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Home My WebLink About01-06898 :r~"'^'+"--- '.,-.~ ,~ THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 305 North Front Street P.O, Box 999 Harrisburg, PA 17108-0999 717/237-7132 Attorneys for Plaintiff Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.OI -IsPfl> (!;t)~CT~ CIVIL ACTION - LAW IAN SMITH, v. WAYNE'S JET SHOP, JURY TRIAL DEMANDED Defendant 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 Notice and Complaint are served, by entering a written appearance personally or by attorney and filing in writing with this 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 Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IIF 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 HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 ; -"':\f,~"__'" ""," h_..<c,"',."''''' __ '^" , ^~,__,,,_, "",7c~''',''''V.I>'-._,~. ","' "~-="0.~~--'i.'l~~ ,.",._,0,'.'.11__ ',,_'__~~"_C",,", ,'."_l'~"'o,,,. ",." ,'~~" "' '"._,T'<," .., -,. ..', I ,.-''0 "--'1 ~'{:e' -",,",,~ ,.'~ <' ~~..'" THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 717/237-7132 Attorneys for Plaintiff Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.OI-I..J'9J> do;C'-r~ IAN SMITH, v. CIVIL ACTION - LAW WAYNE B. FINNICLE tld/b/a WAYNE'S JET SHOP, Defendant COMPLAINT AND NOW, comes the Plaintiff, Ian Smith, and pleads the following causes of action: 1. The Plaintiff is Ian Smith, an adult individual, who resides at 1420 Ford Avenue, Harrisburg, Pennsylvania 17109, 2. The Defendant is Wayne B. Finnicle, tld/b/a Wayne's Jet Shop, a business that specializes in sales and service of boats and boating equipment. The business is located at 5253 East Simpson Street, Mechanicsburg, Pennsylvania 17055. 3. Mr. Smith is the owner of a 1973 Avenger jet boat, Hull Identification Number 3120, Registration Number PA 3656 DD. 4. On November 10, 2000, Mr. Smith took the 1973 Avenger jet boat to 5253 East Simpson Street, Mechanicsburg, Pennsylvania, as he had done in the past, to have the boat winterized, The boat motor had no freezing damage to it when it was dropped off. ..;-~Ji;l~, J:'".. . 5<'''~",;~"O:;;-.'''-l(:r~:~ ': '~""'''''''-''~~;;'.]r-':G;1;;'.~t~{'I'','''"p',;.,_"",":,_;" -n-\'.""<,,",~~,:' '",~~.' ".'_",_,_."". ,~",.,~~", " ~, _ "" ,._,~ , .' _ _ " "',' ,.' '_~" _~,">',. ,,_ _'" ,">-: -~, - -- --, ". _< "'-.~" "1" - .'-' . 5, Wayne's Jet Shop was notified by telephone that the boat was being dropped off. 6, The purpose for having the boat winterized is to prevent freezing damage to the motor. 7. Instead of promptly seeing that Mr. Smith's boat was winterized and protected from cold weather, the Defendant permitted the boat to sit on the lot until November 30, 2000, without taking proper precautions or care leading to extensive damage to motor. COUNT I - Nealiaence 8, Plaintiff hereby incorporates the allegations in Paragraphs 1-7 as if set forth at length. 9. The Defendant was negligent in regard to the care, custody and handling of the Plaintiff's jet boat in the following particulars: a, failing to promptly winterize the boat as the Defendant agreed to do; b. failing to place the boat in a climate controlled area while it was waiting to be winterized; c. failing to notify the Plaintiff that the winterization of the boat might not be completed before the onset of damaging cold weather; and d. taking on more work that the Defendant had the capacity to complete in a timely fashion. 10. The Defendant's negligence was the sole and proximate cause of the damage to the Plaintiff's jet boat. 11. As a result of the negligence of the Defendant, the Plaintiff incurred damages to his boat motor in the amount of $4558,74. 12. As a result of the Defendant's negligence, the Plaintiff also incurred miscellaneous damages in the amount of $103.54. 2 :;;,~"" ';'.p"'~ '.^<-~_"f"\,?"O~~'''''''-''''''!'Y-'-'\i""!.'''!..,,,..,'''!O-f'''''-;.^,.'',''~1~:-I',__''1,. 1-'" .',-."", =,. if. ' ,. "'.""- ""'''"'"''''''',-'',,'' .,\!, ,,_-,),,~,", ,.~-, ".'.' . '''" '.,", ~^" ."'. . _~" '"~" ~,~ .'."><.~.,,". ,',." . -' , ~ :~ ^ -~ WHEREFORE, the Plaintiff respectfully requests that judgment be entered against the Defendant in the amount of $4,662.28. COUNT II - Breach of Contract 13. Plaintiff hereby incorporates the allegations in Paragraphs 1-12 as if set forth at length. 14. On or before November 10, 2000, the parties entered into a verbal contract whereby the Defendant agreed to, in a timely fashion, winterize the Plaintiff's boat which is a necessary service for such boats to protect the engine on the craft from freezing damage. In return, the Plaintiff agreed to deliver the boat to the Defendant's business premises and pay for the winterization when it was completed. 15. The parties had entered into other similar contractual agreements for service work in the past. 16. The Plaintiff completed all of his duties and obligations pursuant to the parties' oral agreement and delivered the boat to the Defendant's business premises on November 10, 2000. There was no freezing damage to the boat motor when it was dropped off. 17, The Defendant materially breached the parties' verbal contract to winterize the 1973 Avenger jet boat by failing to winterize the boat promptly so as to avoid damage caused by freezing temperatures, 18. The very reason that the boat was taken to the Defendant for service was to avoid the damage which was actually sustained to the boat motor. As such, the Defendant's breach of contract goes to the very essence of the parties' agreement. 19. As a proximate result of the Defendant's breach of contract, the Plaintiff sustained damages in the amount of $4, 662.28. 3 -k~ '--', .0" .~<o ^,.'~~p'~ ~_/~"X"""'~f!;Or, -,;,,~-:<~ .'C',,-::_.~'",'I~_'^ I"~, ,o,<~__ '+?":",1' 1 ,~ ,,' ,-,",- fi ':'~''',,;1' ;'~',\Y::c,~'~',''':'._.'. :'-.< - ," .,..,~'<-. ,." C' ,,',,' ".0,' 1- ,,~.. . , --t' ~.~'"'_' .v~~~" WHEREFORE, Plaintiff respectfully requests that judgment be entered against the Defendant in the amount of $4,662.28, COUNT 11I- Unfair Trade Practices and Consumer Protection Law 20, Plaintiff hereby incorporates the allegations in Paragraphs 1-19 as if set forth at length. 21. Notwithstanding the fact that the Defendant did not promptly winterize the Plaintiff's boat, the Defendant performed needless service work, billed the Plaintiff for said work and then wrote a disclaimer on the invoice stating that the damage was the Plaintiffs responsibility and was incurred prior to the boat having been dropped off on the Defendant's premises, A copy of the invoice is attached hereto and marked Exhibit "A." 22, The Defendant made the Plaintiff pay for the needless service work before he would release the boat to the Plaintiff. 23. The Defendant made material misrepresentations in conjunction with this transaction including: a. that the boat was dropped off after the first freeze; b. that the boat was dropped off on November 17, 2000; c. that the boat motor was damaged before it was brought to the Defendant's premises; d, that the Defendant was not responsible for the engine and pump freezing. 24. Each of these misrepresentations was made with knowledge of the true facts of the matter and in an attempt to avoid responsibility for the damage to the boat motor. 25. The Defendant's misrepresentations, disclaimer of responsibility and billing for unnecessary services constitutes violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law. 4 ~r:-:~~jf."~,.,.,~"",-"",.;,,.:-!~;:,,,. --;\,:"~~~.,,,~_~,.q..,",,,>ry,,".'::__5,'>~i-'!'>.~,,"'1'.;'<j1I"!,i';"~' ,..," "","'~C.i',r'."'.;" ~,V-__,,' ,_,. ~".',~,,'" ."'., ,""" _'" ,'." "i.- ',_"__ _ ,~.'''' ,,~r __,'" _"'__ .t~,,":l- "c'>, ,- , ~'^ ""', - "... ik~ '-,,"- ,"" "-",,, , ,~" .-,-- WHEREFORE, Plaintiff respectfully requests that judgment be entered in his favor for treble damages, counsel fees and costs as may be determined by the Court. Respectfully submitted, DATE:(") /}--/ 0 I THOMAS, THOMAS & HAFER, LLP By iCWiY)~ Kevin C. McNamara, Esquire 1.0.#72668 305 North Front Street P.O. 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"'"l :!: ~ 1"T'l, - z ~ c ~ s:: <Xl !:at, N "":>" V-, , , -z. ~ -<::. 0\ I f'J '" ::."'''" ,p_ w,- "' VERIFICATION I, IAN SMITH, have read the foregoing COMPLAINT which has been drafted by my counsel. The factual statements contained therein are known by me and are true and correct to the best of my knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa.C.SA ~ 4904 relating to unsworn falsification to authorities, which provides that, if I knowingly make false averments, I may be subject to criminal penalties. ,Lit!! lanSmitn DATE: :10850.1 ) o;--~, ~,". -'--"-':";'--~',Z')fo__ o/';"'-",'''~ "'"_~"_,,">~,,,~.~,;'_':~_7 ,,_,," '~~c"',"d,:,,-'r!"; _',',-' --,'"'_ _",,,,~,' _"1 "-__,~,, ,,~_,. ","' ,',"~r"_",,1,~,,_"r.e:,_" "" e"-,,, _-,_~'"' no,_,_' 0" " ^,~"__,,._ [._ .. ,_, __ , ,'" ,', ,~ ,-"'1- L ~ rt_^ ,_."l~' - .~^" _~ ._".",~",<,,,-(',~.__,JJ__. J~,:: ..J ~, ,~'~,- 'c" "",, ,on. 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" '-; -' (,0 ::.J ~ , --< " _ _~~ _~__~ "__~,..:,t~~".:, ~_t~~m~"~i\~-1l'ql~~~~,~,__J.",,~4!,"!'>l~~~~: SHERIFF'S RETURN - REGULAR Cl,SE NO: 2001-06898 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SMITH IAN VS FINNICLE WAYNE B T/D/B/A WAYNE JASON VIORAL , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon FINNICLE WAYNE B T/D/B/A WAYNE'S JET SHOP the DEFENDANT , at 1452:00 HOURS, on the 12th day of December, 2001 at 1001 NANROC DRIVE APT 13 MECHANICSBURG, PA 17055 by handing to WAYNE FINNICLE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 7.80 .00 10.00 .00 35.80 r~~-~~ R. Thomas Kline 12/13/2001 THOMAS THOMAS HAFER Sworn and Subscribed to before me this I ~~ of BY:_. /~ ~epu,y Sheriff A.D. ,7~~.< 'c. ",""~,._~.,.~_..l.._ <_ " r ~ '- - , ". I '~"""""""'~'-"\l~'~_,""'~ ~ ',- ""'~'~ --~ Andrew C. Sheely, Esq4ire 127 S. Market Street P.O. Box 95 Mechanicsburg, PA 17055 PA ID NO. 62469 717-697-7050 Attorney for Defendant IAN SMITH, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. 01-6898 civil Term WAYNE B. FENICLB, trading as and doing business as WAYNE'S JET SHOP, CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO: IAN SMITH, Plaintiff THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire P.o. Box 999 305 North Front Street Harrisburg, PA 17108-0999 You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. DATE: December 31, 2001 ndrew C. S eel PA ID # 62469 Attorney for Defendant Wayne's Jet Shop 127 S. Market Street P.O. Box 95 Mechanicsburg, PA 17055 717-697-7050 717-697-7065 (fax) f~.__Ji.l: , ""Or "'_",:,_ i'",,-,,",_v--- . "-'-," .,_,__",1_','0'_, c. I : "j,",_",-."" ~-,,_"~, !"'t,~-_,,. -'"Yf-U-,,. "'"'C": ," . , r ~'"" ,~.~ "~ Andrew c. Sheely, Esquire 127 S. Market street P.O. Box 95 Mechanicsburg, FA 17055 FA ID NO. 62469 717-697-7050 Attorney for Defendant IAN SMITH, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. : 01-6898 civil Term WAYNE B. FENICLE, trading as and doing business as WAYNE'S JET SHOP, CIVIL ACTION - LAW JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANT WAYNE'S JET SHOP TO PLAINTIFF'S COMPLAINT Defendant, Wayne B. Fenicle, trading and doing business as Wayne's Jet Shop, by and through counsel of Andrew C. Sheely, Esquire, hereby files these preliminary Objections pursuant to Pa. R.C.P. No. 1028 (a) to the Complaint filed by Plaintiff, and respectfully states as follows: 1. Plaintiffs commenced the above-captioned matter on or about December 5, 2001. 2. Defendant Wayne B. Fenicle, trading and doing business as Wayne's Jet Shop, was served with a true and correct copy of the complaint on or about December 12, 2001. I. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER PURSUANT TO Pa.R.C.P. l028(a)(4) 3. paragraphs 1 - 2 are incorporated herein as if set forth at length. "3".,~,I.,__", "',~"'~'.~:"-::':":.~,!.~r'" ~,'"'-""" -<: ',"" --1',," _"',..<,"., ,_(~,,' 'c,,~___N ,,_ "-e'"\z-'-, ~__ cO ".' - ..,.,,- II'!I L_.-___. ";~::'r ';-:'t:' '-'.('1 '~- ~ ,^ 4. Count III of Plaintiff's Complaint is captioned Unfair Trade Practices. 5. The underlying source of Plaintiff's claims arise from an alleged bailment involving a recreational boat and a commercial business relationship between Plaintiff and Defendant. 6. The allegations of Plaintiff's Complaint fail to meet the threshold definitions of "trade", "commerce", "unfair methods of competition" or "unfair or deceptive acts or practices" as such are defined by the applicable statute, namely 73 P.S. 201-2, et seq., more commonly referred to as the pennsylvania Unfair Trade Practices Act and Consumer Protection Law. 7. Plaintiff is not a person who is entitled to bring a private cause of action under any provision of the Unfair Trade Practices and Consumer Protection Law. 8. The alleged services in the underlying Complaint are not services protected by the Unfair Trade Practices and Consumer Protection Law. 9. No cause of action exists based upon the allegations in the underlying complaint for violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law. WHEREFORE, Defendant Wayne B. Fenicle, trading and doing business as Wayne's Jet Shop, respectfully requests that this Honorable Court dismiss Count III of Plaintiff's Complaint, or in the alternative, require that Plaintiff file an amended pleading 2 ",1" ,^\"",,^~,_ "~'_,j,:;;""'",',,,,,~ ^';-"," !-"'--""'''''''l'',",,',;~,'','' f". ""d~"""",~,;."",,~~",o ',". ,.'" "-~~_'-ro;" " " - " ;~ -':,;;'-0 i'^~'ij ,,; ~ ,- to set forth sufficient factual averments which would support the theory of liability as sought in Count III of Plaintiffs' complaint. II. PRELIMINARY OBJECTION IN THE NATURE OF MOTION TO STRIKE FOR LACK OF CONFORMITY TO LAW OR RULE OF COURT PURSUANT TO Pa.R.C.P. l028{a)(2) 10. paragraphs 1 - 9 are incorporated herein as if set forth at length. 11. paragraph 21 of Plaintiff's Complaint references a certain exhibit attached to plaintiff's Complaint as Exhibit nAn. 12. Plaintiff's Complaint inappropriately attempts to introduce evidentiary documents which are not admissions or statements of fact which support any written agreement of either party or in support of Plaintiff's claim for breach of a bailment agreement. 13. Exhibit nA" attached to Plaintiff's Complaint is not an invoice prepared by Defendant but apparently evidence of alleged damages incurred by Plaintiff. WHEREFORE, Defendant wayne B. Fenicle, trading and doing business as wayne's Jet Shop, respectfully requests that this Honorable Court direct Plaintiffs to file an amended pleading, or in the alternative, strike the evidentiary exhibit in its entirety from the Complaint. 3 < . --~, . "~.,,., - ", "'~,"~"'''~:'C''i'',' ",;"",." :,,~ ,,~,-'P n" -- '" ":'C; "," 'PI''':' ,'I '''I'~'''- f:' "~,,~,,_-,,,~,___ , --"f-,' -- ", ~--'" , II!l!!I ~-i,";F" ,. -^'~ ' -^,,-- Date: December 31, 2001 --\"'I,W,__~r ,,,.-r'J,""""":.~"~~___-''' t,.,:;-.~" "_.;.."~::!"'~"''1',, ."" ""IY~'"_:('^;__ ,r__-,_,_,__ _, _,,_'0 ",,1- ":,t--;'1-<',"- ' Respectfully submitted, Andrew C. Sheely, PA ID # 62469 Attorney for Defendant Wayne B. Fenic1e, trading and doing business as wayne's Jet Shop 127 S. Market Street P.O. Box 95 Mechanicsburg, PA 17055 717-697-7050 717-697-7065 (fax) 4 , , " ~,;.-,-,,,.._-^^,..~,,,~." -,~"~ VERIFICATION I verify that the statements made in these preliminary Objections are true and correct. I understand that unsworn statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. DATE: December 31, 2001 as i, '-;'We:1;::, -,,~ ',~ ,~.,. c_ ,~'" 'co'''' ... .~,i<' .~".;'?, ":__:'.','ti, -'"'""'"1","-"" ,,>,;,,_'j.,._. ,',,,",,,',__ ''t'f'', '"-'1:y., ";~".~ _'."~;.__,',1!',"," - " l' ~~ '~.' CERTIFICATE OF SERVICE I, Andrew C. Sheely, Esquire, hereby certify that I am this day serving the foregoing Defendant's preliminary Objections to Plaintiff's Complaint upon the following named individual this day by depositing same in the United States Mail, First Class, postage prepaid, at Mechanicsburg, pennsylvania, addressed as follows: THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire P.O. Box 999 305 North Front Street Harrisburg, PA 17108-0999 Date: December 31 , 2001 ~ e ':;~~l)., <, '~"" """,oe,,,,:., :,;.,-;,.~.",. _'C', - ,.,,,.q,,~',cL-'c d',>>',-">,".';r.. ',ie' .. ____, "t'., ,_','.' '" .... 'CA."",;" ",. .C" ~ .~[, -,,' ""~ ',.", "' ~ ,a^, ,""" N'~'='=,',,- ,"."."~,,,,,.,~ ~ ~,~7'\." "_'_, _ " ~lI,i\i;:!Uijlll'4'ljm] "I"",:;,,", , ,~'."..,,'- ~~~~~~~'~I<w~,"ft!--l~_ 'h ,.',. '",,,,,,,,me' , -"'i1ii.TIlr')" 0 C) (;> C -1ft,' C? ,n ri,,,, CO<) , , ~~~) Ge) ~i-j i ,'~~ -"'! \:~'::'~:; ):; -, :A: ~>"f~ Z'" ..-:::C) r:? 0\" rc:: .-1 ~ ~~ .::> ?~ ..v C) -< Wi f_.JH~.rw~!~~1'j~~m~~~ u,,-~~~., <"" ,="^ . , THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 717/237-7132 Attorneys for Plaintiff Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-6898 IAN SMITH, v. CIVIL ACTION - LAW WAYNE B. FINNICLE lId/b/a WAYNE'S JET SHOP, Defendant PLAINTIFF'S RESPONSE TO PRELIMINARY OBJECTIONS OF DEFENDANT AND NOW, comes the Plaintiff, Ian Smith, and responds to Defendant's Preliminary Objections as follows: 1. Admitted. 2. Admitted. I. PRELIMINARY OBJECTIONS IN THE NATURE OF A DEMURRER PURSUANT TO PA.R.C.P.1028Ia1l41 3. Plaintiff hereby incorporates his answers to Paragraphs 1 and 2 above as if fully set forth herein. 4, Admitted. 5. Admitted with qualification. The claim arises from a consumer transaction wherein the Plaintiff contracted with the Defendant to perform certain services on his boat. :''-'~~J;,'' """~7_~._;y~""'~"__,,,.-,,_;. ,c,~"':,F7~,"_ -YY"'T. '.~ __:"'_' I'" ,'~"',' ',,<?_~,~, ".')'j "?''>'' '__', ','_,__ ." - -, ",'_'~:"" ,~,.." .__'. -'_',^~',"'''' ,,' "',-,1" ""~ ,_.~..>'''__' ",..",_' :w'""~"~' ".- ;",. "k" ." ' 6. Denied. The allegations in the Complaint fall directly within the definitions of "trade", "commerce" and "unfair or deceptive acts or practices." 7, Denied. Private actions are expressly permitted pursuant to 73 P.S. ~ 201-9.2. 8. Denied, The services set forth in Plaintiff's Complaint and the conduct of the Defendant in regard to the transaction with the Plaintiff are expressly protected by the Unfair Trade Practices and Consumer Protection Law. 9, Denied. WHEREFORE, Plaintiff respectfully requests that Defendant's Preliminary Objection in the Nature of a Demurrer to Count III of the Complaint be overruled. II. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO ST~IKE FOR LACK OF CONFORMITY TO LAW OR RULE OF COURT PURSUANT TO PA.R.C.P. 1028Ia)(2) 10. Plaintiff hereby incorporates his answers to Paragraphs 1 and 9 above as if fully set forth herein. 11. Admitted, except that the wrong invoice was inadvertently attached to the Complaint as Exhibit "A". The correct invoice is attached hereto as Exhibit "A." 12. Denied. Plaintiff's counsel simply made a mistake in attaching the wrong invoice to the Complaint. 13. Admitted. By way of further answer, the correct invoice has been substituted by Praecipe mooting this Preliminary Objection. 2 "');'""'7"_"'''''''' ''--:~'''.J' _"~l~f~,.'_"--C >A"'-'~,'~'_ "_.'~' J" '1'''"'", ~ ."r,",~,',<, ,__ ':. <-. ,..,!-~~ '"c,",~"-,,,,"",-~,",,.' "~_~~..~'" _ ,<__.; , ~,-- -. " ,'" .." " ,., ~ . -,~~ ...., WHEREFORE, Plaintiff respectfully requests that the Defendant's Preliminary Objection in the Nature of a Motion to Strike be overruled for mootness. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP i ~. (_ <:... /) By: K:... 1"111 r ~~<l Kevin C. McNamara, Esquire 1.0.#72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 Attorneys for Plaintiff DATE: I / ~ (0 J.- 3 "~'''! ''i.e. '''''',,"~;,,,,,. ",,"'> ,f!'"f;-~""~,,~,'O','"W",9'""'''''J',-,',, +"'i."_.p=P ", ". - ~.. ,., " -' "- ',;~ -'" .~" ''f ','~,"1: ~',.,,,__ ". ,_~ - _ .,.,.,..-, '. -'.," ,~__ < '." - - "~I,'_"-' - , " "~~ P/"'-' 'J , ~ ,~ ~ l'.."" ~~ z ''\ ~~ ~ " w a " a -' W <( !< ~ :;; W i= ~ t3 00 >- I- Z -' <( <E ~ tii <( a: " ~O 00 r-- C\J o ..-'r~.!il!IJ'1_~).' I '\:j..' Cl \J I- a W <J " z w C . . . ::> w ,,'" W W 0 " ~r0 > > W :;; ~ . 0 . . ~ " . 0 a a I <( W i!:!......~ . 0 0 a: (.I; " z z 0 a ~'" 11 " " I- < . . . " (f) a f, w W 0 " 0 '0 w m c c <:l ~ . "" ,I it' ,.. i:5' .... il ~w/,,' ~ W W Z Z ~ 5~' ffi ~ ~<~ ~ z W W i 0 0 , z z " " < < . . W W m m ~ a: 0 S u.. ; " 0 '~ W 0 Z a a z 0 k . z ~ 0 t= < ~ " ~...,.... < "- . " 0:__ \i.) W c ~ z m <.l ffi ffi en 1\\ z W " W 0 "- , ,~ 0 . z , > ~ ~ W . ... " " - \ W ~ V. a 0 w ~ S ,~ W cO " . ~ - ~~m ~, c w u m ~~5 m 0 W 0 < W " ~ 0 z t:ww . a " ~ zm" < ~ u . z I- Z ::> 0 :;; <( ~m <Om 11. "'0 00::1' ~..... :t: 'i "'"" VI !O::~ ... in ci'l t.I.I cc:.... ... o;:)CII VI lim '" .., EU'lr:; b! .-u""", Z<J:lz.... >- "<- < "":c "" <'lu ... U>uJ 1tJ~ z o t= "- 0: <.l en w o "0 ~ " ci z, i:i:' <( "- ~ o ,,_" ..it;__,_ '0 ^__,r"'.,.__' "'''''1" . . \J " ~ \"'" - I,') '~ ( ." !\J ~ '" ~\! [~ t~ \ 'Vi ". Ii 1\" . . \.. <:;;;j-; " \,\ '<. \. ~l.~ ~ ;Z..~~ '-., "\. . ~ ~ '\ ' Iv \) - 'Qf:~ ) ,'i i'\J ~. .. >.:0 'I \" '<.{. ,\\ ,'Y "':'; Sl{ \\i.. '\.;\< '\{ k~ ~ ~ 51) ,s>' ~~"":2 :\\~~' .....,: ',,' "" . i ,I. _" i ::: PLAINTIFF'S I EXHIBIT i -1L- .~ ~, c I ~\ \) k :) \J .~ \1\ r( . . ~'~I'" ." '~ NJ (~Y\ \", l 1\.:) ~ ~ \~) ~J .Q'~ ,"~ ,. \ 1..\ " " '-..... ! ''',~' . "., . 1 "M ~,,- '" ~~1 , IS-- )\n If l ,a: o OJ :s . I 1\1\1 l~ I I I , I i 1''') 0'1 ,~ oc g X en ..J en en w. ~ <( ~ I- a: >~ CD a: ~, <( ~~ 0 <( "- >-: I- "- w o. OJ ..J a: 0 :0 g W zl- en 0 o~ Cii zq I- ~~ I- S~ ::> 0 OZ 0 i: ..J <( fb I' I- -5SCim~o~~ .~ e.....!!!......: III E C1~~ St~~~*~ I:: O.c:: III (.) .- l:: e ~~~~~~~.-.g ~E~.:.:2m.2.~~ .g gj ,-.~~:5:g~ is OJ 0 >,l::"'CI:::l U >. ~.Q~~~.9~~~ B~!;'g III Ei ~;;'5 g, ~ w C~.c WS;::. 111 Ci...$Wlll"'gW.....c ~:::ltO~!:;:JOl<D~ -= g,~ ~ Cl liS~:l:: ffi ~:g ~a[lro~o ~ p; to c t::.g.!!1 6 wl Ql g o.Q.9!':; III III 0 E;>--o~gd3~>, .g~l: ~~]!::.!: ffi ~.~.5.!; ~~.Q.-,6 ....$:B ciilll....!!"2, tIl ffl CIl"C.!:.- .~~;:J ~ 'J:: E 1::1ii c:: to t: Ql:!::! ~ C:'.ffiS!~ lF8...s'E iii '5~liio~lIl.::lll;::.8 0 III 1Il.J:: III U 0 '-:!:: liJ >,~:!:: w.E'E"C 3:; lu !:::! ~~~R~g~o~ ~ lD Ql Q) ~ lD E w Q.l ~ ..l:-5:5'c.E tIl.cS::: <t u Ii < o < I- ~ Ii) o . < W ~ C o z o o ~ z ~ o u W . " " ~""""""'" -:]1""'-'-' -., . CERTIFICATE OF SERVICE I, Kevin C. McNamara, Esquire, hereby certify that I have served a true and correct copy of the foregoing RESPONSE TO PRELIMINARY OBJECTIONS on the following persons by placing a copy of the same in the United States mail, first class mail, directed to their office addresses as follows: Andrew C. Sheely, Esquire 127 South Market Street P.O. Box 95 Mechanicsburg, PA 17055 THOMAS, THOMAS & HAFER, LLP By:LC~h1~I~ Kevin C. McNamara, Esquire DATE: ~ '14/0,)..- :153644.1 '-'1',"'i5 -, < '~'-" ,r" "'_~"\<O" t~ ''l'y[f,,''''''-'hT:'''" -~",__, " ,-, ~5.J, 'J'" ,""" 'C',,--""',' .'1 ' -."__"""'~' " , ,. ,c';,,_.,._ _ __' "'~_U ',',-~ '-.~.'.~ _', ,.....", e'.c-_.,"~ " ' , ~___ f" ,~- -- , -- -"---" ---', -"- ~ . ~"~,, ,-- O"~"',--.~"C ","N'-" -.".,.,"',';,,- ~,'..", V,,~, ."'~ ><~~---"'..1]1 L ""<, (") C) ,- ) C ,~ :.=> ~-:: (~ ~~IJ :.~~ "'^JoO ,"""- o._oJ ~ , ) ?~ , , "":::. C) 5> ~' J:- Z :::> =<1 , 0 '-:5 Sf! ~!t~"l'- ,~ ~, ~,_ ,~'" ^, ,___~~~~:~W.~~f~~$l;~f."",",,?~~~__=,~~.~.~~~~~~~,~fl~~~~: ~- - ~, THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 717/237-7132 Attorneys for Plaintiff Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-6898 IAN SMITH, v. CIVIL ACTION - LAW WAYNE B. FINNICLE tid/b/a WAYNE'S JET SHOP, Defendant PLAINTIFF'S PRAECIPE TO SUBSTITUTE EXHIBIT "An TO PLAINTIFF'S COMPLAINT Please replace Exhibit "A" attached to Plaintiff's Complaint filed on December 5, 2001, with the Exhibit "A" which is attached hereto. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By iC,vYl'Y7~ Kevin C. McNamara, Esquire I.D.#72668 305 North Front Street P,O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 DATE: I (tf / (J,) Attorneys for Plaintiff "~~J~_.~,., "'c/Yt,'t.":.-?~:.,-,?",,~ /~'"',,,,",~<~,,,' - -".,.:;.-,q:"k]"'i"";", 0",' -'\..,".', ',r"",,,,~-,)< ---""-,,,~,,,"j~"''1!!':~"'-,, "~,,t "'."'1. ".~ -'_.,., . ~" ", l' ,-~ ,,~,' '-' -, ",<" ., - "--- ' '11 \ ~ . ?:- i\~ <" oG ~, ,,' Q W <;J I- W ~<;) --'\, m " N Z . . => Q ~fY) W W I'f) ~> rr > > W 0 \! " o I " " '" ::;; ~/ ~ rfI W ~~ ~ 0 0 <( ~ < 0 0 a: <( .~ i~ Q o N z z 0 (.II " " < I- " r" " ii' en , . ~ <:l W W 0 m m D rr ~ \,~ 't) ( <:) '- . f\ "' { N :{ 0: m m w~ ..J g m ..I . r-... 0 I- 0: "" f'l: <( ~ . ~ 'i' (~ ~ al 0: ;;;: uJ~ 0 Cl rr \) :5 <( W a. o_ f-; 0 0 ~ \ w;::-'" " \\1 w D~ rr . al I- 0 ~ S w w ~ ..J ..J 0: D 0"- z z '. ~ k ~ f'l: w => ~~ a a II- m m z z \,'" 0 0 ,,=> --' W w w '~ :) I- ~ z<;> <( !;;: 0 0 . \.,. (\ ,,~ Z z z i~ \) :5:;> " " => a: '" < < '., 0 D" w F ii' ii' I- w w ~ k 1 D ;;; en m m W ,~ D D EfaS815gi'&5 '" ~ ~\ 3:lDlD'- =(f.IE i':: 0: ~ ~ ~. . ~g-Q>~~~~~-' 0 ~ ~;>.~ l: al5'2.5g Z S --' <( '\.... <<l w<( (I) >oed c " a: '~ " L1. " ~E~~0105i8 a: w 0 o (/) lJ).... '-'Q)"- Iii 0 0 ~ ~ 1J $ o'l:~:E'2=R 5 <( \" 0 z Z .'. a: ;;; , ,\{) '." Q) >- E':::I"O:::I U >- . z 0 ~ , .0.2 ~ g Q) o:tl-o ~D '-. < 0 F il> '" .s ~alta ~t):E "5 < ~ .. ~ I\J i . rr a. ;) ..:r: Q) ~ ~~ ffi 0'$ if> ~ w " 0: III t\\ \\ z m .<,-~ ~, I '. .~ o5ro~a:l-g;-5.o a a u ~ 3; 0 ~= l::;:J OJ .<ll Z W .!::: >- ~ 0 0 Wl!:! ~ \, w rr m ~ ,~J '\. i ~1J~..."O~~~l13 CO W 0 "- X ~ ~ l l.l!ffimo_~~1Jo:: r- 0 \", llli5 5.~&!; 0 Q)~ C\J " z , ~ ~ 6>- 13;;. gJ (I) 0 ~ ~ '~ .0 ,iQ)ooo~>- 0 ~ 1\) ,~ :.;€ ~~~~.5 ffi - k ~ -5~ lil'-.<<l~-;;;20 " ~) w > ~ ~ ~1U~~.!Q~;g'5 ~ 0 rr ~ 0 w ~ ',- 'I:': E l: ti C:'ffi fI) ,52 ~ ~ w ,~ ~. ~ 'Q,( ~ ~'ffi$.!!1 0-5 0)'5 > < w .0 \ ;:J <<l Qi'+- - ~ 0.5 c: < w , r-- <<l~;;: o_~..... 'ill;;: 8 0 Ii o " '-, ~ 0:: E'~~ lfl'c;~~j ID w wWm '- N W 0 w o:Qw ~ '", l!:: ~ 3 8.~ 3m...:5 ii' 0 < ~ffi@ , 0 . r: 0 z ~Q)Q)5~~~om z < ~ ~ '- 5 z u zwrr ---- _=-5 a.E Cll.o.5 3: < I- Z => 0 :;; <( ...mmm.m ,mm .mmm....m .m............ ......... ........ ....-..... ............ ............ ............. ........m. ............ .......~... . '.::'U'l a.,Gl8 00:... ..... '..... ............ .m ......,............ ............ ............ .......... ............. ............ ............ ........... ~.... Xi) p4 z , m en .tf; 0 l- f" 0: tilflci'. . <( a. - a. ...t::jJ;: 0: ..J :1:.. u , f'l: .. ,..., m . i.I E0", w - .- " 0 ._(J 0 I- Zcn-.9'"t '0 >.~t::. c - '" Iii CUJ::t 0 0 '" ~ "'0 z .'- " U'lllJ . w I- z &i::!! 0: to <( z a. 0 0 w 0 z \;; ~ 0 0 w 0 w " " '<'iit' ;~' "'."'7'",",,",8, ',,,,,,,, '_u r" '" Ie' . , ~ " 1 . -, CERTIFICATE OF SERVICE I, Kevin C. McNamara, Esquire, hereby certify that I have served a true and correct copy of the foregoing PRAECIPE on the following persons by placing a copy of the same in the United States mail, first class mail, directed to their office addresses as follows: Andrew C. Sheely, Esquire 127 South Market Street P,O. Box 95 Mechanicsburg, PA 17055 THOMAS, THOMAS & HAFER, LLP By: i c- yYl Y.)o~~ Kevin C. McNamara, Esquire DATE: tfC(;b;) :153722,1 f''\\ '1' ~r~ ,'~",," "--'J~""'.~-- ",,~.,--,,- ./-'C':';''''.' "'r'--.',.. "'_"'11/'.-','" ,- ,"_'"_-~,Jo" __'~."'~-" f", _","V,~~",,' _, "'~ .. -_,. ,.~;-~".,~ , ~. , - 'I " '~--:""',"r, ._,,<,;~', T,")j.":_~ ~,-", ,~ ~',..~ ~'N'~"- ""-.i;_"-~,,,,,,'_ ';''''''''-,C'^ - , , ;... "t "",'-'l~YTur;~-"Y~.:r~' j~>~';' .- (') C~) C f"..; :s:: \<,.~ "1 C~: :~... (1"1 U ;;;:~ ~ ~, t -7 . . ""- U, ~_! -< c:= " ?Z c::; :;;. c ","' c ~} Z --I :tl -<. ,,'..) -c g> BH ~~.~f;'.!I'Mff"~1:f,"_",__:.~"J~~,:),_~t;".,;,"''f~~tIi~~' "~'^..o c PRAECIPE FOR LIST;NG CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. -------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) IAN SMITH (Plaintiff) vs, WAYNE B. FENICLE, t/d/b/a WAYNE'S JET SHOP (Defendant) No. 01-6898 Civil Action 2002 1. State matter to be argued (i. e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Case Disposition 2. Identify counsel who will argue case: (a) for plaintiff: Address: Kevin C. McNamara, Esquire Thomas, Thomas & Hafer, LLP 305 N. Front St., P.O. Box 999 Harrisburg, PA 17108-0999 (b) for defendant: Address: Andrew C. Sheely, Esquire 127 South Market Street, P.O. Box 95 Mechanicsburg, PA 17055 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argum~nt Court Date: March 202 , C-ty7Y1~~ Attorney for Plaintiff Ian Smith Dated: February 26, 2002 :159774 "-\~,,~ , -,~ .':~ ,',:~'<'1,,~,-,.i\'-,,-,-"'''-'>!'n'''/ ',..,~':)-, <-'}.';~ " "-f -'"C!:"'I-";o"'-/':-"\""'~ -t,"__~' ,-~-~,,-~ "'~ "c-!~:'-V',1, "..-, 0'<,":"1"-- , <c -_" ---i-, ""'F, ,'-T-' .~ ".~ "'~"'~J'>"" dyj,;,"_' ,--,." ,~.,', ,,<-' "'l,,,,, ,."" "';'-~"~~~'~'UiA'"1LiilRT~"r~ ~~Lir.'i''''~.,,'1(O;'fy,(;;''i (') CJ (') C (....;J s:: '.'q ;:g 0] ..., :.:;j rTl -;oLD OJ f;i~i ;~C: 4;.........,' 2::1:;' N (J) , -;:',;i3 r:;::Z. -.. <,C., :c.~ ~~~1 ~~ ~C) -','" ~, (:')~; ;b-;() J '-.. c: (~3n~1 Z -...; ~ '-.n "'1;.,': "0 ::n -< f~ I , ! ~ ,",-" h' " , "','d'" "', -J~L "" , ,';',;t, I , - ,. \lU'i~~~~.w~!lh~f,'I.~,~~~~,,,,,,",,, ;~~~~~~..:" ;/"" '0<:' ',>-, ' .".' ~c ""i '1' :u-( -- ~ - PRAECIPE FOR LISTING CASE FOR ARGUMENT OC~2Drrl TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. --------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) IAN SMITH (Plaintiff) VS. WAYNE B. FENICLE, t/d/b/a WAYNE'S JET SHOP (Defendant) No. 01-6898 Civil Action 2002 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Plaintiff's Preliminary Objections. 2. Identify counsel who will argue case: (a) for plaintiff: Address: Kevin C. McNamara, Esquire Thomas, Thomas & Hafer, LLP 305 N. Front St., P.O. Box 999 Harrisburg, PA 17108-0999 (b) for defendant: Address: Andrew C. Sheely, Esquire 127 South Market Street, P.O. Box 95 Mechanicsburg, FA 17055' 3. I will notify all parties in writing within two days that this case has been listed for argument. 4 . Argument Court Date: January 8, 2003. Dated: October 15, 2002 LC-VVf-YI~ Attorney for Plaintiff Ian Smith :159774.2 ';~"'" , !,!.",..o", ',~", '~.:"',.,,.,"::'':_;'" ,-o'}/'>''''>,';< _ I ," ,. ^"'''"'C.''''''' , ,," ',', - ~" , ,",,__;~,,~__",<r--__{ -,'1;;,,'_"'__-;' '--'" " ".T==.,~ <, __ ,___.,,',,"'''.__''''.- "0'-'-',-" , ~.'e.,,'~,' en' ",< '}' "/ ~-- .. CERTIFICATE OF SERVICE I, Peggy M. Dugas, Paralegal, hereby certify that 1 have served a true and correct copy of the foregoing document on the fDllowing person by placing a copy of the same in the United States mail, first class mail, directed to his office address as follows: Andrew C. Sheely, Esquire 127 South Market Street P.O. Box 95 Mechanicsburg, PA 17055 THOMAS, THOMAS & HAFER, LLP ( DATE: lollS-foL :186412.1 );-''9A'P'':r\..~__. __ ,~,," '~".q;-.>.-- - '-.cs-," "",>,\,,";';-'~, '1'\" -""i7" 'r.'::-,,;, ",,- _e,;:.-,~,: :1':i--3:,",'''~ _'~.' ?, ~,-.". c- f. ,,', ,",;' ,.," __-r~__ ,,<>, ,,',." .."0.''_ ..-~ ~"''''"'' '1''''_on__ '?' ,~. ~. """-'-.',, C~ ,,__, "" ,.~ ~, . '--~-"> ~ >, = ,',- :'v ""''''"'''. n'liiiJI!lj.~m n':CTil"'Ir"" .. 0 0 [") C f',..) ~ ~: D --4 "T' ,. n m t:G (~ -l ~ ~ 1.., " (,'-' c;-, -< ~~ ',,' - . , .?_, " ";,:-..- ::2 ~.J:) (:-.' -< o 13# 'l' ',' ,""" " ,.,,,.,. ,'," , ,,, >,"oj'-< e" 'f7'-' ,'''__--~,._.,p,,'y.,' ;':~,;ilJ),)i11.~"--~i'!i~~~~H- -nH- "" ,I - -~"l.-~-f:l~.:~~~~~--:. 1: ~~~Ai .:",,-,..,.", . '- ~"~ , , " Andrew c. SheelYI Esquire 127 S. Market Street P.O. Box 95 Mechanicsburg, PA 17055 PA 1D NO. 62469 717-697-7050 Attorney for Defendant IAN SMITH, Plaintiff IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. 01-6898 Civil Term WAYNE B. FENICLE, CIVIL ACTION - LAW trading as and doing : business as WAYNE'S JET SHOP, JURY TRIAL DEMANDED PRAECIPE TO WITHDRAW PRELIMINARY OBJECTIONS OF DEFENDANT, WAYNE B. FENICLE, TRADING DOING BUSINESS AS WAYNE'S JET SHOP TO: CURTIS R. LONG, PROTHONOTARY Kindly withdraw the preliminary objections filed on behalf of Defendant, wayne B. Fenicle, trading and doing business as Wayne's Jet Shop. Respectfully submit:ted, Date: December 11, 2002 Andrew C. Sheely, Es PA ID # 62469 Attorney for Defendant Wayne B. Fenicle, trading and doing business as Wayne's Jet Shop 127 S. Market Street P.O. Box 95 Mechanicsburg, PA 17055 717-697-7050 717-697-7065 (fax) ",",,,,,"ilIF'r "." ,--, . ,*'."-A,^' ''''1" ,,/"'.,n ,", - --~ .--:"". d , .,,- , 'r' 4 . - -.I . ' ... CERTIFICATE OF SERVICE I, Andrew C. Sheely, Esquire, hereby certify that I am this day serving the foregoing Defendant's praecipe to Withdraw Preliminary Objections upon the following named individual this day by depositing same in the United States Mail, First Class, postage prepaid, at Mechanicsburg, pennsylvania, addressed as follows: THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire P.O. Box 999 305 North Front Street Harrisburg, PA 17108-0999 Date: December 11 , 2002 f1~', c'--!~.'" S"i'c<_",,i-"^-_ 'T1',,~, '-1.'-", 'J' l '.-.c:.' . - ~v,- ",. , " ,.', ' d', =- ~,> ~.." H' "'" - ... -~"""__' - -. ~>""~-,1" ~ ,,~,,"__~~,< <"':~'''''''''',.~~.,~.'J','''~''''~--'' .,,!if '-1":''''"'':' -- __,' -~~b __, ".~'~ ~ oM -- . ,,-p "1il'liililm_rrnnOT.'m"'f' iii - (") c: <'" ;:gtf ~~. ~~) ~t-~ --- '--' ~.~ -< ~ C;) hJ r:J ;""1 <:,':'"') ^") ~':'J :::i ,~ '<) !ti! l._) ,~~, :~B ~~fri , , ~ -< ,-;,;' .-J V,,," ',,~' ",':"W'C'^!('c" ,__,~ ~~~~t~;'~ip,r,;m;;~f-~~m:ll;L_;,A"~'I::l;~:~*t~F.~r!~~:~:~~~ ;:j"~" Andrew c. sheely, Esquire 127 s. Market Street p.o. Box 95 Mechanicsburg, PA 17055 FA ID NO. 62469 717-697-7050 Attorney for Defendant IAN SMITH, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. 01-6898 civil Term WAYNE B. FENICLE, trading as and doing business as WAYNE'S JET SHOP, CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT, WAYNE B. FENICLE, TRADING DOING BUSINESS AS WAYNE'S JET SHOP Defendant, Wayne B. Fenicle, trading and doing business as Wayne's Jet Shop, hereby files this Answer and New Matter and respectfully states as follows: 1. Admitted upon information and belief. 2. Admitted with clarification. Defendant is wayne B. Fenicle, trading and doing business as Wayne's Jet Shop. 3. Admitted upon information and belief. 4. Admitted in Part/Denied in Part. It is admitted that plaintiff delivered the boat to Defendant's place of business. By way of further response, Defendant was out of town when the boat was delivered and Defendant does not know when the boat was delivered. Defendant is without sufficient information as to when the boat was delivered and Defendant is without sufficient information as to the condition of the boat when delivered, and therefore, the remaining allegations thereto are denied and strict proof thereof demanded at arbitration or trial. d~'"!.,,,. "'<"r,<-'-- "-'C.:'" c_ ~ ~ "-. ".r', "" 9,' ',--<" .' .,~"':' I;".", q r,,', T', , ... -" , , .~~ 1 - ;l1" ;.'c~ ... 5. Admitted in part/Denied in Part. It is admitted that Plaintiff telephoned Defendant prior to November 10, 2002 and that Plaintiff advised that the boat would be dropped off at Defendant's place of business. It is specifically denied that Defendant was aware when the boat would be delivered and by way of further response Defendant was out of town when the boat was delivered. 6. Admitted upon information and belief. 7. Denied. Defendant used adequate and reasonable care at all times after discovering that Plaintiff delivered the boat to Defendant's place of business. By way of further reply, any damage to Plaintiff's engine existed prior to delivery to Defendant's place of business or was caused by Plaintiff or another person thereafter. 8. No response required. 9. The blanket allegations contained in paragraph 9 of Plaintiff's complaint are denied, as follows: a. Denied. To the contrary, Defendant properly winterized Plaintiff's boat as was requested by Plaintiff. b. Denied. upon discovering that Plaintiff's boat was delivered to Defendant's place of business, defendant used adequate and reasonable care to properly maintain and winterize Plaintiff's boat as requested by Plaintiff. c. Denied. To the contrary, Defendant used adequate and reasonable care to maintain and winterize Plaintiff's boat while located at Defendant's place of business as requested by Plaintiff. d. Denied. To the contrary, Defendant used adequate and 2 >~. <.. - '_'",~__c" " _ ,_, . ~, \ r ,_0:'-,:_ '.,- '_C'_.) _ --<--,~ ", - . < , ... ',~' ~. ,-- ,. , .'--~ .., . ~J"- '--=--" ~ reasonable care after Plaintiff delivered the boat and Defendant became aware of the boat's location at Defendant's place of business. 10. Denied. To the contrary, any damage caused to the engine of Plaintiff's boat was caused by Plaintiff or another party prior to the boat's delivery to the Defendant's place of business or was caused by plaintiff or another person thereafter. 11. Denied. It is specifically denied that Plaintiff's boat was damaged by Defendant and it is specifically denied that Plaintiff's boat was damaged to an amount of $4558.74 as alleged by Plaintiff and strict proof thereof is demanded at trial or arbitration. By way of further response, any damage caused to the engine of Plaintiff's boat was caused by Plaintiff or another party prior to the boat's delivery to the Defendant's place of business or was caused by Plaintiff or another person thereafter. 12. Denied. It is specifically denied that Plaint:iff' s boat was damaged by Defendant and it is specifically denied that Plaintiff's boat was damaged to an amount of $103.54 as alleged by Plaintiff and strict proof thereof is demanded at trial or arbitration. By way of further response, any damage caused to the engine of Plaintiff's boat was caused by Plaintiff or another party prior to the boat's delivery to the Defendant's place of business or was caused by Plaintiff or another person thereafter. 13. No response required. 14. Admitted in Part./Denied in Part. It is admitted that Plaintiff telephoned Defendant prior to November 10, 2002 and that 3 ,>.,.,",~q~,~, - ~-.'"'-,., ': o'!"Y- ".c' '<"";'1:'--:';"'" -,',<, Y', ,,_ , ,"" '." ~" ~!,"'''~OMM''''''''''''' - - ~ _. ~ _ . ' ... Plaintiff advised that the boat would be dropped off at Defendant's place of business for winterization which would be completed by Defendant. It is specifically denied that Defendant was aware when the boat would be delivered and by way of further response Defendant was out of town when the boat was delivered. The remaining allegations contained therein are denied and strict proof thereof demanded at arbitration or trial. 15. Admitted. 16. Denied. To the contrary, any damage caused to the engine of Plaintiff's boat was caused by Plaintiff or another party prior to the boat's delivery to the Defendant's place of business or was caused by Plaintiff or another person thereafter. By way of further response, Plaintiff failed to notify Defendant when the boat was be delivered. 17. The allegations contained in paragraph 17 of Plaintiff's complaint are conclusions of law to which no response is required. To the extent a response is required, the allegations are denied and strict proof demanded thereof at arbitration or trial. 18. Denied. No damage was caused to the motor while in Defendant's control and possession and Defendant completed the work as requested by Plaintiff. The remaining allegations contained in paragraph 18 of Plaintiff's complaint are conclusions of law to which no response is required. 19. Denied. It is specifically denied that Plaintiff's boat was damaged by Defendant and it is specifically denied that Plaintiff's boat was damaged to an amount of $4662.28 as alleged by Plaintiff and 4 !"N'"'W\!II''''' ,0"';_._. . -" -1- - - '1'- ", ;~ --,. ,,' --, ' ^ - c_".",__ , " , ,"='"'~ .~ _ "w>, .... ., strict proof thereof is demanded at trial or arbitration. To the contrary, any damage caused to the engine of Plaintiff's boat was caused by Plaintiff or another party prior to the boat's delivery to the Defendant's place of business or was caused by plaintiff or another person thereafter. 20. No response required. 21. Denied. Defendant completed the work requested by Plaintiff in a quality and workmanlike manner, and submitted a reasonable bill for services rendered. 22. Admitted in part/Denied in Part. It is admitted that Defendant required that Plaintiff pay for the winterization requested by Plaintiff. It is specifically denied that the work was needless as winterization is customary, and Defendant completed the work requested by plaintiff in a quality and workmanlike manner, and submitted a reasonable bill for the services rendered. 23. Denied. To the contrary, Defendant made no material misrepresentations to Plaintiff or as to any statement as alleged ln subparagraphs 1, b, c, and d of Paragraph 23 of Plaintiff's complaint. By way of further response, any damage caused to the engine of Plaintiff's boat was caused by Plaintiff or another party prior to the boat's delivery to the Defendant's place of business or was caused by Plaintiff or another person thereafter. 24. Denied. To the contrary, Defendant made no material misrepresentations as to any statement as alleged in subparagraphs 1, b, c, and d of paragraph 23 of Plaintiff's complaint. 5 , . ~;1' Wi: w.r~ , ':-~.,. ~ ,',.,. '- ""', '''J~F':'!', ;-.- -,.-.-; - ,.,-~',': ,,~--', _ ~.. r ,,~ - ': I -- ,~~,. ~ -,~ 25. The allegations contained in paragraph 25 of Plaintiff's complaint are conclusions of law to which no response is required. To the extent a response is required, the allegations are denied and strict proof demanded thereof at arbitration or trial. WHEREFORE, Defendant, wayne B. Fenicle, trading as and doing business as Wayne's Jet Shop, respectfully requests that this Honorable Court enter judgment in favor of Defendant and against Plaintiff, dismissing Plaintiff's complaint in its entirety. NEW MATTER 26. Paragraphs 1 through and including 25 are incorporated herein by reference. 27. Defendant had no knowledge as to the date when Plaintiff intended to drop of the boat for winterization. 28. The engine block of the boat which is the subject of this action was not damaged by any action of Defendant. 29. Any damage to Plaintiff's boat was caused by a person other than Defendant. 30. Plaintiff failed to mitigate his damages. 31. Any acts or omissions of Defendant alleged to constitute a cause of action were not substantial factors and did not result or arise to support Plaintiff's claim for damages. 32. Paragraphs 20 - 25 of Plaintiff's Complaint fail, to set 6 ~.2-:\'Jllitt'$<._^ ~,~ ~ '.c-'"'' _ 0'" ',,-'. .n,:,--,-;---,,'__i,:t<, <-,.' , ,. 'C',_ "'T'" 'L---' .",_.r. ^.v--_ 1,--' \. ",' .~-' ,-="~- -'j- ~.)!I"" forth a cause of action for which relief can be granted. 33. Defendant made no representations or guarantees as to the work requested by Plaintiff as to the facts of this matter. WHEREFORE, Defendant, Wayne B. Fenicle, trading and doing business as wayne's Jet Shop, respectfully requests that the Plaintiff's Complaint be dismissed, at the costs of Plaintiff. Respectfully submitted, Date: December i, 2002 ~cWC~, ~ Andrew C. Sheely, Esquire PA ID # 62469 Attorney for Defendant Wayne B. Fenicle, trading and doing business as wayne's Jet Shop 127 S. Market Street P.O. Box 95 Mechanicsburg, PA 17055 717-697-7050 717-697-7065 (fax) 7 "':"''',; -""" - ,',^ rT _.2'_0' ~"-";" ,.,,, - "'f-.'- ,.., -'''1",., (-7;'" "'""" ,.,.~""., ,~ 5,,,,'. ,. ,- :('''''' '," "'~ - - VERIFICATION I verify that the statements made in this Answer and New Matter are true and correct. I understand that unsworn statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. DATE: December 9, 2002 .~ Wayn B. Fenicle, trading and doing business as Wayne's Jet Shop ~' ~'-- as "i;;,i,.,IiJ,-,1lliJl",_" ~^ \'-'.' "~", _'C'_,_' '. "",>,,~' "_'/'-'~'~,i,~'I:) ~'; .,." , -',~. CERTIFICATE OF SERVICE I, Andrew C. Sheely, Esquire, hereby certify that I am this day serving the foregoing Defendant's Answer and New Matter to Plaintiff's Complaint upon the following named individual this day by depositing same in the united States Mail, First Class, postage prepaid, at Mechanicsburg, Pennsylvania, addressed as follows: THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire P.O. Box 999 305 North Front Street Harrisburg, PA 17108-0999 Date: December II, 2002 ,4,~c.~ Andrew C Sheely, Esquire 8 ~~~~'~:"~':':";\;:.~.'J0"":,,-,,:-^A-,,~.!,-"-_,_^,,, --"1.0"1"'" ,"_',..c_n_ ~,- ~.,,~,". ,.,~ ,'-"'.'~ -.'~- ~,.,. , ~".-, . .~" ,~"''"'" , c"c,,,,,,,,"w,"c,,,,,,'c, " ~1 ,~, ,_ <,- ~, ~-,"'" ,~""' ~ ,,--, '~~ "~h ";,,",,- "..,'.+p'y;, '---,-,'-- "tj~I'-lfJitii{Cfi1l"'Yn':.":";'^;~'1t~-::':" 2 ~... ""'0 ~;-':' rlif1" ~_i'_-~'_ <;Q ;~~' r;L} ?-~ c:: Zc y-;:~ :::3 -~ :t~~~':~!E:-'1'-'l;','f~ifl;W~~~_ r,' r::,) ':~ C1 ~ '-, ~i-1 :':'7~ "Q ::1;: ~' ;_'.~I \"1"\ _,_I -''"- ~2l 0) ~ -':l~; :2iir'~~"-"-" . . THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 305 North Front Street P.O, Box 999 Harrisburg, PA 17108-0999 717/237-7132 Attorneys for Plaintiff Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 01-6898 IAN SMITH, v, CIVIL ACTION - LAW WAYNE B. FINNICLE Ud/b/a WAYNE'S JET SHOP, Defendant PLAINTIFF'S ANSWER TO NEW MATTER OF DEFENDANT 26. The Plaintiff hereby incorporates the allegations in Paragraphs 1 through 25 of the Complaint as if set forth at length. 27. Denied as stated, Although the Defendant may have had no knowledge as to when Mr. Smith imended to drop off the boatfof winterization, the Defendant certainly knew that the boat was going to be dropped off to be winterized and it was the Defendant's regular practice to conduct business in this fashion, The fact that the Defendant was not apparently paying attention to the fact that Mr. Smith and perhaps others were dropping off boats on the Defendant's business premises for necessary service is indicative of the Defendant's lack of care. 28. Denied pursuant to Pa.R.C.P. 1029(e). By way of further answer, as of the filing of the Defendant's Answer with New Matter, the Defendant does not even know whether this is true. 29-31, Denied pursuant to Pa.R.C.P. 1029(e). " ffii, ^~ ,':.-: :":'_c<-':'>",~'1-'~~' :"'.,:, >t ,..<" H:'SJ;r'~.t!~:"."I"',~1 '--'-", ,- "-~,' , . "'" ,".i,o,'~,' ", "" ,,:.,"'j.,~~""""" '."- -'''.'' ",0, y_;<,<, - . ,;,.~, "',,--"-,-1" .. '~--, , ,; ~ --'" no"~ _ ',,", _ -- I ' _ ,.~ =:,,",", "-_.~,,' , ~ ... --. . ~ 32. Denied. These allegations represent conclusions of law to which no response is required. 33. Denied pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Plaintiff respectfully requests that the Defendant's New Matter be dismissed. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP B,i(~ Kevin C. McNamara, Esquire 1.0.#72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 Attorneys for Plaintiff DATE: 1/..>/03 215068-1 2 ,- '~t~,.~,g -"'--""1"- <.\," ,"" ".~~..;,.',_' ,.~"'''-:' '>""'~~"'"I'!"":'" , ':'-,' '; '':~ ,,-'c:--'' '.'. ,. ~"'--. .. ''',,' '..,~' . "'~'_:_"",' ",,",. ,"':~o", '~n '''c'''' _'_". -, "~ "'~" ~" ,., "1 00'.'" :ij-'~' - -~----" ".y-,-" ,,"' . ~ ^' . . VERIFICATION I, Ian Smith, have read the foregoing ANSWER TO NEW MATTER which has been drafted by my counsel. The factual statements contained therein are known by me and are true and correct to the best of my knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa.C.SA ~ 4904 relating to unsworn falsification to authorities, which provides that, if I knowingly make false averments, I may be subject to criminal penalties. DATE 12-jzr/oz '\:~[ijn"_JL,~ , ~-",-r-0'~,:"" ''',-, _ "'''~';---'';''r3' h:""~~:."\''i,'"O__ ',~,'~"I'!(,"~,,_ ;7 -;",'"~""_,,~ .:0_"_ " " -"~, ""0', '"",,; _",--,'C,_" " an Smith . _0 """ .___., __, ", ',,'f',,- '-, , ,,, ccc'7","l "1"",,,"'_" ,~" .. __ 0 -,' .';_ ~ , " _ _ _,,,_~,,"", ,'1';''- ,-, ~ .' ^ " CERTIFICATE OF SERVICE I, Kevin C. McNamara, Esquire, hereby certify that I have served a true and correct copy of the foregoing ANSWER TO NEW MA TIER on the following persons by placing a copy of the same in the United States mail, first class mail, directed to their office addresses as follows: Andrew C. Sheely, Esquire 127 South Market Street P,O. Box 95 Mechanicsburg, PA 17055 THOMAS, THOMAS & HAFER, LLP By,iC7'YlVJ~ Kevin C. McNamara, Esquire DATE: 1/;-(03 ~;~,~il1_,~~, :~":' ,."'~":"""'Y"0?>,t~..-.:, ,",Je,-,.",7,7;c'",~'~'~'; 'YTI ;'_C" ,"'''''''~_'' "'-_'.":',;'" :'U", """'0' "_c__'~, _" "'~',""?'''~ _~ _<,__,.. _,_~, __~' _~ ,''''.._" ,,~, . _,.,__,..,.~. , ,,-. ~_ _ _, ", , r .... "R. ',." ~'"7i" ~~'_ ,,''"~''''',-, !r.,. , ".~ ",,-- '~-' "'~''''':;;''" '. .,."",-"0 ""l'l~iir' . 'T'rt'f!ili"'j"'.' 0 0 c> S '-,.~ " , s.. ~, -u c: Il"lr':'" ~~. ' , ~" :L'>> ~F~ -"-.-" ~ ; ;:.~ ;p~:; ':::::i L "'0 :0 :::.2 (1' -< (5 &)~ "" :>_""'~""-_ ;_.~~ "",,';m~~~~,~*,!~~~r.Jl:~~'B!~ffJw.iI:~~~iW' ''f'^'C>> T'~'~>"<'<~"~"^- -, " ,.......- . CERTIFICATE OF SERVICE I, Kevin C. McNamara, Esquire, hereby certify that I have served a true and correct copy of the foregoing PRAECIPE TO DISCONTINUE on the following persons by placing a copy of the same in the United States mail, first class mail, directed to their office addresses as follows: Andrew C. Sheely, Esquire 127 South Market Street P.O. Box 95 Mechanicsburg, PA 17055 THOMAS, THOMAS & HAFER, LLP By: Kevin C. McNamara, Esquire DATE: (P-(tp-o.3 .;;~-~. " . :-'"'.' ",_ ",\~"""f'~,-.' _\,'h -',~'-'''' ,< k", ;,''';',(1 . "':.' ,"'":-~',,~, !,C ~ ", ,--,," . ,.--- "-.. ,'-' , ,"C " , " a <0 h'_ ",--"- ,,,, _=71 ,,~, n~ ~,> " .'<'::f!',.-;,\, ,,~ ?'r", [1':': , ",;,-.'-: "'~"- ".- f , .. "" -.~."'- ~,-" ,",..., " -,'. "'''''; '",", 'v ';.' '--'''''_~'''_~':M,'~~' --"'-"""'''1ijtnr~[ '~lt'tt"frT'" "'H;~-q. ;;-2 ~.- <"" -oi:i-~ I'n;.; --,....-.- ~;~ c})_, , -< r::: ":',-;:;: ,.!~' ~~ ......... '- c:) eLl c_ :.::;; o "':-"1 --,1 ~-..: .:....\"j ~ _.J 1~~~~'~__~.,j ,.,,,^,..../~~I~l1J~~~4~.:.f;~ THOMAS, THOMAS & HAFER, LLP Kevin C, McNamara, Esquire Identification Number: 72668 305 North Front Street P.O, Box 999 Harrisburg, PA 17108-0999 717/237-7132 Attorneys for Plaintiff IAN SMITH, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 01-6898 v. CIVIL ACTION - LAW WAYNE B, FINNICLE tld/b/a WAYNE'S JET SHOP, Defendant PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please mark the docket in the above-captioned matter as discontinued with prejudice as to Defendant. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By: Ii. c <yWy'~ Kevin C. McNamara, Esquire 1.0.#72668 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 Attorneys for Plaintiff DATE: 1o-1~-03 ;;J,~L~J - ,'f,'.',;:'''<,' v_Co'.:-__, ^~~~, ,;:-,,(,;;;...," ""m__':' .''1''.'' ,~; "~ '" '" -- .... ",' ,'.',,\"'.; -".':"- "".~ -,