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HomeMy WebLinkAbout99-03986 i WILLIAM J. LUMADUE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 99- 3??GL2? TIMOTHY HAKE, CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED 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 a 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 17013 (717) 249-3166 SNELBAKER, BRENNEMAN & SPARE, P. C. By: Attorneys for Plaintiff LAW OFFICES SNELBAKER. BRENNEMAN & SPARE WILLIAM J. LUMADUE, Plaintiff V. TIMOTHY HAKE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99- 39 FGA %.c+..- CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT Plaintiff William J. Lumadue by his attorneys, Snelbaker, Brenneman & Spare, P. C., submits this Complaint against Defendant Timothy Hake and in support thereof, states the following: 1. Plaintiff William J. Lumadue is an adult individual residing at 146 Millers Gap Road, Enola, Cumberland county, Pennsylvania. 2. Defendant Timothy Hake is an adult individual residing at 6035 Wertzville Road, Enola, Cumberland County, Pennsylvania. 3. On or about October 19, 1998, Plaintiff and Defendant entered into an agreement whereby Defendant agreed to construct and erect within thirty days of commencing construction a metal- sided garage and storage structure (the "structure") on property located at 6990 Wertzville Road, Enola. 4. Pursuant to the terms of the parties, agreement entered LAW OFFICES SNELSAKER. BRENNEMAN a SPARE into on or about October 19, 1998, Plaintiff agreed to pay Defendant the cost of all materials and advance monies periodically to Defendant for such materials to erect the structure in an amount not to exceed $30,000.00, and in addition thereto, pay Defendant the sum of $1,750.00 representing the agreed charge for Defendant's labor in erecting the structure. 5. Attached hereto and incorporated by reference herein as "Exhibit All is a copy of a proposal prepared by Defendant and presented to Plaintiff, which proposal accurately memorializes the terms of the parties' agreement, with the exception of the additional terms as set forth in Paragraph 4, above. 6. On or about November 14, 1998, Plaintiff paid Defendant the sum of $14,000.00 on account of materials to be purchased for construction, at which time Defendant commenced construction of the structure. 7. After Defendant commenced construction of the structure, Plaintiff paid Defendant for certain materials purchased by Defendant for use in erecting the structure and authorized Defendant to utilize Plaintiff's VISA charge card to purchase such materials. 8. After Defendant commenced construction of the structure, Defendant improperly and without authority or knowledge of Plaintiff purchased an impulse nailer with related accessories at a price of $451.50 by use of Plaintiff's VISA charge card. 9. In December, 1998, Plaintiff paid Defendant in advance on account of Defendant's labor the sum of $1,500.00 due to Defendant's insistence and representation that he was desperately in need of money. LAW OFFICES SNELBAKER, _ z BRENNEMAN & SPARE 10. After Defendant commenced construction of the structure, Plaintiff on numerous occasions requested Defendant to work on and complete construction, which Defendant failed and refused to do. 11. Defendant's last day of purported work in erecting the structure was March 3, 1999, at which time the structure was not even one-half completed. 12. Defendant materially breached his agreement with Plaintiff of October 19, 1998 in the following particulars: (a) by failing to complete construction of the structure and furnish all labor for the construction thereof; (b) by failing to complete construction of the structure within thirty days of November 14, 1998; (c) by failing to complete all work in a workmanlike manner; and (d) by making a purchase by use of Plaintiff's VISA charge account of an item not constituting a material purchase for erection of the structure. 13. As a direct, factual and proximate result of the breach by Defendant of the agreement as more fully set forth in Paragraph 12, above, Plaintiff has been caused to sustain the following losses and/or has expended the following sums: (a) materials and labor to complete construction of the structure: $10,684.79 (b) spouting: 382.50 LFW OFFICCS SNELBAKER. BRENNEMAN & SPARE (c) prepayment of compensation to Defendant for labor: 1,500.00 -3- (d) impulse nailer and accessories: 451.50 (e) Front door flashing: Total: 151.00 $13,169.79 WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $13,169.79 together with interest and costs of this action. SNELBAKER, BRENNEMAN & SPARE, P. C. By: Keith 0. Brenneman, Esquire 44 West Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Plaintiff William J. Lumadue Date: June 29, 1999 "W OFFICES SNELBAKER. BRENNEMAN -4- & SPARE VERIFICATION i verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. William J. Lumadue Date: June 29, 1999 LAW OFFICES SNELBAKER. BRENNEMAN & SPARE ... 1,r FROM: PROPOSAL SUBMITTED T0: we. +z v, ? ??. RL4 t?olD.. pA 1`?c.»S PHONE . ?a 1.n PAGE NO. / . OF 'PAOE9 DATE /D „ / 1 - K- JOB NAME ADDRESS CITY/STATE/LP payment to be nied for All material is guaranteed to he as speed. All work to be completed in a workmanlike manner according to standard practices Any alteration or deviation from above specifications involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate All agreements contingent upon strikes, accidents, or delays beyond our control. T ' . propo b to acceptance within days and is void thereafter at the option of the undersigned. Z ` Authorized Signature - The The above prices, specifications and conditions are hereby accepted. You are authorized to do the work as specified. Payments will be made as outlined above. ACCEPTED: Signattim Date F F Z CONTRACTORS FORMS FORM NO EZ In EXHIBIT A f .. We hereby propose to furnish labor and materials - combl! " aecotdance vvfth"the above snedBratlnna ' ' irk er 0 1^ v/J 1v/ 1 ay l\ W V 4•I i I y ? ? y 'I ?y Wm w u x w a '1 ro 41 otRA pro 4 a a ? ?u xa H a ? D U O ? U - 0 4 E o+a H ? : M Yy p o i SHERIFF'S RETURN - REGULAR CASE NO: 1999-03986 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LUMADUE WILLIAM J VS. HAKE TIMOTHY BRIAN BARRICK , Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within NOTICE AND COMPLAINT was served upon HAKE TIMOTHY the defendant, at 19:01 HOURS, on the 1st day of July 1999 at 6035 WERTZVILLE ROAD ENOLA, PA 17025 CUMBERLAND County, Pennsylvania, by handing to JEAN HAKE (WIFE) a true and attested copy of the NOTICE AND COMPLAINT and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So answers: Docketing 18.00 Service 8.06 Affidavit .00 Surcharge 8.00 $J4$$ A-lrom? i e, e i . Ub SN LLBA by KER, BREE./N?NEMAN &SPARE I $r I / I r epu y S eSworn and subscribed to before me this 1 nu-A- day of? 777777 19 c-^ A. D. ?""$i nonocary KENNETH F. LEWIS, ESQUIRE Attorney I.D. 169383 1101 North Front Street Harrisburg, PA 17102 (717) 234-3136 Attorney for Defendant WILLIAM J. LUMADUE, Plaintiff V. TIMOTHY HAKE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99 - 3986 CIVIL JURY TRIAL DEMANDED NOTICE TO PLEAD TO THE PLAINTIFF NAMED HEREIN: You are hereby notified to file a written response to the enclosed Counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. DATED: J f 51 l /lk;n4yG KE ETH'F. LEWIS, ESQUIRE KENNETH F. LEWIS, ESQUIRE Attorney I.D. #69383 1101 North Front Street Harrisburg, PA 17102 (717) 234-3136 Attorney for Defendant WILLIAM J. LUMADUE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 99 - 3986 CIVIL TIMOTHY HAKE, Defendant JURY TRIAL DEMANDED ANSWER AND COUNTERCLAIM Comes now, Defendant Timothy Hake, by his attorney, Kenneth F. Lewis, who files this Answer and Counterclaim, averring as follows: ANSWER 1. Admitted. 2. Admitted. 3. Denied. Defendant offered a proposal to Plaintiff on October 19, 1998. The proposal was never accepted. Plaintiff and Defendant reached a different non-written agreement on or about November 14, 1998 for the subject construction project. 4. Denied. Plaintiff agreed to pay Defendant $31,750.00 for the project. It is denied that Defendant was only to receive $1,750.00 for his labor. No separate agreement was made separating the costs of materials from the costs of labor. Plaintiff paid $14,000.00 to Defendant at the time of the agreement to get the project started. Plaintiff later made more payments to Defendant and also permitted Defendant to use Plaintiff's credit card to make purchases. 5. It is denied that the document attached to Plaintiff's Complaint accurately memorializes the terms of the parties' agreement. In addition to the facts set forth in paragraph 04 above, the 30 day time frame was never made a part of the agreement. Moreover, Plaintiff notified Defendant that the construction would not be needed until June of 1999. 6. Admitted, except that the $14,000.00 paid was not specifically delineated for construction materials only. 7. Admitted. S. Denied. Plaintiff permitted Defendant to use his credit card, indicating that he would be entitled to benefits from the credit card company if charges were made on the card as opposed to payments to Defendant by check or cash. Defendant used Plaintiff's credit card account on at least three occasions. Plaintiff did not specify the items that Defendant was permitted to purchase. 9. It is admitted only that Plaintiff paid Defendant the $1,500.00. The rest of paragraph 9 of Plaintiff's Complaint is denied. To the contrary, Plaintiff wanted Defendant to accompany him on a fishing trip to Florida. When Defendant balked because he wanted to finish the project and because of a shortage of funds, it was Plaintiff who offered the $1,500.00 payment and who assured Defendant the project was in no rush to be completed so Defendant could make the trip with him. 10. Denied. Defendant never refused to do work on the project. See paragraphs 5 and 9 above regarding the time frame for the project. It is admitted that Plaintiff called Defendant on two or three occasions and questioned why full-time work was not being performed on the dates of the telephone calls. Defendant explained to Plaintiff that bad weather was preventing the continuing work on those dates. 11. It is admitted that Defendantfs last day of work was in the beginning of March. The rest of paragraph 11 is denied. To the contrary, the structure was approximately 758-808 complete. Moreover, Plaintiff prevented Defendant from continuing work on the project when, without notification to Defendant, he put the garage doors on the structure and locked Defendant out. Defendant learned of Plaintiff fIs actions when he arrived at the project to continue his work. 12. This paragraph is a conclusion of law to which no response is required. To the extent a response is deemed to be required, it is denied that Defendant breached the agreement. To the contrary it was Plaintiff that breached the agreement. (a) Denied. See paragraph 11 above; (b) Denied. see paragraphs 5 and 9 above. Moreover, it was Plaintiff who further held up the project due to his indecision regarding the placement of the electrical system. (c) Denied. As Plaintiff's Complaint fails to specifically state what items to which this subparagraph refers, Defendant cannot respond specifically to the generalized allegation; and (d) Denied. See paragraphs 6 and 8 above. 13. It is denied that Defendant breached the agreement and that Defendant caused any damages whatsoever to Plaintiff. Nonetheless, Defendant is without sufficient knowledge, information and/or belief with regard to the sums claimed to be expended by Plaintiff in the subparagraphs of paragraph 13. Strict proof is demanded of same. WHEREFORE, Defendant requests that Plaintiff fIs Complaint be dismissed. COUNTERCLAIM I -- BREACH OF CONTRACT 14. Defendant incorporates paragraphs 1 through 13 above as set fully forth herein. 15. The original contract price of $31,750.00 was changed when work done by Defendant was destroyed by a wind storm. Plaintiff informed Defendant that he received a $7,000.00 payment from his insurance company for the rebuilding of the damage. The parties agreed the original contract price would be increased due to the extra work. 16. Defendant has expended $29,018.39 in costs on the subject project. 17. Defendant anticipated a profit margin of $8,000.00 on the contract as he was going to do most of the work himself (given Plaintiff's assurances that he had until June to finish the project). is. To date, Plaintiff has only paid Defendant $23,508.00. This sum includes monies to Defendant for his labor, to Defendant for the payment of subcontractors, and for materials (as well as the $451.50 for the purchase of an impulse nailer and accessories for Defendant which Defendant purchased using Plaintiff's credit card). 19. Plaintiff has breached the subject agreement by refusing to make payments to Defendant for continuing costs associated with the project and by preventing Defendant from completing his work as described above. WHEREFORE, Defendant demands judgment in the amount of $13,510.39 (representing out-of-pocket expenses and lost income), for Court costs and for any other relief this Court deems just. ZT - UNLAWFUL RETENTION OF PROPERTY 20. Defendant incorporates paragraphs 1 through 19 above as set fully forth herein. 21. When Plaintiff locked Defendant out of the subject job site, he also refused to return Plaintiff's tools, as well as fishing equipment. 22. Though demand has been made, Plaintiff continues to refuse to return the following items: extension ladder, heavy-duty extension cord, orange 100 foot cord, 2 steel saw horses, transit, tripod, transit pole, 2 fishing lures and 2 spools of fluorocarbon leader material. These items have a total estimated value of $974.00 (specific itemization to be supplied at trial). , Defendant demands judgment against Plaintiff in the amount of $974.00 or for the return of the aforementioned items in the same condition as when they were left on Plaintiff's property, for Court costs and for any other relief this Court deems just. DATED: 4144i / KENNETH F. LEWIS, ESQUIRE Attorney I.D. #69383 1101 North Front Street Harrisburg, PA 17102 (717) 234-3136 Attorney for Defendant I hereby verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of is Pa.C.S. Section 4904, relating to unsworn falsification to authorities. p !., Dated: M HAKE I hereby certify that I have served a true and correct copy of the within Answer and Counterclaim to Plaintiff's counsel by mailing same by U.S. Mail, postage prepaid at Harrisburg, Pennsylvania addressed to: Keith O. Brenneman, Esq. 44 West Main Street Mechanicsburg, PA 17055 DATED: 511 ' % l t? KE NETH F. LEWIS, ESQUIRE F l ?. ' ?. I, I L 1 J I LL 1 1. ' 1.1 KENNETH F. LEWIS, ESQUIRE Attorney I.D. x/69383 1101 North Front Street Harrisburg, PA 17102 (717) 234-3136 Attorney for Defendant WILLIAM J. LUMADUE, Plaintiff V. TIMOTHY HAKE, Defendant TO: WILLIAM J. LUMADUE C/o Keith O. Brenneman, Esq. 44 West Main Street Mechanicsburg, PA 17055 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99 - 3986 CIVIL JURY TRIAL DEMANDED YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO RESPOND TO DEFENDANT'S ANSWER & COUNTERCLAIM IN THIS CASE. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A 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 1-800-990-9108 DATED: August 27, 1999 raL? KEN •TH F. LEWIS, ESQ. I hereby certify that I have served a true and correct copy of the within Important Notice upon attorney for Plaintiff by mailing same by U.S. Mail, postage prepaid at Harrisburg, Pennsylvania addressed to: Keith 0. Brenneman, Esq. 44 West Main Street Mechanicsburg, PA 17055 4- 1 41!1q, KENN H F. LEWIS, ESQUIRE Dated: August 27, 1999 ?? } . ?_. ?• C ` ? ?j !`? ( ? ` ? r _., _ i- - J ? - ? ? L P? `?? \., s7 `' ,'? : ?; .i ' Cj WILLIAM J. LUMADUE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 99-3986 TIMOTHY HAKE, CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED REPLY TO COUNTERCLAIM Plaintiff William J. Lumadue by his attorneys, Snelbaker, Brenneman & Spare, P. C., submits this Reply to Defendant's Counterclaim as follows: 14. Plaintiff incorporates the averments set forth in Paragraphs 1 through 14, inclusive, of Plaintiff's Complaint in response to Paragraph 14 of Defendant's Counterclaim. By way of further response, Paragraph 14 of Defendant's Counterclaim should be stricken as improperly requiring a response to an answer, a pleading to which no response is required as a matter of law. 15. Admitted in part; denied in part. It is admitted that the original contract price between the parties was $31,750.00. It is specifically denied that the contract price was changed in any manner when a portion of the work completed by the Defendant was destroyed by a wind storm. It is further denied that Plaintiff informed Defendant that Plaintiff received a $7,000.00 payment from an insurance company for purposes of rebuilding the "W OFFICES wind storm damage. Further, it is specifically denied that the SNELBAKER• B& SPAREN Parties agreed that the original contract price would be increased due to any work done by Defendant. To the contrary, there was no such modification or change in the terms of the parties' agreement as alleged by the Defendant. 16. Denied. It is denied that Defendant has expended $29,018.39 in costs on the subject project. Strict proof of such allegation is demanded of Defendant at the time of trial. 17. Denied. It is denied that Defendant anticipated a profit margin of $8,000.00 on the contract since he was going to do most of the work himself. On the contrary, it was specifically agreed by the parties that Defendant's "profit" would be his payment for labor in the amount of $1,750.00 as averred in the Complaint. By way of further response, at no time did Defendant agree to or undertake to do "most of the work himself". To the contrary, Defendant used a substantial number of subcontractors on the project and failed or refused to pay his subcontractors. It is denied that Plaintiff gave any assurance to Defendant that he had until June, 1999 in which to finish work on the project. 18. Denied. It is denied that Plaintiff has only paid Defendant $23,508.00. To the contrary, Plaintiff has paid $29,594.50 to Defendant or on account of items purchased by Defendant, and Defendant's labor. 19. Denied. Paragraph 19 sets forth an unwarranted IAW OFFICES SNELBAKER. BRENNEMAN & SPARE conclusion of law to which no response is required by Plaintiff -2- pursuant to Pa.R.C.P. 1029(d). To the extent a response is deemed necessary, it is denied that Plaintiff at any time breached the parties' agreement by refusing to make payments to Defendant for continuing costs associated with the project thereby preventing Defendant from completing his work as that work has been improperly characterized by Defendant in his Counterclaim. To the contrary, Defendant breached the parties' agreement as more fully set forth in Plaintiff's Complaint, the averments of which are incorporated by reference herein. WHEREFORE, Plaintiff requests this Court to dismiss Count I of Defendant's Counterclaim with prejudice and enter judgment in favor of Plaintiff in accordance with the demands set forth in Plaintiff's Complaint. 20. The averments of Paragraphs 1 through 13 of Plaintiff's Complaint and 14 through 19, inclusive, of this Reply are incorporated by reference in this paragraph in their entirety. By way of further response, Paragraph 20 of Defendant's Counterclaim should be stricken as improperly requiring a reply to an answer. 21. Denied. It is denied that Plaintiff locked Defendant out of the subject job site and accordingly refused to return Defendant's tools as well as fishing equipment. To the contrary, Defendant abandoned any work on the project at a time WW OFFICES when the structure was not substantially complete and at which I: .. SNELBAKER, BRENNEMAN & SPARE 11 -3- time Defendant continued to have free and open access to the structure and therefore his tools. 22. Denied. It is denied that Plaintiff continues to refuse to return the items listed in Paragraph 22 of Defendant's Counterclaim. By way of further response, Plaintiff has been put on notice by others that a number of the items set forth in Paragraph 22 of Defendant's Counterclaim which Defendant purports belong to him, are owned by other persons. The value as alleged by Defendant for the items set forth in Paragraph 22 of his Counterclaim is denied and strict proof thereof demanded at time of trial. WHEREFORE, Plaintiff requests this Court to dismiss Count II of Defendant's Counterclaim with prejudice and enter judgment in favor of Plaintiff in accordance with the demands made in Plaintiff's Complaint. SNELBAKER, BRENNEMAN & SPARE, P. C. By: Keith 0. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Plaintiff Date: September 3, 1999 William J. Lumadue LAW OFFICES SNELBAKER, BRENNEMAN 6 SPARE -4- VERIFICATION I verify that the statements made in the foregoing Reply to laim are true and correct. I understand that false herein are made subject to the penalties of 18 Pa. .S. §4904 relating to unsworn falsification to authorities. J. Lumadue Date: September 3, 1999 uw OFMCE6 SNELBAKCR. BRENNEMAN & SPARE CERTIFICATE OF SERVICE I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have, on the below date, caused a true and correct copy of the foregoing Reply to Counterclaim to be served upon the person and in the manner indicated below: FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Kenneth F. Lewis 1101 North Front Street Harrisburg, PA 17102 Wf4 Keith O. Brenneman, Esquire SNELBAKER, BRENNEMAN & SPARE, P. C. 44 West Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Plaintiff William J. Lumadue Date: September 3, 1999 LAW OFFICES SNELBAKER, BRENNEMAN & SPARE PI L. ul 1, -7 I ' V t . C.. .lj 1: _ C, on