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Home My WebLink About01-04722 FURNLEY ENTERPRISES, INC., Plaintiff v. KINER'S EXCAVATING, INC., Defendant IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA n CIVIL ACTION -LAW NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 / (717) 249-3166 Dated: August 7, 2001 By: P ,ESQUIRE High Stre , PO Box 116 mon. P 17020 (717)834-30$7 Sup. Ct. ID#: 47624 Attorney for Plaintiff FURNLEY ENTERPRISES, INC., Plaintiff v. KINER'S EXCAVATING, INC., Defendant IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA NO. C'I- y7a~. CIVIL ACTION -LAW COMPLAINT 1. Plaintiff, Furnley Enterprises, Inc., is a Pennsylvania corporation with offices at 291 Sawmill Road, PO Box 69, Duncannon, Pennsylvania, 17020. 2. Defendant Kiner's Excavating, Inc., is a Pennsylvania corporation with offices at 1276 Armstrong Valley Road, Halifax, Pennsylvania, 17032. 3. Beginning on November 2, 2000, and continuing on a regular basis until December 12, 2000, Defendant purchased goods and merchandise from Plaintiff, in particular shale for delivery to a project in Cumberland County. 4. During the time the Defendant purchased this shale, Plaintiff maintained books of account, keeping an accurate and running account of all debits and credits for the sale of goods and merchandise to the Defendant. 5. On or about July 7, 2001, Plaintiff submitted Defendant a written account accurately showing all debits and credits for his transacfions with Defendant. A copy of the written account is attached as Exhibit A. 6. On that date, Defendant agreed with the Plaintiffthat the account was true and correct and that the Defendant was indebted to the Plaintiff in the sum of $12,286.64, the amount showing in the account as owing. 7. Although a demand has been made, Defendant has failed to pay any or all part of the sum :.~~.~ _ of $12,286.64. WHEREFORE, Plainfiffdemands judgment against Defendant for $12,286.64 with costs and interest from July 7, 2001. Jerry A. Philp ,Esquire Supreme C ID #47624 227 No. igh Street, PO ox 116 Dunc on, PA 17020 Att ey for plaintiff Dated: August 7, 2001 I verifythat the statements made in this Complaint are true and correct. I understand that false statementshereinace made subjectto thepenalties of 18 Pa.C.S.§4909, relatingto unswom falsification to authorities. FURNLEY ENTERPRISES, INC. 291 Sawnill Road P.O. Box 69 Duneannon„ PA 17020 (717)957-32b1 FX:(717)834-4429 '- , ~' Kiner Excavating 1276 Armstrong Valley Road Halilax, PA 17032 STATEMENT DATE: 7/ 7/01 ACCOUNT NUMBER: KINER PAGE 1 STATEMENT OF ACCOUNT ~s~~M~ws~sa~~~Ns 11/ 1/00 11/'6/00 11/27/00 11/29/00 12/ 6/00 12/ 7/00 12/ 8/00 12/ 8/00, 12/14/00 12!27/00 12/29/00 12/30/00 1/ 7/01 1/ 9/01 1/22/01 1/2'I/O1 2/ 2/Ol 3/ 6/OI 4/ 6/01 5/ b/ol OPENIN6.SALANCE 00990787 INVOICE 00990791 INVOICE 00990797 INVOICE 00990812 INVOICE 00990787 Faance Charges 0099D814 INVOICE 00990813 INVOICE 00990822 INVOICE Finance Charges Fiance Charges 00002531 Payment on account Finance Charges Finance Charge Finance Charges Finance Charge 00002587 Payment on Account Finance Charge Finance Charge Finance Charge CHARGES." PAYMENTS" ~ a ~ 98,000.00 98;000.00 450.00.. 4819.6.0.00 24,000.0'0 ' 72;960.00 406.25:: 73,3b5.25 720.00. `79;086,:25 487.5'0... ..,., 74,573.75 8,560.00 8'3'.133.T5 1,316.25 . 8!,450.00 14.40 '"' 84,464.40 360.00- 84;824.40 30,000.00 54,824.40 280.60 55,105.20 13.91 55.118.61 442.35 55,560.96 49,172.38 11,405.20 171.00 11,576.20 173,69 11,749.92 176.25 11,926.17 CONTINUED ON NEXT PAGE 1.51 Interest after 30 days. Plus all legal fees accumulated. f FURNLEY ENTERPRISES, INC. 291 Sawmill Road P.O. Box 69 Duncannon„ PA 17020 (717)957-3261 FX:(717)B34-4429 CONTINUED FAOM PRE1fI0US PAGE Kin®r Excavating 1276 Armstrong Vailey Road HaliLax, PA 17032 STATEMENT DATE: 7/ 7/01 ACCOUNT NUMBER: KINER PAGE 2 STATEMENT OP ACCOUNT ..=.:..a®o~s~~~:sue CHARGES PAYMENTS BALANCE 6/ 6/01 Finance Charges 178.89 12,105.06 7/ 7/01 Finance Charges 181.58 12,286.64 AMOUNT DUE: 512,286.64 Current 31 - 60 61 - 90 90+ TOTAL DUE 1~ ~~$ 176.25 li 1~~ 149.-~ ~~~ 1. Si Interest after 30 days. Plus all legal fees accumulated. r -- ~. -1 V ~\ 0 ~.. -~~ ~=, ~i ~ , <_ =' a~ !~('~ } (;; C -< ~-~ ~;~ I 1~ .w. ~r c~ ~L~ ,r =J'SYi v -< SHERIFF'S RETURN - OUT OF COUNTY .x CASE iVO; 2001-04722 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FURNLEY ENTERPRISES INC VS KINER'S EXCAVATING R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT KINER'S EXCAVATING INC to wit: but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within COMPLAINT & NOTICE On August 24th 2001 this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: So answe Docketing 18.00 Out of County 9.00 Surcharge 10.00 F~. Thomas K1' e Dep Dauphin Co 33.00 Sheriff of Cumberland County nn ,~.~~ 08/24/2001 JERRY PHILPOTT Sworn and subscribed to before me this ,~o d day of ~„~ 2vU~ An.D.-~" ~~,rt 1..t. f'GI.Opo_ , n 9h _ ~ Prothonota~y7-~ ~.~ _~ „. ~. Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania County of Dauphin FURiQLEY ENTERPRISES INC vs • KINER'S EXCAVATING INC J. Daniel Basile ChieY Deputy Michael W. Rinehart Assistant Chief Deputy Sheriff's Return No. 2237-T - - -2001 OTHER COUNTY NO. 01-4722 AND NOW: August 21, 2001 NOTICE & COMPLAINT KINER'S EXCAVATING INC at 8:30AM served the within upon by personally handing to LES KINER, PERSON IN CHARGE 1 true attested copy(ies) of the original NOTICE & COMPLAINT and making known to him/her the contents thereof at 1276 ARMSTRONG VALLEY RD. HALIFAX, PA 17032-0000 Sworn and subscribed to before me this 21ST day of AUGUST, 2001 s PROTHONOTARY So Answers, /~ ~j/ ly°i~~(~ U (/ Sheriff o Dauphin~COU]~ Pa. ~~..~ // BY ~~ Deputy Sheriff Sheriff's Costs: $33.00 PD 08/16/2001 RCPT NO 153202 PRYOR ~~~t~Q ~~ Q ~~P.rt.~f ~~ ~'he C®u~°fl ®~ C~~~~n Pleas ®f ~~am~erlar,ld C~u~ly, Pen~s~flva~aia Fernley Enterprises Inc. VS. Kiner's Excavating Inc. seine same 01 4722 civil No. _ Now, August 9, ..2001 , I, SHERIFF OF CUNff3ERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Ai'~idavit of SeTice Now, within upon at by handing to a 20, at o'cl®ck M. served the copy of the original and made known to the contents t1~:ereof. So answers, Sheriff of Sworn and subscribed before me this ~ day of , 20 COSTS SERVICE _ MILEAGE _ AFFIIsAVIT County, PA :-.?x9'! P r FURNLEY ENTERPRISES, INC., Plaintiff v. KINER'S EXCAVATING, INC., Defendant IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4722 CIVIL ACTION -LAW ANSWER TO COMPLAINT 1. Admitted. ~" ~~~"`T~Fr YOU ARE HERE6Y NgTI -IED TO PLEAD i'O TFiE ENCLOSED ~~~-2 1.`/ITHlN TWErlTY ~_'.C) DgYS FROM11 TH F_ 4JA7"E OF RVI HERE OR /: DE- 2. Admitted. EAU ~uoc- NT M -rvTEr<cD C' A1NST Y U. ATTOR+jS- -OR EFc.~~~w~ 3. Admitted. 4. The averments in Pazagraph 4 are denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment and strict proof thereof, if relevant, is demanded at the time of trial. 5. The averments of Paragraph 5 aze denied. To the contrary, Defendant never agreed to the interest rate as charged by the Plaintiff as is more fully set forth in New Matter. 6. The averments of Pazagraph 6 are denied. To the contrary, at no time did the Defendant agree with the Plaintiff that it was indebted to the Plaintiff in the sum of Twelve Thousand Two Hundred Eighty Six Dollars and 64/100 ($12,286.64). To the contrary, Defendant disputed the interest rate being chazged because it had never been agreed upon by the parties. By way of further pleading, the parties agreed that any amount left due and owing to the Defendant were represented by the retainage being held by the owner on the project referenced in Paragraph 3. 7. The averments of Paragraph 7 aze partially admitted and partially denied. It is admitted that Plaintiff has made demand upon the Defendant to pay the sums it claims are due and owing. To the contrary, however, it is denied that the sum being claimed by the Plaintiff is due and owing as is more fully set forth in New Matter. NEW MATTER 8. Defendant incorporates the averments set forth in Paragraphs 1 through 7 of the Answer as if more fully set forth herein. 9. Defendant never executed any document which obligated to pay an interest rate of 1.5% interest after thirty (30) days. 10. Defendant never signed an agreement obligating it to be responsible for any of Plaintiffs accumulated legal fees. 11. Plaintiff has sued Defendant on its book of accounts which book of accounts has taken into consideration interest being chazged at the rate of 1.5% and has included the interest in the charges against which credits have been applied. 12. Plaintiffs can only collect the legal rate of interest from the date the obligation became due. 13. The obligation, pursuant to the contract between Plaintiff and Defendant, became due thirty (30) days after invoicing. 14. Plaintiff can only collect the legal rate of interest of 6% simple interest from thirty (30) days from the date of each invoice which was issued in the matter. WHEREFORE, Defendant demands judgment in favor of the Defendant and against the Plaintiff together with cost. Respectfully submitted, P.O. Box 60457 Harrisburg, PA 17106-0457 Telephone: (717) 238-6570 Attorneys for Defendant 2320 North Second Street t') C .._ f~ ~-~ r C"? ri; 7 ~; ~`; . '~i~ia ~_ ~ •. J~ W ~~ ..1 s -~,+xr5t~wnE1`t%avt~~kt`~{kX%!E=.ti .ei+n. r~¢f~aa $3f FURNLEY ENTERPRISES, INC., Plaintiff v. KINER'S EXCAVATING, INC., Defendant 8. No response required. IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-4722 CIVIL ACTION -LAW REPLY 9. Denied, but admitted that defendant never executed any separate document specifically agreeingtopayl.5%interest. Defendantmadepartialpaymentsoninvoiceswhichbore the legend"1.5%interest after30 days".and neverpmtestedthe additionofinterest to his bills. 10. Denied, but admitted that defendant never executed any sepazate document specifically agreeing to payplaintiff s accumulated legal bills. Defendant made partial payments on invoices which bore the legend"1.5%interest after 30 days plus all legal fees accumulated" and never protested the charging of legal fees. 11. Admitted. 12. Denied both as a legal conclusion to which no response is required and as a factual averment. 13. Denied as stated, but admitted that the initial "Proposal and Contract" that plaintiff tendered on October 31, 2000, and that defendant accepted on November 1, 2000, stated: "Payment 30 days after billing". See Reply Exhibit A attached hereto and incorporated hereinbyreference. Subsequent deliveries ofshaleweremadepursuantto written orders from defendant. The initial invoice was onNovember 6, 2000 as stated on Plaintiff s Complaint Exhibit A. 14. Denied both as a legal conclusion to which no response is required and as a factual averment. However, assuming defendant's answer paragraph 14 to be an accurate statement, it should be noted that defendant had received invoices for delivery of shale totaling $83,730 as of December 14, 2000, and has paid only $74,172.38, leaving an unpaid balance of$9,557.62 on which the accumulated simple interest at 6% as of the date of this reply would be approximately $500, making the total balance even by defendant's calculations to be over $10,000. WHEREFORE, interest from July 7, 20~ Dated: October 18, 200 .~~~-b I verifythat the statements made inthis Reply to New Matter aretrue and correct. Iunderstand that false statements herein are made subject to thepenalties of 18 Pa.C.S.§4909, relating to unsworn falsification to authorities. r f :~ ~„,~~» SobmittedTo ~ ~ PLwe (~'' ~l ~!Gd Stioot Jab Name [`.w Cwea~d Tm- IG.. d Job LOCatioa 7 /mil/....~~. _ NmpldC la aoztdaoce with BhOYe WleCrfiWaOaa, ~umataed m 60 s4 W~ /ill 1tOdt ~ be OOIDpktOd ta~ Awhoe(md IaIta06~ BtiWdla$ 10 1Uadald l AYy ehetatim ~~{a11t1Ya~08~Y00i laVOlVla$e•1dta COii6 fYlll he taueeuted Only l iiJllha Ot~ and witl 6ecaate so extt8 C6afg0 over aad ehoYe the NUe. YIG Mt~ta~amggmtWauatnl~a,aOCiflmlaQdelsys6eyood .-~IYaLTagQj'BF:,mma(bteodat4rraetoasary ia6ataalL tart withdrawn lywlfq iGS ate Adb twretnd by Wadmam't Campantiw and Liebilily ~~ ... ., P~ ~ Tha illOUe pioFa, apeci5ndooY atd ooodidooa ate mld am hmdry aooepted. Yw ate atdhoriard W do the wodc ac tied. P~mem 1riLL 6e made o otgliwd abore. dAOxpanco: 1/-/ -' a. n Sires I~ mef' be wllhia 30 dtryt ~~ c. ~, G~ -- -„ -~ ~s; ,-, L_. ~ _ C ~ '= i.D . 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