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Home My WebLink About01-042791~1CPTpnCE OF RRPPEAI. COMMONWEALTN OF PENNSYLVANIA r-~~` COURT OF COMMON PLEAS JUDICIAL DISTRICT FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS Nw ~, - ~a79 (?(Ut,~, /£f~ NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case merifioned bekrM WME pF APPELLAM MAG dsr. Np OR NAME OF 0.l. Howard DeTraglia and DeTraglia Excavatinf; inc. 09-3-04 ADDRESS OF APPELLANT pTY STATE ZP CODE 281 Texaco Road ASechanicsburg PA 17050 DATE dF RIDGMENT FJ THE CASE OF (PlairRiH) (~rcManil Howard DeTraglia and DeTraglia 6/28/01 Joseph J. Barone, Jr. vs Excavatin Inc QAPA NO SIGNATIJIE OF APPEILAM OR HR AT NEV OR~T CY 19 278-O1 LT 19 This bock will be signed ONLY when this notation is required under Pa. R.CJ?J.P. Nn If appellant was CLAIMANT (See Pa. R.C.P.J.P. No. 1008& This Notice of Appeal, when received by the District Justice, will operate as a 1001(6) In aCtlon befLNe DISVICt Justice, he MUST SUPERSEDERS ro the judgment for possession in this case FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. Signature of Prothonotary or Deputy 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.JP. No. 1001(7) in action before DisVict Justice IF NOT USED, detach from copy of notice of appeal to be served upon appellee). PRAECIPE: To Prothonotary Enter rule upon Joseph J. Barone, Jr. , appellee(s), ro file a complaint in this appeal [~ p Name o/ appelleets) (Common Pleas NaQ(- '7 ~ 7 1 ~LUi.~ ~CJC.rI\) within twenty (20) days after service ule Or of t y of ju ment of non pros Signature or appellant or his atromey a agent RULE: To Joseph J. Barone, Jr. appellees) Name of appel,~e(s) (1) You are notified that a rule is hereby entered upon you ro file a wmplaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) M you do rat 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 mailira. Date: JAL. 2 , ~,.~r AOPC 312-90 COURT FILE TO BE PILED WITH PROTHONOTARY F~~F ~F E~B~'1~IE F N~7`I~ '~F AP~~~a~h6® ~hl~ IJ1.~ ~' F~L ~F~~.A,ItJ7' ITh1s proof of service MUST 6E FftED W1TH1N TEN (10} iCAYS AFTER fi7iag file 17otice of appeal. Check spot/cable boxes} GOti1RAK5idV'dE~4LTtS C}~ PHNNSYLSd~Nida it3t,iN3Y QF__.____~.~..._.~._..,~ .~~ ; ssx ~~FiAL~~'!"; I hereby swear nr affirm that I served La a copy of the Notice of Appeal, Oamman Pleas tva. ~_-~_ _- ~_ , upor, the t;isirict Justice desianateci therein cn { dale of service) ~_ ~? by personal service C] by !CPiti#ESd) (registered) mall, senCler'g receipt atiachetl hereto, antl upon the appalls°, {name) .~_ _ ~._ an 79.___r_._ Ci by persaral service ~ by {aertltled) (registered} rna€1, sender's receipt attached her+3to. C3 andfittrtherfhatlsarvedtheRuiefoFileaComplaintaccompanyfngtheabovetVoticeoEAppeaiupontheappeHes{s}EOwham the Rule sues aridressed an ._ ~ _ _ , 19_.___.,'C by personal service [C by {.;ertified? {registered} n7ail, sender's receipt attached hereto. SWORN (AFFfRMEtJJ ANEt SU85CRiBECt BEFORE ME TN9S ____ C>AY CAF _.~.~__~ , 19__.~ ~..~_..._~._.. _~ Signature of a/irant 5ignatere of plticlat before n~horn aPf+dav+` was maxis Title of of?iciat, My commleslon ex~iros on 77~.. _. it \. O 3 + G~ __ ~ ~ `v (1 ~' ' .C ~ ~ V _ ~f ~? ~'~ ~ ~` HOWARD DETRAGLIA 281 TEXACO RD. MSCHANICSBURG, PA 17050 THISIS TO NOTIFY YOU THAT: - Judgment: L J DocketNo.: CV-0000278-01 Date Filed: 5/25/01 .'. ' ~YEFPil7I,T JYYDGLkEN'P PLTF" ; <. `- - ° -, : n r - -' ~ Judgment was entered for:. (Name) _ ~auONrz =TR, JOSRPH J ® Judgment was entered against: (Name) nxmun, _ .ra gx .ava-TTN in the amount of $ R ~ i 33 _ an on: (Date of Judgment) 6/~a/nT Defendants are jointly and severally liable (Date & Time) n . _... Damages will be assessed on: , b ~ ~ "`- This case dismissed without prejudice. ^ Amount of Judgment Subject to AttachmenUAct 5 of 1996 ~ Levy is stayed for days or ^ generally stayed. Objection to levy has been filed and hearing will be held: bate:... ~ ;_. Place: .,-, .-- Amount of Judgment $ Judgment Costs , $_ Iriterest on Judgment ~$_ Attorney Fees $_ Post Judgment Credits $ Post Judgment Costs $ Certitied,C~tlgmentTotal $ Time: r,`~ ~, N' 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 INCLUDES A COPY OF THIS N E OF JUDG T NS RIPT FORM WITH YOUR NOTICE OF APPEAL. ~ t-~ ~'~~~~>S Date ; Di~triCt Jiasticp • . . ,~~ . t I certify that this is a true,~a ect. py~f the recor e p ceedings cbntammg the judgmen4. ~%' ~ Date ,:District Justice ~, My commission expires first Monday of January, 2004 ~'=~L k .f , AOPC 315-99 - ... ~! iI~ ~,: ,: ~R'~, ,;: „.~.- °- COMMONWEALTH OF PENNSYLVANIA .:UUN1Y OF: Mag. Dist. No.: ~:: .f. ~~-- F:, ~. 09-3-04 DJ Name: Hon. THOMAS A. PLACEY adtlrea:: 104 S. SPORTING HILL RD. - , MECHANICSBIIRG, PA Telephone: (717) 761-8230 17050 . HOWARD DETRAGLIA 281 TEXACO RD. MECHANICSBIIRG, PA 17050 NOTIGE'00= JUAGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME antl ADDRESS SEPH J r AR N JR J ~ B S, , O O 427 APPLETREE RD CAMP HILL, PA 17011 L J VS. . DEFENDANT; NAME andADDRESs rDETRAGLIA HOWARD, ET, AL... - ~ 281 TEXACO RD. MSCHANICSDIIRG, PA 17050- L J DocketNo.: CV-0000278-01 Date Filed: 5/25/01 I THIS IS TO NOTIFY YOU THAT: `Jud,g-'m~jlt: n D13FAD]~T Gr~7T PL,TF ; ,_ ...r.,..,.~ rT,... ..... - r, ,,.~:. ._._.- Judgment was entered for: (Name) RAROrnx, .Trx, .TneRaw J Judgment was entered against: (Name) ~$mttAGLTA, HowARn in the amount of $ a, ~ a3.5n on: (Date of Judgment) 6/2R/n1 Deferidants are jointly and severally liable. (Date & Time) Damages will be assessed on: i This case dismissed'without prejudice. ~ Amount of Judgment Subject to i ~ Attachment/Act 5 of 1996 $ Levy is stayed for days or ~ generally stayed. Objection to levy has been filed and hearing will be held: Date: B!ace: Amount of Judgment $ f Judgment Costs $- Interest on Judgment $- Attorney Fees $- Total $ £ Post Judgment Credits Post Judgment Costs Total 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 A COPY OF THIS N E OF JUDG T NS RIPT FORM WITH YOUR NOTICE OF APPEAL. ~;. `~ Date , Qistrict Justice p~;, _ .•l Leerfify that this is a true a rrecttcopy o 'tlie cord of t p oceedmgs ddntaining the judgmeht. . .~,. ~~,'~`!~~ Date ;District Justice,_ '._ My commission expires first Monday of January, 2004 ~~-.._. SEAL ;~ , AOPC 315-99 ~' 'e ~ - ,., m11'P ~ IC~£'~ AP"P' ..C, ., . . COMMONWEALTH OF PENNSYLVANIA 1URT OF COMMON PLEAS FROM JUDICIAL DISTRIti DIST~ICT JUSTICE JUDGMENT EOMifi~ON PLEAS Nw L+J~ .T (.~~ /, ef~e.``~~-~, NOTICE OF APPEAL- Nofice s,given that the appellant has filed in the above-Court of Common Pleas an appeal from-The judgment rendered by-_tleDistricYJustice on the ~- date arid' in the case mentioned. below' - - , . ... 281 Texaco Road 17050 WlE of JUIXiMEM IN In[ lA]t ur f F181rn1n1 - gg ~ "n°'va, / ' 6/28/01 Joaelph J. Barone, Jr. vs Excavatin¢~alnc8 and DeTraglia CV 19 278-01 V. ,~~ .,>.i y This blotk'~ will be signed ONLY when This. notdtigp- is required under Pa. R.C.PJ.P. Nn ~,1,OQ98,,~ ~ ~ " `This Notice of Appeal, when received by the District Justice, will operate as a ` `SUPERSEf)E'A5'YO'`fl~ judgment fdi pos#esslon mhis case - k~ .~~ SV , v 1 .. Ii appeNant was CLAIMANT (see Pa. R.C.P.9.P. No. 1001(6) in action before Disfrici Justice, he MUST FILE A COMPLAINT within twenty 720) days after filing his NOTICE of APPEAL: PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE. TO FILE (This section of iorm to be used ONLY when appellant was DEFENDANT (see Pa. R.C.P IMP. i ol~. 1001(7 Xin~actrbl IF NOT USED, detach from copy of notice of appeal [o be servatihtipppappellee). T ~~. PRAECIPE: To Prothonotary: -Jose h J. Barone Jr. Enter rule upgn P ~ , appellees) ro fde a Name o/ appe/!ee(sJ ' `, ' (Common Pleas Nc.t~~ ~' 'y~q `'f U ~. ~ ~~2_YY1)' within twenty (20) days after service ~ule o~uf~r ~y` o/ ellaM a his attorney a agent RULE: To Joaeph J. Barone, Jr. , appellee(s). Nave or appeF(ietsl -,. ry' '. 'y.,. ~, v.- ~ . (1) You dfe notified that a rule is hereby entered pon yoy ro file a cgmplajM In ihjs appeal ,withl~ Twenty (20) days After the, date of service of this ryle upon you kiy°.;persgnal"service.or'~~y cer~'fi ied or registered mail. ° - -- C -' (2) If you do 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 mailing. r' °, ~ +r ~, -~ ;.~ a .~, Date: ~t(,. ~ ,'a4~C,1 _ ''+,. ~11~ @ ~ru~~1 rY . a ~, i yk ' - -; ~ `- -,r;, - _ ' _ ~ fit ., b= y,,. . ' ~ ~"., E r __• ~ ,~ Pt,,,M- .yA W AOPC 312-90 . :c ~ .. "_t~E-' .. ..aaE - - - ~ F ~~VI~ F ~(}°fI~E ~~ ~RPE~~. ~~ IJL.~ "~' ILA ~C~F'I~fi~OBd°C i7-his praraf oT seeelae GyfEtST BE FiGEL7 UVt7HtN T>=A1 (7p) pAYS AFTrFt ttf}ap fhe r~o±ice rf ep;~eat. Citec7r ap{alicabto boxsst ^,,"~WNMOF41~~A17k4 ~F PEhdPtaYi.V,dR4IA C(}UhrPy ~s DAUPI~IN _ : ss ~F~$l$,~$~": I hersby swear ar affirm that I served a cagy pf 2he ~7otice of Appeal, Gomman Plans No. 01~4L79 Civil , uF.,er the L~is<rfct Jt!stice de5ignateGi therei:i oa {dare otservioe) _~ Jul i8~ 2001 ~ `'~ by pe,-sons! se>ruice ~ 6y ~cerfitied) (~is~ mail, sender's receipt at"ached hereto, anJ open the appellee, (name) ~ .ro.c~Qn'~ r _y,~~„P,~ .rr. ________ cry Jul 1$ _~ x~yoQ~. ~) try personal seruiae ~l try (certified } ~ ' i~C} marl, sender's receipt a#taehed hereto. ~ andfuriher#ha4lseruedtheF~uletot'iVeaComplaintaccompanying4heaboveNoticeofA,ppeaic~aenthr=.appeliee(s}t=3wtam the Rule: comas addressed nn _..~._. Juuu~iS, __ ,ffi~..._20-4k,`~J ray person~c't! ssirvioe$'} by (cartifiedj (~lS~C+ mail, sender's receipt attached hereto. SWC7RN3$I~Ri;4 At~D SU€3SCRiDE'D BEpC?FiE ME ; ~ , THIS pith _ CiAY C7r"~ __ Ju1~_ ,79._..2003 S±gne7ute at 4~+rrr - ,tote whom nftidavi! w' rase "1JOtarV PI1L+lic rare cif oC9ofet My cor~nri~:.sion axr~lres on tu~~. Ronala D. Sutler SigneYUre of atfianP NOTARIAL SEAL CHERYL L. FERGUSON, Notary Public Harrisburg, Dauphin County My Commission Ex Tres A ril 6, 2004 m m M1 r9 O m ftl p p p fL t+l p p p p M1 fL s t+i Postage Certified Fee Retum Receipt Fee (Entloraement Requirecq P~Mcted Delivery Fec (Entlorsemeot gequiretl) Total Poatage 8 Fees .y3. ! T M1 ,~ Postage g r~-l O Certifletl Fee 0 p O p M1 Fbstmerk Here ~/~810( p~ - _ arsmr+zru+.,e.~.ro~:,, ~+'. e:%.2o^Exix%!u5we.:?~q?a3 ,. n'1 RMUm Receipt fee tl.l (Entlorsemant RegWrer~ Postmark p ResMMetl Dallve F Here p (Entloreamem Requires p total Postal7e & Feea ~ 2 9, / n~ r JOSEPH BARONE Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. HOWARD DETRAGLIA and DETRAGLIA EXCAVATING, INC. Defendants CIVIL ACTION -- LAW No. 01-4279 Civil Term COlO~IPLAINT AND NOW, comes the Plaintiff, Joseph Barone, by and through his attorneys, the Law Offices of Richard C. Gaffney, who files the following Complaint against the Defendants, Howazd Detraglia and Detraglia Excavating, Inc., and states as follows: 1. Joseph Barone, the Plaintiff is an adult individual who resides at 427 Appletree Road, Camp Hill, Pennsylvania 17011. 2. Howard Detraglia is an adult individual who resides at 281 Texaco Road, Mechanicsburg, Pennsylvania 17050, and Detraglia Excavating, Inc. is a Pennsylvania corporation with a registered office address of 281 Texaco Road, Mechanicsburg, Pennsylvania 17050 (the "Defendant(s)"). 3. On or about May 25, 2001, Plaintiff filed a civil complaint against Defendants with District Justice Thomas Placey, Magisterial District No. 09-3-04, and having a docket number of CV-278-01. 4. On or about May 29, 2001, a heazing notice was mailed to the parties indicating that a hearing on the matter had been set for June 28, 2001 at 8:45 AM. Said notice informed Defendants of their right to enter a defense; however, to prevent a default judgment against them, the entry of a defense had to occur on or before the June 28 hearing. 5. Defendants failed to enter a defense to the civil complaint, and a default judgment in the amount of $8,133.50 was entered against Defendants on June 28, 2001. 6. On or about July 13, 2001, Defendants filed the instant appeal with this Court; and on July 18, 2001 mailed a Notice of Appeal and Rule Upon Appellee (Plaintiff herein) to file the within Complaint with this Court. COUNTI Violations of the Pennsylvania Wage Payment and Collection Law 7. The averments of pazagraphs 1 through 6 are incorporated by reference as though fully set forth herein. .;<~ L, 8. On or about March 6, 2001, Plaintiff began working for Defendants as a backhoe operator. 9. On or about Mazch 28, 2001, Defendants' Foreman, Edward Hockenberry, terminated Plaintiff without cause. 10. Plaintiff worked approximately 57 hours as a backhoe operator and 19 hours as a laborer during the period Mazch 18, 2001 through March 28, 2001. 11. The prevailing wage for backhoe operators was $31.94 per hour for the time period in question. The prevailing wage for laborers was $22.16 for the time period in question. 12. The next regular payday of his employer was Apri16, 2001. 13. Plaintiff did not receive a paycheck for wages and compensation earned for the period March 18, 2001 through March 28, 2001. 14. In addition to his civil complaint against Defendants, Plaintiff filed a complaint against Defendants with the Pennsylvania Department of Labor and Industry for Defendants' failure to pay him the prevailing wage. 15. On or about June 26, 2001, the parties to the Department of Labor and Industry action settled the matter for $2,492.84. 16. In addition to the prevailing wage action, Defendants' failure to pay Plaintiff for his services is a violation of Section 260.5 of the Pennsylvania Wage Payment and Collection Law ("WPCL") relating to separated employees, which provides that "wages or compensation earned shall become due and payable not later than the next regular payday of his employer on which such wages would otherwise be due and payable." 43 P.S. § 260.5. 17. Defendants' failure to pay Plaintiff his wages and compensation within thirty days of his regularly scheduled payday is a violation of Section 260.10 of the WPCL entitling Plaintiff to liquidated damages in an amount equal to twenty-five percent (25%) of the total amount of wages due, or five hundred dollazs ($500), whichever is greater. See, 43 P.S. § 260.10. 18. Pursuant to Section 260.9a of the WPCL, Plaintiff is entitled to reasonable attorneys' fees for Defendant's violations of the WPCL. 43 P.S. § 260.9a. WHEREFORE, Plaintiff, Joseph Barone, demands (1) judgment against Defendants, Howard Detraglia and Detraglia Excavating, Inc., in the amount of $623.21, which represents Plaintiff s liquidated damages under the Pennsylvania Wage Payment and Collection Law; and (2) payment of costs, expenses, and reasonable attorneys' fees. COUNT II Breach of Contract 19. The averments of paragraphs 1 through 18 are incorporated by reference as though fully set forth herein. 20. On or about February 2001, Defendants were awarded a 90-day contract with Penbrook Borough. 21. On or about February 2001, Defendants entered into an oral contract with Plaintiff to engage his services as a backhoe operator fora 90-day period consistent with the Penbrook Borough contract, and agreed to pay Plaintiff for the 90-day period. 22. Pursuant to their contract, Plaintiff began working for Defendants as a backhoe operator on or about Mazch 6, 2001. 23. On or about March 28, 2001, Defendant breached the contract by terminating Plaintiff s employment. 24. Defendant has failed to pay Plaintiff for his services as the parties agreed upon at the time they entered into their contract. 25. As a direct and proximate result of Defendants' breach, Plaintiff has been damaged. WHEREFORE, Plaintiff, Joseph Bazone, demands (1) judgment against Defendants, Howard Detraglia and Detraglia Excavating, Inc., in the amount of $15,789.76, which represents Plaintiff s expected payment under the remainder of the contract term (March 28, 2001-June 3, 2001); and (2) payment of costs, expenses, and reasonable attorneys' fees. COUNT III Detrimental Reliance 26. The averments of paragraphs 1 through 25 are incorporated by reference as though fully set forth herein. 27. In the alternative, if the oral contract entered into by the parties is deemed unenforceable, Defendants are liable to Plaintiff because he reasonably relied upon their contract to his detriment. 28. Defendants contracted with Plaintiff fora 90-day period and agreed to pay Plaintiff for the 90-day period. 29. In reliance on Defendants' representations regarding their agreement, Plaintiff took action to ensure his availability for the fu1190-day period, to include turning down two other job offers, arranging for child care for his daughter, insuring Anthony Bowers, a skilled laborer who would be working with him on Defendant's job, and ceasing all marketing activity for the time period in question. 30. Defendants' representations were made with the expectation that Plaintiff would make the necessary accommodations to be available for the duration of the job. 31. Plaintiff relied on the Defendants' representations. 32. Plaintiff s reliance on Defendant's representations was justifiable and reasonable. 33. As a direct and proximate result of Defendants' representations, Plaintiff has suffered detriments and has been damaged thereby. WHEREFORE, Plaintiff, Joseph Barone, demands (1) judgment against Defendants, Howard Detraglia and Detraglia Excavating, Inc., in the amount of $4,950, which represents damages suffered on account of detrimental reliance; and (2) payment of costs, expenses, and reasonable attorneys' fees. Respectfully submitted, LAW OFFICES OF RICHARD C. GAFFNEY Richazd C. Gaffney, Es I.D. No. 63313 Laura A. Gargiulo, Esquire LD. No. 86128 2120 Market Street, Suite 101 Camp Hill, PA 17011 Telephone: 717-975-9033 Facsimile: 717-975-9034 Attorneys for Plaintiff -„~: ~_ C ~ `_"°' <'; T7 `[ir` :a , ~ Ca J ~ ~ a~: ~ . ,. .;, G 1~. F~ n CT ~, I; `<.-: JOSEPH BARONE IN THE COURT OF COMMON PLEA5 OF Plaintiff :CUMBERLAND COiJIVTY, PENNSYLVANIA v. HOWARD DETRAGLIA and DETRAGLIA EXCAVATING, INC. Defendants CIVIL ACTION -- LAW No. 01-4279 Civil Term PRAECIPE TO ATTACH NOTICE TO DEFEND AND VERIFICATION Ta the Prothonotary: Please attach the following Notice to Defend and Verification to Plaintiff's Complaint filed on August 2, 2001. Date: August 6, 2001 Laura A. Gargiulo, Esq ' e PA Supreme Court ID 86128 LAW OFFICES OF RICHARD C. GAFFNEY 2120 Market Street, Suite 101 Camp Hill, PA 17011 Telephone: 717-975-9033 Facsimile: 717-975-9034 JOSEPH BARONE IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. HOWARD DETRAGLIA and CIVIL ACTION -- LAW DETRAGLIA EXCAVATING, INC. No. 01-4279 Civil Term Defendants NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, Pennsylvania Telephone No. 717-249-3166 .,~, JOSEPH BARONE : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA vi. CIVIL ACTION -- LAW HOWARD DETRAGLIA and DETRAGLIA EXCAVATING, INC. Defendants No. 01-4279 Civil Term VERIFICATION I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unsworn falsification to authorities. Date: ~-.~~ G/ ~C<a~~.-~ Jo ph B one C t~ "~~ ~~ ~ _.i C77 ~ ~ 1 ,ice C; .l li T ' .~ r =~~ _ naFx~rn~nsw.xr.~xwracm~ ~. _ . ~rx;:m ..:,x=n-rt. ~ ,.~•o-. .. .. i„a ,. ~x,~. '-~"m. i+~sNW~Ax4§ JOSEPH BARONS IN THE COURT OF CONIMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. HOWARD DETRAGLIA and DETRAGLIA EXCAVATING, INC. Defendants CIVIL ACTION -- LAW No. 01-4279 Civil Term CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Complaint, duly endorsed with a Notice to Defend and Verification, to the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by mailing a copy of same via the United States Postal Service, First Class Postage Prepaid addressed as follows: Ronald D. Butler, Esquire Butler Law Firm P.O. Box 1004 Harrisburg, PA 17108-1004 Date: August 6, 2001 /' N~ Laura A. Gargiu o, uire n r_~ ~ C _" "U CC ~ - ' L~ ~G ~ (.? G 1~ Zt-: n= ?Y C ~' - I,. _ .. - ,. .- _ .. -~v±w~tt+soasea~27a n-~rc~Nrr~+wa~r N -,;~mbe¢~~~M§~En:twW~a4W { JOSEPH BARONE, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. HOWARD DETRAGLIA and, DETRAGLIA EXCAVATING, INC., Defendants N0.O1-4279 CIVIL ACTION -LAW NOTICE TO PLEAD TO: Joseph Barone c/o Richard C. Gaffney, Esquire 2120 Market Street Suite 101 Camp Hill, PA 17011 YOU ARE HEREBY NOTIFIED to file a written response to the enclosed New Matter within twenty (20) days from service hereof or judgment maybe entered against you. BUTLER LAW FIRM By: ~~~1 .. Ro ald D. Butler, Esquire Attorney for Defendants I.D. #09826 500 North Third Street P.O. Box 1004 Harrisburg, PA 17108 (717) 236-1485 JOSEPH I3ARONE, Plaintiff v. HOWARD DETRAGLIA and, DETRAGLIA EXCAVATING, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.O1-4279 CIVIL ACTION -LAW ANSWER AND NEW MATTER AND NOW, comes Howard Detraglia and Detraglia Excavating, Inc, by and through their attorneys, Butler Law Firm, and files this Answer and New Matter to Plaintiff's Complaint, and in support thereof avers as follows: ANSWER 1. Admitted upon information and belief. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. COUNTI Violations of the Pennsylvania Wage Payment and Collection Law Plaintiff merely incorporates the averments of paragraph 1 through 6 by reference. 8. Admitted in part and Denied in part. On or about March 6, 2001, Defendant Detraglia Excavating, Inc. (hereinafter referred to as "Defendant Corporation"), hired Barone's Handyman Service as a subcontractor, not as an employee. Defendant Corporation was dissatisfied with Barone's Handyman Service's schedule and the manner in which work was performed. As such, on or about March 12, 2001, Defendant Corporation offered to hire Plaintiff as an employee. Plaintiff accepted Defendant Corporation's offer on March 12, 2001. Neither Plaintiff nor Barone's Handyman Service was ever an employee of individual Defendant, Howard Detraglia. 9. Admitted in part and Denied in part. It is admitted only that Plaintiff was terminated on or about March 28, 2001. It is denied that Plaintiff was terminated without cause. To the contrary, Plaintiff was terminated for failing to heed orders to stop operating a backhoe that had a blown hydraulic hose. At the time, the backhoe was spilling oil onto the street and continued operation may have damaged the machine. Nevertheless, Plaintiff refused to stop the backhoe. 10. Admitted. 11. Admitted. 12. Admitted. 13. Denied. Defendants delivered Plaintiff s paycheck to the Pennsylvania Department of Labor and Industry (hereinafter referred to as "Labor and Industry") after the resolution of Plaintiff's complaint. Byway of further response, Plaintiff initiated an action with Labor and Industry prior to Apri16, 2001, which would have been Defendant Corporation's next (and Plaintiff's last) payday. After receiving notice of the action, Defendant Howard Detraglia spoke to Shirley Davis, an Investigator with the Bureau of Labor Law Compliance, who instructed him not to issue Plaintiff's last paycheck until the matter was settled. Defendants acted in accordance with this instruction. 14. Admitted. 15. Admitted. 16. Denied. The allegations contained in paragraph 16 of Plaintiff s Complaint constitute a conclusion of law to which no response is required. To the extent a response is deemed to be required, said allegations are specifically denied. 17. Denied. The allegations contained in paragraph 17 of Plaintiff s Complaint constitute a conclusion of law to which no response is required. To the extent a response is deemed to be required, said allegations are specifically denied. 18. Denied. The allegations contained in paragraph 18 of Plaintiff's Complaint constitute a conclusion of law to which no response is required. To the extent a response is deemed to be required, said allegations are specifically denied. WHEREFORE, Defendants specifically deny all allegations made in the "WHEREFORE" clause to Count I of Plaintiff's Complaint, although no response is required as said allegations are not properly pleaded in paragraph form. In addition, Defendants respectfully request this Honorable Court to dismiss Count I Plaintiff's Complaint with prejudice and grant such other relief as is proper and just. COiJNT II Breach of Contract 19. Plaintiff merely incorporates the averments of paragraph 1 through 18 by reference. 20. Admitted in part and Denied in part. It is admitted only that Defendant Corporation was awarded said contract. 21. Denied. To the contrary, neither Defendant entered into said oral contract with Plaintiff. Rather, Defendant Corporation entered into an oral contract with Barone's Handyman Service as an independent contractor (not an employee) on a time and materials basis. Per the agreement, Barone's Handyman Service was to be available "as needed" and was to be paid only for services actually rendered. There was absolutely no ninety (90) day commitment as part of the agreement. 22. Denied. For the reasons described in paragraph 21 herein, said allegafions are specifically denied. 23. Denied. The allegation that Defendant breached the contract is a conclusion of law to which no response is required. Byway of further response, Defendants deny the alleged contract for the reasons set forth in paragraph 21 herein. Furthermore, Plaintiff was terminated for cause on March 28, 2001, for failing to follow orders as described in paragraph 9 herein. 24. Denied. For the reasons stated in paragraph 21 herein, Defendants deny the existence of the contract alleged by Plaintiff. 25. Denied. The allegations contained in paragraph 25 of Plaintiff's Complaint constitute a conclusion of law to which no response is required. To the extent a response is deemed to be required, said allegations are specifically denied. WHEREFORE, Defendants specifically deny all allegations made in the "WHEREFORE" clause to Count II of Plaintiff s Complaint, although no response is required as said allegations are not properly pleaded in paragraph form. In addition, Defendants respectfully request this Honorable Court to dismiss Count II Plaintiffls Complaint with prejudice and grant such other relief as is proper and just. COUNT III Detrimental Reliance 26. Plaintiff merely incorporates the averments of paragraph 1 through 25 by reference. 27. Denied. The allegations contained in paragraph 27 of Plaintiffls Complaint constitute a conclusion of law to which no response is required. To the extent a response is deemed to be required, said allegations are specifically denied. 28. Denied. To the contrary, neither Defendant entered into said oral contract with Plaintiff. Rather, Defendant Corporation entered into an oral contract with Barone's Handyman Service as an independent contractor (not an employee) on a time and materials basis. Per the agreement, Barone's Handyman Service was to be available "as needed" and was to be paid only for services actually rendered. There was absolutely no ninety (90) day commitment as part of the agreement. 29. Denied. First, Defendants specifically deny the agreement alleged by Plaintiff Defendants are without sufficient information or knowledge to form a belief as to the truth of the remaining allegations contained in paragraph 29 of Plaintiff's Complaint. As such, said allegations are denied and strict proof thereof is demanded at trial. 30. Denied. Defendants did not make the representations alleged by Plaintiff. 31. Denied. Defendants did not make the representations alleged by Plaintiff. Defendants are without sufficient information or knowledge to form a belief as to the truth of the remaining allegations contained in paragraph 31 of Plaintiff s Complaint. As such, said allegations are specifically denied and strict proof thereof is demanded at trial. 32. Denied. The allegations contained in paragraph 32 of Plaintiff's Complaint constitute a conclusion of law to which no response is required. To the extent a response is deemed to be required, said allegations are specifically denied. 33. Denied. The allegations contained in paragraph 33 of Plaintiff's Complaint constitute a conclusion of law to which no response is required. To the extent a response is deemed to be required, said allegations are specifically denied. WHEREFORE, Defendants specifically deny all allegations made in the "WHEREFORE" clause to Count III of Plaintiff's Complaint, although no response is required as said allegations are not properly pleaded in paragraph form. In addition, Defendants respectfully request this Honorable Court to dismiss Count III Plaintiff's Complaint with prejudice and grant such other relief as is proper and just. NEW MATTER 34. Defendants' Answers to paragraphs 1 through 33 of Plaintiff's Complaint are incorporated herein by reference as though fully set forth. 35. On or about March 6, 2001, Defendant Corporation hired Barone's Handyman Service as a subcontractor, not as an employee. Defendant Corporation was dissatisfied with Barone's Handyman Service's schedule and the manner in which work was performed. As such, on or about March 12, 2001, Defendant Corporation offered to hire Plaintiff as an employee. Plaintiff accepted Defendant Corporation's offer on March 12, 2001. Neither Plaintiff nor Barone's Handyman Service was ever an employee of individual Defendant, Howard Detraglia. 36. On or about March 28, 2001, Plaintiff was terminated for cause for failing to heed orders to stop operating a backhoe that had a blown hydraulic hose. At the time, the backhoe was spilling oil onto the street and continued operation may have damaged the machine. Nevertheless, Plaintiff refused to stop the backhoe. ~, 37. Plaintiff initiated an action with Labor and Industry prior to Apri16, 2001, which was a regular payday of Defendant Corporation and would have been Plaintiffl s last payday. 38. After receiving notice of said action, Defendant Howard Detraglia spoke to Shirley Dauis, an Investigator with the Bureau of Labor Law Compliance, who instructed him not to issue Plaintiffs last paycheck until the matter was settled. Defendants acted in accordance with this instruction. 39. Defendants delivered Plaintiff's paycheck to Labor and Industry after the resolution of Plaintiff's complaint. It is believed and therefore averred that Plaintiff received said paycheck. 40. In or about February, 2001, Defendant Corporation entered into an oral contract with Barone's Handyman Service as an independent contractor (not an employee) on a time and materials basis. Per the agreement, Barone's Handyman Service was to be available "as needed" and was to be paid only for services actually rendered. There was absolutely no ninety (90) day commitment as part of the agreement. 41. Plaintiff s causes of action are barred by the statute of frauds. WHEREFORE, Defendants respectfully requests this Honorable Court to dismiss Plaintiff s Complaint with prejudice and grant all such other relief as is proper and just. Respectfully submitted, BUTLER LAW FIlZM Attorneys for Defendants By: Ronald D. Butler, Esquire I.D. #09826 Jana Butler Toole, Esquire I.D.#80574 500 North Third Street P.O. Box 1004 Harrisburg, PA 17108 (717} 236-1485 JOSEPH BARONE, : IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO.Ol-4279 HOWARD DETRAGLIA and, DETRAGLIA EXCAVATING, INC., Defendants :CIVIL ACTION -LAW CERTIFICATE OF SERVICE I, Jana Butler Toole, Esquire, hereby certify that on the, "~ day of August, 2001, I served a true and correct copy of the foregoing Answer and New Matter to Plaintiff's Complaint by depositing same in the United States Mail, postage prepaid in Harrisburg, Pennsylvania, addressed as follows: Joseph Barone c/o Richard C. Gaffney, Esquire 2120 Market Street Suite 101 Camp Hill, PA 17011 .--- ~- r ~ ~ ~ rv ~~ , a Q ~ ~/ ~._ Tana Bu r Toole, Esquire I.D. # 574 500 North Third Street P.O. Box 1004 Harrisburg, PA 17108 (717)236-1485 VERIFICATION I, Howard Detraglia, Plaintiff herein ,hereby certify that the facts set forth in the foregoing Answer and New Matter are true and correct according to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. v ,~ Howar etrag is Date: ~`~'~~` c~ ~ -• -- ~-~ ~, - -_ - =; -~ i; , - = ~~ __ • ~~ j .a ~ -c ~.` , JOSEPH BARONE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. HOWARD DETRAGLIA, and DETRAGLIA EXCAVATING, INC.: Defendants No. 01-4279 Civil Action -Law PLAINTIFF'S REPLY TO DEFENDANTS' ANSWER AND NEW MATTER AND NOW, comes the Plaintiff, Joseph Barone, by and through his attorneys, The Law Offices of Richard C. Gaffney, who files this Reply to Defendants' Answer and New Matter, the following of which is a statement: 34. The averments of paragraph 34 of Defendant's Answer and New Matter do not require a responsive pleading; however, to the extent that this Honorable Court may require a responsive pleading, the Plaintiff hereby incorporates herein by reference thereto the averments contained in paragraphs 1 through 33 of Plaintiff s Complaint. 35. Admitted in part and Denied in part. Plaintiff admits that on or about March 6, 2001, Detraglia Excavating, Inc. hired him as a subcontractor. Plaintiff admits that, at the request of Defendant corporation and by mutual consent, the terms of his engagement were changed on or after March 12, 2001 such that Plaintiff was then employed as an employee of Defendant corporation. Plaintiff admits that the individual defendant, Howazd Detraglia, did not employ him. Plaintiff specifically denies that Defendant corporation was -1- dissatisfied with his schedule or the manner in which the work was performed. To the contrary, at no time during his employment by Defendant corporation as either a subcontractor or as an employee did either defendant express dissatisfaction with Plaintiffl s schedule or the manner in which the work was performed. To the extent that either defendant implies that such was the reason for Plaintiffls change in status from a subcontractor to an employee, Plaintiff specifically denies the allegation or implicafion. 36. Denied. Plaintiff denies each and every allegation contained in paragraph 36 of Defendants' Answer and New Matter. Plaintiff specifically denies that he was terminated for cause for failing to heed orders to stop operating a backhoe. 37. Admitted in Part and Denied in Part. Plaintiff admits only so much of the allegations in paragraph 37 of Defendants' Answer and New Matter as that prior to Apri16, 2001 he filed a charge with the Commonwealth of Pennsylvania Department of Labor & Industry ("L&I"). By way of further Reply, Plaintiffls charge at L&I concerned a Prevailing Wage matter. To the extent that the allegations contained in paragraph 37 of Defendants' Answer and New Matter infer or imply that Plaintiff initiated an action concerning any other matters, including any matters alleged in the instant action, such inferences or implications are specifically denied. Plaintiff denies for want of -2- knowledge the other averments contained in pazagraph 37 of Defendants' Answer and New Matter. 38. Denied. Plaintiff denies for want of knowledge the averments contained in paragraph 38 of Defendants' Answer and New Matter. 39. Denied. Plaintiff denies for want of knowledge the averments contained in pazagraph 39 of Defendants' Answer and New Matter. By way of further Reply, Plaintiff acknowledges receipt of a settlement check from L&I, but Plaintiff denies that this constituted full, final and timely payment of wages owed to him by the Defendants. 40. Admitted in Part and Denied in Part. Plaintiff admits that in or about February 2001 Defendant corporation entered into a contract for services with Plaintiff, doing business as "Bazone's Handyman Service" as an independent contractor. Plaintiff specifically denies all other averments contained in pazagraph 40 of Defendants' Answer and New Matter. 41. Denied as a conclusion of law to which no responsive pleading is required. To the extent that a responsive pleading may be required, Plaintiff specifically denies that the statute of frauds bars his causes of action. To the contrary, Pennsylvania's statute of frauds applies to contracts for the sale of goods. The contract between the Plaintiff and the Defendant was for the performance of services and not for the sale of goods. Thus, the statute of frauds does not bar Plaintiff's contract claims. -3- WHEREFORE, Plaintiff respectfully requests that this Honorable Court Strike Off Defendant's New Matter or, in the alternative, Deny Defendants' request to dismiss with prejudice Plaintiff s Complaint. Respectfully Submitted, Law Offices of Richard C. Gaffney Richazd C. Gaffney, s e PA. Attorney I.D. No. 63313 2120 Mazket Street Suite 101 Camp Hill, PA 17011 Telephone: 717-975-903 3 -4- JOSEPH BARONE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. HOWARD DETRAGLIA, and DETRAGLIA EXCAVATING, INC.: Defendants No. 01-4279 Civil Action -Law CERTIFICATE OF SERVICE I, Richard C. Gaffney, Esquire, hereby certify that on the 12~ day of September, 2001, I served a true and correct copy of the foregoing document upon Plaintiff s counsel of record by depositing same in the United States First Class mail, postage prepaid, and addressed as follows: Ronald D. Butler, Esq. Butler Law Firm 500 North Third Street P.O. Box 1004 Harrisburg, PA 17108 -1~~ Richard .Gaffney,l* q. -5- ~, ~ t .~~. z, ? C,..., g..,~ X1.1.: ~~ .:: (,'`,, ~5~1 ,` j ~~ z r JOSEPH BARONE v. Plaintiff COMMONWEALTH OF PENNSYLVANIA CUMBERLAND COUNTY COURT OF COMMON PLEAS HOWARD DETRAGLIA and DETRAGLIA EXCAVATING, INC. Defendants To The Prothonotary: DOCKET NO.O1-4279 -CIVIL PRAECIPE TO SETTLE AND DISCONTINUE Pursuant to Pennsylvania Rule of Civil procedure No. 229, please mark the above- captioned action as settled and discontinued with prejudice. Respectfully submitted, SM[GEL, ANDERSON & SACKS, LLP Date: 06.30.03 ~- Richard C. Gaffney, Esquir Smigel, Anderson, & Sacks 4431 North Front Street Harrisburg, PA 17110 (717) 234.2401 Attorney for Plaintiff f r. <` (A S. w. ~ ~ `~ ' ~ t`" --i U ~, r ,, y- ~1 ~ .' n ti t~.i ~ '"O T ~'i , '~n - . ~'~ ~. -< ..::. r _{~ cy ~ ~- J' Fi .G -G --' -<