDOORS, : INC., : CIVIL ACTION - LAW Defendant : CERTIFICATE OF SERVICE I hereby certify that on this 27th day of June, 2003, a true and correct copy of the foregoing Answer and New Matter has been served, via first-class mail, postage prepaid, upon the following: John A. Gill, Esquire 325 North Second Street Wormleysburg, PA 17043 By: CGA LAW FIRM Supreme Court I.D. ~t~.796 29 North Duke Street York, PA 17401 717-848-4900 Attorneys for Defendant {001t0393/I} QUALITY BUILDERS WARRANTY CORPORATION, Plaintiff DO IT OUTDOORS, INC. T/A DIG. Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL ACTION - LAW : DOCKET NO. 03-2155 CIVIL pRAECIPE To: Prothonota~ Please mark the above captioned action, including the complaint and counterclaim, "settled, discontinued and forever ended." as ~. Gill, Esquir~ Quali~ty Builders Warranty Corporation 325 North Second Street Wormleysburg, PA 17043 (717) 737-2522 #41532 Attorney for Plaintiff Quality Builders Warranty Corporation Christoplter L. Herrin~ Supreme Court I.D. # 29 North Duke Street Yo~:k, PA 17041 (717) 848-4900 Esquire !796 Attorney for Defendant and Counterclaimant