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13ARRY K. TOLBY IN 'I'I ll: COURTOP CUMN-ION PLEAS OF
CUNIBE'RLAND COUN'T'Y, PENNSYLVANIA
V.
NOR'I'IIEAS'ITRN IION11: NO. 99-7230 CIVIL
I\71'ROVI'sb1f;NTS
CIVIL AcrION - LAW
ORDER OF COURT
AND NOW, this 9Tu day of APRIL, 2001, after consideration of the defendant's
post trial motions and the brief filed in support thcrcof, the amount of prcjudgmcnt
interest awarded in the verdict is reduced to $266.23. In all other respects, the post trial
motions of dclendant arc DENIED.
The Prothonotary is directed to enterjudgrucat against defendant anti in
favor of plaintiff in the amount of 52406 plus prejudgment interest of $266.23, plus costs.
By the Cote
E. Guido, J.
Barry K. T'olby
15 Sycamore Circle
Etters, pit. 17319
Gregory R. Reed, Esquire
For the Defendant
:std
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA
BARRY K. TOLBY
Plaintiff
V.
NORTHEASTERN HOME IMPROVEMENTS
Defendant
NO. 99-7230 Civil
CIVIL DIVISION - LAW
DEFENDANT'S BRIEF IN SUPPORT OF MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT OR, IN THE
ALTERNATIVE, FOR A NEW TRIAL
SUMMARY OF FACTS and PROCEDURAL HISTORY
Plaintiff is Barry K. Tolby (hereinafter referred to as
"Tolby"), an individual residing at 15 Sycamore Circle, Etters,
York County, Pennsylvania. Defendant is Northeastern Home
Improvements of Harrisburg, Inc. (hereinafter referred to as
"Northeastern"), a Pennsylvania business corporation, with its
registered address at 125 North Enola Drive, Enola, Cumberland
County, Pennsylvania.
On April 28, 1999, Jamie Walsh, a field representative for
Northeastern, met with Tolby at his home in York County to
discuss a bid by Northeastern to install siding on Tolby's home.
Tolby rejected the bid as being excessive in cost but inquired
as to whether Northeastern would replace his cement driveway.
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After taking measurements and making a phone call to the home
office, Jamie Walsh gave Tolby an estimate for the driveway
replacement in the amount of $2,394.00. He wrote that estimate
on a document entitled "Contract Change Form". A copy of that
form is attached to this brief for the court's reference. The
change form is dated April 28, 1999 and requires "manager
approval". Tolby gave Mr. Walsh a down payment in the amount of
$394.00 and Mr. Walsh signed as the "salesman" for Northeastern.
According to the testimony of Mark Kerlin, President of
Northeastern, Northeastern had a backlog of jobs and was not
able to do the work until July of 1999. When making
preparations to do the job, Northeastern discovered that there
had been a gross error in calculating the job. The estimate
should have been more than twice the amount of the original
quote. Mr. Kerlin testified that he advised Tolby of the error.
Mr. Kerlin also testified that other employees of Northeastern
advised Tolby of the error before Tolby contracted with another
company.
Tolby testified that he obtained other estimates for the
exact same job including $4,800.00 with no warranty, $5,285.00
with a warranty and $6,225.00 with a warranty. Knowing of the
- 2 -
gross under pricing error by Northeastern, Tolby contracted with
Easy Rider Home Improvement Company to replace the cement
driveway for a sum of $4,800.00.
A non-jury trial was held on March 2, 2001. This court
rendered a verdict in favor of Tolby in the amount of $2,406.00
plus prejudgment interest of $432.72 plus costs.
Northeastern filed timely post trial motions.
ARGUMENT
Issue #1
Is the April 28, 1999 document entitled "Contract Change
Form" enforceable against Northeastern since it was not approved
by Northeastern's manager?
Suggested Answer
No.
Discussion
For the very reason which has given rise to this dispute,
Northeastern does not provide its salesmen with authority to
bind the corporation. The document in question requires
management approval before Northeastern is bound.
Northeastern is keenly aware that salesmen can make
mistakes. Prices quoted based on information gathered on site,
without management review and approval, remain quotes only and
do not constitute offers.
The requirement of management approval creates a condition
precedent to the formation of a contract. The condition
precedent was never met. Therefore, no enforceable contract
arose. GMH Assoc.. Inc.. v. Prudential Realty, 2000 Pa. Super
59, 752 A.2d 889 (1999).
Issue #2
If there was a contract, was Northeastern's unilateral
mistake sufficient to void the contract between Tolby and
Northeastern?
Suggested Answer
Yes
Discussion
It is well established that if the other party knows
or has good reason to know of the unilateral mistake, relief
would be granted to the same extent as the mutual mistake."
Kreamer v. Schaeffer, 200 Pa. Super 127, 751 A.2d 241 (2000),
- 4 -
quoting McFadden v. American Oil Company, 257 A.2d 283, 288-89,
215 Pa. Super 44 (1969).
Kreamer does not require that the party attempting to
enforce the agreement know of the unilateral mistake at the time
the contract is entered into but rather that that party had good
reason to know of the mistake. Given the minimal amount of the
estimate and the immediate effort by Tolby to lock in the quote,
it seems clear that Tolby knew of the mistake or certainly had
good reason to know of the mistake.
Issue #3
As a matter of law, did Tolby suffer any loss?
Suggested Answer
No.
Discussion
The deposit monies were returned to Tolby and as such, all
monies expended by Tolby were done at his own risk. Tolby is
out no monies except by his own choice. Northeastern has held
no monies from Tolby.
Ultimately, Tolby replaced his driveway for a fair market
price of $4,800.00. Tolby entered into that exchange of monies
- 5 -
1 .
for materials and labor voluntarily with full knowledge of the
error in the Northeastern quote. Tolby cannot now claim a loss
of $2,406.00 because he chose to pay $4,800.00 for a new
driveway which was a fair price for the replacement of the
driveway.
Furthermore, every Plaintiff who claims a breach of
contract damages is required, as a matter of law, to mitigate
damages. Gloviak v. Tucci Construction Co.. Inc, 608 A.2d 260,
342 Pa. Super 614 (1992). Tolby has done nothing to mitigate
damages. He knowingly, understandingly and voluntarily incurred
an obligation with the full knowledge of the error made by
Northeastern's salesman. Tolby is asking Northeastern to pay
for more than half of the cost of replacing his driveway. This
does not constitute mitigation of damages.
Issue #4
Is the award of $432.72 in prejudgment interest excessive?
Suggested Answer
Yes.
Discussion
Spang & Co. v. USX Corp., 401 Pa. Super 254, 266, 599 A.2d
978, 984 (1991) provides that prejudgment interest is limited to
- 6 -
six percent simple. Under the best case scenario Tolby's award
of $2,406.00 would be from about 4/28/99 to March 2, 2001 which
is approximately 674 days at a per diem of .395 cents per day or
$266.23.
WHEREFORE, Northeastern respectfully requests your
Honorable court to enter a judgment in favor of Northeastern and
against Tolby notwithstanding the verdict.
Respectfully submitted,
Gregory Reed, Es ire
Attorney for Defendant
2324 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney I.D. # 23705
- 7 -
CUSTOMERS
CUSTOMERS ADDRESS
CICy STATE A T]P PHONE# / 3S' 3252,,
ORIGINAL CONTRACT PRICE S x397 i /
+ ?./ NORTHEASTERN
HOME IMPROVENEENT SERVICES
ADJUSTED CONTRACT PRICE 3 9 y ?.# IS/
DESCRIPTION OF CHANGES
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CUSTOMERS SIGNATURE X
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CUSTOMERS SIGNATURE X
DATE
414.
SALESMAN SIGNATURE
MANAGER APPROVAL
DATE
r+
CERTIFICATE OF SERVICE
AND NOW, this ZVy day of April, 2001, I, Gregory R. Reed,
Esquire, Attorney for Defendant, do hereby certify that I have
this day served by first class mail a copy of the attached
Defendant's Brief In Support Of Motion For Judgment
Notwithstanding The Verdict Or, In The Alternative, For A New
Trial to the following address:
Barry K. Tolby
15 Sycamore Circle
Etters, PA 17319
/
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Grdgory'R. Reed, Esqulkte
Attorney for Defendant
2423 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney I.D. 23705
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARRY X. TOLBY
Plaintiff
V.
NORTHEASTERN HOME IMPROVEMENTS
Defendant
NO. 99-7230 Civil
CIVIL DIVISION - LAW
. DEFENDANT'S BRIEF IN SUPPORT OF MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT OR, IN THE
ALTERNATIVE, FOR A NEW TRIAL
SUMMARY OF FACTS and PROCEDURAL HISTORY
Plaintiff is Barry K. Tolby (hereinafter referred to as
"Tolby"), an individual residing at 15 Sycamore Circle, Etters,
York County, Pennsylvania. Defendant is Northeastern Home
Improvements of Harrisburg, Inc. (hereinafter referred to as
"Northeastern"), a Pennsylvania business corporation, with its
registered address at 125 North Enola Drive, Enola, Cumberland
County, Pennsylvania.
On April 28, 1999, Jamie Walsh, a field representative for
Northeastern, met with Tolby at his home in York County to
discuss a bid by Northeastern to install siding on Tolby's home.
Tolby rejected the bid as being excessive in cost but inquired
as to whether Northeastern would replace his cement driveway.
After taking measurements and making a phone call to the home
office, Jamie Walsh gave Tolby an estimate for the driveway
replacement in the amount of $2,394.00. He wrote that estimate
on a document entitled "Contract Change Form". A copy of that
form is attached to this brief for the court's reference. The
change form is dated April 28, 1999 and requires "manager
approval". Tolby gave Mr. Walsh a down payment in the amount of
$394.00 and Mr. Walsh signed as the "salesman" for Northeastern.
According to the testimony of Mark Kerlin, President of
Northeastern, Northeastern had a backlog of jobs and was not
able to do the work until July of 1999. When making
preparations to do the job, Northeastern discovered that there
had been a gross error in calculating the job. The estimate
should have been more than twice the amount of the original
quote. Mr. Kerlin testified that he advised Tolby of the error.
Mr. Kerlin also testified that other employees of Northeastern
advised Tolby'of the error before Tolby contracted with another
company.
Tolby testified that he obtained other estimates for the
exact same job including $4,800.00 with no warranty, $5,285.00
with a warranty and $6,225.00 with a warranty. Knowing of the
- 2 -
U.'-
gross under pricing error by Northeastern, Tolby contracted with
Easy Rider Home Improvement Company to replace the cement
driveway for a sum of $4,800.00.
A non-jury trial was held on March 2, 2001. This court
rendered a verdict in favor of Tolby in the amount of $2,406.00
plus prejudgment interest of $432.72 plus costs.
Northeastern filed timely post trial motions.
ARGUMENT
Issue #1
Is the April 28, 1999 document entitled "Contract Change
Form" enforceable against Northeastern since it was not approved
by Northeastern's manager?
SucTaested Answer
No.
Discussion
For the very reason which has given rise to this dispute,
Northeastern does not provide its salesmen with authority to
bind the corporation. The document in question requires
management approval before Northeastern is bound.
- 3 -
0
Northeastern is keenly aware that salesmen can make
mistakes. Prices quoted based on information gathered on site,
without management review and approval, remain quotes only and
do not constitute offers.
The requirement of management approval creates a condition
precedent to the formation of a contract. The condition
precedent was never met. Therefore, no enforceable contract
arose. GMH Assoc.. Inc.. v. Prudential Realty, 2000 Pa. Super
59, 752 A.2d 889 (1999).
Issue #2
If there was a contract, was Northeastern's unilateral
mistake sufficient to void the contract between Tolby and
Northeastern?
Suggested Answer
Yes
Discussion
It is well established that if the other party knows
or has good reason to know of the unilateral mistake, relief
would be granted to the same extent as the mutual mistake."
Kreamer v. Schaeffer, 200 Pa. Super 127, 751 A.2d 241 (2000),
4 -
i .i
La
,
quoting McFadden v American Oil Company, 257 A.2d 283, 288-89,
215 Pa. Super 44 (1969).
Kreamer does not require that the party attempting to
enforce the agreement know of the unilateral mistake at the time
the contract is entered into but rather that that party had good
reason to know of the mistake. Given the minimal amount of the
estimate and the immediate effort by Tolby to lock in the quote,
it seems clear that Tolby knew of the mistake or certainly had
good reason to know of the mistake.
Issue #3
As a matter of law, did Tolby suffer any loss?
Suggested Answer
No.
Discussion
The deposit monies were returned to Tolby and as such, all
monies expended by Tolby were done at his own risk. Tolby is
out no monies except by his own choice. Northeastern has held
no monies from Tolby.
Ultimately, Tolby replaced his driveway for a fair market
price of $4,800.00. Tolby entered into that exchange of monies
- 5 -
for materials and labor voluntarily with full knowledge of the
error in the Northeastern quote. Tolby cannot now claim a loss
of $2,406.00 because he chose to pay $4,800.00 for a new
driveway which was a fair price for the replacement of the
driveway.
Furthermore, every Plaintiff who claims a breach of
contract damages is required, as a matter of law, to mitigate
damages. Gloviak v. Tucci Construction Co. Inc., 608 A.2d 260,
342 Pa. Super 614 (1992). Tolby has done nothing to mitigate
damages. He knowingly, understandingly and voluntarily incurred
an obligation with the full knowledge of the error made by
Northeastern's salesman. Tolby is asking Northeastern to pay
for more than half of the cost of replacing his driveway. This
does not constitute mitigation of damages.
Issue #4
Is the award of $432.72 in prejudgment interest excessive?
Suggested Answer
Yes.
Discussion
9pano & Co v USX Coro,... 401 Pa. Super 254, 266, 599 A.2d
978, 984 (1991) provides that prejudgment interest is limited to
- 6 -
six percent simple. Under the best case scenario Tolby,s award
of $2,406.00 would be from about 4/28/99 to March 2, 2001 which
is approximately 674 days at a per diem of .395 cents per day or
$266.23.
WHEREFORE, Northeastern respectfully requests your
Honorable court to enter a judgment in favor of Northeastern and
against Tolby notwithstanding the verdict.
Respectfully submitted,
Gregory,R. Reed, Es ire
Attorney for Defendant
2324 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney I.D. # 23705
- 7 -
CUSTOMERS NAME
CUSTOMERSADDRESS
CITY STATE /??• ZIP PHONE# / 3?- 32L*
ORIGINAL CONTRACT PRICE S -2 397, /
+ NORTHEASTERN
HOME IMPROVEMENT SERVICES
ADJUSTED CONTRACT PRICE
DESCRIPTION OF CHANGES
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CUSTOMERS SIGNATURFiX
CUSTOMERS SIGNATURE X
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SALESMAN SIGNATURE
MANAGER APPROVAL
DATE
DATE
CERTIFICATE OF SERVICE
AND NOW, this 12-11 day of April, 2001, I, Gregory R. Reed,
Esquire, Attorney for Defendant, do hereby certify that I have
this day served by first class mail a copy of the attached
Defendant's Brief In Support Of Motion For Judgment
Notwithstanding The Verdict Or, In The Alternative, For A New
Trial to the following address:
Barry K. Tolby
15 Sycamore Circle
Etters, PA 17319
.,r gor R. Reed, Esquire
Attorney for Defendant
2423 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney I.D. 23705
BARRY K. TOLBY : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
NORTHEASTERN HOME NO. 99-7230 CIVIL
IMPROVEMENTS
CIVIL ACTION -LAW
ORDER OF COURT
AND NOW, this ZJH day of MARCH, 2001, defendant is directed to file a brief
in support of his post trial motions by close of business on April 2, 2001.
By the
Barry K. Tolby
15 Sycamore Circle
Etters, Pa. 17319
Gregory R. Reed, Esquire
For the Defendant
:sld
and E. Guido, J.
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:r!AR 1 ;t 700
IN THE COURT OF C014MON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA
BARRY K. TOLBY
Plaintiff
V.
NORTHEASTERN HOME IMPROVEMENTS
Defendant
NO. 99-7230 Civil
CIVIL DIVISION - LAW
ORDER GRANTING DEFENDANT JUDGMENT
NOTWITHSTANDING THE VERDICT
AND NOW, this day of
2001, in
consideration of Defendant, Northeastern Home Improvement's
Motion For Judgment Notwithstanding The Verdict, it is hereby
ORDERED that judgment is entered in favor of Defendant,
Northeastern Home Improvements and against Plaintiff, Barry K.
Tolby, notwithstanding the verdict.
By the court:
J.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA
BARRY K. TOLBY
Plaintiff
V. NO. 99-7230 Civil
NORTHEASTERN HOME IMPROVEMENTS CIVIL DIVISION - LAW
Defendant
ORDER GRANTING NEW TRIAL
AND NOW, this day of
2001, in
consideration of Defendant, Northeastern Home Improvement's
motion for a new trial, it is hereby ORDERED that a new trial is
granted as between Defendant, Northeastern Home Improvements and
Plaintiff, Barry K. Tolby.
By the Court:
J.
it
I
BARRY K. TOLBplaintiff
NO. 99-7230 Civil
V.
NORTHEASTERN IMPROVEMENTS CIVIL DIVISION - LAW
MOTION FOR inGMENT NOTWITHSTANDING TTERIERDICT OR
IN THE ALTERNATIVE FOR NEW
Defendant, Northeastern Home Improvements, through its
undersigned counsel, moves the court for judgment
notwithstanding the verdict or, in the alternative, a new trial
in the above captioned action and in support avers the
following:
i:? to contradict or rebut
the
Plaintiff evidence
1 offered
Defendant'sclaim of aunilateraplaistff was to fully
fully
contract price of which mistake aantiloss
aware prior to Plaintiff incurring any
2. The alleged contract was not approved by a
Northeastern Home Improvement Manager, as is called
for on the document, and as such, was not binding upon
Northeastern.
3, Plaintiff is not entitled to prejudgment interest.
4. The trial court erred in its interpretation of the law
with regard to unilateral mistakes if it concluded
1
that the mistake must be known at or before the time
the contract is entered into.
5. As a matter of law and fact Plaintiff suffered no
damages.
Wherefore, Defendant, Northeastern Home Improvements,
respectfully requests this Honorable Court to enter Judgment in
its favor Notwithstanding the Verdict.
Motion for New Trial
1. Plaintiff offered no evidence to contradict or rebut
Defendant's claim of a unilateral mistake as to the
contract price of which mistake Plaintiff was fully
aware prior to Plaintiff incurring any loss.
2. The alleged contract was not approved by a
Northeastern Home Improvement Manager, as is called
for on the document, and as such, was not binding upon
Northeastern.
3. Plaintiff is not entitled to prejudgment interest.
4. The trial court erred in its interpretation of the law
with regard to unilateral mistakes if it concluded
that the mistake must be known at or before the time
the contract is entered into.
5. As a matter of law and fact Plaintiff suffered no
damages.
Wherefore, Defendant, Northeastern Home Improvements,
respectfully requests this Honorable Court to grant Defendant a
new trial.
Respectfully submitted,
Gregory `I£. wed, Esquir
Attorney for Defendant
2324 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney I.D. # 23705
S
OF- I -I-
CERTIFICATE OF SERVICE
AND NOW, this "day of March, 2001, I, Gregory R. Reed,
Esquire, Attorney for Defendant, do hereby certify that I have
this day served by first class mail a copy of the attached
Motion for Judgment Notwithstanding the verdict or, in the
Alternative, For New Trial to the following address:
Barry K. Tolby
15 Sycamore Circle
Etters, PA 17319
Gregory R. Reed, Esquire
Attorney for Defendant
2423 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney I.D. 23705
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KRA113ER v. SCHAEFFER, 2000 PA Super 127, _ A.2d
- Page 1 of 8
Pennsylvania superior Court Reports
KRAMER v. SCHAEFFER, 2000 PA Super 127, A. 2d
A. 2d
ALLEN KRAMER AND DARLENE KRAMER, HIS WIFE, Appellants v. KATHLEEN
SCHAEFFER, Appellee.
No. 1322 EDA 1999.
The Superior Court of Pennsylvania.
Filed: April 20, 2000.
Appeal from the Order entered March 26, 1999 In the Court of
Common Pleas of Philadelphia County, Civil No. 1655 September
Term, 1996
BEFORE: MCEWEN, P.J., HUDOCK, J. and CI RILLO, P.J.E.
CIRILLO, P.J.E,:
OPINION
4 1 Allen and Darlene Kramer (h/w) appeal
entered in the Court of Common Pleas of Philadelphia County
denying their motion to enforce a settlement agreement and impose
sanctions for failure to deliver settlement funds. We reverse j{
and remand for sanctions and the award of attorney's fees.
'i
T 2 The Kramers instituted suit against Appellee, Kathleen
Schaefer, for injuries Allen sustained in an automobile accident
caused by Schaefer. fnl At the time of the accident the Schaefer '
i
vehicle was insured under a policy issued by Allstate Insurance
Company. The parties proceeded to arbitration and a $10,000.000 -'
award was handed down in favor of the Kramers. Subsequently
Schaefer appealed the decision to the Philadelphia Court of
Common Pleas. Prior to trial, Allstate offered the Kramers
$3,500.00 ("pre-trial offer/first offer/original offer") to
settle the case. The Kramers rejected the offer. After a two
day jury trial, Schaefer was found liable for the Kramers'
personal injuries; the jury, however, awarded zero damages to the
Kramers. fn2
5 3 Subsequent to trial, the Allstate adjuster who had been
involved in the case commenced maternity leave. She handed the i
case over to another insurance company adjuster. On September
17, 1999, not aware that the case had already been tried to a
jury verdict, this newly appointed adjuster contacted the
Kramers' attorney and offered to settle ("post-verdict
offer/second offer") the matter for $3,500.00. The Kramers' r-..?
attorney accepted. The following day, the Kramers' attorney sent
Allstate a letter confirming its settlement offer and his
acceptance and requested a release be prepared acknowledging that
his clients would have no future claims against Schaefer.
Thereafter, on September 21, 1998, the Allstate adjuster who had '..-
tendered the post-verdict settlement offer sent the Kramers the 1
I
KRAIMER v. SCHAEFFER, 2000 PA Super 127, - A.2d -
following letter:
Please note that this file had been reassigned to me on
September 17th, 1998 from Ms. Christine Shenouda who is
presently out on maternity leave. on the 17th, I called
your office to settle this case[;] at that time I was not
aware that this case had already been tried. Your ethics
astound me because when discussing this case you did not
mention that same had already been tried and you were
well aware that I was not the original adjuster on the case.
At this time Allstate will not be making payment to your
client, we will be standing by the $0.00 verdict.
(1 4 On September 23, 1998, the Kramers' attorney likewise
sent a letter to Allstate stating that he considered the case
settled for $3,500.00 pursuant to the parties' telephone
conversation and that he expected a signed release from Allstate
and fully expected Allstate to honor the settlement agreement.
When Allstate continually failed to acknowledge or honor the
proposed offer it had tendered on the 17th, the Kramers filed a
petition to enforce the settlement and also requested sanctions
for failure to deliver settlement funds. See Phila.Civ.R. 229.1.
The trial court denied the Kramers' petition. On appeal, the
Kramers present the following issues for our review:
(1) Was there an enforceable settlement agreement between the
parties?
(2) Were there no grounds to set aside the settlement
agreement?
(3) Should all of the averments of the motion to enforce
settlement [have] been accepted as true, and the motion
granted for this reason?
Page 2 of 8 .
T 5 Before addressing the substantive merits of this case,
we must first ascertain whether the issues in the appeal are
preserved for our review. Schaefer argues that the issues on
appeal are waived because the Kramers failed to file post-trial
motions in accordance with Pa.R.C.P. 227.1. We disagree.
Post-trial motion relief may be granted only when the grounds asserted
were raised in pre-trial proceedings or by another appropriate
method at trial. Pa. R. C. P. 227.1(b)(1). Such grounds must be
specifically raised in the motion. Pa.R.C.P. 227.1(b) (2).
Presently, the issue on appeal concerns a post-verdict settlement
offer and its enforceability.ffn3) As such, the present concern
does not involve any ground that was raised either in pre-trial
or trial proceedings. Therefore, we find Pa.R.C.P. 227.1
inapplicable to the instant situation and the Kramers' failure to
conform thereto not an obstacle to review their claim. fn4
$ 6 We, however, must also determine whether a motion to
enforce a settlement offer/agreement is considered a final order
for purposes of invoking our jurisdiction under Pa.R.A.P. 341.
Recently, in Genviva v. Frisk, 555 Pa. 589, 725 A.2d 1209 (1999),
our supreme court was faced with the issue of whether a common
pleas court order denying a motion to approve a pre-trial
settlement was a collateral order appealable as of right under
Pa.R.A.P. 313. On direct appeal our court had quashed the appeal,
finding the order neither final nor collateral under our
appellate rules. The supreme court affirmed our court's decision
stating:
KRAMER v. SCHAEFFER, 2000 PA Super 127, - A.2d - Page 3 of 8
We believe it likewise defies common sense to maintain that
allowing appeals as of right from orders denying enforcement of
settlement agreements, or, as here, denying approval of a
settlement agreement, promotes the "efficient, expeditious and
judicious resolution of disputes." Any efficiencies gained in
reduced trial litigation would be at the expense of increased
appellate litigation.
Id. at 598, 725 A.2d at 1214. Moreover, the Genviva court found
that only those claims that "involve interests 'deeply rooted in
public policy' can be considered 'too important to be denied
review."' Id. at 599. As such the supreme court affirmed the
order quashing the appeal, finding that the common pleas court's
order denying the motion to approve the parties' settlement
implicated no policy interests of sufficient import that required
an immediate appeal. Id.
$ 7 The distinguishing factor between this case and cases
with facts similar to Genviva is the time that the relevant
settlement offer was tendered. Presently, we are concerned with
post-verdict offers, while Genviva applied our appellate rules to
the interlocutory nature of appealing a trial court's order
refusing to enforce/approve a pre-trial settlement agreement. In
the former case, we acknowledge that the case has already been
tried to a verdict, that the parties have already expended the
costs of litigation and that damages have been determined. That
being said, we are still concerned with the costs of appellate
litigation and the appeals process in general which not only
involves the expending of legal means, but also judicial
resources. However, we do not believe that this court should
come to the same result regarding the appealability of a
post-verdict settlement based upon case law dealing with the same
issue in a pre-trial offer context. First, a settlement offeree
does not have the same recourse for enforcement of a post-verdict
offer as does a pre-verdict offeree. In the latter scenario, the
party "is free to raise the issue of the validity of the
settlement agreement on appeal from the judgment on the
underlying claim, or in a collateral action." Knisel, supra at
256. In the present case, that is exactly what the Kramers are
now attempting to accomplish - review of the binding nature
of the settlement agreement after the case has already been
tried. Accordingl„ we find that this appeal is properly before
this court. It is timely and the order is final under our
appellate rules of court. See Pa.R.A.P. 341.
$ 8 Next, we must focus upon the propriety of the trial
court's decision not to enforce the post-verdict agreement.
Whether the trial court improperly failed to enforce the
settlement offer is a challenge to the court's conclusion of law.
As such, our scope of review is plenary. We are free to draw our
own inferences and reach our own conclusions. Yaros v. Trustees
of the University of Pennsylvania 742 A.2d 1118 (Pa. Super.
1999). "If a trial court erred in its application of the law,
(we] will correct the error." Id. at 1121, citing Francis J.
Bernhardt, III, P.C. v. Needleman, 705 A.2d 875, 876-77 (Pa.
Super. 1997).
1 9 In the present case the trial court found that
Allstate's post-verdict settlement offer lapsed when the Kramers
rejected Schaefer's pre-trial settlement offer of the same
amount, $3,500.00. In essence the court found the second offer
just a restatement of the first. This premise is based upon the
KRAMER v. SCHAEFFER, 2000 PA Super 127, - A.2d -
court's finding and Schaefer's contention that the Allstate
adjuster only made the second offer due to her belief that the
case had not yet been tried to a jury verdict. Under such
assumption, the court states that "any settlement after a defense
verdict runs counter to public policy, and, in effect, gives
Plaintiff two bites of the apple. Clearly, Defendant made the
second settlement offer in error and Plaintiff should not benefit
from the clerical error in this manner."
1 10 In analyzing the proposed post-verdict offer, the
court looked to the time constraints, imposed by law, within
which a settlement offer is deemed to be reasonably outstanding
and "for the taking" by the opposing party. The court then
focused its inquiry upon the particular facts of the case and
found that the second offer was no longer outstanding after the
verdict based upon the fact that the Kramers had rejected the
same monetary settlement offer prior to trial. In doing so, the
court improperly overlooks the fact that the two offers were
completely independent of one another and the rejection of the
former did not automatically invalidate the second, save for a
legal reason to nullify such offer.
4 11 The enforceability of settlement agreements is
determined according to principles of contract law. McDonnell v.
Ford Motor Co., 643 A.2d 1102, 1105 (Pa. Super. 1994). "In the
case of a disputed oral contract, what was said and done by the
parties as well as what was intended by what was said and done by
them are questions of fact." United Coal v. Hawley Fuel Coal,
Inc., 525 A.2d 741, 742 (Pa. Super. 1987).
5 12 In the present case, the only evidence regarding the
facts surrounding the parties' oral agreement to settle the case
post-verdict is contained in the letters exchanged between their
attorneys. From this correspondence we glean that an Allstate
adjuster offered the Kramers $3,500.00 in full settlement of
their claim against Schaefer. The parties apparently discussed
the case and came to an agreement on the settlement. The Kramers
both verbally and in writing confirmed their acceptance of such
offer to Schaefer. Schaefer (through her insurer, Allstate) has
refused to honor the settlement and tender the $3,500.00.
4 13 In her defense, Schaefer (and Allstate) contend that
the settlement should not be paid due to the offeror's mistaken
belief that the case had not yet been tried at the time she made
the offer to settle. Under our law:
Generally if a mistake is not mutual, but unilateral, and
is not due to the fault of the party not mistaken, but to
the negligence of the one who acted under the mistake, it
affords no basis for relief. See Marmon Philadelphia Co.
v. Blocksom, 157 A. 510 (Pa. Super. 1931) ; Seaboard Radio
Broad. Corp. v. Yassky, 107 A.2d 618 (Pa. Super. 1954).
On the other hand, when there is mistake on one side and
fraud on the other, relief is available. Cook v. Liston,
192 Pa. 19, 21, 43 A. 389, 390 (1899). Likewise,
irrespective of active fraud, if the other party knows or
has good reason to know of the unilateral> <mistake>, relief
will be granted to the same extent as a mutual mistake.
See Cook V. Liston, supra; Restatement, <Contracts> §§
472(1)(b), n6 503, 505; Simpson, Contracts § 99 at 201
(2d ed. 1965).
McFadden v. American Oil Company, 257 A.2d 283, 288-89 (Pa.
Super. 1969). See Smith v. Thomas Jefferson University Hosp.,
Page 4 of 8
KRAMER v. SCHAEFFER, 2000 PA Super 127, - A.2d - Page 5 of 8
621 A. 2d 1030, 1032 (Pa. Super. 1993) (citing McFadden, supra).
"A corollary to the aforementioned principles is the rule that
the mistake under scrutiny, as well as the actual intent of the
parties, must be clearly proven." Dudash v. Dudash,
460 A.2d 323, 327 (Pa. Super. 1983), citing Hassler v. Mummert,
364 A.2d 402, 403 (Pa. Super. 1976).
9 14 The Allstate adjuster states that at the time she
extended the second offer to the Kramers' attorney, she was
unaware of the status of the personal injury case. Most
important, she did not know that the case had actually been tried
by a jury to a verdict which was monetarily in favor of
Allstate's insured, Schaefer. Even assuming, arguendo, that the
second settlement offer would not have been made by Allstate had
the adjuster known that the case had already been tried, we must
ascertain from the record whether the Kramers' attorney knew or
had a good reason to know of the unilateral mistake -
namely, that the Allstate adjuster did not know that the case had
already gone to trial and a verdict of zero damages been returned
and that had she known such facts, a second settlement offer
would not have been extended. In answering this question, we
must keep in mind that it is Schaefer's duty to clearly prove
such mistake in order to invalidate the parties' agreement.
% 15 The record does not disclose any evidence that the
Kramers' attorney was aware that the second. settlement offer was
premised upon the fact that the adjuster wanted to settle the
case and avoid trial. Schaefer would have us believe that the
following language in a letter from the Kramers' lawyer does
evidence such knowledge:
I did nothing to deceive you, and simply expected that you knew
what you were doing. If your file was not properly documented,
that is not my mistake. If there was a breakdown in your
company's communications, that is not an error on my part.
In view of the fact that you made an offer to my client as your
company's representative; which offer has been accepted, your
company is bound to honor this contract. I fully expect you to
send me the appropriate release, to fulfill Allstate's
contractual obligation.
We are not convinced that the above-quoted language proves that
the Kramers' attorney either knew or had reason to know that the
offeror (the Allstate adjuster) called to settle the case
believing that it had not yet gone to trial. Moreover, there is
no record evidence (in writing) that shows that at the time the
Allstate adjuster offered the second settlement offer it was done
only because she thought the case had not yet been tried.
% 16 We take note'that it is common practice for a party to
offer to settle a case after a jury verdict in order to prevent a
successful appeal. fns Such seems all the more likely in this
case where a panel of arbitrators initially awarded the Kramers
$10,000.00. Such post-verdict settlements, we find, should be
favored just as much as pre-trial settlements; moreover, they
further the public policy of entering into such agreements:
expeditious termination of cases, lower costs expended by parties
and full and final releases of all future liability issues. See
generally Mori Irvine, Better Late Than Never: Settlement at the
Federal Court of Appeals, The Journal of Appellate Practice and
Process, Vol. 1, No. 2 (Summer 1999).[fn61 However, we are quick
to point out that despite the attempt to employ this practice in
,..{..:9
KRAMER v. SCHAEFFER, 2000 PA Super 127, - A.2d - Page 6 of 8
the present case, Schaefer's failure to honor the settlement
agreement has, in fact, cut against this favored policy by still
causing legal and judicial resources to be expended at the
appellate level. We admonish Schaefer for this unfavorable
practice.
4 17 We are well-aware that reversal of a trial court's
decision in such a situation is neither common nor taken lightly.
However, where a trial court's findings are not based upon
competent evidence, we must overturn. Yaros, supra; Bernhardt,
III, P.C., supra. Presently, Schaefer did not present evidence
that proved the Kramers knew or had reason to know that the
post-verdict settlement offer was only extended because the adjuster
was unaware that the case had been finally tried. Additionally,
without record proof, we are not convinced that Allstate only
made the offer believing the case had not yet gone to trial.
% 18 Finally, we note that the Kramers are entitled to
sanctions for Schaefer's failure to tender the settlement funds.
See Phila. Civ. R. 229.1(F). The trial court shall impose
sanctions in the form of simple interest at a rate equal to the
coupon yield equivalent of the average accepted auction price for
52-week U.S. Treasury Bills at the auction last preceding the
date on which the attorney affidavit was filed, running from the
twenty-first day to the date of delivery of the settlement funds,
together with reasonable attorneys' fees incurred in the
preparation of the affidavit. The trial court's order shall be
in accordance with the form set forth in the Philadelphia Rules
of Civil Procedure. See Phila. Civ. R. 229.1(G). Moreover, the
Kramers shall be awarded reasonable attorneys' fees and costs
associated with taking this appeal. See Pa.R.A.P. 2744. 6 196 6
!1 19 order reversed. Case remanded for the imposition of
sanctions and attorney's fees in accordance with the dictates of
this decision. Jurisdiction relinquished.
1 20 McEWEN, P.J., files a Concurring and Dissenting
Statement.
[fnl] Mrs. Kramer sought compensation under the legal theory of
loss of companionship/ consortium.
[fn2] The jury determined that Schaefer's negligence was not a
substantial factor in bringing about Mr. Kramer's injuries.
[fn3] Additionally, the Kramers followed the proper procedure
under the Philadelphia Local Rules of Court by filing a motion to
enforce the settlement after the requisite period of time elapsed
within which Schaefer should have tendered the settlement monies.
See Phila. Civ. R. 229(D). In further conformance with this Rule
the Kramers filed a motion for sanctions and the requisite
affidavit and accompanying attachments. See Phila. Civ. R.
229 (E) (2) .
[fn4] We also note the fact that the enforceability of a
settlement agreement has been found to be separable from and
collateral to the main cause of action in a cases where a person
has sustained injuries after an automobile accident caused by a
defendant's actions. See National Recovery Systems v. Perlman,
533 A.2d 152, 153 (Pa. Super. 1987) (court found that
enforceability of alleged settlement agreement was separable from
the merits of the underlying claim). The former issue, however,
concerns the validity of a contractual agreement, while the
KRAMER v. SCHAEFFER, 2000 PA Super 127, _ A.2d
• latter involves principles of negligence.
[fn5] In fact, the Philadelphia Rules of Civil Procedure allude
to such a scenario:
Rule ["']229 Termination of Cases
(C) Termination of a case after the entry of an unappealed
arbitration or after the entry of a verdict or judgment may be
accomplished without leave of Court only by filing a praecipe to
satisfy the award, verdict of judgment signed on behalf of the
prevailing party or parties.
(D) When a settlement has been consummated, an award, verdict
or judgment has been paid, or the parties have otherwise agreed
to terminate a case, the appropriate praecipe or
praecipes shall be filed within twenty (20) days
thereafter, in default of which sanctions may be imposed.
Phila. Civ. R. 229.
[fn6] Article discussing the fact that appellate cases remain
ripe for mediation and do settle on appeal. Such settlements are
driven by the professional concern with the probabilities of
winning on appeal, an interest in protecting a favorable trial
court opinion, and the availability of alternative legal avenues
that are better-suited to resolving a client's problem.
Practically, such resolution may be preferred due to the
protracted time it may take for an appeal to be decided. It may
also cost the client less to settle at the appeal stage rather
than later; tax benefits may result due to structured settlement
payments. Finally, personal concerns drive such agreements at
this later stage - the client may have an immediate need to
settle for financial reasons; the client may no longer favor
conflict; the parties may desire peace of mind.
CONCURRING AND DISSENTING STATEMENT
McEWEN, P.J.:
$ 1 Since the author of the opinion of the majority has
provided, in his usual fashion, a careful analysis and perceptive
expression of view, I hasten to join in the rulings of the
majority that this appeal is properly before this Court, and that
the settlement agreement should be enforced. As noted by the
majority, the issue of the enforceability of an alleged
settlement agreement must be determined by reference to
well-settled principles of contract law. The verdict in the instant
case was returned by the jury on September 15, 1999, and two days
thereafter, on September 17, 1999, Allstate's adjuster offered to
settle the matter for $3500. This offer was immediately accepted
by counsel for appellants. As there was consideration for the
offer - appellants did not file post-trial motions or an
appeal from any judgment subsequently entered on the verdict
- I would vacate the order of the trial court and direct
that judgment be entered for appellants in the amount of the
settlement offer plus legal interest, based on a finding that an
enforceable legal contract was entered into by counsel for
appellants and the adjuster. Nonetheless, however apparent the
basis for sanctions, on the basis of the instant record, I would
not impose the sanctions provided by Philadelphia Civil Rule
229.1.
Page 7 of 8
n
KRAMER v. SCHAEFFER, 2000 PA Super 127, _ A.2d _ Page 8 of 8 `
I
CONTight 2000 LOISLAW.COA(. Inc. All rights Rmmcd.
LINE LEX. L. & M. CO., INC. v. PA. PUB. CORP., 451 Pa. 154 (1973). Page 1 of7
Pennsylvania Supreme Court Reports
LINE LEX. L. a M. CO., INC. V. PA. PUB. CORP., 451 Pa. 154 (1973).
301 A.2d 684
Line Lexington Lumber 6 Millwork Co., Inc., Appellant, v. Pennsylvania
Publishing Corp.
Supreme Court of Pennsylvania.
April 18, 1972.
March 16, 1973.
Contracts - Execution - Mistake - Mutual or unilateral
mistake - Knowledge of one party to contract that other has
made a mistake - Fraud or bad faith - Estoppel - Reformation
- Failure of agent of insurance company to insert provision
requested by insured.
1. Ordinarily a mistake must be mutual to the parties to the
contract in order to justify reformation of a written
instrument on the basis of mistake. [158]
2. If one party to a contract has made a mistake and if the
party against whom reformation is sought has such knowledge of
the mistake as to justify an inference of fraud or bad faith,
relief in reformation is justified. [159]
3. A party who knowingly causes a written instrument to fail
to embody the intent of the other party is estopped from
relying on such defect in the instrument; moreover, where the
first party knows what the other party actually intended, the
instrument will be reformed to conform to that intention.
4. Restatement, Contracts, § 505, cited. [158]
5. Where one with an insurable interest, at the time of
applying for a policy, advises the agent of the insurance
company of the desired coverage and truthfully states to such
agent the facts involved in the risk, and the agent, acting
within his real or apparent authority and without actual or
constructive knowledge of the applicant, fails to insert a
requested provision, the insurer cannot set up such mistake in
avoidance of the policy. [159]
Practice - Pleadings - Averments of facts - Defendant
putting other party on notice of facts which it has to refute
- Averment by plaintiff that crucial facts are in the
exclusive knowledge of the defendant - Demurrer - Judicial
review on appeal - Averment of agency as a fact.
6. A pleader must set forth concisely the facts upon which
his cause of action is based; such a requirement is reasonable
because,
Page 155
ry'ya
LINE LEX. L. & M. CO., INC. v. PA PUB. CORP., 451 Pa. 154 (1973).
where the complaint lacks facts which are crucial to recovery,
it could be unjust to require the defendant to undergo the
expense of trial. (162]
7. All that is required of a complaint is that the defendant
be put on notice of the facts which it has to refute. [162]
8. Where the crucial facts are in the exclusive knowledge of
the defendant, and the plaintiff so pleads, he should be given
considerable latitude. [162]
9. Where a demurrer to a complaint is sustained, the
appellate court must accept plaintiff's allegations as true.
[162]
10. An averment of agency is a fact that is admitted for the
purposes of a demurrer rather than a conclusion of law. [163]
Mr. Justice MANDERINO concurred in the result.
Argued April 18, 1972. Before JONES, C. J., EAGEN, O'BRIEN,
ROBERTS, POMEROY, NIX and MANDERINO, JJ.
Appeal, No. 219, Jan. T., 1972, from decree of Court of
Common Pleas, Trial Division, of Philadelphia, Oct. T., 1971,
No. 1499, in re Line Lexington Lumber & Millwork Co., Inc. v.
Pennsylvania Publishing Corp. et al. Decree reversed and case
remanded.
Equity.
Defendants' preliminary objections sustained and complaint
dismissed, order by HIRSH, J. Plaintiff appealed.
Victor Wright, with him Fox, Rothschild, O'Brien & Frankel,
for appellant.
Joseph Head and Stephen A. Cozen, with them Swartz, Campbell
& Detweiler, and Orlofsky, Cozen and Begier, for appellees.
OPINION BY MR. JUSTICE NIX, March 16, 1973:
This is an appeal from an order of the Court of Common Pleas
of Philadelphia sustaining preliminary objections in the nature
of a demurrer to the amended
Page 156
complaint and dismissing the action against the appellees
herein. Appellant contends that his amended complaint stated a
cause of action for reformation of contract. We agree and
reverse the order below.
Line Lexington and Millwork Company, Inc., appellant
(hereinafter referred to as 'Line"), filed a complaint in
equity against Pennsylvania Publishing Corporation (hereinafter
referred to as "Publishing") not a party to this appeal, Marsh
& McLennan, Inc., appellee (hereinafter referred to as
"Marsh"), and various insurance companies, appellees
(hereinafter referred to as "Insurers"). Preliminary objections
in the nature of a demurrer and also raising additional
questions not pertinent to this appeal were filed. Appellant
filed an amended complaint and, after the entry by the court
below of an order dismissing the amended complaint, an appeal
was taken to this court. f.[ nl7
Page 2 of 7
c
LINE LEX. L. & M. CO., INC. v. PA. PUB. CORP., 451 Pa. 154 (1973).
Line, by way of a written lease dated April 5, 1971, leased
an Industrial building which it owned to Publishing. Inter
alia, the lease required Publishing to pay as additional rent,
all fire insurance premiums on the demised premises and/or the
building of which the demised premises was a part. By an oral
agreement between Line and Publishing, the latter undertook to
obtain fire insurance in the amount of $70,000.00 in order to
protect fully Line's ownership interest in the building.(fn21
Publishing contacted Marsh as broker and as agent for
Insurers and secured fire insurance policies containing
Page 157
$10,000.00 coverage on the building. fn3 In each of the several
policies obtained, Publishing was listed as the insured party.
A fire occurred on June 15, 1971, destroying the building in
question, and the Insurers paid Publishing in return for a
release of all of its claims under the policies. f( n41
Page 3 of 7
?s
-l
t?l
fr
r,
S
i
A review of the complaint forces the conclusion that it
alleges facts justifying reformation of the insurance policies
to name appellant as the insured party with respect to the
building. f( n51 The pertinent paragraphs in the complaint are as
follows:
1112. Pursuant to the said oral agreement defendant
(Publishing] applied to defendant MARSH, an insurance broker
and agent for each of the remaining defendants, for fire
insurance on the said building in the amount of $70,000. .
Plaintiff does not know whether the said applications were oral
or in writing, the content thereof (other than the allegations
eat forth in Paragraph 13 hereof), nor precisely when they were
made by defendant PUBLISHING to defendant MARSH. The facts
relating thereto are in the exclusive knowledge of defendants
PUBLISHING and MARSH. . . .
"13. . defendant PUBLISHING disclosed to defendant MARSH
at the time of its application for said
Page 150
insurance that it was lessee of said building, that plaintiff
was the owner thereof, and that defendant PUBLISHING was
applying for insurance on the said building on behalf of
plaintiff pursuant to its obligation under the lease and its
oral agreement to do so.
1119. Defendant MARSH, well knowing that plaintiff was the
owner of the said building and that plaintiff was intended to
be designated in the said policies as the insured party with
respect thereto, caused each of the said policies of insurance
to be issued to defendant PUBLISHING as the insured party as to
both the building and the contents and failed to cause
plaintiff to be designated in the several policies of insurance
as the insured party with respect to said building."
ordinarily, a mistake must be mutual to the parties to the
contract in order to justify reformation of a written
instrument on the basis of mistake. Bugen v. New York Life
Insurance Co., 408 Pa. 472, 475, 184 A. 2d 499, 500 (1962).
Since the complaint suggests that Marsh intentionally caused
Publishing to be named as the insured party, the lower court
was correct in noting that this is not a case of mutual
mistake.
.1
LINE LEX. L. & M. CO., INC. v. PA. PUB. CORP., 451 Pa. 154 (1973). Page 4 of 7
Apart from the doctrine of mutual mistake, authorities have
recognized that a mistake by one party, and knowledge of the
mistake by the other, should justify relief as fully as a
mutual mistake. Williston on Contracts, 3rd Ed. § 1577;
Restatement of Contracts § 505; Corbin on Contracts, 1960 Ed. §
610. In effect, the party with knowledge of the mistake is
estopped from relying on the mistake.
our courts have indicated approval of that doctrine as early
as Cook> V. <Liston>, 192 Pa. 19, 43 A. 389 (1099). fn6 See also,
Peoples Natural Gas Co. Appeal, 399 Pa. 226, 160 A.2d 391
(1960). In Kaufman v. New York Life
Page 159
Insurance Co., 315 Pa. 34, 172 A. 306 (1934), we stated that if
the party against whom reformation is sought has such knowledge
of a mistake as to justify an inference of fraud or bad faith,
relief would be justified. fn7 In Overholt V. Reliance Insurance
Co., 319 Pa. 340, 179 A. 554 (1935), after noting that there
was evidence to support a finding of mutual mistake, the court
stated that the insurance company was not aided by its
contention that it had made no mistake in drafting the policy
because reformation will be granted where "one party at the
time of the execution of a written instrument knows not only
that the writing does not accurately express the intention of
the other party as to the terms to be embodied therein, but
knows what that intention is." 319 Pa. at 345, 179 A. at 557,
quoting from the Restatement of Contracts § 505. The estoppel
doctrine was specifically enunciated in General Electric Credit
Corp. v. Aetna Casualty and Surety Corp., 437 Pa. 463, 474,
263 A.2d 448 (1970). There we held that, "where one with an
insurable interest ., at the time of applying for a policy,
advises the agent of the insurance company . . . of the desired
coverage and truthfully states to such agent the facts involved
in the risk, and the agent, acting within his real or apparent
authority and without actual or constructive knowledge of the
applicant, fails to insert a requested provision, the insurer
cannot set up such mistake in avoidance of the policy." We,
therefore, find ample authority from commentators and from the
pronouncements of this court to support the principle that a
party who knowingly causes a written instrument to fail to
embody the intent of the other party is estopped from relying
on
Page 160
such defect in the instrument. Moreover, where the first party
knows what the other party actually intended, the instrument
will be reformed to conform to that intention.
It remains to determine whether this doctrine would justify
relief under the facts alleged in the appellant's complaint. We
are satisfied that the complaint contains the elements
estoppel set forth in.GECC v. Aetna, supra. First, appellant
alleged that it was the owner of the building. That allegation
establishes that it has an insurable interest. Second,
appellant alleged that the applicant, Publishing, disclosed to
Marsh that appellant was the owner and Publishing was the
lessee of the building. Marsh was thereby in possession of all
of the facts relevant to the risk involved in insuring the
building. Third, appellant alleged that Marsh knew that
appellant was intended to be designated as the insured party,
yet Marsh caused Publishing to be named as the insured party.
Marsh therefore was advised of the desired coverage and failed
to provide that coverage. fn8 Fourth, appellant alleged that Marsh
was acting as broker and agent for Insurers in obtaining these
LINE LEX. L. & M. CO., INC. v. PA PUB. CORP., 451 Pa. 154 (1973).
Policies. As we explain below, this allegation is sufficient to
establish the liability of the Insurers on a theory of agencv.
The lower court, relying on Spires v. Hanover Fire Insurance
Co., 364 Pa. 52, 70 A.2d 828 (1950), refused to grant relief to
a "total stranger" to an insurance policy. Spires does not
demand such a result in the instant
Page 161
case. In Spires, the plaintiffs leased an airplane hangar to
tenants who, under the terms of the lease, were obligated to
maintain fire insurance thereon. A fire destroyed the hangar,
and when the tenants refused to make a claim, the plaintiffs
sued the insurance company directly. We refused to grant relief
because the plaintiffs were not referred to in the policy and
the tenant and insurance company did not intend them to be
third party beneficiaries. That is clearly different from the
facts alleged here: Marsh knew that appellant was intended to
be designated as the insured party and, but for the alleged
mistake appellant would in fact have been a named party in the
policy. The contracting parties in Spires never intended to
create an obligation between the insurers and the plaintiffs.
Here the converse is alleged and reformation is sought to
effectuate that intent.
The lower court also relied upon Van Car, Inc. v. American
Casualty Co. of Reading, 417 Pa. 408, 208 A.2d 267 (1965). This
case merely affirms the rule that, in order for one to be a
third party beneficiary, to a contract, the contracting parties
must have so intended.
The court below contended that our appellate courts have
never granted relief to a "total stranger" to a written
contract. Bugen v. New York Life Insurance Co., 408 Pa. 472,
184 A.2d 499 (1962) refutes this contention. There, while the
plaintiff had been named as beneficiary in an earlier life
insurance policy, she was not named in the policy upon which
liability was predicated. She was granted reformation on the
basis of mutual mistake. Where the gravamen of a complaint is
the failure of an insurance company to name the plaintiff as a
beneficiary, it would deprive the aggrieved party completely of
relief to adopt the rule relied upon below.
Page 162
As a minimum, a pleader must set forth concisely the facts
upon which his cause of action is based. such a requirement is
reasonable because, where the complaint lacks facts which are
crucial to recovery, it would be unjust to require the
defendant to undergo the expense of a trial. vitro
Manufacturing Co. V. Standard Chemical Co., 291 Pa. 85,
139 A. 615 (1927). on the other hand, where the crucial facts are in
the exclusive knowledge of the defendant, and the plaintiff so
pleads, he should be given considerable latitude. 1 Goodrich
Amram, standard Pennsylvania Practice 5 1019-1, at 105. While
this complaint is far from a model of clarity, it does contain
the elements necessary for reformation based upon a theory of
estoppel. Marsh was on notice of the facts which it had to
refute, and that is all that is required of a complaint. See,
e•g•, Pottstown Daily News Publishing Co. v. Pottstown
Broadcasting Co., 411 Pa. 383, 192 A. 2d 657 (1963). Of course,
it may appear at trial that the appellant cannot
and convincing evidence to produce clear
prove a case, reformation should be denied. Easton v. Washington
Page 5 of 7
LINE LEX. L. & M. CO., INC. v. PA. PUB. CORP., 451 Pa. 154 (1973). Page 6 of 7
County Insurance Co., 391 Pa. 28, 137 A. 2d 332 (1957). It also
may appear, from undisputed facts established by pretrial
discovery and affidavits, that appellees are entitled to
summary judgment. See, Pa. R. C. P. 1035. The lower court
sustained the appellees demurrers, however, and in that
procedural posture, we must accept appellants allegations as
true. Borden et al. v. Baldwin et al., 444 Pa. 577,
281 A.2d 692 (1971), Cantanese v. Scirica, 437 Pa. 519, 263 A.2d 372
(1970). We believe those allegations were sufficient to
establish a cause of action against Marsh and that it was error
for the court below to have dismissed the action against the
defendant.
The liability of appellee Insurers must be derived from Marsh
on a theory of agency. The complaint alleges
Page 163
that Publishing applied to Marsh "as insurance broker and
agent" for each of the insurers. It alleges further that Marsh
issued the policies to Publishing as agent for each of the
Insurers. Finally, the policies themselves are attached to the
preliminary objections and we may refer to them for purposes of
deciding a demurrer. Detweiler v. Hatfield Borough School
District, 376 Pa. 555, 104 A.2d 110 (1954). Those policies
contain the signatures of the individual employees of Marsh in
the contract and their signatures appear as agents of Marsh,
which in turn was an agent of the insurance companies. An
averment of agency is a fact that is admitted for purposes of a
demurrer rather than a conclusion of law. Frazier v. Ruskin,
203 Pa. Super. 525, 199 A.2d 513 (1964). It may well be
that the appellant will be unable to convince a finder of fact
that Marsh acted as agent for the insurers. See, e.g., Taylor
v. Crowe, 444 Pa. 471, 282 A.2d 682 (1971), but these
allegations are certainly sufficient to withstand the demurrer.
Decree below reversed and case remanded for proceedings not
inconsistent with this opinion. Each party to bear own costs.
Mr. Justice MANDERINO concurs in the result.
[fnl] As to Publishing, the court below transferred the case to the
law side of the court. At the time the record was certified to
this court, Line's action against Publishing was still pending.
[fn2] Prior to this oral agreement, Line had obtained a $50,000.00
fire insurance policy on the building with a carrier that is
not involved in this action. The total value of the building is
alleged to have been $120,000.00.
[fn3] At the same time Publishing applied for $900,000.00 insurance
on the contents of the building which contents belonged to
Publishing. That coverage is not at issue in this appeal. ,
[fn4] From the Insurers' preliminary objections, it is apparent that
the appellant notified the Insurers of its claim before they
had made any settlement with Publishing. The Insurers chose to
ignore this claim and to consummate the negotiations with
Publishing rather than to use the vehicle of interpleader or
declaratory judgment to ascertain their liability. See, Pa. R.
C. P. 2301 et seq., and Act of June 18, 1923, P. L. 840, § 1 et
seq., 12 Pa.C.S.A. § 831 et seq.
[fn5] Appellant also contends that the facts in his amended
complaint would entitle him to relief at law on the theory that
LINE LEX. L. & M. CO., INC. v. PA. PUB. CORP., 451 Pa. 154 (1973). Page 7 of 7
.. Publishing was appellant's agent. We need not reach that issue
in view of our disposition of the matter.
(fn61 The court's per curiam opinion approves of the lower court's
recognition of this doctrine.
(fn71 The mistake in Kaufman was not so glaring as to warrant an
inference that the insurance company had such knowledge, and
the plaintiff failed to produce any other evidence of such
knowledge. Therefore, reformation was not granted in that case.
(fn81 The appellant was not barred from recovery on the face of the
pleadings because of their failure and the failure of
Publishing to notice the mistake. An insured or the agent of
the insured is not charged with knowledge of all of the terms
of the policy, see, e.g., GECC v. Aetna, supra and cases cited
therein. It was the obligation of the appellees to allege and
prove that the error in this case was so significant as to
warrant the invocation of the theory of constructive knowledge.
copyright moo LOISLAW.CONL Ine Aa right/ R=%Td.
t
I- ' February 22, 2001
Barry K. Tolby
15 Sycamore Circle
Etters, Pa. 17319
The Honorable Edward E. Guido
Cumberland County Courthouse
One Courthouse Square
Carlisle, Pa. 17013-3387
RE: Tolby v. Northeastern Home Improvements Case Number 99-7230
Dear Judge Guido:
Several weeks ago my wife's mom had been diagnosed with Lung Cancer and this has
spread to her lymph nodes and liver. Both of our families are from Pittsburgh and I will
be going back to help my wife care for her mom and support her in this very sad time of
her life.
The doctors have told us that she could pass any time but only God knows when he will
take here home.
We are suppose to go to trial on the 2"d of March and I expect to be there, but I do go
home over the weekends and sometimes through the week and am expecting to be called
home at any time and I respectfully request of the courts understanding in this matter.
If I am called home before the trial date I will notify your office, by phone, because I do
not think a letter will reach your office in time.
Thank you, Your Honor, for your consideration and understanding.
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TRIPLE CROWN CORPORATION
Devetopers•Bui lders• Managers•Bemodeters
JaYcea "venue
?nura.PA 17112
National Housing Quality Award Winner
ESTIMATE
Barry Geble
15 Sycamore Circle
Etters, PA 17319
Home 938-3306
This estimate covers the cost as described below:
gi7) 6575729
FAX (717) 657-6125
email: triplecrovvn@worldnet.att.nel
8/27/99
Remove existing black top driveway and install new concrete driveway.
-Remove existing driveway and cut down grade to 8" below existing grade.
-Install 4" of 2B stones as base.
-Pour 4" of 3500 PSI concrete with expansionjoints at every 10' of drive.
-Use expansion joint material at garage and road.
Drive to be broom finished.
-Includes clean up and dumping fees.
Total Estimate .................................................................56,225.00'
* price guarantee for 30 days from estimate date, does not include any permit
fees.
Any questions call Steve Reese 657-5729 Ext. 44.
IFON UPDEGRAVE CONSTRUCTION CO.
445 Shelleys Lane
ETTERS, PENNSYLVANIA 17319
(717) 932.1168 FAX (717) 932-3901
Submitted 36&g 101 &f
_____-----_..--.-
To:
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Remodeling Proposal
HONE CONTRACTOR LICENSE NO. JOB 9 3 H0?
93 33 O
JOB NAMEI NO. -r,D CVi -
JOO LOCATION
---- ARCHITECT DATE OF PLANS
APPROXIMATE STARTING GATE APPROXIMATE COMPLETION DATE
PHONE
cations and estimates tor.
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All material is guaranteed to be as specified. All work to be cent'
pleted in a workmanlike manner according to standard practices.
Any alteration or deviation from Ne above specifications imohn g
,it, costs will be done only upon a written change order. The vests
will become an extra charge over and above the estimate. This is
to include, but Is net limited to, hidden damages that are uncovered
during the course of the lob and additional work required by total
building inspectors.
All elements of this agreement are contingent upon strikes, 1100001'15
or delays beyond out central. The estimate does not include material
price Increases, or additional labor and materials which may be
required should unforeseen problems arise after the work has stoned.
You, the buyer, may cancel this transaction
at any time. prior to midnight of the third
business day after the date of this trans-
action. Cancellation must be done in writing.
Note: The, proposal
may ee.amdawn
eyusilnotar%epled'the" 3 L daR
Acceptance of Proposal' The above prices, specifications and conditions are satisfactory and are hereby accepted. You are
authorized to do the work as specified. Payment will be made as outlined above.
DNe ?f- Signature
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coy,) e_ ?-r -
c late in accordance with
We Propose hereby to to lab mamaterial the sum of: comp
above l i Ic, i.(?q Yf yrf_ dollars ($ J--- Z ??•
as lollows:
Payment to be moo
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Date V
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HOME IMPROVEMENT CO.
Main Office Warehouse
2820 Waltonville Rd. 306 S. Front Street
Hummelstown, PA 17036 Steelton, PA 17113
566-6269 939.6402
FAXXY44-8301
SOLD TO I?,?I/.. / .'i. ? ? .. . ....
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CITYRESS .'C.I/?......-??..... ..........::....:.. .
.. STATE
NEAR ................................. TEL.......
............. DOORS
TOTAL NO.
....... WINDOWS
'rf.% ' ?? y /r/l//? ?ji.*-/? ? .% •7Uv /1.?/f? ?/.N/,???'?t? r:'/..GL?I
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CONTRACT:
I. Oasis and cme of delivenes am agpmimem and am not a am,teed No cral under mndhe tb the contrary.
Insulations am to be made during bu2. A deposit amounting , price mu"==y
anger and may N had up Cams July received
3. AS mechanical e sipn or l orfecmory grod y prods ucui am
an meNech[Odato Wnge at on now of Easy Sider, such change bwv mcesvuted
m impprwo" a Oa
.
4. Am dspuu ar claim ooncening marchandiee must N made in wnbng 5 days after rote,, of men hanose or
kuulaoon thereof, as the Case may M.
5. Al orders are subjecc to coNmnaticn by the mall office. No aabartun aNJ lure du nght to wave this prowaan.
B. Seger shag not be held gable far de4y in dekvary of arty part of the marchandiae due u accidents. sunk", fires, or
causes beyond sepals contrd. Buyer agrees that any time of dafrery hanain nom mmoOned shad N deemed
extended N and inchndinp the data when the cause Of delay is moved.
7 Kbdly make up my sp l order accondrp to inetrucpong above.
-YOU THE BUYER, MAY CANCEL THIS TRANSACTION AT ANYTIME
'\ PRIOR TO MIDNIGHT TO THE THIRD BUSINESS DAY AFTER THE
DATE OF THIS TRANSACTION. TQ CANCEL THIS TRANSACTION, A
DATED CERTIFIED LETTER MUST BE SENT.ISignature6elowacknow-
ledges this right)';
Customer ?• `j'
Signature First Middle Last Name
Customer
Signature .......First ...............................
Middle Last Name
CLEAN UP AFTER EACH JOB
PRICE
F 7z?? 0
TOTAL
DEPOSIT
BALANCE DUE
ADD. DEPOSITS
BALANCE
C.O.D.
NOTE: Salesmen are required to take
a X deposit on all contracts.
EASY SIDERS.
HOME IMPROVEMENT_CO._
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ORIGINAL CONTRACT PRICE. S -- / 7 I
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BARRY KENT TOLBY
EMERALD AUCTION SERVICE
15 SYCAMORE CIR
ETTERS PA
SAVINGS BANK
RESEARCH IMAGE REQUEST
Fri Aug 27, 1999
ACCOUNT NO: 500038223
The inuge(s) shows below
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PLAINTIFFS
EXHIBIT
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15 SYCAMORE CIRCLE
ETrERS, PA 17319
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
Barry K. Tolby
Plaintiff
V. NO. 99-7230 CIVIL
Northeastern Home Improvements CIVIL DIVISION - LAW
Defendant
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
Plantiff. You may loose money, property, or other rights important to you.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
Barry K. Tolby
Plaintiff
V. NO. 99-7230 CIVIL
Northeastern Home Improvements CIVIL DIVISION - LAW
Defendant
AMENDED COMPLAINT
Now comes, the Plantiff, Barry K. Tolby, and files this complaint in
support of which states as follows:
I. The Plantiff, Barry K. Tolby, is an individual residing at 15 Sycamore
Circle, Etters, County of York, Pennsylvania.
2. The Defendant, Northeastern Home Improvements, is a Corporation
doing business at 125 North Enola Drive, Enola, County of Cumberland,
Pennsylvania.
3. On April 28, 1999, Plantiff met with Jamie Walsh, Field
Representative for Northeastern Home Improvements, and signed a legal
and binding contract (encl I) for $2394.00 to have a cement driveway
installed at the Plaintiff's residence, 15 Sycamore Circle, Etters,
Pennsylvania.
4. On or about August 17, 1999, four (4) months later, the Plaintiff was
told by Jamie Walsh, Field Representative for Northeastern Home
Improvements, that they were not going to install the driveway.
III?'
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5. Northeastern Home Improvements refused to honor a legal and
binding contract (encl1).
6. On November 8, 1999, Defendant was taken to Small Claims Court for
refusing to honor a legal and binding contract and was sued for $2406, the
amount of damages suffered above the quote given by the defendant, the
Plaintiff's deposit of $394.00 (encl2), and costs.
7. On November 8, 1999, Defendant was found "GUILTY" and a Default
Judgment was entered against them in the amount of $2897.25 (encl3).
8. As a direct result of the Defendants refusal to honor a legal and binding
Contract, the plaintiff suffered financial damages in the amount of $2406.00,
the amount the Plaintiff had to pay above the quoted price given by the
Defendant.
9. The financial damages suffered do not exceed the jurisdictional amount,
$25,000.00, requiring arbitration.
10. WHEREFORE, the Plantiff, Barry K. Tolby, requests this Honorable
Court to enter judgment against the Defendant, Northeastern Home
Improvements for the sum of money in excess of $2897.25, together with
interest and costs thereon as allowed by law, to fairly compensate the
Plaintiff for the injuries he sustained and for such other relief as the Court
determines is just, fair, and equitable.
2
Dated; May, 01, 2000
15 Sycam6re Circle
Etters, Pa. 17319
717-938-3306
Pro Se
Encll Contract
Enc12 Deposit Check
Encl3 Notice of Judgment
CUSTOMERS NAME
/o Ile
CUSTOMERS ADDRESS /T _ .SyGG?..rdyP L?;'vG ,AN
CITY Fyrrif STATE /?+• ZIP PFIONE# 3l- 3JGjTo
ORIGINAL CONTRACT PRICE S .-;) 39 %,
1V"° - _M NORTHEASTERN
HOME DNPROVEMENT SERVICES
ADJUSTED CONTRACT PRICE -;> 3 9`7•
o'?GY/t?• ? N?o?• CG.y?! /Y.?iuv?
DESCRIPTION OF CHANGES
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SALESMAN SIGNATURE
CUSTOMERS SIGNATURE X / MANAGER APPROVAL
DATE
DATE •'."'/- ??
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HARRIS
I SAVINGS BANK
Fri Aug 27, 1999
ACCOUNT NO: 500038223
RESEARCH IMAGE REQUEST
BARRY KENT TOLBY
EMERALD AUCTION SERVICE
15 SYCAMORE CIR
ETTERS PA
The irmge(s) show) below
represent official copies of
original docunenls processed
by our Institution.
151
EMERALD AUCTION SERVICE
15 SYCAMORE CIRCLE 61-7271114313
ETTERS, PA 17319
PH 717.8363306, 800.7244863 2 19
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COMMONWEALTH OF PENNSYLVANIA
rnl imTV nF• CUMBERLAND
Map. 0131. Na.:
09-1-02
DJName: Ben.
ROBERT V. MANLOVE
Am....: 1901 STATE STREET
CAMP HILL, PA
Teiepwe:(717) 761-0583 17011-0000
BARRY R. TOLBY
15 SYCAMORE CIRCLE
ETTERS, PA 17319
NOTICE OF JUDGMENT/TRANSCRIPT
CIVIL CASE
PLAINTIFF:
NAME aea ADDRESS
BARRY R
FTOLBY
,
15 SYCAMORE CIRCLE
ETTERS, PA 17319
L J
VS.
DEFENDANT: NAME IM ADDRESS
FNORTHEASTERN HOME IMPROVEMENTS
125 N ENOLA DR
ENOLA, PA 17025
L J
DocketNo.: CV-0000329-99
Date Filed: 9/27/99 1 1 - .4
THIS IS TO NOTIFY YOU THAT:
Judgment: DEFAULT 71MGMENT PLTF
a Judgment was entered for: (Name) TnT.nv, BARRY u
?X Judgment was entered against: (Name) NnRTHF.ARTR.RN xnNF TMPRnyjncRNTS
in the amount of $ 2, goy _ 2F on:
F1 Defendants are jointly and severally liable.
Damages will be assessed on:
This case dismissed without prejudice.
Amount of Judgment Subject to
Attachment/Act 5 of 1996 $-
F Levy is stayed for days or ? generally stayed.
? Objection to levy has been filed and hearing will be held:
Date: Place:
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 O COMMON PLEAS, CIVIL DIVISION. YOU
MUST INCLUDE A COPY OF THI"-OTtdE OF dUDGMENTIrRrANS?t IPT FORM WITH YOUR NOTICE OF APPEAL.
(Date of Judgment) 11 /OR zg a
(Date & Time)
Amount of Judgment
Judgment Costs
Interest on Judgment
Attorney Fees
Total
Post Judgment Credits
Post Judgment Costs
Certified Judgment Total
$
$
Date
, District Justice
II certify is a true targr;?t r cor the p/cf cedigs containing the judgment.
9 Date lprnl/!l District Justice
My commission expires first Monday of January,
AOPC 315.99
2000 SEAL
f=w c[.3
VERIFICATION
I, Barry K. Tolby, Plantiff herein, do hereby state that the foregoing
Complaint is true and correct to the best of my knowledge, information and
belief.
I understand that false statements herein are made
of 18 Pa. C.S. 4904, relating to unsworn
Dated: May 01, 2000
to the nenalties
CERTIFICATE OF SERVICE
AND NOW, this _FIRST day of May, 2000, 1, Barry K. Tolby, Plaintiff, do
hereby certify that I have this day served by registered mail a copy of the attached
Amended Complaint to the following address,
Gregory R. Reed, Esquire
Attorney for Defendant
2423 North Third Street
Harrisburg, Pa. 17110
15 Sycam re Circ
Etters, a. 17319
Z 276 991 021
US Postal Service
Receipt for Certified Mail
No Insurance Coverage Provided.
Do not use for International Mall see reverse
Sent to
G 4°Go/2. K.
6-cp0
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Post qffm, Stale,BL Coda
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Postage $
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Certified Fee
Special Delivery Fee
Renric ed Delivery Foe
Return Receipt Stowing to
Whom 8 Date Delivere
d
Ream RceplSMwigloWhan,
Date, & rdeecreeb Address
TOTAL Postage B Feee?; s
Posinark or Dale
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AUG 1- 2000"
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
Barry K. Tolby
Plaintiff
V.
Northeastern Home Improvements
Defendant
NO. 99-7230 CIVIL
CIVIL DIVISION - LAW
RESPONSE TO NEW MATTER
Now comes, the Plantiff, Barry K. Tolby, and files this Response to New
Matter.
1. The Plantiff, Barry K. Tolby, is an individual residing at 15 Sycamore
Circle, Etters, County of York, Pennsylvania.
2. The Defendant, Northeastern Home Improvements, is a Corporation
doing business at 125 North Enola Drive, Enola, County of Cumberland,
Pennsylvania.
3. Response to New Matter Paragraph 10.
Defendant's representative made no mistakes in writing the contract or with the
figures included. If a mistake had been made the Plaintiff would have been
notified either by phone, letter, or in person by the representative. This never
occurred. The Plaintiff was "NEVER" contacted by the Defendant explaining
there was a problem.
4. Response to New Matter Paragraph 1 I
There is absolutely no way Plaintiff could know these figures were wrong. This
was the first quote ever requested by Plaintiff to have driveway put in.
5. Response to New Matter Paragraph 12.
(a). To this very day the Defendant has "NEVER" made contact with the
Plaintiff, in person, telephonically, or in writing, stating there was a
problem with the Contract, and because the Defendant, "NEVER",
contacted Plaintiff about any Errors, Defendant is responsible for
damages incurred by Plaintiff, above Defendants quoted price.
(b). The "ONLY" communication made was from the Plaintiff to the
Defendant via telephone around mid August to find out why the driveway
had not been started.
(c). Plaintiff requested, thru both Mr. Walsh and Production Manager, to speak
with President of Northeastern Home Improvements, they both refused to
transfer phone call. Plaintiff was told president would return call. This
never occurred.
6. Response to New Matter Paragraph 13.
The Defendant is making scandalous and impudent allegations that are false and
unwarranted. These allegations will be responded to in Arbitration, requested by
Defendant, in separate letter to Plaintiff (Encl1).
6. In a separate letter dated July 19, 2000 (Encl l ), Mr. Reed felt compelled to
give Plaintiff Legal advice, Procedures to follow, and what the Plaintiff believes
to be, an attempt to intimidate and threaten. Plaintiff believes portions of Mr.
Reeds letter to be unprofessional, inappropriate, insulting, and in direct conflict
with his responsibility to his client by giving legal advise to the Plaintiff on what
his legal responsibilities are and steps to take within the legal process.
WHEREFORE, Barry K. Tolby, Plaintiff, respectfully requests your Honorable
Court to enter Judgment for Plaintiff against Defendant.
Encll LETTER
717-938-3306
Pro Se
CERTIFICATE OF SERVICE
31 st
AND NOW, this - -MW day of July, 2000, I, Barry K. Tolby, Plaintiff, do
hereby certify that I have this day served by registered mail a copy of the attached Motion
For Judgment Against Defendant to the following address.
Gregory R. Reed, Esquire
Attorney for Defendant
2423 North Third Street
Harrisburg, Pa. 17110
15 Sycavore Circle
Etters, a. 17319
VERIFICATION
I, Barry K. Tolby, Plantiff herein, do hereby state that the foregoing
information and figures 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. 4904, relating to unsworn falsification to authorities.
31
Dated: July 10, 2000
Attorney At Law
2423 N.lhird Street
Ilarrisburg, Pennsylvania 17110
Mimic: (717) 233-0434 • Fax: (717) 233-3469
e-mail: gregrreed@prodigy.net
July 19, 2000
Barry K. Tolby
15 Sycamore Circle
Etters, PA 17319
RE: Tolby v. Northeastern Home Improvements
No. 99-7230
Dear Mr. Tolby:
Today, Wednesday, July 19, 2000, I received from you a copy
of the enclosed order which requires the Defendant to respond to
your Motion for Judgment against Defendant on or before July 20,
2000. If, according to the order, there is no response you may
file a Praecipe for Default Judgment in accordance with PA Rule
of Civil Procedure No. 237.1.
Since you are representing yourself and so that the
procedural status of this case does not become more complicated,
please understand that all required documents were filed on July
13, 2000. On that date, Defendant filed an Answer to Amended
Complaint with New Matter. on that date, Defendant also filed a
Response to the Motion for Judgment Against Defendant.
In my opinion, you should file a Reply to New Matter and
then list the case for arbitration. Do not attempt to obtain a
default judgment.
Very tr yours,
Gregory R. Re
GRR/cjw
Enclosure
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pc: Prothonotary of Cumberland Co.
tticL 1
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARRY K. TOLBY
Plaintiff
V.
NO. 99-7230 civil
NORTHEASTERN HOME IMPROVEMENTS CIVIL DIVISION - LAW
Defendant
NOTICE TO DEFEND AND CLAIM RIGHTS
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 Defendant. 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.
Court Administrator
4th F1., Cumberland County Courthouse
Carlisle, PA 17013
(717) 240-6200
NOTICIA
Le ban demaandado a usted en la corte. Si usted quieie
defenderse de estas demandas expuestas en las paginas
siguientes, usted tiene viente (20) dias de plazo al partir de
la fecha de la demanda y la notificacion. Usted debe presentar
una apariencia escrita o en persona o por abogado y archivar en
la corte enforma escrita sus defensas o sus objections a las
demandas en contra de su persona. Sea ayisado que si usted no
se defiende, la corte tomara medidas y puede entrar una orden
contra usted sin previo aviso o notificacion y port cualquier
queja o alivio que es pedido en la peticion de demanda. Usted
puede perder dinero o
sus propiedades o otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO
TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL
SEVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA
DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE
PUEDE CONSEGUIR ASISTENCIA LEGAL.
Court Administrator
4th pl., Cumberland County Courthouse
Carlisle, PA 17013
(717) 240-6200
Date:
- 2 -
Gregory R. R d, Esquire
Attorney for Plaintiff
2423 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney I.D. #23705
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA
BARRY K. TOLBY
Plaintiff
V. NO. 99-7230 Civil
NORTHEASTERN HOME IMPROVEMENTS CIVIL DIVISION - LAW
Defendant
ANSWER TO AMENDED COMPLAINT
NOW COMES, Northeastern Home Improvements, by and through
its attorney, Gregory R. Reed, Esquire, and answers Plaintiff's
Amended Complaint as follows:
1. Admitted.
2. Admitted.
3. Denied in part. Any document referred to in Paragraph
3 as a "legal and binding contract" is a legal conclusion to
which no responsive pleading is required. Furthermore, in that
said document was entered into pursuant to a mistake, it is not
a binding agreement.
4. Plaintiff knew, immediately, that said quote was in
error and as such knew or should have known that Defendant could
not perform the work for the sum of money stated in the writing.
It is admitted that later, but much sooner than four (4) months,
that Plaintiff was advised that Defendant could not do the work
for the sum of money set forth on the writing.
5. Specifically denied. Defendant's answers set forth in
paragraphs 3 and 4 hereof are incorporated herein by reference
as though fully set forth herein.
6. Stricken by order of Edward E. Guido, Judge, on June
12, 2000.
7. Stricken by order of Edward E. Guido, Judge, on June
12, 2000.
8. Specifically denied. Defendant's answers to
paragraphs 3 and 4 hereof are incorporated herein by reference
as though fully set forth herein.
9. Admitted. By way of further answer, Defendant's
-answers to paragraphs 3 and 4 hereof are incorporated herein by
reference as though fully set forth herein.
WHEREFORE, Northeastern Home Improvements respectfully
requests your Honorable court to enter judgment for Defendant
and against Plaintiff.
New Matter
10. Defendant's representative, when proposing the price,
made a calculation error so blatant that it was obvious to
'.11
- 2 -
Plaintiff so that Plaintiff cannot legally take advantage of the
error.
11. Plaintiff knew or had a good reason to know of the
error.
12. Defendant is entitled to relief to the same extent as
though it was a mutual mistake.
13. Plaintiff, in a devious and deceptive manner,
attempted to pounce on Defendant's error, fully aware of the
error, and attempted to force Defendant to perform the work at a
substantial out-of-pocket loss.
WHEREFORE, Northeastern Home Improvements respectfully
requests your Honorable court to enter judgment for Defendant
and against Plaintiff.
Respectfully submitted,
Gregory R. Reed, Esquire
Attorney for Def ndant
2324 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Supreme Court # 23705
- 3 -
This "'P2 day of r?2000, the foregoing Defendant
hereby verifies, subject to the penalties of 18 Pa.C.S. 4904
(relating to unsworn falsification to authorities), that the
facts set forth in the foregoing Answer to Amended Complaint
which are within his knot-:ledge are true, and as to the facts
based on information received, after diligent inquiry, he
believes them to be true.
Mark Kerlin, President of
Northeastern Home Improvements
of Harrisburg, Inc.
I ..
CERTIFICATE OF SERVICE
AND NOW, this _ day of July, 2000, I, Gregory R. Reed,
Esquire, Attorney for Defendant, do hereby certify that I have
this day served by first class mail a copy of the attached
Answer to Amended Complaint to the following address:
Barry K. Tolby
15 Sycamore Circle
Etters, PA 17319
Gregory R. Reed, Esquire
Attorney for Defendant
2423 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney I.D. 23705
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CASs r 7a30 Civ, ( t7IV Is
,?N
October 24, 2000
Barry K. Tolby
15 Sycamore Circle
Etters, Pa. 17319
Gregory R.
2423 North
Harrisburg,
Reed, Esq.
Third St.
Pa. 17110
RE: Tolby vs Northeastern Home
Improvements No. 99-7230
Dear Mr. Reed,
Please do not misunderstand this letter. It is not
meant to threaten or intimidate. I am just trying
to avoid, what will ultimately become a very
expensive risk for your client and to reiterate
something you said in your letter to me dated July
19, 2000 -- LET'S NOT LET THE PROCEDURAL STATUS
OF THIS CASE BECOME MORE COMPLICATED.
I am now preparing to file the "PRAECIPE FOR
LISTING CASE FOR TRIAL" but before doing so, I
thought I would write you a courtesy letter and
give you another chance to meet with your client
and explain to him the ramifications if he really
wishes to continue. I want to make sure he truly
desires to proceed.
It is not my intent to damage someone's reputation
all I want is what is right. Your client was wrong
and this has been stated, to date, on numerous
occasions.
The Defendant, I suspect, has spent considerable
money so far and my intention is not to try and
increase his expenditures or defame his character
or business reputation. His out of pocket costs at
this time are what he has paid you and the $2646.56
(judgement, interest, and costs) he owes me.
He has made claims of making phone calls, counter
offers, etc. I really believe he thinks he made
these, and he may have, but to another person
thinking the other person was me. He "Never" nor
did any of his employees ever make any phone calls
or counter offers to me. This was proven in
Arbitration. I know he is mistaken and want to
give him another chance to end this very simple
case now!
The law stipulates that it is the Plaintiffs
responsibility to prove his case and I have done so
up to this point and will continue to do so. I am
preparing to prove beyond any doubt that the
Defendant misrepresented under oath, not once, but
several times.
If you decide to continue, I will file the Praecipe
for Listing Case for Trial. once the Judge has
been assigned I will then prepare the necessary
documents requesting a court order to subpoena the
phone records of Northeastern Home Improvements.
If I thought there was the slightest chance that
the Defendant made phone calls to me I would never
even consider entering into this very expensive
procedure. But, I know that these phone calls were
not made and I am prepared to obtain the evidence
to prove that. Although the expenditure of money to
obtain these records will initially come out of my
pocket, the end result will be your client having
to pay for them. I do not make decisions like this
if there is the remotest possibility of my losing
especially when it comes to the sum of money talked
to below. If your client decides to continue on
with this case the following things, in all
probability, are going to happen.
1. I have been in contact with the phone company
and their legal and securities department and
of
prepared to obtain the phone
Northeastern Home Improvements for the dates
established at Arbitration. This is a very
expensive process and the cost will be
approximately $4000.00 to $7000.00. These
that these
records will prove beyond any doubt alleged phone calls were not made.
2. once proven, it is possible the issue will be
considered for referal by the court to the District
Attorney to determine if criminal proceeding
against your client for Perjury should be pursued.
There is absolutely no reason in this world to go
to these extremes. Let common sense prevail, submit
to the Arbitration ruling and end this issue.
Please confer with your client and consider my
proposal.
Please advise that you have withdrawn your appeal
by November 81 2000. If I do not hear from you by
then I will begin the next process.
Sincerq'ly
Barry
CERTIFICATE OF SERVICE
AND NOW, this -25TH day of October, 2000, I, Barry K. Tolby, Plaintiff,
do hereby certify that I have this day served by registered mail a copy of the attached
letter to the following addresses.
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LINE LEX. L. & A CO., INC. v. PA. PUB. CORP., 451 Pa. 154 (1973). Page 1 of 7
Pennsylvania Supreme Court Reports
LINE LEX. L. & M. CO., INC. v. PA. PUB. CORP., 451 Pa. 154 (1973).
301 A.2d 684
Line Lexington Lumber a Millwork Co., Inc., Appellant, v. Pennsylvania
Publishing Corp.
Supreme Court of Pennsylvania.
April 18, 1972.
March 16, 1973.
Contracts - Execution - Mistake - Mutual or unilateral
mistake - Knowledge of one party to contract that other has
made a mistake - Fraud or bad faith - Estoppel - Reformation
- Failure of agent of insurance company to insert provision
requested by insured.
1. ordinarily a mistake must be mutual to the parties to the
contract in order to justify reformation of a written
instrument on the basis of mistake. [158]
2. If one party to a contract has made a mistake and if the
party against whom reformation is sought has such knowledge of
the mistake as to justify an inference of fraud or bad faith,
relief in reformation is justified. [159]
3. A party who knowingly causes a written instrument to fail
to embody the intent of the other party is estopped from
relying on such defect in the instrument; moreover, where the
first party knows what the other party actually intended, the
instrument will be reformed to conform to that intention.
4. Restatement, Contracts, 5 505, cited. [158]
5. Where one with an insurable interest, at the time of
applying for a policy, advises the agent of the insurance
company of the desired coverage and truthfully states to such
agent the facts involved in the risk, and the agent, acting
within his real or apparent authority and without actual or
constructive knowledge of the applicant, fails to insert a
requested provision, the insurer cannot set up such mistake in
avoidance of the policy. [159]
Practice - Pleadings - Averments of facts - Defendant
putting other party on notice of facts which it has to refute
- Averment by plaintiff that crucial facts are in the
exclusive knowledge of the defendant - Demurrer - Judicial
review on appeal - Averment of agency as a fact.
6. A pleader must set forth concisely the facts upon which
his cause of action is based; such a requirement is reasonable
because,
Page 155
LINE LEX. L. & M. CO., INC. v. PA. PUB. CORP., 451 Pa. 154 (1973). Page 2 of 7
where the complaint lacks facts which are crucial to recovery,
it could be unjust to require the defendant to undergo the
expense of trial. [162]
7. All that is required of a complaint is that the defendant
be put on notice of the facts which it has to refute. [162]
8. Where the crucial facts are in the exclusive knowledge of
the defendant, and the plaintiff so pleads, he should be given
considerable latitude. [162]
9. Where a demurrer to a complaint is sustained, the
appellate court must accept plaintiff's allegations as true.
(162]
10. An averment of agency is a fact that is admitted for the
purposes of a demurrer rather than a conclusion of law. [163]
Mr. Justice MANDERINO concurred in the result.
Argued April 18, 1972. Before JONES, C. J., EAGEN, O'BRIEN,
ROBERTS, POMEROY, NIX and MANDERINO, JJ.
Appeal, No. 219, Jan. T., 1972, from decree of Court of
Common Pleas, Trial Division, of Philadelphia, Oct. T., 1971,
No. 1999, in re Line Lexington Lumber & Millwork Co., Inc. v.
Pennsylvania Publishing Corp. et al. Decree reversed and case
remanded.
Equity.
Defendants' preliminary objections sustained and complaint
dismissed, order by HIRSH, J. Plaintiff appealed.
Victor Wright, with him Fox, Rothschild, O'Brien & Frankel,
for appellant.
Joseph Head and Stephen A. Cozen, with them Swartz, Campbell
& Detweiler, and Orlofsky, Cozen and Begier, for appellees. -
OPINION BY MR. JUSTICE NIX, March 16, 1973:
This is an appeal from an order of the Court of Common Pleas
of Philadelphia sustaining preliminary objections in the nature
of a demurrer to the amended
Page 156
complaint and dismissing the action against the appellees
herein. Appellant contends that his amended complaint stated a
cause of action for reformation of contract. We agree and
reverse the order below.
Line Lexington and Millwork Company, Inc., appellant
(hereinafter referred to as "Line"), filed a complaint in
equity against Pennsylvania Publishing Corporation (hereinafter
referred to as "Publishing") not a party to this appeal, Marsh
& McLennan, Inc., appellee (hereinafter referred to as
"Marsh"), and various insurance companies, appellees
(hereinafter referred to as "Insurers"). Preliminary objections
in the nature of a demurrer and also raising additional
questions not pertinent to this appeal were filed. Appellant
filed an amended complaint and, after the entry by the court
below of an order dismissing the amended complaint, an appeal
was taken to this court. fnl
LINE LEX. L. & M. CO., INC. v. PA. PUB. CORP., 451 Pa. 154 (1973). Page 3 of 7
Line, by way of a written lease dated April 5, 1971, leased
an industrial building which it owned to Publishing. Inter
alia, the lease required Publishing to pay as additional rent,
all fire insurance premiums on the demised premises and/or the
building of which the demised premises was a part. By an oral
agreement between Line and Publishing, the latter undertook to
obtain fire insurance in the amount of $70,000.00 in order to
protect fully Line's ownership interest in the building. fn2
Publishing =ntacted Marsh as broker and as agent for
Insurers and secured fire insurance policies containing
Page 157
$70,000.00 coverage on the building. fn3 In each of the several
policies obtained, Publishing was listed as the insured party.
A fire occurred on June 15, 1971, destroying the building in
question, and the Insurers paid Publishing in return for a
release of all of its claims under the policies. fn4
A review of the complaint forces the conclusion that it
alleges facts justifying reformation of the insurance policies
to name appellant as the insured party with respect to the
building. fns The pertinent paragraphs in the complaint are as
follows:
1112. Pursuant to the said oral agreement defendant
[Publishing] applied to defendant MARSH, an insurance broker
and agent for each of the remaining defendants, for fire
insurance on the said building in the amount of $70,000. . . .
Plaintiff does not know whether the said applications were oral
or in writing, the content thereof (other than the allegations
set forth in Paragraph 13 hereof), nor precisely when they were
made by defendant PUBLISHING to defendant MARSH. The facts
relating thereto are in the exclusive knowledge of defendants
PUBLISHING and MARSH. . . .
1113. . defendant PUBLISHING disclosed to defendant MARSH
at the time of its application for said
Page 158
insurance that it was lessee of said building, that plaintiff
was the owner thereof, and that defendant PUBLISHING was
applying for insurance on the said building on behalf of
plaintiff pursuant to its obligation under the lease and its
oral agreement to do so.
"19. Defendant MARSH, well knowing that plaintiff was the
owner of the said building and that plaintiff was intended to
be designated in the said policies as the insured party with
respect thereto, caused each of the said policies of insurance
to be issued to defendant PUBLISHING as the insured party as to
both the building and the contents and failed to cause
plaintiff to be designated in the several policies of insurance
as the insured party with respect to said building."
Ordinarily, a mistake must be mutual to the parties to the
contract in order to justify reformation of a written
instrument on the basis of mistake. Bugen v. New York Life
Insurance Co., 408 Pa. 972, 475, 184 A.2d 499, 500 (1962).
Since the complaint suggests that Marsh intentionally caused
Publishing to be named as the insured party, the lower court
was correct in noting that this is not a case of mutual
mistake.
LINE LEX. L. & A CO., INC. v. PA. PUB. CORP., 451 Pa. 154 (1973).
Apart from the doctrine of mutual mistake, authorities have
recognized that a mistake by one party, and knowledge of the
mistake by the other, should justify relief as fully as a
mutual mistake. Williston on Contracts, 3rd Ed. § 1577;
Restatement of Contracts § 505; Corbin on Contracts, 1960 Ed. §
610. In effect, the party with knowledge of the mistake is
estopped from relying on the mistake.
Page 4 of 7
2-9 C70
Our courts have indicated approval of that doctrine as early
as cook> v. <Liston>, 192 Pa. 19, 43 A. 389 (1899). fn6 See also,
Peoples Natural Gas Co. Appeal, 399 Pa. 226, 160 A.2d 391
(1960). In Kaufman v. New York Life
Page 159
Insurance Co., 315 Pa. 34, 172 A. 306 (1934), we stated that if
the party against whom reformation is sought has such knowledge
of a mistake as to justify an inference of fraud or bad faith,
relief would be justified. fn7 In Overholt v.Reliance tInsurance
Co., 319 Pa. 340, 179 A. 554 (1935), after noting that was evidence to support a finding of mutual mistake, the court
stated that the insurance company was not aided by its
contention that it had made no mistake in drafting the policy
because reformation will be granted where "one party at the
time of the execution of a written instrument knows not only
that the writing does not accurately express the intention of
the other party as to the terms to be embodied therein, but
knows what that intention is." 319 Pa. at 345, 179 A. at 557,
quoting from the Restatement of Contracts § 505. The estoppel
doctrine was specifically enunciated in General Electric Credit
Corp. v. Aetna Casualty and Surety Corp., 437 Pa. 463, 474,
263 A.2d 448 (1970). There we held that, "where one with an
insurable interest ., at the time of applying for a policy,
advises the agent of the insurance company . . . of the desired
coverage and truthfully states to such agent the facts involved
in the risk, and the agent, acting within his real or apparent
authority and without actual or constructive knowledge of the
applicant, fails to insert a requested provision, the insurer
cannot set up such mistake in avoidance of the policy." We,
therefore, find ample authority from commentators and from the
pronouncements of this court to support the principle that a
party who knowingly causes a written instrument to fail to
embody the intent of the other party is estopped from relying
on
Page 160
such defect in the instrument. Moreover, where the first party
knows what the other party actually intended, the instrument
will be reformed to conform to that intention.
It remains to determine whether this doctrine would justify
relief under the facts alleged in the appellant's complaint. We
are satisfied that the complaint contains the elements
estoppel set forth in GECC v. Aetna, supra. First, appellant
alleged that it was the owner of the building. That allegation
establishes that it has an insurable interest. Second, disclosed to
appellant alleged that the applicant, Publishing,
Marsh that appellant was the owner and Publishing was the
lessee of the building. Marsh was thereby in possession of all
of the facts relevant to the risk involved in insuring the
building. Third, appellant alleged that Marsh knew that
appellant was intended to be designated as the insured party,
yet Marsh caused Publishing to be named as the insured party.
Marsh therefore was advised of the desired coverage and failed
to provide that coverage. f( n81 Fourth, appellant alleged that Marsh
was acting as broker and agent for Insurers in obtaining these
LINE LEX. L. & M. CO., INC. v. PA PUB. CORP., 451 Pa. 154 (1973).
policies. As we explain below, this allegation is sufficient to
establish the liability of the Insurers on a theory of agency.
The lower court, relying on spires v. Hanover Fire Insurance
Co., 364 Pa. 52, 70 A.2d 828 (1950), refused to grant relief to
a "total stranger" to an insurance policy. Spires does not
demand such a result in the instant
Page 161
case. In Spires, the plaintiffs leased an airplane hangar to
tenants who, under the terms of the lease, were obligated to
maintain fire insurance thereon. A fire destroyed the hangar,
and when the tenants refused to make a claim, the plaintiffs
sued the insurance company directly. We refused to grant relief
because the plaintiffs were not referred to in the policy and
the tenant and insurance company did not intend them to be
third party beneficiaries. That is clearly different from the
facts alleged here: Marsh knew that appellant was intended to
be designated as the insured party and, but for the alleged
mistake appellant would in fact have been a named party in the
policy. The contracting parties in Spires never intended to
create an obligation between the insurers and the plaintiffs.
Here the converse is alleged and reformation is sought to
effectuate that intent.
The lower court also relied upon Van Cor, Inc. v. American
Casualty Co. of Reading, 417 Pa. 408, 208 A.2d 267 (1965). This
case merely affirms the rule that, in order for one to be a
third party beneficiary, to a contract, the contracting parties
must have so intended.
The court below contended that our appellate courts have
never granted relief to a "total stranger" to a written
contract. Bugen v. New York Life Insurance Co., 408 Pa. 472,
184 A.2d 499 (1962) refutes this contention. There, while the
plaintiff had been named as beneficiary in an earlier life
insurance policy, she was not named in the policy upon which
liability was predicated. She was granted reformation on the
basis of mutual mistake. Where the gravamen of a complaint is
the failure of an insurance company to name the plaintiff as a
beneficiary, it would deprive the aggrieved party completely of
relief to adopt the rule relied upon below.
Page 162
As a minimum, a pleader must set forth concisely the facts
upon which his cause of action is based. Such a requirement is
reasonable because, where the complaint lacks facts which are
crucial to recovery, it would be unjust to require the
defendant to undergo the expense of a trial. Vitro
Manufacturing Co. v. Standard Chemical Co., 291 Pa. 85,
139 A. 615 (1927). On the other hand, where the crucial facts are in
the exclusive knowledge of the defendant, and the plaintiff so
pleads, he should be given considerable latitude. 1 Goodrich
Amram, Standard Pennsylvania Practice § 1019-1, at 105. While
this complaint is far from a model of clarity, it does contain
the elements necessary for reformation based upon a theory of
estoppel. Marsh was on notice of the facts which it had to
refute, and that is all that is required of a complaint. See,
e.g., Pottstown Daily News Publishing Co. v. Pottstown
Broadcasting Co., 411 Pa. 383, 192 A.2d 657 (1963). Of course,
it may appear at trial that the appellant cannot produce clear
and convincing evidence to prove his allegations, and, in such
a case, reformation should be denied. Easton v. Washington
f:
Page 5 of 7 I
!s
4{
LINE LEX. L. & M. CO., INC. v. PA. PUB. CORP., 451 Pa. 154 (1973). Page 6 of 7
County Insurance Co., 391 Pa. 28, 137 A.2d 332 (1957). It also
may appear, from undisputed facts established by pretrial
discovery and affidavits, that appellees are entitled to
summary judgment. See, Pa. R. C. P. 1035. The lower court
sustained the appellees demurrers, however, and in that
procedural posture, we must accept appellants allegations as
true. Borden et al. V. Baldwin et al., 444 Pa. 577,
281 A.2d 892 (1971), Cantanese v. Scirica, 437 Pa. 519, 263 A.2d 372
(1970). We believe those allegations were sufficient to
establish a cause of action against Marsh and that it was error
for the court below to have dismissed the action against the
defendant.
The liability of appellee Insurers must be derived from Marsh
on a theory of agency. The complaint alleges
Page 163
that Publishing applied to Marsh "as insurance broker and
agent" for each of the insurers. It alleges further that Marsh
issued the policies to Publishing as agent for each of the
Insurers. Finally, the policies themselves are attached to the
preliminary objections and we may refer to them for purposes of
deciding a demurrer. Detweiler v. Hatfield Borough School
District, 376 Pa. 555, 104 A.2d 110 (1954). Those policies
contain the signatures of the individual employees of Marsh in
the contract and their signatures appear as agents of Marsh,
which in turn was an agent of the insurance companies. An
averment of agency is a fact that is admitted for purposes of a
demurrer rather than a conclusion of law. Frazier v. Ruskin,
203 Pa. Super. 525, 199 A.2d 513 (1964). It may well be
that the appellant will be unable to convince a finder of fact
that Marsh acted as agent for the insurers. See, e.g., Taylor
v. Crowe, 444 Pa. 471, 282 A.2d 682 (1971), but these
allegations are certainly sufficient to withstand the demurrer.
Decree below reversed and case remanded for proceedings not
inconsistent with this opinion. Each party to bear own costs.
Mr. Justice MANDERINO concurs in the result.
[fnl] As to Publishing, the court below transferred the case to the
law side of the court. At the time the record was certified to
this court, Line's action against Publishing was still pending.
[fn2] Prior to this oral agreement, Line had obtained a $50,000.00
fire insurance policy on the building with a carrier that is
not involved in this action. The total value of the building is
alleged to have been $120,000.00.
[fn3] At the same time Publishing applied for $900,000.00 insurance
on the contents of the building which contents belonged to
Publishing. That coverage is not at issue in this appeal.
[fn4] From the Insurers' preliminary objections, it is apparent that
the appellant notified the Insurers of its claim before they
had made any settlement with Publishing. The Insurers chose to
ignore this claim and to consummate the negotiations with
Publishing rather than to use the vehicle of interpleader or
declaratory judgment to ascertain their liability. See, Pa. R.
C. P. 2301 et seq., and Act of June 18, 1923, P. L. 840, § 1 et
seq., 12 Pa.C.S.A. § 831 et seq.
[fn5] Appellant also contends that the facts in his amended
complaint would entitle him to relief at law on the theory that
w.
LINE LEX. L. & M. CO., INC. v. PA PUB. CORP., 451 Pa. 154 (1973). Page 7 of 7
Publishing was appellant's agent. We need not reach that issue
in view of our disposition of the matter.
[fn6] The court's per curiam opinion approves of the lower court's
recognition of this doctrine.
[fn7] The mistake in Kaufman was not so glaring as to warrant an
inference that the insurancecompany had such knowledge, and
the plaintiff failed to produce any other evidence of such
knowledge. Therefore, reformation was not granted in that case.
[fn8] The appellant was not barred from recovery on the face of the
pleadings because of their failure and the failure of
Publishing to notice the mistake. An insured or the agent of
the insured is not charged with knowledge of all of the terms
of the policy, see, e.g., GECC v. Aetna, supra and cases cited
therein. It was the obligation of the appellees to allege and
prove that the error in this case was so significant as to
warrant the invocation of the theory of constructive knowledge.
Cgrid id 2000 LOMAW.COM, hia An righu Roa vz L
BARRY K. TOLBY
VS.
: IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
NORTHEASTERN HOME
IMPROVEMENTS
Defendant
No. 99-7230 Civil Term
CIVIL ACTION
NOTICE OF HEARING BY BOARD OF ARBITRATORS
THE HEARING before the Board of Arbitrators in the above matter is scheduled
for Wednesday, September 20, 2000, at 9:00 a.m., in the second floor conference room at
28 South Pitt St., Carlisle, Pennsylvania, at which time and place you and your
witnesses may appear and be heard.
August 11, 2000
To:
Lowell Gates, Esq. - Arbitrator
1013 Mumma Rd.
Lemoyne, PA 17043-2200
Barry K. Tolby - Plaintiff
15 Sycamore Cir.
Elters, PA 17319-9750
Court Administrator's Office
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3322
Board•of
Preder)*6k I. ffuganir, Esq., Chairman
2$$ S. Pitt St.
P`Q./Box 308
Carlisle, PA 17013-0308
William A. Addams, Esq. - Arbitrator
28 S. Pitt St.
P.O. Box 208
Carlisle, PA 17013-0208
Gregory R. Reed, Esq. - for Defendant
2423 N. Third St.
Harrisburg, PA 17110-1902
Prothonotary's Office - Bulletin Board
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3322
BARRY K. TOLBY
VS.
: IN THE COURT OF CON, MON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
NORTHEASTERN HOME
IMPROVEMENTS
Defendant
No. 99-7230 Civil Term
: CIVIL ACTION
NOTICE OF HEARING BY BOARD OF ARBITRATORS
THE HEARING before the Board of Arbitrators in the above matter is scheduled
for Wednesday, September 20, 2000, at 9:00 a.m., in the second floor conference room at
28 South Pitt St., Carlisle, Pennsylvania, at which time and place you and your
witnesses may appear and be heard.
August 11, 2000
To:
Lowell Gates, Esq. - Arbitrator
1013 Mumma Rd.
Lemoyne, PA -17043-2200
Barry K. Tolby - Plaintiff
15 Sycamore Cir.
Etters, PA 17319-9750
Court Administrator's Office
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3322
Board of Arbitrators
Bv:
Frederick I. uganir, Esq., Chairman
28 S.,Pitt St.
P. 1Q. Box 308
Carlisle, PA 17013-0308
William A. Addams, Esq. - Arbitrator
28 S. Pitt St.
P.O. Box 208
Carlisle, PA "17013-0208
Gregory R. Reed, Esq. - for Defendant
2423 N. Third St.
Harrisburg, PA 17110-1902
Prothonotarv's Office - Bulletin Board
Cumberland Counh, Courthouse
One Courthouse Square
Carlisle, PA '17013-3322
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
Barry K. Tolby
Plaintiff
V. NO. 99-7230 CIVIL
Northeastern Home Improvements CIVIL DIVISION - LAW
Defendant
REQUEST TO BOARD OF ARBITRATORS
This case now being "at issue" I respectfully request that the Arbitration
Hearing be rescheduled.
August 1, 2000
Etters, Pa. 17319
15 Sycamore Circle
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BARRY K. TOLBY
V.
NORTHEASTERN HOME
IMPROVEMENTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-7230 CIVIL
CIVIL ACTION - LAW
AND NOW, this 12TH day of JUNE, 2000, upon consideration of defendant's
Preliminary Objections to the amended complaint and plaintiffs Motion to Strike said
Preliminary Objections it is ordered and directed that Paragraphs 6 and 7 of the amended
complaint be and are hereby STRICKEN. The remainder of defendant's preliminary
objections are DENIED. Defendant is directed to file an answer within twenty (20) days
of service of this order.
By the Cou
Edward E. Guido, J.
Barry K. Tolby
15 Sycamore Circle
Etters, Pa. 17319
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Gregory R. Reed, Esquire
For the Defendant
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COURT
Barry K. Tolby
Plaintiff
V.
Northeastern Home Improvements
Defendant
ORDER OF COURT
AN - 7 200,x\
1
NO. 99-7230 CIVIL
CIVIL DIVISION - LAW
AND NOW, this day of 2000, a hearing is scheduled
on the day of 2000 in Courtroom No. of the
Cumberland County Courthouse, Carlise, Pennsylvania. Upon consideration of the
Motion to Strike Defendants Preliminary Objections.
BY THE COURT,
i
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
Barry K. Tolby
Plaintiff
V. NO. 99-7230 CIVIL
Northeastern Home Improvements CIVIL DIVISION - LAW
Defendant
MOTION TO STRIKE DEFENDANTS PRELIMINARY OBJECTIONS
Now comes, the Plantiff, Barry K. Tolby, and files this Motion to Strike
Defendant's Preliminary Objections in support of which states as follows:
1. The Plantiff, Barry K. 'I'olby, is an individual residing at 15 Sycamore
Circle, Etters, County of York, Pennsylvania.
2. The Defendant, Northeastern Home Improvements, is a Corporation
doing business at 125 North Enola Drive, Enola, County of Cumberland,
Pennsylvania.
3. On May 1, 2000, Plaintiff filed Amended Complaint as required by the
Honorable Judges Guido, Oler, and Hoffer in a timely manner and was instructed
by them, in no uncertain terms, that Pennsylvania Rules of Civil Procedure were to
be followed to the letter, were created for a purpose, and were not to be deviated
from.
4. On May 23, 2000, Defendant filed his Preliminary Objections. By filing on
May 23, 2000 the Defendant violated/broke Pennsylvania Rule of Civil Procedure
No. 1026 Time for filing. Notice to Plead. ( Encl I Time Explanation).
5. Pennsylvania Rule of Civil Procedure No. 248 Modification of Time was not
requested in writing to the Plaintiff by the Defendant nor was it Ordered by the
Court.
6. If we, the Lay Persons, are expected and required to follow the Pennsylvania
Rules of Civil Procedures to the Letter, should not ATTORNEYS be required to
Follow the same Rules to the Letter?
WHEREFORE, for all of the above reasons, Plaintiff respectfully requests this
Court to hold a hearing and, after hearing, order the Defendants Preliminary
Objections stricken and send this case to Arbitration.
Submitted
Btby K. ]by, l
15 Syca ore Cin
Etters, Pa. 17319
717-938-3306
Pro Se
Encl l Time Explanation
Enc12 Letter from the Honorable Judge Guido
Encl3 Certificate of Service
Enc14 Return Receipt Card from Post Office
Encl5 Prothonatary Stamp on Preliminary Objections
TIME EXPLAINATION
The Defendant physically received and signed for the Complaint on the 2"d of May 2000.
If the 20 days began the minute he signed for the Complaint, his 20 days would have
begun on May 2nd and ended on the 2151 of May. (From May 2"d to May 21" is 20
days).
Because the 2151 was Sunday his 20 days would have ended on the 22"d of May.
If the 20 days began the day after receipt of the Complaint, the 3`d of May
His 20 days would have begun on the 3`d of May and ended on the 22"d. (From May 3
To May 22 is 20 days).
Honorable Court, as you can see no matter how you figure the 20 day time requirement,
The Defendant did not file his Preliminary Objections in accordance with Pennsylvania
Rule of Civil Procedure1026 Time for filing. Notice to Plead.
L IUC c 1
BARRY K. TOLBY
V ..
NORTHEASTERN HOME
IMPROVEMENTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-7230 CIVIL TERM
IN RE: DEFENDANT'S PRE, LIMTNARY OBJECTIONS
BEFORE HOFFER P.J., OL•ER, GUIDO, JJ,
ORDER OF COURT
AND NOW, this 22LH day of APRIL, 2000, after review of the briefs submitted
by each party, and after having heard argument thereon, defendant's preliminary
objections are GRANTED. Plaintiff is given leave to file an amended complaint within
twenty (20) days of receipt of this order. Plaintiff's attention is drawn to Pa. Rules of
Civil Procedure 1022, 1023 and 1024. _
By the
E.
Barry K. Tolby, Pro Se e
Gregory R. Reed, Esquire
For the Defendant
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AND NOW, this -FIRST- day of May, 2000, I, Barry K. Tolby, Plaintiff, do
hereby certify that I have this day served by registered mail a copy of the attached
Amended Complaint to the following address.
Gregory R. Reed, Esquire
Attorney for Defendant
2423 North Third Street
Harrisburg, Pa. 17110
15 Sya
Etters,
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARRY K. TOLBY
Plaintiff
V.
NORTHEASTERN HOME IMPROVEMENTS
NO. 99-7230 Civil
CIVIL DIVISION - LAW
Defendant o
PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF "S-.'-.
2
AMENDED COMPLAINT
v
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AND NOW comes Defendant, Northeastern Home ImprovemeilGS, y
and through its attorney, Gregory R. Reed, Esquire, and makes
Preliminary Objections to Plaintiff's Amended Complaint as
follows:
Motion to Strike
1. Failure of the AmendedTC(Smplaint to conform to law or rule
of court as follows:
a) The alleged Complaint does not specify the relief
to which the Plaintiff deems himself entitled.
b) Plaintiff fails to state a cause of action in a
concise and summary form.
c) Plaintiff alleges voluminous legal conclusions,
unsupported by factual allegations, including but
not limited to:
1) On April 28, 1999, Plaintiff ". signed a
legal and binding contract . 13
2) Northeastern Home Improvements refused to
honor a legal and binding contract. Is
I_;
CERTIFICATE OF SERVICE
AND NOW, this 6TH day of June, 2000, I, Barry K. Tolby, Plaintiff, do
hereby certify that I have this day served by registered mail a copy of the attached Motion
to strike Preliminary Objections to the following address
F.
Gregory R. Reed, Esquire
Attorney for Defendant
2423 North Third Street
Harrisburg, Pa. 17110
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P 13510 Cumberland County Prothonotary's Office Page
n Civil Case Inquiry
1999-07230 TOLBY BARRY K (vs) NORTHEASTERN HOME IMPROVEMENTS
Reference No..: Filed........: 12/01/1999
Case Type.....: APPEAL - DJ Time.........: 1:57
Judgment..... : .00 Execution Date 0/00/0000
.Judge Assigned: Jury Trial....
)I.sposed Desc.: Disposed Date. 0/00/0000
----------- Case Comments ------------- Higher Crt 1.:
Higher Crt 2.:
General Index Attorney Info
TOLBY BARRY K PLAINTIFF
15 SYCAMORE CIRCLE
ETTERS ¢A 17319
NORTHEASTERN HOME IMPROVEMENTS DEFENDANT REED GREGORY R
125 NORTH ENOLA DRIVE
ENOLA PA 17025
* Date Entries
- - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - -
12/01/1999 APPEAL FROM DISTRICT JUSTICE JUDGMENT
-------------------------------------------------------------------
1.2/01/1999 PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE
-------------------------------------------------------------------
12/08/1999 COMPLAINT
-------------------------------------------------------------------
12/10/1999 PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT
-------------------------------------------------------------------
12/21/1999 PRELIMINARY OBJECTIONS OF DEFT TO PLFF COMPLAINT
-------------------------------------------------------------------
12/23/1999 PETITION FOR APPOINTMENT OF ARBITRATORS BY BARRY K TOLBY ESQ
-------------------------------------------------------------------
12/23/1999 AFFIDAVIT OF SERVICE
-------------------------------------------------------------------
12/23/1999 ORDER OF COURT 12/27/99 APPOINTMENT OF ARBITRATORS BY GEORGE E
HOFFER P J ARBITRATORS ARE FREDERICK HUGANIR ESQ - LOWELL GATES
ESQQ AND CAROL LINDSAY ESQ
NO ICE MAILED 1/26/00
-------------------------------------------------------------------
2/14/2000 NOTICE BY BOARD OF ARBITRATORS - ATTY HUGANIR
-------------------------------------------------------------------
2/15/2000 REBUTTAL TO PRELIMINARY OBJECTIONS
-------------------------------------------------------------------
2/17/2000 PRAECIPE FOR LISTING CASE FOR ARGUMENT BY GREGORY R REED ESQ
PRELIMINARY OBJECTIONS OF DEFENDANT
-------------------------------------------------------------------
4/27/2000 ORDER OF COURT - DATED 4/27/00 - DEFENDANTS PRELIMINARY OBJECTIONS
ARE GRANTED BY THE COURT EDWARD E GUIDO J COPIES MAILED 4/28/00
-------------------------------------------------------------------
5/01/2000 AMENDED COMPLAINT
--------------------------------------------------------•----------
5/23/2000 PRELIMINARY OBJECTIONS OF DEFT TO PLFFS AMENDED COMPLAINT
-------------------------------------------------------------------
6/06/2000 MOTION TO STRIKE DEFTS PRELIMINARY OBJECTIONS
-------------------------------------------------------------------
6/1.3/2000 ORDER OF COURT - DATED 6/12/00 - IN RE MOTION TO STRIKE DEFTS
PRELIMINARY OBJECTIONS - BY THE COURT EDWARD E GUIDO J COPIES
MAILED 6/14/00
-------------------------------------------------------------------
7/10/2000 MOTION FOR JUDGMENT AGAINST DEFENDANT
-------------------------------------------------------------------
7/13/2000 ANSWER TO AMENDED COMPLAINT
-------------------------------------------------------------------
7/13/2000 DEFENDANT'S RESPONSE TO MOTION FOR JUDGMENT AGAINST DEFENDANT
-------------------------------------------------------------------
7/17/2000 ORDER OF COURT - DATED 7/17/00 - IN RE MOTION FOR JUDGMENT AGAINST
DEFENDANT - BY THE COURT EDWARD E GUIDO J COPIES MAILED 7/17/00
-------------------------------------------------------------------
7/31/2000 RESPONSE TO NEW MATTER
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
PY 510 Cumberland County Prothonotary's Office Page 2
Civil Case Inquiry
1999-07230 TOLBY BARRY K (vs) NORTHEASTERN HOME IMPROVEMENTS
Reference No..: Filed........: 12/01/1999
Case Type.....: APPEAL - DJ Time.........: 1:57
Judgment. ... : .00 Execution Date 0/00/0000
Judge Assigned: Jury Trial...
Disposed Desc.: Disosed Date. 0/00/0000
------------ Case Comments ------------- Higher Crt 1.:
Higher Crt 2.:
****it*,r******,t******ir***,4***,r ,F**,t**i. ,r ,Fir,k*tr**,t******i.,tt*,F**,t *ir ie*******,t k******trk* j
* Escrow Information
* Fees & Debits Be Bal Pmts/Ad End Bal
APPEAL D.J. 35.00 35.00 .00 ?p
TAX ON APPEAL .25 .25 .00 1114
SETTLEMENT 5.00 5.00 .00 K
JCP 5.00 5.00 .00
APPTFOF ARBITRA 15.00 15.00 .00 rl
------------------------ ---
60.25 60.25 .00
********************************************************************************
* End of Case Information
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARRY K. TOLBY
Plaintiff
V. NO. 99-7230 Civil
NORTHEASTERN HOME IMPROVEMENTS CIVIL DIVISION - LAW
Defendant
PRC
AND NOW, this day
consideration of Defendant's
Judgement Against Defendant,
the matter is directed to be
POSED ORDER
of 2000, in
Response to Plaintiff's Motion for
Plaintiff's Motion is denied and
listed for arbitration.
J.
+.1 ?p
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA
BARRY K. TOLBY
Plaintiff
V.
NORTHEASTERN HOME IMPROVEMENTS
Defendant
NO. 99-7230 Civil
CIVIL DIVISION - LAW
DEFENDANT'S RESPONSE TO MOTION FOR JUDGEMENT AGAINST DEFENDANT
AND NOW comes Defendant, Northeastern Home Improvements, by
and through its attorney, Gregory R. Reed, Esquire, and responds
to Plaintiff's Motion for Judgement Against Defendant as
follows:
1. Admitted.
2. Admitted.
3. Denied in part. Defendant received on July 11, 2000 a
Notice from Plaintiff, a copy of which is attached hereto,
marked Exhibit "1" and incorporated herein by reference, giving
Defendant II. . . ten (10) days after this Motion for Judgement
and notice are served . . ." to file an answer. Defendant is
filing, contemporaneously herewith, an Answer which is well
within the ten (10) days allowed by the Notice. A copy of said
Answer is attached hereto, marked Exhibit 112" and incorporated
herein by reference.
I
E
Plaintiff alleges no prejudice and no prejudice exists
since the Answer is filed.
Furthermore, Defendant makes claim for numerous costs which
are not permitted by law or otherwise not of record, including
but not limited to, a claim for a downpayment which was returned
to Plaintiff, eight (8) percent interest and numerous other
claims not permitted by law or supported by the record.
Wherefore, Defendant respectfully requests your Honorable
court to deny Plaintiff's Motion for Judgement Against Defendant
and direct that the case to be listed for arbitration in that an
Answer has been filed within the permitted time.
9jv
Gregory 'R.`Reed, Esquire
Attorney for Defendant
2324 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Supreme Court # 23705
711/0
IN THE COURT OF COMMON PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
Barry K. Tolby
Plaintiff
V. NO. 99-7230 CIVIL
Northeastern Home Improvements : CIVIL DIVISION - LAW
Defendant
You have failed to respond to "Order of Court", 12 June 2000. You must
take action within ten (10) days after this Motion far Judgment 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 the 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 Plantiff. You may loose money,
property, or other rights important to you.
EXHIBIT $1
F-.--'-"
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA
BARRY K. TOLBY
Plaintiff
V.
NO. 99-7230 Civil
NORTHEASTERN HOME IMPROVEMENTS CIVIL DIVISION - LAW
Defendant
NOTICE TO DEFEND AND CLAIM RIGHTS
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 Defendant. 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.
Court Administrator
4th F1., Cumberland County Courthouse
Carlisle, PA 17013
(717) 240-6200
NOTICIA
Le han demaandado a usted en la corte. Si usted quieie
defenderse de estas demandas expuestas en las paginas
siguientes, usted tiene viente (20) dias de plazo al partir de
la fecha de la demanda y la notificacion. Usted debe presentar
EXHIBIT 82
una apariencia escrita o en persona o por abogado y archivar en
la corte enforma escrita sus defensas o sus objections a las
demandas en contra de su persona. Sea ayisado que si usted no
se defiende, la corte tomara medidas y puede entrar una orden
contra usted sin previo aviso o notificacion y port cualquier
queja o alivio que es pedido en la peticion de demanda. Usted
puede perder dinero 0
sus propiedades o otros derechos importantes para. usted.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO
TIENE AHOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL
SEVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA
DIRECCION SE ENCUENTRA ESCRITA ABAJO PARR AVERIGUAR DONDE SE
PUEDE CONSEGUIR ASISTENCIA LEGAL.
Court Administrator
4th F1., Cumberland County Courthouse
Carlisle, PA 17013
(717) 240-6200
Date: (]A
aL
egory R. R d, Esquire
Attorney for Plaintiff
2423 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney I.D. #23705
- 2 -
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA
BARRY R. TOLBY
Plaintiff
V. NO. 99-7230 Civil
NORTHEASTERN HOME IMPROVEMENTS CIVIL DIVISION - LAW
De f endant
ANSWER TO AMENDED COMPLAINT
NOW COMES, Northeastern Home Improvements, by and through
its attorney, Gregory R. Reed, Esquire, and answers Plaintiff's
Amended Complaint as follows:
1. Admitted.
2. Admitted.
3. Denied in part. Any document referred to in Paragraph
3 as a "legal and binding contract" is a legal conclusion to
which no responsive pleading is required. Furthermore, in that
said document was entered into pursuant to a mistake, it is not
a binding agreement.
4. Plaintiff knew, immediately, that said quote was in
error and as such knew or should have known that Defendant could
not perform the work for the sum of money stated in the writing.
It is admitted that later, but much sooner than four (4) months,
that Plaintiff was advised that Defendant could not do the work
for the sum of money set forth on the writing.
5. Specifically denied. Defendant's answers set forth in
paragraphs 3 and 4 hereof are incorporated herein by reference
as though fully set forth herein.
6. Stricken by order of Edward E. Guido, Judge, on June
12, 2000.
7. Stricken by order of Edward E. Guido, Judge, on June
12, 2000.
8. Specifically denied. Defendant's answers to
paragraphs 3 and 4 hereof are incorporated herein by reference
as though fully set forth herein.
9. Admitted. By way of further answer, Defendant's
answers to paragraphs 3 and 4 hereof are incorporated herein by
reference as though fully set forth herein.
WHEREFORE, Northeastern Home Improvements respectfully
requests your Honorable court to enter judgment for Defendant
and against Plaintiff.
New Matter
10. Defendant's representative, when proposing the price,
made a calculation error so blatant that it was obvious to
- 2 -
Plaintiff so that Plaintiff cannot legally take advantage of the
error.
11. Plaintiff knew or had a good reason to know of the
error.
12. Defendant is entitled to relief to the same extent as
though it was a mutual mistake.
13. Plaintiff, in a devious and deceptive manner,
attempted to pounce on Defendant's error, fully aware of the
error, and attempted to force Defendant to perform the work at a
substantial out-of-pocket loss.
WHEREFORE, Northeastern Home Improvements respectfully
requests your Honorable court to enter judgment for Defendant
and against Plaintiff.
Respectfully submitted,
Gregory R. Reed, Esquire
Attorney for Def ndant
2324 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Supreme Court # 23705
- 3 -
VERIFICATION
This 1=2 day of 614-2000, the foregoing Defendant
hereby verifies, subject to the penalties of 18 Pa.C.S. 4904
(relating to unsworn falsification to authorities), that the
facts set forth in the foregoing Answer to Amended Complaint
which are within his knowledge are true, and as to the facts
based on information received, after diligent inquiry, he
believes them to be true.
Mark Kerlin, President of
Northeastern Home Improvements
of Harrisburg, Inc.
4 (.': fa
C-`
f.
CERTIFICATE OF SERVICE
AND NOW, this A212 day of July, 2000, I, Gregory R. Reed,
Esquire, Attorney for Defendant, do hereby certify that I have
this day served by first class mail a copy of the attached
Answer to Amended Complaint to the following address:
Barry K. Tolby
15 Sycamore Circle
Etters, PA 17319
Gregory R. Reed, Esquire
Attorney for Defendant
2423 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney I.D. 23705
i
CERTIFICATE OF SERVICE
day of July, 2000, I, Gregory R. Reed,
AND NOW, this
Esquire, Attorney for Defendant, do hereby certify that I have
this day served by first class mail a copy of the attached
Defendant's Answer to Plaintiff's Motion for Judgement Against
Defendant and Proposed order to the following address:
Barry K. Tolby
15 Sycamore Circle
Etters, PA 17319
Gregory R. a `Esquire
Attorney for Defendant
2423 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney I.D. 23705
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA
BARRY K. TOLBY
Plaintiff
V.
NORTHEASTERN HOME IMPROVEMENTS
Defendant
PROPOSED ORDER
AND NOW, this day of
, 2000, in
consideration of Defendant's Response to Plaintiff's Motion for
Judgement Against Defendant, Plaintiff's Motion is denied and
the matter is directed to be listed for arbitration.
J.
NO. 99-7230 Civil
CIVIL DIVISION - LAW
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARRY K. TOLBY
Plaintiff
V.
NORTHEASTERN HOME IMPROVEMENTS
Defendant
NO. 99-7230 Civil
CIVIL DIVISION - LAW
DEFENDANT'S RESPONSE TO MOTION FOR JUDGEMENT AGAINST DEFENDANT
AND NOW comes Defendant, Northeastern Home Improvements, by
and through its attorney, Gregory R. Reed, Esquire, and responds
to Plaintiff's Motion for Judgement Against Defendant as
follows:
1. Admitted.
2. Admitted.
3. Denied in part. Defendant received on July 11, 2000 a
Notice from Plaintiff, a copy of which is attached hereto,
marked Exhibit "1" and incorporated herein by reference, giving
Defendant ". . . ten (10) days after this Motion for Judgement
and notice are served . . ." to file an answer. Defendant is
filing, contemporaneously herewith, an Answer which is well
within the ten (10) days allowed by the Notice. A copy of said
Answer is attached hereto, marked Exhibit 112" and incorporated
herein by reference.
Plaintiff alleges no prejudice and no prejudice exists
since the Answer is filed.
Furthermore, Defendant makes claim for numerous costs which
are not permitted by law or otherwise not of record, including
but not limited to, a claim for a downpayment which was returned
to Plaintiff, eight (8) percent interest and numerous other
claims not permitted by law or supported by the record.
Wherefore, Defendant respectfully requests your Honorable
Court to deny Plaintiff's Motion for Judgement Against Defendant
and direct that the case to be listed for arbitration in that an
Answer has been filed within the permitted time.
9JIY gal a
Gregory . Reed, Es ire
Attorney for Defendant
2324 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Supreme Court # 23705
MOD
IN THE COURT OF COMMON PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
Barry K. Tolby
Plaintiff
V. NO. 99-7230 CIVIL
Northeastern Home Improvements CIVIL DIVISION - LAW
Defendant
You have failed to respond to "Order of Court", 12 June 2000. You must
take action within ten (10) days after this iVlotion for Judgment 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 the 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 Plantiff. You may loose money,
property, or other rights important to you.
EXHIBIT #1
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA
BARRY K. TOLBY
Plaintiff
V.
NO. 99-7230 Civil
NORTHEASTERN HOME IMPROVEMENTS CIVIL DIVISION - LAW
Defendant
NOTICE TO DEFEND AND CLAIM RIGHTS
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 Defendant. 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.
Court Administrator
4`h F1., Cumberland County Courthouse
Carlisle, PA 17013
(717) 240-6200
NOTICIA
Le han demaandado a usted en la corte. Si usted quieie
defenderse de estas demandas expuestas en las paginas
siguientes, usted tiene viente (20) dias de plazo al partir de
la fecha de la demands y la notificacion. Usted debe presentar
EXHIBIT #2
F4
una apariencia escrita o en persona o por abogado y archivar en
la corte enforma escrita sus defensas o sus objections a las
demandas en contra de su persona. Sea ayisado que si usted no
se defiende, la corte tomara medidas y puede entrar una orden
contra usted sin previo aviso o notificacion y port cualquier
queja o alivio que es pedido en la peticion de demanda. Usted
puede perder dinero o
sus propiedades o otros derechos importantes pars. usted.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO
TIENE ABOGADO 0 SI NO TIMM EL DINERO SUFICIENTE DE PAGAR TAL
SEVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA
DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE
PUEDE CONSEGUIR ASISTENCIA LEGAL.
Court Administrator
4th F1., Cumberland County Courthouse
Carlisle, PA 17013
(717) 240-6200
Date: acmw
-vv
egory R. R 415d, Esquire
Attorney for Plaintiff
2423 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney I.D. #23705
- 2 -
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA
BARRY R. TOLBY
Plaintiff
V.
NORTHEASTERN HOME IMPROVEMENTS
Defendant
NO. 99-7230 Civil
CIVIL DIVISION - LAW
ANSWER TO AMENDED COMPLAINT
NOW COMES, Northeastern Home Improvements, by and through
its attorney, Gregory R. Reed, Esquire, and answers Plaintiff's
Amended Complaint as follows:
1. Admitted.
2. Admitted.
3. Denied in part. Any document referred to in Paragraph
3 as a "legal and binding contract" is a legal conclusion to
which no responsive pleading is required. Furthermore, in that
said document was entered into pursuant to a mistake, it is not
a binding agreement.
4. Plaintiff knew, immediately, that said quote was in
error and as such knew or should have known that Defendant could
not perform the work for the sum of money stated in the writing.
It is admitted that later, but much sooner than four (4) months,
that Plaintiff was advised that Defendant could not do the work
for the sum of money set forth on the writing.
5. Specifically denied. Defendant's answers set forth in
paragraphs 3 and 4 hereof are incorporated herein by reference
as though fully set forth herein.
6. Stricken by order of Edward E. Guido, Judge, on June
12, 2000.
7. Stricken by order of Edward E. Guido, Judge, on June
12, 2000.
8. Specifically denied. Defendant's answers to
..:paragraphs 3 and 4 hereof are. incorporated herein by reference
as though fully set forth herein.
9. Admitted. By way of further answer, Defendant's
answers to paragraphs 3 and 4 hereof are incorporated herein by
reference as though fully set forth herein.
WHEREFORE, Northeastern Home Improvements respectfully
requests your Honorable court to enter judgment for Defendant
and against Plaintiff.
New Flatter
10. Defendant's representative, when proposing the price,
made a calculation error so blatant that it was obvious to
- 2 -
Plaintiff so that Plaintiff cannot legally take advantage of the
error.
11. Plaintiff knew or had a good reason to know of the
error.
12. Defendant is entitled to relief to the same extent as
though it was a mutual mistake.
13. Plaintiff, in a devious and deceptive manner,
attempted to pounce on Defendant's error, fully aware of the
.error,-and attempted to force Defendant to perform the work at a
substantial out-of-pocket loss.
:WHEREFORE, -Northeastern Home Improvements respectfully
requests your Honorable court to enter judgment for Defendant
and against Plaintiff.
Respectfully submitted,
Gregory R. Reed ,11 Esquire
Attorney for Defendant
2324 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Supreme Court # 23705
- 3 -
This 42 day of 2000, the foregoing Defendant
hereby verifies, subject to the penalties of 18 Pa.C.S. 4904
(relating to unsworn falsification to authorities), that the
facts set forth in the foregoing Answer to Amended Complaint
which are within his knowledge are true, and as to the facts
based on information received, after diligent inquiry, he
believes them to be true.
Mark Kerlin, President of
Northeastern Home Improvements
of Harrisburg, Inc.
CERTIFICATE OF SERVICE
AND NOW, this ?± day of July, 2000, I, Gregory R. Reed,
Esquire, Attorney for Defendant, do hereby certify that I have
this day served by first class mail a copy of the attached
Answer to Amended Complaint to the following address:
Barry K. Tolby
15 sycamore Circle
Etters, PA 17319
Gregory R. Reed, Esquire
Attorney for Defendant
2423 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney I.D. 23705
?r
CERTIFICATE OF SERVICE
AND NOW, this 13?4ay of July, 2000, I, Gregory R. Reed,
Esquire, Attorney for Defendant, do hereby certify that I have
this day served by first class mail a copy of the attached
Defendant's Answer to Plaintiff's Motion for Judgement Against
Defendant and Proposed order to the following address:
Barry K. Tolby
15 Sycamore circle
Etters, PA 17319
Grego 4R.e , Esquire
Attorney for Defendant
2423 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney I.D. 23705
BARRY K. TOLBY
V.
NORTHEASTERN HOME
IMPROVEMENTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-7230 CIVIL
CIVIL ACTION - LAW
AND NOW, this 17TH day of JULY, 2000, upon consideration of plaintiff's
Motion for Judgment Against Defendant, no hearing thereon is required. If defendant
fails to respond thereto on or before July 20, 2000, plaintiff may file a praecipe for
default judgment in accordance with Pa. Rule of Civil Procedure 237.1.
Barry K. Tolby
15 Sycamore Circle
Etters, Pa. 17319
Gregory R. Reed, Esquire
For the Defendant
,
By;:
Edward E. Guido, J.
C'-? -1a& '
7-17-00
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JUL 1 1 2000/p
OF
Barry K. Tolby
Plaintiff
V. NO. 99-7230 CIVIL
Northeastern Home Improvements CIVIL DIVISION - LAW
Defendant
ORDER OF COURT
AND NOW, this day of2000, a hearing is scheduled
on the day of 2000 in Courtroom No. of the
Cumberland County Courthouse, Carlise, Pennsylvania. Upon consideration of the
Motion to enter Judgment against Defendant.
BY THE COURT,
J.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
Barry K. Tolby
Plaintiff
V. : NO. 99-7230 CIVIL
Northeastern Home Improvements CIVIL DIVISION - LAW
Defendant
MOTION FOR JUDGMENT AGAINST DEFENDANT
Now comes, the Plantiff, Barry K. Tolby, and files this Motion to enter
Judgment against Defendant.
1. The Plantiff, Barry K. Tolby, is an individual residing at 15 Sycamore
Circle, Etters, County of York, Pennsylvania.
2. The Defendant, Northeastern Home Improvements, is a Corporation
doing business at 125 North Enola Drive, Enola, County of Cumberland,
Pennsylvania.
3. Defendant has not responded to the "Order of Court" (Encl1), dated 12 June
2000 and mailed from Prothonotary's office 14 June 2000, within the required 20
days.
WHEREFORE, for the above reason, Plaintiff respectfully requests this Court
to hold a hearing and, after hearing, order a Judgment entered against the
Defendant for the amount of $3111.50 (Encl2), costs of all certified letters, and
any additional costs incurred during the process.
Encl l ORDER OF COURT
Encl2 COST BREAKDOWN.
Encl3 DEFENDANT NOTIFICATION
Etters, Pa. 1 /S 19
717-938-3306
Pro Se
VERIFICATION
I, Barry K. Tolby, Plantiff herein, do hereby state that the foregoing
information and figures 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. 4904, relating to unsworn falsification to authorities.
Dated: July 10, 2000
CERTIFICATE OF SERVICE
AND NOW, this l OTH day of July, 2000, I, Barry K. Tolby, Plaintiff, do
hereby certify that I hav_e this day served by registered mail a copy of the attached Motion
For Judgment Against Defendant to the following address.
Gregory R. Reed, Esquire
Attorney for Defendant
2423 North Third Street
Harrisburg, Pa. 17110
15 Syca ore Circle
Etters, a. 17319
Postage s SS ?I C\
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M Rehm Rocoipt Fee / 1 1^ `G ?fTo
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BARRY K. TOLBY
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
NORTHEASTERN HOME
IMPROVEMENTS
N0.99-7230 CIVIL
CIVIL ACTION - LAW
AND NOW, this 12' day of JUNE, 2000, upon consideration of defendant's
Preliminary Objections to the amended complaint and plaintiffs Motion to Strike said
Preliminary Objections it is ordered and directed that Paragraphs 6 and 7 of the amended
complaint be and are hereby STRICKEN. The remainder of defendant's preliminary
objections are DENIED. Defendant is directed to file an answer within twenty (20) days
of service of this order.
By the
E. Guido, J.
Barry K. Tolby
15 Sycamore Circle
Etters, Pa. 17319
Gregory R. Reed, Esquire
For the Defendant
:sld
In .rSroc^y I Cara unt: hand
and tha saual cF sa:d/Court ar Cariisie, ?a.
Thig..... othonota..
ry ?7
COST BREAKDOWN
DAMAGES INCURRED ABOVE QUOTED CONTRACT PRICE ---------- $2406.00
DOWNPAYMENT
394.00
INTEREST OF 8% ON THE ABOVE DOLLARS ($2800) --------------------$ 224.00
DOCUMENT COPIES OBTAINED FROM COURTHOUSE-----------------$ 6.50
ARBITRATION COST
SMALL CLAIMS COURT COST
15.00
66.00
CERTIFIED LETTERS SENT-----EXACT TOTAL COST UNKNOWN AT THIS
TIME.
TOTAL AMOUNT INCURRED TO THIS POINT ------------------------------ $3111.50
End 2
IN THE COURT OF COMMON PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
Barry K. Tolby
Plaintiff
V. : NO. 99-7230 CIVIL
Northeastern Home Improvements CIVIL DIVISION - LAW
Defendant
You have failed to respond to "Order of Court", 12 June 2000. You must
take action within ten (10) days after this Motion for Judgment 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 the 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 Plantiff. You may loose money,
property, or other rights important to you.
ENQ,L J
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PYS510 Cumberlandd county Inquiry tary's office
1999-07230 TOLBY BARRY K (vs) NORTHEASTERN HOME IMPROVEMENTS
Filed........:
Reference NO..: Time..........
Case Me.....: APPEAL - 0DJ0 Execution Date
Judgmentt. Jury Trial....
Judge Assigned: Disposed Date.
Disposed Desc.: Higher Crt 1.:
---------- Case Comments Higher Crt 2.:
Page
12/01/1999
1:57
0/00/0000
0/00/0000
Attorney Info
General Index
PLAINTIFF
'I'OLIIY BARRY K
15 SYCA.WORE CIRCLE
GTTERS A 17319 REED GREGORY R
NORTHEASTERN HOME IMPROVEMENTS DEFENDANT
125 NORTH ENOLA DRIVE
ENOLA PA 17025
*
*******************************************************************************
* Date Entries
_ - _ _ - - - FIRST ENTRY - - - - - - - - - - - - - -
12/01/1999 APPEAL-FROM DISTRICT JUSTICE- JUDGMENT------------------------------
RULE TO FILE
-------------------------------
12/O1/1999 PRAECIPE TO ENTER RULE TO FILE COMPLAINT-
AND ------------------------------
1.2/08/1999 COMPLAINT-------------------------------------------------------------------
-------
12/10/1999 PROOF - OF - SERVICE OF NOTICE OF APPEAL-AND -RULE -TO FILE - COMPLAINT-----
-------------------------- ---------------------------
12/21/1999 PRELIMINARY OBJECTIONS OF DEFT TO PLFF COMPLAINT ---
12/23/1999 PETITION _FOR_APPOINTMENT-OF-ARBITRATORS_BY-BARRY_K TOLBY-ESQ-_-----
12/23/1999 AFFIDAVIT OF SERVICE ----------------------------------------
----- -- ----- -----ARBIT 12/23/1999 OF -
COURT _ 12/27/99 HUGANIRTESQ BYLOWELLEGATES
ESQ AND CAROL LINDSAY ESQ
NOTICE MAILED 1/26/00 -------------------------------------------
------ -------- ---------
7./14/2000 NOTICE - BY BOARD OF - ARBITRATORS --ATTY-HUGANIR________ ____________
--------------------------------
2/15/2000 REBUTTAL TO PRELIMINARY OBJECTIONS ---------------------------
-
-------------------------- -
PRAECIPE FOR LISTING CASE FOR ARGUMENT BY GREGORY R REED ESQ
2/17/2000 ---
PRELIMINARY OBJECTIONS OF DEFENDANT _ _________________
--------------------------------------------
- PRELIMINARY BJECTIONS
DATED GUIDOAJTCOPIES------D -----------
4/27/2000 COURT -
------------------------------- - ----- - ------
5/01/2000 AMENDED-COMPLAINT --------------------------------------------------
---------------
5/23/2000 PRELIMINARY - OBJECTIONS OF DEFT TO PLFFS -AMENDED COMPLAINT----------
--------------------------------------- ------- ---------
6/06/2000 MOTION TO STRIKE DEFTS PRELIMINARY OBJECTIONS______________________
----------------------------------------
6/13/2000 PRELIMINARYUOBJECTIONS 6/BY/THE COURTEEDWARDNETGUIDOIJE CCOPIES
MAILED 6/14/00 _ _ _ _ -------------------------
------------------------
7/10/2000 MOTION FOR-JUDGMENT AGAINST DEFENENTRY - - - - - - -
* Escrow Information End Bal
* Fees & Debits Bed*Bal***mts/Ad
********* obits ***************** ****P ****** *******************************
00 .00
APPEAL D.J. 35.00 35.25
TAX ON APPEAL . .00
SETTLEMENT 5.00 5.00 .00
PYS510
1999-07230
Cumberland County Prothonotary's Office
Civil Case Inquiry
TOLBY BARRY K (vs) NORTHEASTERN HOME IMPROVEMENTS
Reference No..:
Case Ty e.....: APPEAL - D
Judgment. ... 00
Judge Assigned:
Disposed Desc.:
------------ Case Comments -- ________
JCP FEE 5.00 5.00
APPT OF ARBITRA - --_-15_00------- 15_00-
60.25 60.25
Filed......
Time. ...
Execution Date
Jury Trial....
Disposed Date.
Higher Crt- 1.:
HigherOCOrt 2.:
.00
------------
.00
TPage 2
12/01/1999
1:57
0/00/0000
0/00/0000
* End of Case Information
r, 11
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA
BARRY X. TOLBY
Plaintiff
V. NO. 99-7230 Civil
NORTHEASTERN HOME IMPROVEMENTS CIVIL DIVISION - LAW
Defendant
PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF'S
AMENDED COMPLAINT
AND NOW comes Defendant, Northeastern Home Improvements, by
and through its attorney, Gregory R. Reed, Esquire, and makes
Preliminary objections to Plaintiff's Amended Complaint as
follows:
Motion to Strike
1. Failure of the Amended Complaint to conform to law or rule
of court as follows:
a) The alleged Complaint does not speci fy the relief
to which the Plaintiff deems himself entitled.
b) Plaintiff fails to state a cause of action in a
concise and summary form.
c) Plaintiff alleges voluminous legal conclusions,
unsupported by factual allegations, including but
not limited to:
1) On April 28, 1999, Plaintiff ". . . signed a
legal and binding contract . . . ." ¶3
2) Northeastern Home Improvements refused to
honor a legal and binding contract. ¶5
CERTIFICATE OF SERVICE
AND NOW, this c. W day of May, 2000, i, Gregory R. Reed,
Esquire, Attorney for Defendant, do hereby certify that I have
this day served by first class mail a copy of the attached
Preliminary Objections of Defendant to Plaintiff's Amended
Complaint to the following address:
Barry K. Tolby
15 Sycamore Circle
Etters, PA 17319
Gregory R. Ree ?Esqui e
Attorney for Defendant
2423 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney I.D. 23705
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BARRY K. TOLBY
V.
NORTHEASTERN HOME
IMPROVEMENTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-7230 CIVIL TERM
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE HOFFER. P i O. E R t, IDO 1
AND NOW, this 27TH day of APRIL, 2000, after review of the briefs submitted
by each party, and after having heard argument thereon, defendant's preliminary
objections are GRANTED. Plaintiff is given leave to file an amended complaint within
twenty (20) days of receipt of this order. Plaintiff's attention is drawn to Pa. Rules of
Civil Procedure 1022, 1023 and 1024.
By the
Barry K. Tolby, Pro Se
Gregory R. Reed, Esquire
For the Defendant
Edward E. Guido,
J.
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BARRY K. TOLBY
VS.
: IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUN'T'Y, PENNSYLVANIA
No. 99-7230 Civil Term
NORTHEASTERN HOME
IMPROVEMENTS
Defendant
CIVIL ACTION
NOTICE BY BOARD OF ARBITRATORS
This case not being "at issue," the hearing previously scheduled for March 23,
2000 is continued generally. The file has been returned to the Prothonotary pending
resolution of preliminary objections and the filing of pleadings. When the matter is at
issue, either party may request the Prothonotary to return the file to the Chair for
rescheduling the hearing. -1/
Board
February 14, 2000
To:
Lowell Gates, Esq. - Arbitrator
1013 Mununa Rd.
Lemoyne, PA 17043-2200
Barry K. Tolby - Plaintiff
15 Svcamore Cir.
Etters, PA 17319-9750
Court Administrator's Office
Cumberland Counh, Courthouse
One Courthouse Square
Carlisle, PA 17013-3322
Huganir, Esq., Chairman
28 t.,Ki tt St.
P.O. Box 308
Carlisle, PA '17013-0308
Carol Lindsay, Esq.-Arbitrator
I I E. High St.
Carlisle, PA'17013-3016
Gregory R. Reed, Esq. - for Defendant
2423 N. Third St.
Harrisburg, PA 17110-1902
Prothonotarv's Office - Bulletin Board
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3322
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BARRY K. TOLBY
VS.
: IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
NORTHEASTERN HOME
IMPROVEMENTS
Defendant
No. 99-7230 Civil Term
CIVIL ACTION
NOTICE OF HEARING BY BOARD OF ARBITRATORS
THE HEARING before the Board of Arbitrators in the above matter is scheduled
for Thursday, March 23, 2000 at 9:00 a.m., Fifth Floor Hearing Room, New Courthouse,
Carlisle, Pennsylvania, at which time and place you and your witnesses may appear
and be heard.
Board
February 11, 2000
By:
Frederick,I. Huganir, Esq., Chairman
28 S: Pitt St.
P. 'Box 308
Carlisle, PA '17013-0308
TO:
Lowell Gates, Esq. - Arbitrator
1013 Mumma Rd.
Lemoyne, PA 17043-2200
Barry K. Tolby - Plaintiff
'15 Sycamore Cir.
Etters, PA '1 731 9-975 0
Court Administrator's Office
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA'17013-3322
Carol Lindsay, Esq. - Arbitrator
11 E. High St.
Carlisle, PA 17013-3016
Gregory R. Reed, Esq. - for Defendant
2423 N. Third St.
Harrisburg, PA 17110=1902
Bulletin Board
Prothonotarv's Office
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3322
ir::-
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list tie within natter for the next Argument Court.
CAPTION OF CASE
(entire caption must be stated in full)
BARRY K. TOLBY
VS.
NORTHEASTERN HOME IMPROVF1vENTS
(Plaintiff)
(Defendant)
No. 7230 Civil Division 19 99
1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's
demurrer to complaint, etc.):
Preliminary Objections of Defendant
2. Identify counsel who will argue case:
(a) for plaintiff:
Address:
(b) for defendant:
Address:
Barry K. Tolby
15 Sycamore Circle
Etters, PA 17319
Gregory R. Reed, Esquire
2423 N. Third Street
Harrisburg, PA 17110
3. i will notify all parties in writing within two days that this case has
been listed for argument.
4. Argument Court Date: April 26, 2000
Dated: ?e?ow n, l ?(C ,2GO0
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
Barry K. Tolby
Plaintiff
V. NO. 99-7230 CIVIL
Northeastern Home Improvements CIVIL DIVISION - LAW
Defendant
REBUTTAL TO PRELIMINARY OBJECTIONS
To: Curt Long, Prothonotary
Cumberland County Courthouse
Please enter my rebuttal to the preliminary objections of the Defendant,
Northeastern Home Improvements, on the next argument court list.
Sir, I submit to you that they are infact not meritorious but have been "WAIVED" by
Mr. Reed on behalf of his client Northeastern Home Improvements. Mr. Reed accepted
my complaint in its entirety buy responding to not only one but several paragraphs within
the complaint and even quoted me from one. He selected certain paragraphs to respond
to, and address in his response to my complaint, but did not respond to the four (4)
numbered paragraphs containing specific questions.
Mr. Reed, in choosing to respond to certain paragraphs in the complaint has accepted it in
its entirity and in doing so has given up the right to claim that I did not follow the rules of
law, the complaint was too cumbersome, the complaint was not in the correct format,
etc,etc. Mr. Reed has the right to respond or not to respond. H es not have the right
to respond to specific paragraphs and then turn around and say cannot respo j 'e
others because it is too cumbersome or some other unfound reason.
15 Sycamore Cir
Etters, Pa. 17319
Pc: Gregory R. Reed, Attorney
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CERTIFICATE OF SERVICE
AND NOW, this ?7, day of February, 2000, I, Barry K. Tolby, Plaintiff, do
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response to the Praecipe to the following address.
Gregory R. Reed, Esquire
Attorney for Defendant
2423 North Third Street
Harrisburg, Pa, 17110
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e-mail: gregrrccd gprotligymet
February 11, 2000
Frederick I. Huganir, Esquire
P.O. Box 308
Carlisle, PA 17013-0308
RE: Tolby v. Northeastern Home Improvements
No. 99-7230
Dear Mr. Huganir:
Today I received a phone call, presumably from your office,
indicating that the above referred to case has been scheduled
for arbitration on March 23, 2000 at 9:00 a.m. in the Cumberland
County Courthouse. There are preliminary objections pending in
this case. They are very meritorious objections. These matters
need to be addressed before this case is ripe for arbitration.
I am listing the case for argument court contemporaneously
herewith.
Very tru y yo
Gregory R. Reed
GRR/cj w
pc: Barry K. Tolby
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PLANPIFF:
BARRY K. TOLBY
15 SYCAMORE CIRCLE
EPTER4, PA. 17319
VS.
DEFENDANT:
NORTHEASTERN HOME
125 N. ENOLA RD.
ENOLA, PA. 17025
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-7230 CIVIL 1999
RULE 1312-1. The Petition for Appointment of Arbitrators shall be substantially in the following form:
PETITION FOR APPOINTMENT OF ARBITRATORS
TO THE HONORABLE, THE JUDGES OF SAID COURT:
BARRY K. TOLBY x;D*G ¢kf K the plaintiff?in the above action (or actions),
respectfully represents that: 2. CON't $2406.00 DAMAGES
1. The above-captioned action (or actions) is (are) at issue $ 394.00 D(XVN PAYMENT
2. The claim of the plaintiff in the action is $ 2$97.25 \ $ 66.00 COURT COSTS
The counterclaim of the defendant in the action is NONE V 31.25 INTEREST
ADDITIONAL COSTS INCURRED AFTER INITIAL AWARD $20.96
The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators:
GREGORY R. REED
WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbstrato?s to whom the case shall be
submitted. ?? /
ORDER OF
AND NOW, ? 2 7 19 C! % , in consideration of the
foregoing petition, -%t. r :, L /C 116c 4"P ?p Esq., J iwe <? f?
a Lr•°?
Esq., and (,Fr / , Esq., are appointed arbitrators in the above captioned action (or
actions) as prayed for.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARRY K. TOLBY
Plaintiff
V.
NORTHEASTERN HOME IMPROVEMENTS
Defendant
NO. 99-7230 Civil
CIVIL DIVISION - LAW
PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF'S COMPLAINT
AND NOW comes Defendant, Northeastern Home Improvements, by
and through its attorney, Gregory R. Reed, Esquire, and makes
Preliminary Objections to Plaintiffs Complaint as follows:
1. Failure of the Complaint to conform to law or rule of court
as follows:
a) Said Complaint contains avarments of fact not
appearing of record in the action but the
Complaint is not verified.
b) Said Complaint is not divided into paragraphs
with each paragraph containing only one material
allegation making it impossible for Defendant to
answer the Complaint in a paragraph format.
c) Plaintiff refers to a contract but does not
attach a copy of the contract to the Complaint.
d) The alleged Complaint does not specify the relief
to which the Plaintiff deems himself entitled.
e) The Complaint does not state whether the amount
claimed does or does not exceed the
jurisdictional amount requiring arbitration
referral by local rule.
f) Plaintiff fails to state a cause of action in a
concise and summary form.
2. The Complaint includes scandalous or impertinent matter
including, but not limited to, various and sundry
allegations of lies, telephone calls, mundane conduct of
Defendant's employees, the practice of other contractors
Plaintiff has dealt with, whether other contractors would
send a "thank you" note, recitals of emotional feels such
as I was quite ticked off," statements as to why certain
defenses of the Defendant would not be valid and a lengthy,
formal list of questions and answers.
All of this renders the Complaint impossible to answer in a
paragraph format and would require Defendant to respond to
entirely irrelevant and scandalous allegations.
Wherefore, Defendant prays your Honorable Court to dismiss
Plaintiff's Complaint.
Gregory R. Reed, Enquire
Attorney for Defendant
2324 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Supreme Court # 23705
CERTIFICATE OF SERVICE
AND NOW, this ??day of December, 1999, I, Gregory R.
Reed, Esquire, Attorney for Defendant, do hereby certify that I
have this day served by first class mail a copy of the attached
Preliminary Objections of Defendant to Plaintiff's Complaint to
the following address:
Barry K. Tolby
15 Sycamore Circle
Etters, PA 17319
Gregory R. Reed, Esquire
Attorney for Defendant
2423 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney I.D. 23705
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COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
NOTICE OF COMPLAINT
COMMON PLEAS NUMBER: 99-7230 CIVIL
PLANTIFF:
BARRY K. TOLBY
15 SYCAMORE CIRCLE
ETTERS, PA. 17319
VS.
DEFENDANT:
NORTHEASTERN HOME IMPROVEMENTS
125 N. ENOLA RD
ENOLA, PA. 17025
SUBJECT: COMPLAINT
My wife and 1 attended the Home Builders Show at the beginning of 1999 where we came in contact with
Northeastern Home Improvements. We stopped in and talked to them about siding our home, so we wrote
our names down on one of their lead slips and one of the people took it and made a note on it and placed it
in a box that was located at the back of their display.
A few weeks later we got a call from Jamie, a sales rep, to make a appointment to come out and talk with
us and find out what we would like to have done. He came out a few days later and we talked about the
siding and he took the measurements and did what he needed to do and told us that he would get back to us.
He called about a week later and made another appointment for April 28 to come out and explain in detail
what they would do, show us examples of the product, and give us their quote. This all occurred and the
quote was well in the 5 figures and my wife and 1 decided that it was just too much for us to take on at that
time.. We sat around a little while longer and made small talk and then 1 thought about the driveway and
having it replaced with cement.
I asked Jamie if his company did cement driveways and he responded that they do. I asked him what their
quote would be on taking out the old asphalt driveway and put in a cement driveway. He and I went
outside and I showed him exactly how wide I wanted it, how long, and that I wanted it to be flared at the
end. He told me no problem and he took his measurements and told me what they would do and how they
would do it. I said fine can you get me a quote. His response was, no problem, and asked to use the phone.
He called back to the office and spoke with someone with whom he gave all the measurements,
instructions, and requirements I had asked for. He hung up and came back, sat down, and told us that it
would cost $2,394.00 to put the driveway in.
We sat there for a while and talked about it because this was the "FIRST' quote I had gotten on the
driveway and too me it seemed a little high but yet within our price range and we figured that other
contractors would probably be within the range already quoted. So my wife and I talked about it and we
decided that because it was within our price range we agreed to have it done.
We talked with Jamie and told him ok and he pulled out a contract put down all the specs that we wanted,
wrote down the price, and asked for a deposit. We both, Jamie and 1, signed the contract and 1 then gave
him a deposit, by check, for $394.00. Ile gave us a copy of the contract, told us that work would most
likely begin within 4.6 weeks, and we shook hands and he left.
By August of 1999 nothing had been done and we thought we should give them a call and see when
Northeastern was going to begin work on the driveway. We hadn't called before that because we figured
that they were really busy and just weren't able to get out within the time they had said and besides that
gave us time to save the other $2000.00 needed to pay for the drive way. PLEASE NOTE THAT FROM
APRIL 28THTO THE PRESENT NORTHEASTERN NEVER MADE ONE PHONE CALL TO US.
Approximately the 3rd week in August 1 called Northeastern and the secretary answered and 1 explained my
situation and she said she would look into it and give me a call. Well two days later the call never came so
I called back again and this time I spoke with a person named John. I told him who 1 was and he took my
information and said he would call me back.; He never did. I called again and this time John answered and
told me that it was in a hold file and he put it on Jamie's desk and he would call us. Jamie never called.
On Monday, a week later, l called again and the secretary told me that Jamie was not in the office that day
but he would be in on Tuesday. 1 told her 1 would be away Tuesday and would she please have Jamie call
and leave a message for me. 1 gave her my number, she repeated it, and I said thanks and hung up.
Needless to say there was no message left for me on Tuesday. I called Wednesday and Jamie got on the
line. 1 asked him why he did not call on Tuesday and he gave me the excuse that he had the wrong number.
Then he proceeded to say that he had thought the job had already been completed knowing full well that it
hadn't. Everyone that 1 have dealt with, when it came to major projects, would either call or ask if the job
was done the way 1 wanted and was I happy with it or send a Thank You card. So here are two instances
within the same conversation that 1 was lied to by Northeastern. He knew what my number was because it
was in file and his secretary took it, repeated it, and wrote it down and he knew darn well that the job had
not been done. I asked him what was going on and he said that they had a major personnel change and that
they were not going to do the work that I had contracted for. I explained to him that we had a valid
contract and that they were obligated to fulfill it. He said that John, the production manager, himself, and
the president, Mark had reviewed the contract and were not going to do thejob. Well needless to say 1 was
quite ticked off. I called back and asked to speak with John, the production manager, and he got on the
line. 1 told him what Jamie had told me and was that really correct. His answer was yes and that they
were not going to honor the contract or do the job. 1 told him that we had a valid contract and John
informed me that they would do what they wanted with the contract and that was the way it was. This
really ticked me off again, so 1 called back again and asked the secretary for the full names of the
production manager, president, and sales person. She handed the phone to john and he informed me that
they would not give me that information and the Mark, the president, would call me back and give me the
information 1 wanted. Well just like all the other times 1 never received a call.
Northeaster Home Improvements may try and say they would not honor the contract because there were
personnel problems or there were problems with people giving bad quotes or heaven only knows what
else. This was not the case when our contract was written and accepted. They had no problems with
anything like the above. WHY IS THIS TRUE???? Because if a smart, sharp, prudent business person
knew he had these kinds of problems he would have called in his business staff and sales people and told
them that they were to write into the contracts they produce the following statement or words to this effect
"THIS CONTRACT WILL ONLY BE VALID AFTER REVIEW BY THE PRESIDENTAND ALL
DOWN PAYMENTS WILL BE HELD UNTIL APPROVAL. YOU WILL BE NOTIFIED WITHIN A
WEEK OF OUR DECISION. This statement or one like it "WAS NOT' ON OUR CONTRACT. Our
contract was accepted and there was a meeting of the minds twice, and the down payment was cashed and
deposited into their account. "WE WERE NEVER CONTACTED ABOUT ANY TYPE OF PROBLEMS
AT ALL WITH THE CONTRACT, THE WAY IT WAS WRITTEN, OR THE QUOTE".
There are a lot of questions to be asked:
1. WAS THERE INTENTION ON NORTHEASTERN'S PART TO CREATE A LEGAL RELATION?
YES-THEY CAME OUT WITH THE INTENT TO WRITE A CONTRACT TO SIDE OUR HOUSE.
INSTEAD WE WROTE A CONTRACT TO DO OUR DRIVEWAY.
2. WAS THERE AN OFFER AND ACCEPTANCE?
YES---WE WERE QUOTED A PRICE OF $2394.00 AND WE ACCEPTED IT. THERE WERE "NO"
NEGOTIATIONS AND THERE WAS A CONTRACT DRAWN UP AND SIGNED BY BOTH
PARTIES. A DOWN PAYMENT OF $394.00 WAS GIVEN AND THE CHECK WAS CASHED ON
APRIL 29.
3. WAS THERE A MEETING OF THE MINDS?
YES---NOT ONLY ONCE BUT TWICE. THE FIRST TIME WHEN THE CONTRACT WAS
WRITTEN AND AGREED TO AND SECONDLY WHEN THE CONTRACT WAS TAKEN BACK TO
THE MAIN OFFICE, REVIEWED, AND THE DOWN PAYMENT WAS CASHED AND DEPOSITED
INTO NORTHEASTERNS ACCOUNT.
4. WOULD A "REASONABLE PERSON" BE LEAD TO BELIEVE THAT A VALID CONTRACT
HAD BEEN DRAWN UP AND AGREED TO?
YES---A REASONABLE PERSON WOULD AGREE THAT A CONTRACT HAD BEEN FORMED
S. WAS THERE EVER A MISTAKE MADE DURING THE COMPLETE PROCESS?
NO--THERE ARE 3 FORMS OF MISTAKE:
A. RECTIFICATION---THERE WERE NO ERRORS IN THE CONTRACT BECAUSE WE
WERE NEVER INFORMED OF ANY PROBLEMS WITH IT IN WRITING OR BY PHONE
SO THERE COULD BE NO RECTIFICATION.
B. WAS THERE A MISTAKE IN PAYMENT?---NO
C. WAS THERE A MISTAKE BY CLASSIFICATION-----NO.
Northeastern never tried or made any attempt to contact with us to "REVOKE" the contract. There were no
options in the contract and there were no notices of revocation before they accepted the contract.
There was no "FRUSTRATION". There were no unforeseen events happening that would stop them from
performing their contracted services.
There were no "MISTAKES" made. If there had been they would have contacted us to let us know
something was wrong. This never happened. In fact once again Northwestern Home Improvements has
never called us not even once since we signed the contract on April 28, 1999. The contract was accepted by
Northeastems rep, Jamie and the company itself again accepted it when they reviewed the contract and then
cashed my deposit check for 5394.00.
As 1 stated earlier there was never any contact made to us by Northeastem saying there were problems with
the contract In fact after my conversations with Northeastern I still am not sure exactly why they refused
to honor our "VALID" contract.
Northeastern is under the impression that they can write contracts and then just not honor them whenever
they feel like it. In essence they are thumbing their noses at the law and playing the odds that people will
ask for their money back , sign a release, and forget about it.
We have taken Northeastern Home Improvements to SMALL CLAIMS COURT (DISTRICT JUSTICE)
and sued them for the damages I incurred above their payments of $394.00, interest on our money that they refuse quote t t return t (S3 125), and S66.00 court O costso As
expected Northeastern did not show up because they knew they were guilty and had no defense. As a result
the judgement for 52897.25 was entered against Northeastern Home Improvements.
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COMMONWEALTH OF PENNSYLVANIA NOTICE OF APPEAL
COUPE OF COMMON PLEAS
.. .ti FROM -
JUDICIAL DISTRICT
DISTRICT JUSTICE JUDGMENT
COMMON PLEAS Na 97 7a 30 ??.
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'mentbrsed below
e 1,41
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1ne9S7'el^N IthA?fe.?f?D
GIPP?Ih h ??- 1?
This black will be signed ONLY when this notation is required under Pa. RCPJA No If appellant was CLAIMANT (see Pa. R.C.P.J.P. No
10088..
This Notice of. Appeal, when received by the District Justice, will 'operate as a 1001(6) In action before District JoStice, he MUST
SUPERSEDEAS to the judgment for possession in this case
FILE A COMPLAINT within twenty (20) days after
ftnapne aP fi))ng his NOTICE of APPEAL.
tothonotarya Deputy
PRAECIPE,TO'ENTER RULE TO FILE COMPLAINT AND. RULE TO FILE ;
(This section of loam to be used ONLY when appellant was DEFENDANT (see Pa. RC.P.J.P. No. 1001(7) in action before District Justice.
IF NOT USED, detach bore copy of notice of appeal to be served upon appellee).
PRAECIPE: To prothonotary
j?
Enter rub upon ^'?p+Ry t? r I T
fa UB s) opQelbels)? -td'
of appellee(s) file a complaint in thh appeal
.. ya'no - .... _ ,, ..
99- )a3a // lm
(Common Pleas No' ) within twenty (20) days offer service of? « suffer entry of ' non
N
--?- 49I a or his a6Vmayar agent
RULEt To (CS L(3 L/ apPat,ee(s,. t _ C
None at appelAWs) ,..
(1) You are nofified that `a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the data of
. service of this rule upon you by. persdrwl service or by certified or registered moil
Y t ; t'. r
(2) If you`daaotfile a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU.
(3) The date of service of this rub if service was by nail is the date of mailing.
soma" ft um ary, or D"
f? - I
i. AOPaale? -
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COURT FILE
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I
PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT
r
(This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing the notice of appeal. Check applicable boxes)
COMMONWEALTH OF PENNSYLVANIA
Dauphin
as
:COUNTY OF
AFFIDAVIT: .[hereby swear or affirm that l served
- -?'a copy of the Notice of Appeal, Common Pleas No. 99-v2zp , upon the.District Justice.designated therein on
(date of service) December 2 1994 , ? by personal service R1 by (certified) (registered) mail, senders
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receipt attached hereto, and up .
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- December 4 .19 0-by personal service:E by (certified) (registered) mail, senders receipt attached hereto:
a appellee(s) to whom
..?0 and further that I served the Rule to File a Complaint accompanying the above Notice of Appeal upon th
- the Rule was addressed an -Decen',,,er 4 -, 19-29-- El by personal service ® by (certified) (registered)
mail, sendors receipt attached hereto. .. i
SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME
gg
December
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. 19
? DAY OF
'THIS Signature of alhant.
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Signature of official bry 'ere whom affidav? as made -
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COYAMONWEALTN OF PENNSYLVANIA
COURT OF COMMON PLEAS
JUDICIAL DISTRICT
NOTICE OF APPEAL
Notice is given that the appellant has fled in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice an the
date and in the case mentioned below
s
Cv 199c/ - 000 0321
IT 19
OI
NOTICE OF APPEAL
FROM
DISTRICT JUSTICE JUDGMENT
COMMON PLEAS No y90-
S1 P? S Tt=
sY'NE's.-J 1vr
,llah ?--
This block will be signed ONLY when this notation is required under Pa. R.CPJP. Na If appellant was CLAIMANT (see Pa. R.C.P.J.P. No.
10083. 1
by the District Justice. will operate as a 1001(6) in action before District Justice, he MUST
This is Notice of Appeal, when received b
SUPERSEDERS to the judgment fa possession in this case FILE A COMPLAINT within twenty (20) days after
filing his NOTICE of APPEAL.
Sgnature of Rot/onofary 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.J.P. No. 1001(7) in action before District Justice.
IF NOT USED, detach from copy of notice of appeal to be served upon appellee).
PRAECIPE: To Prothonotary ?/ _
Enter rule upon r? 0 l."3 y , appellee(s), to file a complaint in this appeal
(Carron Pleas Na 99- 7230 within twenty (20) days after service of Cc suffer entry 'iI;Igment4 non pros.
i
tore a aRxuenr or fa arfomey a went
RULE: To ? O L? , appolee(s).
Nma Of efpo/RWS)
1 :.
(1) You am notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of
service of this rule upon you by personal service a by certified Or registered mail.
(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
B A°e'°'rot°y or OsTart)'
AOM312-U COURT FILE TO BE FILED WITH PROTHONOTARY
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05:45A
AIMONWEALTH OF PENNSYLVANIA
,OUNTY OF: CUMBERLAND
i 09-1-02
ROBERT V. MANLOVE
i"tl11 1901 STATE STREET i
CAMP HILL, PA
rM"ov (717) 761-0583
Nor-ihnntrrn Ftonr 7mPgtaerr aA} s
ATTN: MARK - PRESIDENT
125 N ENOLA DR
ENOLA, PA 17025
THIS IS TO NOTIFY YOU THAT:
Judgment:
DockelNo.: CV-0000329-99
Date Filed: 9/27/99
i
t)EFALILT .T GMm pi IF
X Judgment was entered for: (Name) _ Tni.RV RARRV rr
C Judgment was entered against: (Name) NORTHEASTER a
_$OMR rMPRn?S
in the amount of $ 2,&9-7-2.5_ on:
Defendants are jointly and severally liable.
C Damages will be assessed on:
D This case dismissed without prejudice.
Amount of Judgment Subject to
Attachment'Act 5 of 1996 S
Levy is stayed for days or 1-0 generally stayed.
Objection to levy has been filed and hearing will be held:
Date:
Time:
FS. 02
NOTICE OF JUDGMENT/TRANSCRIPT
PLAINTIFF- CIVIL CASE
FTOLBY, BARRY RSA..,,. a nscss
15 SYCAMORE CIRCLE
ETTERS, PA 17319
L
i DEFENDANT: VS.
17011-0 00 %ALTa•nA:cIESS
rNORTHEASTERN HOME IMPROVEMENTS
125 N ENOLA DR
ENOLA, PA 17025
Place:
(Date of Judgment)
(Date & Time)
Amount of Judgment
Judgment Costs
(Interest on Judgment
Attorney Fees
Total
Post Judgment Credits $
Post Judgment Costs
Certified Judgment Total $
ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING
OF APPEAL WITH THE PROTHONOTARY'CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU
MUST I CL ESiA COPY OF THISJTT//,/q?E OF 11DGMPNTlf4NS RIPT FORM WITH YOUR NOTICE OF APPEAL.
9/?'7.__ Date l iJ:Wl???% ?/ . I: .r .a
I c rtify that this is a true
Date _
My commission expires lirst Mondiy of January.
,.,',..
I District Justice
containing the judgment.
District Justice
2000 SEAL
? • ? 6CC?Twitf.?i?..?s?+ '?'7?.?'.?G7iG'i6C.!n:?ta'+vwn.nv........
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA
BARRY K. TOLBY
Plaintiff
V.
NORTHEASTERN HOME IMPROVEMENTS
Defendant
AND NOW, this
PROPOSED ORDER
day of
NO. 99-7230 Civil
CIVIL DIVISION - LAW
, 2000, in
consideration of Defendant's Response to Plaintiff's Motion for
Judgement Against Defendant, Plaintiff's motion is denied and
the matter is directed to be listed for arbitration.
J.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA
BARRY K. TOLBY
Plaintiff
V. NO. 99-7230 Civil
NORTHEASTERN HOME IMPROVEMENTS CIVIL DIVISION - LAW
Defendant
DEFENDANT'S RESPONSE TO MOTION FOR JUDGEMENT AGAINST DEFENDANT
AND NOW comes Defendant, Northeastern Home Improvements, by
and through its attorney, Gregory R. Reed, Esquire, and responds
to Plaintiff's Motion for Judgement Against Defendant as
follows:
1. Admitted.
2. Admitted.
3. Denied in part. Defendant received on July 11, 2000 a
Notice from Plaintiff, a copy of which is attached hereto,
marked Exhibit "1" and incorporated herein by reference, giving
Defendant ". . . ten (10) days after this Motion for Judgement
and notice are served . . ." to file an answer. Defendant is
filing, contemporaneously herewith, an Answer which is well
within the ten (10) days allowed by the Notice. A copy of said
Answer is attached hereto, marked Exhibit 112" and incorporated
herein by reference.
Plaintiff alleges no prejudice and no prejudice exists
since the Answer is filed.
Furthermore, Defendant makes claim for numerous costs which
are not permitted by law or otherwise not of record, including
but not limited to, a claim for a downpayment which was returned
to Plaintiff, eight (8) percent interest and numerous other
claims not permitted by law or supported by the record.
Wherefore, Defendant respectfully requests your Honorable
Court to deny Plaintiff's Motion for Judgement Against Defendant
and direct that the case to be listed for arbitration in that an
Answer has been filed within the permitted time.
94)41- ?a, acv
Gregory IR. Reed, Esquire
Attorney for Defendant
2324 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Supreme Court # 23705
1 71
7////JD
IN THE COURT OF COMMON PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
Barry K. Tolby
Plaintiff
V. NO. 99-7230 CIVIL
Northeastern Home Improvements CIVIL DIVISION - LAW
Defendant
You have failed to respond to "Order of Court", 12 June 2000. You must
take action within ten (10) days after this Motion for Judgment and noticc
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 the 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 Plantiff. You may loose money,
property, or other rights important to you.
EXHIBIT #1
F-----
IN THE. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVAN=A
BARRY R. TOLBY
Plaintiff
V. NO. 99-7230 Civil
NORTHEASTERN HOME IMPROVEMENTS CIVIL DIVISION - LAW
Defendant
NOTICE TO DEFEND AND CLAIM RIGHTS
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 Defendant. You may lose money
or property or other rights important to you.
You SHOULD TARE 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.
Court Administrator
4`h F1., Cumberland County Courthouse
Carlisle, PA 17013
(717) 240-6200
NOTICIA
Le han demaandado a usted en la corte. Si usted quieie
defenderse de estas demandas expuestas en las paginas
siguientes, usted tiene viente (20) dias de plazo al partir de
la fecha de la demanda y la notification. Usted debe presentar
EXHIBIT #2
una apariencia escrita o en persona o por abogado y archivar en
la corte enforma escrita sus defensas o sus objections a las
demandas en contra de su persona. Sea ayisado que si usted no
se defiende, la corte tomara medidas y puede entrar una orden
contra usted sin previo aviso o notificacion y port cualquier
queja o alivio que es pedido en la peticion de demanda. Usted
puede perder dinero o
sus propiedades o otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO
TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL
SEVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA
DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE
PUEDE CONSEGUIR ASISTENCIA LEGAL.
Court Administrator
4th F1., Cumberland County Courthouse
Carlisle, PA 17013
(717) 240-6200
Date: CIA cL c?pio
egory R. R 419d, Esquire
Attorney for Plaintiff
2423 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney I.D. #23705
- 2 -
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA
BARRY K. TOLBY
Plaintiff
V. NO. 99-7230 Civil
NORTHEASTERN HOME IMPROVEMENTS CIVIL DIVISION - LAW
Defendant
ANSWER TO AMENDED COMPLAINT
NOW COMES, Northeastern Home Improvements, by and through
its attorney, Gregory R. Reed,.Esquire, and answers Plaintiff's
,Amended Complaint as follows:
1. Admitted.
2. Admitted.
3. Denied in part. Any document referred to in Paragraph
3 as a "legal and binding contract-- is a legal conclusion to
which no responsive pleading is required. Furthermore, in that
said document was entered into pursuant to a mistake, it is not
a binding agreement.
4. Plaintiff knew, immediately, that said quote was in
error and as such knew or should have known that Defendant could
not perform the work for the sum of money stated in the writing.
It is admitted that later, but much sooner than four (4) months,
that Plaintiff was advised that Defendant could not do the work
for the sum of money set forth on the writing.
5. Specifically denied. Defendant's answers set forth in
paragraphs 3 and 4 hereof are incorporated herein by reference
as though fully set forth herein.
6. Stricken by order of Edward E. Guido, Judge, on June
12, 2000.
7. Stricken by order of Edward E. Guido, Judge, on June
12, 2000.
8. Specifically denied. Defendant's answers to
.:paragraphs 3 and 4 hereof are incorporated herein by reference
as though fully set forth herein.
9. Admitted. By way of further answer, Defendant's
answers to paragraphs 3 and 4 hereof are incorporated herein by
reference as though fully set forth herein.
WHEREFORE, Northeastern Home Improvements respectfully
requests your Honorable court to enter judgment for Defendant
and against Plaintiff.
New Matter
10. Defendant's representative, when proposing the price,
made a calculation error so blatant that it was obvious to
2 _
P'IA
Plaintiff so that Plaintiff cannot legally take advantage of the
error.
11. Plaintiff knew or had a good reason to know of the
error.
12. Defendant is entitled to relief to the same extent as
though it was a mutual mistake.
13. Plaintiff, in a devious and deceptive manner,
attempted to pounce on Defendant's error, fully aware of the
error,-and attempted to force Defendant to perform the work at a
substantial out-of-pocket loss.
MHEREFORE,:Northeastern Home Improvements respectfully
requests your Honorable court to enter judgment for Defendant
and against Plaintiff.
Y
2324 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Supreme Court # 23705
Respectfully submitted,
Gregory R. Reed, Esquire
Attorne for De ?ndant
f;
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is
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- 3 -
it
I
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VERIFICATION
This day of 2000, the foregoing Defendant
hereby verifies, subject to the penalties of 2S Pa.C.S. 4904 1
(relating to unworn falsification to authorities), that the
facts set forth in the foregoing Answer to Amended Complaint
which are within his knowledge are true, and as to the facts
based on information received, after diligent inquiry, he
believes them to be true.
Mark Kerlin, President of
Northeastern Home Improvements
of Harrisburg, Inc.
CERTIFICATE OF SERVICE
AND NOW, this N2111? day of July, 2000, I, Gregory R. Reed,
Esquire, Attorney for Defendant, do hereby certify that I have
this day served by first class mail a copy of the attached
Answer to Amended Complaint to the following address:
Barry K. Tolby
15 Sycamore Circle
Etters, PA 17319
Gregory R. Reed, Esquire
Attorney for Defendant
2423 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney I.D. 23705
CERTIFICATE OF SERVICE
AND NOW, this atay of July, 2000, I, Gregory R. Reed,
Esquire, Attorney for Defendant, do hereby certify that I have
this day served by first class mail a copy of the attached
Defendant's Answer to Plaintiff's Motion for Judgement Against
Defendant and Proposed Order to the following address:
Barry K. Tolby
15 Sycamore Circle
Etters, PA 17319
Grego R. a Esquire
Attorney for Defendant
2423 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney I.D. 23705
BARRY K. TOLBY
VS.
IN THE COURT OF COM MON PLEAS
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
NORTHEASTERN HOME
IMPROVEMENTS
Defendant
No. 99-7230 Civil Term
CIVIL ACTION
ORDER
Now, August 1L 2000, upon relation that Carol Lindsay, Esq. has a conflict
with a party to this action, her appointment as an arbitrator herein is hereby vacated.
William A. Addams, Esq., is appointed arbitrator in her stead.
Frederick I. Huganir, Esq., Chairman
28 S. Pitt St.
P.O. BON 308
Carlisle, PA 17013-0308
Lowell Gates, Esq. - Arbitrator
1013 Mumma Rd.
Lemovne, PA 17043-2200
Barry K. Tolby - Plaintiff Pro sr
15 Sycamore Cir.
Etters, PA '17319-9750
By the Court,
George E.Coffer, P.J.
Carol Lindsay, Esq.
I I E. High St.
Carlisle, PA 17013-3016
William A. Addams, Esq. - Arbitrator
28 S. Pitt St.
P.O. Box 208
Carlisle, PA 17013-0208
Gregory R. Reed, Esq. - for Defendant
2423 N. Third St.
Harrisburg, PA 1 71 1 0=1 902
w\.... u„u.r.aa.
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BALM- K 7'0 I by
_p let 'dlif
I:T TPA COURT of OCN2401T FITEAS
ME_E Asti' COMD7- _f, P3°a?IS`MVANTI?
V, :io
IV0r Q"h e1S??n ???
1Yti?QI'0Je me?11%5
UU pipmr;*g OF A?F?.?AL
FROM AWED OF EOP D OF 4R?ITRP_TORS
TO T HM ?RCT?:OPTCTA3Y:
Notice is given that /!/Or e?ssl?i/y IUF_)Qe'7C1gya appeals from
the award of the board of arbitrators entered in this case on
Sep I'ev?, ? e,- 2 ? , ao o c7 .
A jury trial is demanded d (Cheak't box i*_' a Jury trial is
demanded. Cther*aise jury trial is waived.)
I hereby certify that
(1) the compensation of the arbitrators has been paid, or
°P^r? rrs8. (Strike out the LnaDClizable clause.)
Appellant or Attorney for Appellant
NCM: The. demand for jury trial on appeal
from compulsory a_rbitraticn is gcuerned
by Rule 1007.1 (b).
(b) Yo affidavit or verification is required.
(, J! r4
??i4RR ?? Gc. TOC 1? )
)
N?R?y?Et9 S?ER?.1 F?oM,E 1
111MOVCMEN r S
la The Court of Common Pleas of
Cumberland County, Pennsylvania
d1-- :Io._f ?F- 72 AO 19 ?
OATH
C/v?C /??Y>on1
lie do solemnly swear (or affirm) that we will support, obey and defend
the Constitution of the United States and a Lion of this Common-
wealth and that we will discharge the dut es of r ,off4ceA x?th fidelity.
AWARD
We, the undersigned arbitrators, having been duly appointed and sworn
(or affirmed), make the following award:
(Note: If damages for delay are awarded, they shall be
separately stated.)
2 -AGN1JJ'E- 1'/J FefVM OF /N r7/6 .41-7o uAj?-
QF 2 4?J?_oc?? pLcv S x`/3 2 3 3 /.VY 6s? Oc is Coss _
applicable.
. Arbitrat
Date of Hearing: S"F- 20 7aoo
Date of Award: 5W r 7? Z? a o
NOTICE OF ENTRY
Now, the.2o`day of ,uCc ky -2buq at/o:oa, n..;f.,
award was entered upon the docket and notice thereof given by mail
parties or their attorneys.
Arbitrators' compensation to be
paid upon appeal:
$ .200.00
the above
to the
Prothonotary
By: P.
Deputy
1,
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J:.. ?.Cf
X1
1
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'zr•°z''rt 7`
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PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate) )
b.
i
TO THE PROTHONJTARY OF OMERLAND COIMPY
please list the following case:
(Check one) ( ) for JURY trial at the next term of civil court.
(XXX ) for trial without a jury. _ _ - - - - - -
---------
CAPTION OF CASE (check one) 1
(entire caption must be stated in full)
BARRY K. TOLBY ( ) Civil Action - Law
15 SYCAMORE CIRCLE (XX) Appeal from Arbitration
ETTERS, PA. 17319
( )
(other) F.
(Plaintiff)
VS.
NORTHEASTERN HOME IMPROEEMENTS
125 ENOLA DR.
ENOLA, PA. 17025
The trial list will be called
and
01-03-0
(Defendant)
Trials commence on
Pretrials will be held on D / 1 O
(Briefs are due 5 days before pretrials.)
VS. I
(The party listing this case for trial shall
provide forthwith a copy of the praecipe to
all counsel, pursuant to local Rule 214.1.)
Civil ACTION JAl 19 99
No. 793n
Indicate the attorney who will try case for the party who files this praecipe:
BARRY K. TOLBY
Indicate trial counsel for other parties if known-'
GREGORY R. REED, ES
This case is ready for trial.
Attorney for-'
Date: 1112100
r
IJ:J.
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c? u
T
DEC .l `I 2000,,E
IN THE COURT OF COMMON PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
Barry K. Tolby
Plaintiff
V. NO. 99-7230 CIVIL
Northeastern Home Improvements CIVIL DIVISION - LAW
Defendant
PRE-TRIAL STATEMENTS
Now comes, the Plantiff, Barry K. Tolby, and files this complaint in
support of which states as follows:
1. The Plantiff, Barry K. Tolby, is an individual residing at 15 Sycamore
Circle, Etters, County of York, Pennsylvania.
2. The Defendant, Northeastern Home Improvements, is a Corporation
doing business at 125 North Enola Drive, Enola, County of Cumberland,
Pennsylvania.
3. On April 28, 1999, Plantiff met with Jamie Walsh, Field Rep. For
Northeastern Home Improvements, and signed a contract for $2394.00 to
have a cement driveway installed at his, the Plaintiff's residence, 15
Sycamore Circle, Etters, Pennsylvania.
i
i
4. On April 29, 1999, Plantiff put a $394.00 down payment on the contract
leaving a balance of $2000.00 to be paid when driveway completed. The
down payment, was deposited in the Defendants bank account the
following day and was kept for one year.
5. On or about August 17, 1999, four (4) months later, Plantiff called
Northeastern Home Improvements to find out when they were going to
begin work on installing the cement driveway.
6. On or about August 17, 1999, Plantiff was told by Jamie Walsh that
Northeastern Home Improvements was not going to honor the contract to
install the driveway.
7. On November 8, 1999 Award given to Plaintiff by Small Claims Court,
in the amount of $2406, the amount of damages suffered above the quote
given by the defendant, the Plaintiff's deposit of $394.00, interest, and costs.
8. On September 20, 2000, Award given to Plaintiff, by the Board of
Arbitrators, in the amount of $2406.00, $132.33 interest, and costs.
9. There are 15 Exhibits to be presented at Trial and are attached.
10. WHEREFORE, the Plantiff, Barry K. Tolby, requests this Honorable
Court to uphold the Judgment Awarded by the Board of Arbitrators to the
Plaintiff and any additional relief as the Court determines is just, fair, and
equitable.
Dated; December 14, 2000
Ba K. To' y, P a
/Etters, 15 Sycae CircP 17319
717-938-3306
Pro Se
VERIFICATION
I, Barry K. Tolby, Plantiff herein, do hereby state that the foregoing
Complaint is true and correct to the best of my knowledge, information and
belief.
I understand that false statements herein are made
of 18 Pa. C.S. 4904, relating to unsworn
to the penalties
'r.
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Ij
Dated: December 14, 2000 /
B v K.
CERTIFICATE OF SERVICE
AND NOW, this -14th day of December, 2000, 1, Barry K. Tolby, Plaintiff,
do hereby certify that I have this day served by registered mail a copy of the attached Pre-
Trial Statements and Brief to the following address.
Gregory R. Reed, Esquire
Attorney for Defendant
2423 North Street
Harrisburg, Pa. 17110
1. 1 " i
EXHIBIT #1
L__
CONTRACT C-HANG-E FORM
CUSTOMERS NAME
CUSTOMERS ADDRESS /-p
CITY Z5 STATE ?Q• ZIP PHONE# 931- 339?1
ORIGINAL CONTRACT PRICE. S ?•?9`?? ??
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Imo- - 'I NORTHEASTERN
HOME IMPROVEMENT SERVICES
ADJUSTED CONTRACT PRICE
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DESCRIPTION OF CHANGES
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CUSTOMERS SIGNATURE X
DATE
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SALESMAN SIGNATURE ???
MANAGER APPROVAL
DATE °'? - ?i
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EXHIBIT #2
BARRY KENT TOLBY
EMERALD AUCTION SERVICE
15 SYCAMORE CIR
ETTERS PA
HARRIS
SAVINGS BANK
RESEARCH I yL4GE REQUEST
Fri Aug 27, 1999
ACCOUNT NO: 500038223
The inage(s) snmul below
represent official copies of
original docurents processed
by our institution.
151 .I
EMERALD AUCTION SERVICE
15 SYCAMORE CIRCLE ee-723&M13
E7TERS, PA 17319
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EXHIBIT #3
COMMONWEALTH
COUNTY OF: CM
4aq. ]a. vn.
1.1 Vane: man,
ROBERT V-
1.901 ST
CAMP II
r.?4w..n.: (717176
'PENNSYLVANIA '
Arm CIVIL COMPLAINT
1-02 I r -'Y K. 20L3Y NAU9,MACC;e55 1 )111?' -71 I 1-
STREET
PA
17.011-0000
0583
FILING COSTS s - - ?/ ?
SERVING COSTS s ! !
TOTAL s
-? MORE C2:-R(MZ
'r''- S, PA. 17319
1
- I
CEFENCANT. VS'
?. VAU: .c ACC;E55
PRESIDENT, FCME E"11DEOVEMDTS ?SID MARK I
JAM=--&aXESPERSCN, Z?Z DCN- -
PROD. MANAJMR
L125 II40L1 DRSVE
J
Docket tio.c --
Date ^Iled: - ?•• __' -
TO THE DEFENDANT: he above named I •
pant-(s) asks judgment against you tar S S ?J J ,
osts upon the following claim (Civil tines must include citation of the statute or d;nn neteher with
iolated): I signed a contract with Northeastern on April 23, 1999 to put in a cement driveway.
Their price wa's 52394.00. [ agreed, signed the contract, and put 5394.00 down payment for the job. [ was
told that the work would begin within 4-5 weeks. August came and the driveway had not been put in and
Northeastern had not called. When f called 1 was given the run around and promised that someone would
call me. This never happened. No one from Northeastern ever contacted us. At the end of August I efinally
m
d him
got a hold of Jamie, the sales person, and he told me that they were not going to do the job. I nform h
that we had a signed contract with money down and he said he didn't care they were not going to do the
job. This was also the attitude of John, the'producrion manager. They told me that they would do what
ever they wanted when it came to my contract.
I have a quote from another company and am suing far the dollar amount above Northeas[e at 3 price, that I
now have to pay, in the amount of 52406.00, my deposit of S394.00, interest on my money, at 3%, which
comes to S31.25, and court costs in the amount of 566.00. For a total of 52397.25.
I
correct to the bes of my knowledge, information and belief. Th s that the facts set, i this siatementis mads( bject to hel P?mtraarRe?
Section 4904 of the Cri s Code (18 PA. C.S. §4904) related to unswoni falsdi on to authorities. /
a Ignatur?tr - r:rf , Autncn= A?pyYli
6
Plaintiffs i,/
Aacrney:
ACCfe55:
Tele;rcne:
IF YOU INTEND TO E
TELEPHCNE NUMSE
JUDGMENT WILL BE
a .+ u?rc:va[ I U I HIS COMFWhVT, NO T IFY THIS OFFICE IMIMEDIATEL Y AT-PHE ABOVE
YOU MUST APPEAR AT THE HEARING AND PRESENT YOUR DEFENSE. UNLESS YOU CO,
ITERED AGAINST YOU BY DEFAULT.
It you have a dai against he pfainaff which is Wktin h di-trito assert at: a justice jurfsdicion and which you intend
ing, Ycu anus; file it cn a ccmclaint form at :his office at !east ^,e (5) days befor
th e
e darn ,mr'nr :^ ..aarirr? It ynn ^.aua a maim _n;inc eno nlainnft Wnir_n i¢ nnr within nic:rir jltctica
junsdicion, ycu y recuest information tram ;his cifice as to
are disahied and re the procedures ycu may f
above 'allow. If you
quire assistance, please contact the Magisterial District office at the address
AC?C !CaA•ia
i
COMMONWEALTH OF. PENNSYLVANIA
COUNTY OF: CUmB :RLANn
.uaq. D¢t. N',
09-1-02
DJ Name: Han.
ROBERT V. MANLOVE
Aacceea: 1901 STATE STREET
CAMP HILL, PA
reiocnone:(717) 761-0583 17011-0000
BARRY R. TOLBY
15 SYCAMORE CIRCLE
ETTERS, PA 17319
NOTICE OF JUDGMENT/TRANSCRIPT
CIVIL.CASE
PLAINTIFF:
NAME ana ADDRESS
rTOLBY, BARRY R
-I
15 SYCAMORE CIRCLE
ETTERS, PA 17319
L J
VS.
DEFENDANT' NAME ana ADDRESS
FNORTHEASTERN HOME IMPROVEMENTS
125 N ENOLA DR
ENOLA, PA 17025
L J
Docket No.: CV 0000329 99
Date Filed: 9/27/99
r
c
THIS IS TO NOTIFY YOU THAT:
Judgment: DEFA Tr T TrTn .MENT PLTF
?X Judgment was entered for: (Name). nT.av AARRV I(
,Judgment was entered against: (Name) NORTHEASTERN HOME. TMPROVEMEN'P4
in the amount of $ A97 2S on:
(Date of Judgment) 71 /nA/99
? Defendants are jointly and severally liable.
El Damages will be assessed on:
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:
Date: Place:
Time:
Amount of Judgment $
Judgment Costs $
Interest on Judgment $
Attorney Fees $
Total S
Post Judgment Credits $
Post Judgment Costs $
Certified Judgment Total
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 INCLI}t)E A COPY OF THI??TjCj?E OF,y k{DGM-.NT/TfdANSrt51PT FORM WITH YOUR NOTICE OF APPEAL.
? Date L Yh /, / 1 ' (L'( District Justice
I certify That this is a true a rr I co. thh r )or " the p dceedings containing the judgment.
4 Date Cz Lrr L District Justice
My commission expires first Monday of January, 2000 SEAL
AOPC 315-??
(Date & Time)
EXHIBIT #4
f'
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
NOTICE OF COMPLAINT
i
COMMON PLEAS NUMBER: 99-7230 CIVIL i
PLANTIFF:
t. •n
BARRY K. TOLBY _
15 SYCAMORE CIRCLE r.'
ETTERS, PA. 17319 - -_ j
VS. .72
DEFENDANT: 'a =i 1
NORTHEASTERN HOME IMPROVEMENTS
125 N. ENOLA RD
ENOLA, PA. 17025
SUBJECT: COMPLAINT
mly wife and I attended the Home Builders Show at the beginning of 1999 where we came in contact with
Northeastern Home Improvements. We stopped in and talked to them about siding our home, so we wrote
our names down on one of their lead slips and one of the people took it and made a note on it and placed it
in a box that was located at the back of their display.
A few weeks later we got a call from Jamie, a sales rep, to make a appointment to come out and talk with
us and find out what we would like to have [lone. He came out a few days later and we talked about the
siding and he took the measurements and did what lie needed to do and told us that he would get back to us.
He called about a week later and made another appointment for April 23 to come out and explain in detail
what they would do, show us examples of the product, and give us their quote. This all occurred and the
quote was well in the 5 figures and my wife and I decided that it was just too much for us to take on at that
time. We sat around a little while longer and made small talk and then I thought about the driveway and
having it replaced with cement.
I asked Jamie if his company did cement driveways and he responded that they do. I asked him what their
quote would be on taking out the old asphalt driveway and put in a cement driveway. He and I went
outside and 1 showed him exactly how wide I wanted it, how long, and that I wanted it to be flared at the
end. He told me no problem and he took his measurements and told me what they would do and how they
would do it. I said fine can you get me a quote. His response was, no problem, and asked to use the phone.
He called back to the office and spoke with someone with whom he gave all the measurements,
instructions, and requirements I had asked for. He hung up and came back, sat down, and told us that it
would cost $2,394.00 to put the driveway in.
We sat there for a while and talked about it because this was the "FIRST" quote I had gotten on the
driveway and too me it seemed a little high but yet within our price range and we figured that other
contractors would probably be within the range already quoted. So my wife and 1 talked about it and we
decided that because it was within our price range we agreed to have it done.
TRUE COPY FROM RECORD
nl T&--%Taxr trrio->t3;, I hArn ur yet my hang
and ?.;'q { ? vtit'? M, t.;3i:`4, =fit.
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-TOITICI101`21`
We talked with Jamie and told him ok and he pulled out a contract put down all the specs that we wanted,
wrote down the price, and asked for a deposit. We both, Jamie and I, signed the contract and I then gave
him a deposit, by check, for 5394.00. Fie gave us a copy of the contract, told us that work would most
likely begin within 4-6 weeks, and we shook hands and he left.
By August of 1999 nothing had been done and we thought we should give them a call and see when
Northeastern was going to begin work on the driveway. We hadn't called before that because we figured
that they were really busy and just weren't able to get out within the time they had said and besides that
gave us time to save the other S2000.00 needed to pay for the drive way. PLEASE NOTE THAT FROM
APRIL 2870 TO THE PRESENT NORTHEASTERN NEVER MADE ONE PHONE CALL TO US.
Approximately the 3rd week in August I called Northeastern and the secretary answered and I explained my
situation and she said she would look into it and give me a call. Well two days later the call never came so
I called back again and this time I spoke with a person named John. I told him who I was and he took my
information and said he would call me back.; He never did. I called again and this time John answered and
told me that it was in a hold fie and he put it on Jamie's desk and Ile would call us. Jamie never called.
On Monday, a week later, I called again and the secretary told me that Jamie was not in the office that day
but he would be in on Tuesday. I told her I would be away Tuesday and would she please have Jamie call
and leave a message for me. I gave her my number, she repeated it, and I said thanks and hung up.
Needless to say there was no message left for me on Tuesday. 1 called Wednesday and Jamie got on the
line. 1 asked him why he did not call on Tuesday and he gave me the excuse that he had the wrong number.
Then he proceeded to say that he had thought the job had already been completed knowing full well that it
hadn't. Everyone that 1 have dealt with, when it came to major projects, would either call or ask if the job
was done the way I wanted and was I happy with it or send a Thank You card. So here are two instances
within the same conversation that I was lied to by Northeastern. Fie knew what my number was because it
was in file and his secretary took it, repeated it, and wrote it down and he knew dam well that the job had
not been done. I asked him what was going on and he said that they had a major personnel change and that
they were not going to do the work that 1 had contracted for. I explained to him that we had a valid
contract and that they were obligated to fulfill it. fie said that John, the production manager, himself, and
the president, Mark had reviewed the contract and were not going to do the_job. Well needless to say I was
quite ticked off. I called back and asked to speak with John, the production manager, and he got on the
line. I told him what Jamie had told me and was that really correct. His answer was yes and that they
were not going to honor the contract or do the job. I told him that we had a valid contract and John
informed me that they would do what they wanted with the contract and that was the way it was. This
really ticked me off again, so I called back again and asked the secretary for the full names of the
production manager, president, and sales person. She handed the phone to john and he informed me that
they would not give me that information and the Mark, the president, would call me back and give me the
information f wanted. Well just like all the other times 1 never received a call.
Northeaster Home Improvements may try and say they would net honor the contract because there were
personnel problems or there were problems with people giving bad quotes or heaven only knows what
else. This was not the case when our contract was written and accepted. They had no problems with
anything like the above. WHY IS THIS TRUE???? Because if a smart, sharp, prudent business person
knew he had these kinds of problems he would have called in his business staff and sales people and told
them that they were to write into the contracts they produce the following statement or words to this effect
'THIS CONTRACT WILL ONLY BE VALID AFTER REVIEW BY THE PRESIDENTAND ALL
DOWN PAYMENTS WILL BE HELD UNTIL APPROVAL. YOU WILL BE NOTIFIED WITHIN A
WEEK OF OUR DECISION. This statement or one like it "WAS NOT"ON OUR CONTRACT. Our
contract was accepted and there was a meeting of the minds twice, and the down payment was cashed and
deposited into their account. "WE WERE NEVER CONTACTED ABOUT ANY TYPE OF PROBLEMS
AT ALL WITH THE CONTRACT, THE WAY IT WAS WRITTEN, OR THE QUOTE".
There are a lot of questions to be asked:
1. WAS THERE INTENTION ON NORTHEASTERN'S PART TO CREATE A LEGAL RELATION?
YES-THEY CAME OUT WITH THE INTENT TO WRITE A CONTRACT TO SIDE OUR I[OUSE.
INSTEAD WE WROTE A CONTRACT TO DO OUR DRIVEWAY.
2. WAS THERE AN OFFER AND ACCEPTANCE?
YES---WE WERE QUOTED A PRICE OF S2394.00 AND WE ACCEPTED IT. THERE WERE "NO"
NEGOTIATIONS AND THERE WAS A CONTRACT DRAWN UP AND SIGNED BY BOTH
PARTIES. A DOWN PAYMENT OF 5394.00 WAS GIVEN AND THE CHECK WAS CASHED ON
APRIL 29.
3. WAS THERE A MEETING OF THE MINDS?
YES---NOT ONLY ONCE BUT TWICE. THE FIRST TIME WHEN THE CONTRACT WAS
WRITTEN AND AGREED TO AND SECONDLY WHEN THE CONTRACT WAS TAKEN BACK TO
THE MAIN OFFICE, REVIEWED, AND THE DOWN PAYMENT WAS CASHED AND DEPOSITED
INTO NORTHEASTERNS ACCOUNT.
4. WOULD A "REASONABLE PERSON" BE LEAD TO BELIEVE THAT A VALID CONTRACT
HAD BEEN DRAWN UP AND AGREED TO?
YES---A REASONABLE PERSON WOULD AGREE THAT A CONTRACT HAD BEEN FORMED
5. WAS THERE EVER A MISTAKE MADE DURING THE COMPLETE PROCESS?
NO---THERE ARE 3 FORMS OF MISTAKE:
A. RECTIFICATION---THERE WERE NO ERRORS IN THE CONTRACT BECAUSE WE
WERE NEVER INFORMED OF ANY PROBLEMS WITH IT, IN WRITING OR BY PHONE
SO THERE COULD BE NO RECTIFICATION.
B. WAS THERE A MISTAKE IN PAYMENT?---NO
C. WAS THERE A MISTAKE BY CLASSIFICATION-----NO.
Northeastern never tried or made any attempt to contact with us to "REVOKE" the contract. There were no
options in the contract and there were no notices of revocation before they accepted the contract.
There was no "FRUSTRATION". There were no unforeseen events happening that would stop them from
performing their contracted services.
There were no "MISTAKES" made. If there had been they would have contacted us to let us know
something was wrong. This never happened. In fact once again Northwestem Home Improvements has
never called us not even once since we signed the contract on April 23, 1999. The contract was accepted by
Northeastems rep, Jamie and the company itself again accepted it when they reviewed the contract and then
cashed my deposit check for $394.00.
As I stated earlier there was never any contact made to us by Northeastern saying there were problems with
the contract In fact after my conversations with Northeastem I still am not sure exactly why they refused
to honor our "VALID" contract.
Northeastem is under the impression that they can write contracts and then just not honor them whenever
they feel like it. In essence they are thumbing their noses at the law and playing the odds that people will
ask for their money back , sign a release, and forget about it.
We have taken Northeastem Home Improvements to SMALL CLAIMS COURT (DISTRICT JUSTICE)
and sued them for the damages I incurred above their quote to put in a driveway (52406.00), Our down
payment of 5394.00, interest on our money that they refuse to return ($31.25), and $66.00 court costs. As
expected Northeastem did not show up because they knew they were guilty and had no defense. As a result
the judgement for S3397.25 was entered against Northeastern Home Improvements.
YOU HAVE 20 DAYS, FROM THE DATE OF THE CERTIFIED/REGISTERED MAIL, TO RESPOND
TO THIS COMPLAINT.
I
a
'I
BARRY K. TOLBY
tl?
I
ri
EXHIBIT #5
t
BARRY K. TOLBY IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
NORTHEASTERN HOME- NO. 99-7230 CIVIL TERM
IMPROVEMENTS
IN RF• DEFENDANT'S PRFLTIVJTNARY OB JECTfONS
BEFORE HOFFER, P.J.. OLER. TDO..J.J
ORDER OF COURT
AND NOW, this 27TH day of APRIL, 2000, after review of the briefs submitted
by each parry, and after having heard argument thereon, defendant's preliminary
objections are GRANTED. Plaintiff is given leave to file an amended complaint within
twenty (20) days of receipt of this order. Plaintiff's attention is drawn to Pa. Rules of
Civil Procedure 1022, 1023 and 1024.
By the Court
Edward E. Guido, J.
Barry K. Tolby, Pro Se
0-
Gregory R. Reed, Esquire
For the Defendant
:sld
EXHIBIT #6
IN THE COURT Or CONEVION PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
Barry K. Tolby
Plaintiff
V.
Northeastern Home Improvements
Defendant
: NO. 99-7230 CIVIL
CIVIL DIVISION - LAW
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
Plantiff. You may loose money,. property, or other rights important to you.
i sr ,? Vni j,;icU =:J y /rw-i > It ?t c:0 }?' t L
??'=,tJ/J/9v?-'? /?/t? ct•t.c.?vfS C??CG,L?r:
3 says L?..F0-
g/SIC K
n j j r" FJ I /1% TC £/.C'c? (?i-r i -'=. C
PLEAS THE COURT OF COivI pOV SYLVANIA CUMBERLAND COUNTY,
Barry K. Tolby
Plaintiff
V.
Northeastern Home Improvements
Defendant
NO. 99-72230 CIVIL
CIVIL DIVISIOY - LAW
AMENDED C0jvIPLAINT
Now comes, the Plantiff, Barry K. Tolby, and files this complaint in
support of which states as follows:
1. The Plantiff, Barry K. Tolby, is an individual residing at 15 Sycamore
Circle, Etters, County of York, Pennsylvania.
2. The Defendant, Northeastern Home Improvements, is a Corporation
doing business at 125 North Enola Drive, Enola, County of Cumberland,
Pennsylvania.
3. On April 23, 1999, Plantiff met with Jamie Walsh, Field
Representative for Northeastern Home improvements, and signed a legal
and binding contract (encl l) for $2394.00 to have a cement driveway
installed at the Plaintiffs residence, 15 Sycamore Circle, Etters,
Pennsylvania.
4. On or about August 17, 1999, four (4) months later, the Plaintiff was
told by Jamie Walsh, Field [representative for Northeastern Elome
improvements, that they were not eoing to install the driveway.
5. Northeastern Home Improvements reftised to honor a legal and
binding contract (encl 1).
On November 8, 1999, Defendant was taken to Small Claims Court for
refusing to hoc legal and binding contract-and`was sued for $2406, the
amount of
given by the defendant, the
deposit of $394.00 (encl2), and costs.
7--G vember 8, 1999, Defendant was found "GUILTY" and-a-Default
Judgment was enteFed against them in the amount of`$2897 25 (encl3).
8. As a direct result of the Defendants refusal to honor a legal and binding
Contract, the plaintiff suffered financial damages in the amount of $2406.00,
the amount the Plaintiff had to pay above the quoted price given by the
Defendant.
9. The financial damages suffered do not exceed thejurisdictional amount,
$25,000.00, requiring arbitration.
10. WHEREFORE, the Plantiff, Barry K. Tolby, requests this Honorable
Court to enter judgment against the Defendant, Northeastern Home
Improvements for the sum of money in excess of $2897.25, together with
interest and costs thereon as allowed by law, to fairly compensate the
Plaintiff for the injuries he sustained and for such other relief as the Court
determines isjust, fair, and equitable.
Respect€n11y S mitted
ME
Dated; May, 01, ?000 /,• ?G ???/ / ?? j
Barry K. T
15 Sycamore Circle
Etters, Pa. 17319
717-933-3306
Pro Se
Encll Contract
Enc12 Deposit Check
Encl3 Notice of Judgment
3
EXHIBIT #7
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA
BARRY K. TOLBY
Plaintiff
V.
NO. 99-7230 Civil
NORTHEASTERN ROME IMPROVEMENTS CIVIL DIVISION - LAW
Defendant
PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF'S.'
AMENDED COMPLAINT < n
AND NOW comes Defendant, Northeastern Home Improvements, by J
and through its attorney, Gregory R. Reed, Esquire, and makes
Preliminary Objections to Plaintiff's Amended Complaint as
follows:
Motion to Strike
1. Failure of the Amended Complaint to conform to law or rule
of court as follows:
a) The alleged Complaint does not specify the relief
to which the Plaintiff deems himself entitled.
b) Plaintiff fails to state a cause of action in a
concise and summary form.
c) Plaintiff alleges voluminous legal conclusions,
unsupported by factual allegations, including but
not limited to:
1) On April 28, 1999, Plaintiff ". signed a
legal and binding contract . ." 13
2) Northeastern Home Improvements refused to
honor a legal and binding contr=act. 15
EXHIBIT #8
?'N ` I
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
K. Tolby
Plaintiff
V.
Northeastern Horne Improvements
Defendant
NO. 99-7230 CIVIL
CIVIL DIVISION- LAW
MOTION TO STRIKE DEFENDANTS PRELIMINARY OBJECTIONS
Now comes, the Plantiff, Barry K. Tolby, and files this Motion to Strike
Defendant's Preliminary Objections in support of which states as follows:
1. The Plantiff, Barry K. Tolby, is an individual residing at 15 Sycamore
Circle, Etters, County of York, Pennsylvania.
2. The Defendant, Northeastern Home Improvements, is a Corporation
doing business at 125 North Enola Drive, Enola, County of Cumberland,
Pennsylvania.
3. On May 1., 2000, Plaintiff filed Amended Complaint as required by the
Honorable Judges Guido, Oler, and Hoffer in a timely manner and was instructed
by them, in no uncertain terms, that Pennsylvania Rules of Civil Procedure were to
be followed to the letter, were created for a purpose, and were not to be deviated
from.
On May 23, 2000, Defendant tiled his Preliminary Objections. By tiling on
May 23, 2000 the Defendant violatedibroke Pennsylvania Rule of Civil Procedure
No. 1026 Time for tiling. Notice to Plead. ( Encl I Time Explanation).
Pennsylvania Rule of Civil Procedure No. 213 Modification of Time was not
requested in writing to the Plaintiff by the Defendant nor was it.Ordered by the
if we, the Lay Persons, are expected and required to follow the Pennsylvania
Rules of Civil Procedures to the Letter, should not ATTORNEYS be required to
Follow the same Rules to the Letter?
WHEREFORE, for all of the above reasons, Plaintiff respectfully requests this
Court to hold a hearing and, after hearing, order the Defendants Preliminary
Objections stricken and send this case to Arbitration.
Submitted
Barry K.#Iby, P
16 Sycarre Circ
Etters, Pa. 17319
717-933-3306
Pro Se
Encl l
Enc12
Encl3
Enc14
Encl-i
Time Explanation
Letter from the Honorable Judge Guido
Certificate of Service
Return Receipt Card from Post Office
Prothonatary Stamp on Preliminary Objections
TIME E\PLNINATION
The Defendant physically received and signed for the Complaint on the 2"d of ivlay 2000.
If the 20 days began the minute he signed for the Complaint, his 20 days would have
begun on May 2"d and ended on the 21" of May. (From Nlay 2"d to May 2151 is 20
days).
Because the 2151 was Sunday his 20 days would have ended on the 22"d of May.
If the 20 days began the day after receipt of the Complaint, the 3`d of May
His 20 days would have begun on the 3`d of May and ended on the 22"d. (From May 3
To May 22 is 20 days).
Honorable Court, as you can see no matter how you figure the 20 day time requirement,
The Defendant did not file his Preliminary Objections in accordance with Pennsylvania
Rule of Civil Procedurel026 Time for fling. Notice to Plead.
RL L 1
EXHIBIT #9
'I
BARRY K. TOLBY
V.
NORTHEASTERN FIONIE
IMPROVEMENTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-7230 CIVIL
CIVIL ACTION- LAW
ORDER OF ('Oi JRT
AND NOW, this L day of JLINE, 2000, upon consideration of defendant's
Preliminary objections to the amended complaint and plaintiffs Motion to Strike said
Preliminary objections it is ordered and directed that Paragraphs 6 and 7 of the amended
complaint be and are hereby STRICKL-N. The remainder of defendant's preliminary
objections are DENIED. Defendant is directed to file an answer within twenty (20) days
of service of this order.
By the
Edward E. Guido, J.
Barry K. Tolby
15 Sycamore Circle
Etters, Pa. 17319
Gregory R. Reed, Esquire
For the Defendant
:sld
In '_st!mc^y rha, acf 16e . - hand
and .ha seal cf said Ccurt at Cariisia,'?a.
ci.
F4thcnotar/
EXHIBIT #10
JUL II 20000
IN THE COURT OF CO V[MON PLEAS OF CUNIBERLAND COUNTY,
PENNSYLVANIA
Barry K. Tolby
Plaintiff
V. NO. 99-7230 CIVIL
Northeastern Home Improvements CIVIL DIVISION - LAW
Defendant
ORDER OF COURT
AND NOW, this day of .,')000, a hearing is scheduled
on the day of ?000 in Courtroom No. of the
Cumberland County Courthouse, Carlise, Pennsylvania. Upon consideration of the
Motion to enter Judgment against Defendant.
BY THE COURT,
J.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
Barry K. Tolby
Plaintiff
V.
NO. 99-7230 CIVIL
Iortheastern Home Improvements CIVIL DIVISION - LA?`.._
Defendant -
MOTION FOR MDGIVIENT AGAINST DEFENDANT
Now comes, the Plantiff, Barry K. Tolby, and files this ivlotion to enter
Judgment against Defendant.
1. The Plantiff, Barry K. Tolby, is an individual residing at 15 Sycamore
Circle, Etters, County of York, Pennsylvania.
2. The Defendant, Northeastern Home Improvements, is a Corporation
doing business at 125 North Enola Drive, Enola, County of Cumberland,
Pennsylvania.
3. Defendant has not responded to the "Order of Court" (Encl1), dated 12 June
2000 and mailed from Prothonotary's office 14 June 2000, within the required 20
days.
WHEREFORE, for the above reason, Plaintiff respectfully requests this Court
to hold a hearing and, after hearing, order a Judgment entered against the
Defendant for the amount of 53111.50 (Encl2), costs of all certified letters, and
any additional costs incurred during the process.
Pro Se
Encl l ORDER OF COURT
Enc12 COST BREAKDOWN.
Enc13 DEFENDANT NOTIFICATION
Etters, Pa. 17319
717-933-3306
BARRY K. TOLBY : IN THE COURT OP CObIMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
NORT[-[EAS'fE[ZN HOME NO. 99-7230 CIVIL
IMPROVEMENTS
CIV[L ACTION - LAW
ORDER OF C_ URT
AND NOW, this 17TH day of JULY, 2000, upon consideration of plaintiff's
Motion for Judgment Against Defendant, no hearing thereon is required. If defendant
fails to respond thereto on or before July 20, 2000, plaintiff may file a praecipe for
default judgment in accordance with Pa. Rule of Civil Procedure 237.1.
t,
By;:
Edward E. Guido, J.
Barry K. Tolby
15 Sycamore Circle
Etters, Pa. 17319
Gregory R. Reed, Esquire
For the Defendant
:sid
EXHIBIT #11
S657o ri?, ?eec?
Attorney At Law
2423 N.'Mird Street
Harrisburg, Pennsyleania 17110
Plime:(717)238.0434• Pas: (717) 238.8469
e-mail: gregrrced@prodigy.net
July 19, 2000
Barry K. Tolby
15 Sycamore Circle
Etters, PA 17319
RE: Tolby v. Northeastern Home Improvements
No. 99-7230
Dear Mr. Tolby:
Today, Wednesday, July 19, 2000, I received from you a copy
of the enclosed order which requires the Defendant to respond to
your Motion for Judgment against Defendant on or before July 20,
2000. If, according to the Order, there is no response you may
file a Praecipe for Default Judgment in accordance with PA Rule
of Civil Procedure No. 237.1. .
Since you are representing yourself and so that the
procedural status of this case does not become more complicated,
please understand that all required documents were filed on July
13, 2000. On that date, Defendant filed an Answer to Amended
Complaint with New Matter. On that date, Defendant also filed a
Response to the Motion for Judgment Against Defendant.
In my opinion, you should file a Reply to New matter and
then list the case for arbitration. Do not attempt to obtain a
default iudoment.
Very tr 27 yours,
Gregory R. Re'
GRR/cjw
Enclosure
nc: Prot::^.onotary of Cumberland Co.
::'5«:eca: r.xa ::• e..er.:a,aor. ca a.:eva ace -......-
a r y
i
EXHIBIT #12
BARRY K. TOLBY
Plaintiff
VS.
NORTHEASTERN HOME"
IMPROVEMENTS
Defendant
: IN THE COURT OF COMivfON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
No. 99-7230 Civil Term
CIVIL ACTION
NOTICE Of [-TEARING BY BOARD OF ARBITRATORS
THE HEARING before the Board of Arbitrators in the above matter is scheduled
for Wednesday, September 20, 2000, at 9:00 a.m., in the second floor conference room at
23 South Pitt St., Carlisle, Pennsylvania, at which time and place you and your
witnesses may appear and be heard.
August 11, 2000
To:
Lowell Gates, Esq. - Arbitrator
1013 Njununa Rd.
Lemoyne, PA 17043-2200
Barry K. Tolby - Plaintiff
15 Sycamore Cir.
Etters, PA "17319-9750
Court Administrator's Office
Cumberland County Courthouse
One Courthouse Square
h Carlisle, PA 17013-3322
Boarcl•of
PredeI. fuganir, Esq., Chairman
2 S., itt St.
P.V BON 308
Carlisle, PA 17013-0305
William A. Addams, Esq. - Arbitrator
28 S. Pitt St.
P.O. Box 208
Carlisle, PA 17013-0208
Gregory R. Reed, Esq. - for Defendant
2423 N. Third St.
Harrisburg, PA 17110-1902
Prothonotary's Office - Bulletin Board
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3322
EXHIBIT #13
-1 OL
)
C.1DeQ %HEIi DER J koMf )
/mMovrNrEN 7 S
aAT•d
in The court of Co=on ?leas of
Cumberland County, ?ennsylvania
No. 7f-- 72 J' O tc
C/Va A-cam
We do solemnly swear (or affirm) that we will support, obey and defend
the constitution of the United States and yq.e ution of this Common-
wealth and that we will discharge the duc#s„of r_ocl}cen.,-7ch fidelity.
AWARD
de, the undersigned arbitrators, having been duly appointed and sworn
(or affirmed), make the following award:
(Note: If damages for delav are awarded, they shall be
separately stated.)
???/iryFJ -/J FAyo-2 Of ?-rC [//L4/il/Ti?F /A) CPC "Y 1,70 S/V
pF ?? 4'?I?. a?,PLw S' 9t`/3 2. ? 3 //y?2Es? r /At?S GosY? .
applicable.)
Arbitrat
Dace of Hearing: SICIF- ?o ?moo
Date of Award: 5.i;/ r ?-o zo o o
NOTICE OF ^=NT3y_
,low, che.20=`day of,?c?a«, Pu Y9 avuc ac/o:z)c , R..:f.,
award was entered upon the eocket and notice thereof given by mail
parties or their attorneys.
Arbitrators' cc=ensacicn to be
paid upon appeal:
a ,240.w
the above
co the
?rochorocarv
i ?
]epu^-r
i
EXHIBIT #14
HOME IMPROVEMENT CO. se
Main office 306 S. Front Street
2820 WaltonvillPA 17036 Steelton. PA 17113
Hummelstown, 939-6402
566.6269 FAX 944-8301
SOLD TO J•? •? ': • •
ADDRESS ...,?. • • • • • '.` '' '
` lr?- ?v(,JV.?•... .............. STATE .. !...?'......
?-
CITY . .
. TEL. :....?.. ?.(
NEAR ............................... -
ZAP"
1 411
rJ J"
vim' ?•? GU's
CUST. PAID $
SAL. DUE $ -
C.O.D.
-G? C
CLEAN UP AFTER EACH JOB
PRICE ?!Ly?)rJ O(
.
L.--? [p the contrary
CONTRACT: meta and ere not gueremaed. No oral understanding
1. Clues and tore of dekven' am eppro" pe Hale up unW hilly reeewed' naceu tatad 119 Installations are [° be mnda m, PUS mus[ accompany N s abet and may
2. A depasi[ i mounplw to Price _
9, Ali mechanical details and eaagh, cuon e[docnuon of Ea°5 days Hernrece p[al mercnendne or
[o nmprme design ar lectery pr?d merchandise must be made in wnpng
4. Any d,spu[a ar claim camermlK' ht [o wawa Nis Olawawa
,netallaponre ' as the case may b° a main o1RCe. No Salesman shelf Here N° no time. or Mersof 5, Ad Proem arc SUNect to eonlirmapan by eel very of any part of the mature °aaMe rn,roddned Shell et a deemed
'nie of delivery
if not be her, table la. Boer agrees all
.
Causes beYand Scllefa adle data when Ne aaU900f delay a moved
6. Seller e'tanded she [a and iMhWinp to
order according [a'nawCUdne ebave.
7 Kindly make up my 'aec41
',YOU THE BUYER, MAY CANCEL THIS TRANSACTION AT ANY TIME MIDNIGV+T PRiO -INESS DAY AFTER THE
DATE HIS TRANSACCTION. TO CANCEL THIS TRANSACT ON. A
DATED CERTIFIED LETTER MUST BE SENT. (Signature belowaCknow-
ledges this right,-
'
.............
Customer -' "' Last Name
Middle
Signature First
..........
Customer ' • • ... • • ..Last Name
Signature First
TOTAL
DEPOSIT
BALANCE DUE
ADD. DEPOSITS
to take
a Y[ deposit n all contracts'
EASY SIDERS.
HOME IMPROVEMENT..CO•,
:. =..... ... . ?` . .
Salesman
DOORS
TOTAL NO. WINDOWS
I ~
I
i
r1?Lf C:
( , I tar
' -t4.UZd-P iii
IN UPDEGRAVE CONSTRUCTION CO.
445 Shelleys Lane
ETTERS, PENNSYLVANIA 17319
(717) 932-1168 FAX (717) 932-3901
Page No. t of I Pages
Remodeling Proposal
CONTRACTOfl L'CENSENO. JOB PHONE NO.
q38-33??
Submitted JOBNAMEINO.
To: JOB LOCATION
ARCHITECT GATE OFPLAN
----- .. --__
PHONE 3300 OATE?-Z/-?n% APPROXIMATE STARTING GATE APPROXIMATE COMPLETION GATE
We hereby submit specifications and estimates for.
_t!P X?57"i _Bl c1?! P zrv i &q_ NWt_ 4WIfAl -------
I
-`?'?>(L_ 90 _._L41'A LJITt-\ ?s Af4w a 8orrewl
- -?me__Llf/Lr L/W0?9 . /G?_9eSf1..jc -----
-- 1 s i .l_..-_ SP_.grJ?ianr? a?n? -conr?'v! _ n);N? S A _NELo?? ------
This Proposal does not
All material is guaranteed to be as specified. All work to be com-
pleted in a workmanlike manner according to standard practices.
Any alteration or deviation from the above specifications involving
extra costs will be done only upon a whiten change order. The costs
will become an extra charge over and above me estimate. This is
to include, but is not limited to. hidden damages mat are uncovered
during the course of the job and additional work required by local
building inspectors.
All elements of this agreement are contingent upon strikes, accidents
or delays beyond our control. The estimate does not include material
price increases, or additional labor and materials which may be
required should unforeseen problems anse after the work has started.
You, the buyer, may cancel this transaction
at any time prior to midnight of the third
business day after the date of this trans-
action. Cancellation must be done in writing.
We Propose hereby to furnish material and labor - complete in accordance with
above specifications, for the sum of:
ftFrySAn-) TW_b t- &JOln-o 2
i C V(_ - dollars (S - Z 6- W ).
Payment to be mace as follows:
(ipvnl fro vv1 P (z,'-n o ?
Note: Tbr, proposal
may be worm
try ."I not arxepted wUxn D days.
Acceptance of Proposal: The above prices. specifications and conditions are satisfactory and are hereby accepted. You are
authorized to do the work as specified. Payment will be made as outlined above.
i
Sgnelure .rL Owe ?' S.9twture ? Owe K
TRIPLE CROWN CORPORATION
Oeve Lope rs•9ui lders•Managers• Remodelers
Jaycee Avenue
:bum. PA 17112
(717) 657.5729
FAX (717) 657-6125
email: tnplecrovm@vverldnel.att.net
National Housing Quality Award Winner
ESTIMATE
kl.' 'q 8/27/99
•,- BarryCeblel
15 Sycamore Circle
Etters, PA 17319
Home 938-3306
This estimate covers the cost as described below:
Remove existing black top driveway and install new concrete driveway.
-Remove existing driveway and cut down grade to 8" below existing grade.
-Install 4" of 2B stones as base.
-Pour 4" of 3500 PSI concrete with expansion joints at every 10' of drive.
-Use expansion joint material at garage and road.
-Drive to be broom finished.
-Includes clean up and dumping fees.
Total Estimate .................................................................$6,225.00"
* Price guarantee for 30 days from estimate date, does not include any permit
fees.
Any questions call Steve Reese 657-5729 Ext. 44.
y_: W+
EXHIBIT #15
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA
BARRY K. TOLBY
Plaintiff
V.
NORTHEASTERN HOME IMPROVEMENTS
Defendant
NO. 99-7230 Qi:,vi1-
CIVIL, DIVISION =;'LAW_
NOTICE TO DEFEND AND CLAIM RIGHTS
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 Defendant. 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.
Court Administrator
ach F1., Cumberland County Courthouse
Carlisle, PA 17013
(717) 240-6200
NOTICIA
Le han.demaandado a usted en 1a corte. Si usted cuieie
deferderse de estas demandas expuestas en !as pacinas
sicuientes, usted tlene '!'-_n,.°_ (20) dlas de plazo al partir de
la fecha de la demanda _! la net-_1Cacicn. Usted debe aresentar
BM`a'apariencia escrita o en persona o por abogado y archivar en
Ia-corte enforma escrita sus defenses o sus objections a las
"demandas en contra de su persona. Sea ayisado que si usted no
se de£iende, 1a torte tomara medidas y puede entrar una orders
contra usted sin previo aviso o notification y port cualquier
queja o alivio que as Pedido en 1a petition de demanda. Usted
puede perder dinero o
sus propiedades o otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO
TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR T.AL,
SEVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA
DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE
PUEDE CONSEGUIR ASISTENCIA LEGAL.
Court Administrator
4th F1., Cumberland County Courthouse
Carlisle,. PA 17013
(717) 240-6200
Date:_
, 4?9
egory R. R ed, Esquire
Attorney for Plaintiff
2423 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney T-.D. #23705
BARRY K. TOLBY
Plaintiff
V.
NORTHEASTERN HOME IMPROVEMENTS
Defendant
N0. 99-7230 Civil
CIVIL DIVISION - LAW
ANSWER TO AMENDED COMPLAINT
NOW COMES, Northeastern Home Improvements, by and through
its attorney, Gregory R. Reed, Escuire, and answers Plaintiff's
Amended Complaint as follows:
1. Admitted.
2. Admitted.
3. Denied in part. Any document referred to in Paragraph
3 as a "legal and binding contract" is a legal conclusion to
which ncL responsive pleading is required. Furthermore, in that
said document was entered into pursuant to a mistake, it is not
a binding agreement.
a. Plaintiff knew, immediately, that said quote was in
error and as such knew or should have known that Defendant could
not perform the work for the sum of money stated in the writing.
It is admitted that later, but much sooner than Lour (4) months,
..
5. Specifically denied
paragraphs 3 and 4 hereof are incorporated herein by reference
as though fully set forth herein.
6. Stricken by order of Edward E. Guido, Judge, on June
12, 2000.
7. Stricken by order of Edward E. Guido, Judge, Or' June
12, 2000.
$• Specifically denied. 'Defendant's answers to
paragraphs 3 and 4 hereof are-incorporated herein by reference
as though fully set forth herein.
9. Admitted. By way of further answer, Defendant's
answers to paragraphs 3 and 4 hereof are incorporated herein by
reference as though fully set forth herein.
WHEREFORE, Northeastern Home Improvements respectfully
requests your Honorable court to enter judgment for Defendant
and against Plaintiff.
NewMatter
10. Defendant's representative
when
proposing the price,
made a calculation error so blatant that it was obvious to
Defendant's answers set forth in
- 2 -
------?-??•wasraavised'that-Defendant could not do the work
for the sum of money set forth on the writing.
error.
11. Plaintiff knew or had a good reason to know of the
error.
12. Defendant is entitled to relief to the same extent as
though it was a mutual mistake.
13. Plaintiff, in a devious and deceptive manner,
attempted to pounce on Defendant's error, fully aware of the
error, and attempted to force Defendant to perform the work at a
substantial out-of-pocket loss.
WHEREFORE, Northeastern Home Improvements respectfully
requests your Honorable court to enter judgment for Defendant
and against Plaintiff.
Respectfully submitted,
Gregory R. Reed, Escuire
Attorney for Def_ndant
2324 North Third Street
Harrisburg, PA 17110
(717) 232-0434
Supreme Court 4 23705
Plaintiff so that Plaintiff cannot legally take advantage of the
2000, the foregoing Defendant
This ' d UUY U-- -
verifies, subject to the penalties of 18 Pa.C.S. 4904
hereby
(relating to unsworn falsification to authorities), that the
facts set forth in the foregoing Answer to Amended Complaint
which are within his knowledge are t^Ue, and as to the facts
based on information received, after diligent inquiry, he
believes them to be true.
Mark Kerlin, President of
Northeastern Home Improvements
of Harrisburg, Inc.
i
?; i
Dr- C 14 2000-5
IN THE COURT OF COMMON PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
Barry K. Tolby
Plaintiff
V.
Northeastern Home Improvements
Defendant
NO. 99-7230 CIVIL
CIVIL DIVISION - LAW
BRIEF
Now comes, the Plantiff, Barry K. Tolby, and files this Brief in support
of which states as follows:
1. The Plaintiff, Barry K. Tolby, is an individual residing at 15 Sycamore
Circle, Etters, County of York, Pennsylvania.
2. The Defendant, Northeastern Home Improvements, is a Corporation
doing business at 125 North Enola Drive, Enola, County of Cumberland,
Pennsylvania.
3. On April 28, 1999, Plantiff met with Jamie Walsh, Field Rep. For
Northeastern Home Improvements, and signed a contract for $2394.00 to
have a cement driveway installed at his, the Plaintiff's residence, 15
Sycamore Circle, Etters, Pennsylvania. (Exhibit #1 Contract)
4. On April 28, 1999, Plantiff put a $394.00 down payment leaving a
balance of $2000.00 to be paid when driveway completed. (Exhibit #2
Down payment check).
5. On April 29, 1999, the Plaintiffs check, in the amount of $394.00,
was deposited by the Defendant. (Exhibit #2 Cancelled Check).
Defendant kept deposit for one year. (Exhibit #2A Refund Check).
6. On or about August 17, 1999, four (4) months later, Plantiff called
Northeastern Home Improvements to find out when they were going to
begin work on installing the cement driveway.
7. On or about August 17, 1999, Plantiff was told by Jamie Walsh that
Northeastern Home Improvements was not going to honor the contract to
install the driveway.
8. On November 8, 1999, Defendant was taken to Small Claims Court.
Judgement for Plaintiff entered in the amount of $2897.25. (Exhibit #3
Small Claims Complaint and Judgment).
9. New complaint filed. (Exhibit #4 Original Complaint).
10. Went to arguments and Defendant prevailed because complaint did not
follow Pa. Rules of Civil Procedure. (Exhibit #5 Court Judgment).
11. Amended complaint filed on May 01, 2000. (Exhibit #6 Amended
Complaint).
12. Defendant broke Pa. Rule of Civil Procedure #1026, Time For Filing,
by not filing his Preliminary Objections within the required 20 days.
(Exhibit #7 Preliminary Objections Showing Filing Date).
13. Plaintiff filed motion to strike Preliminary Objections and requested
judgment award. (Exhibit #8 Motion to Strike).
14. Court permitted late filing of Preliminary Objections and then dismissed
them. (Exhibit #9 Court Order).
15. Court ordered Defendant to respond within 20 days. (Exhibit #9
Court Order). Defendant did not respond within the 20 days.
16. Plaintiff filed motion for Judgement award and gave defendant another
10 days to file court ordered response. (Exhibit #10 Motion to Award and
answer).
17. Defendant wrote letter to Plaintiff outlining what he filed and gave
Plaintiff instructions on what he should and should not do. (Exhibits #11
Letter).
18. Defendant requested to go to arbitration. (Exhibit #11 Letter).
19. Arbitration was held on September 20, 2000. Defendant found guilty
and award of $2406.00, $132.33 interest, and costs given to Plaintiff.
(Exhibit #12 Arbitration Award).
20. WHEREFORE, the Plantiff, Barry K. Tolby, requests this Honorable
Court to uphold the judgment entered against the Defendant, Northeastern
Home Improvements by the Board of Arbitrators and any additional relief as
the Court determines is just, fair, and equitable.
it tY??Y{.. a 1. Y.
Submitted
is
Dated; December 14, 2000 ?Ba K of Y, P
15 Sycamore Cire
Etters, lea. 17319
717-938-3306
Pro Se
VERIFICATION
I, Barry K. Tolby, Plantiff herein, do hereby state that the foregoing
Complaint is true and correct to the best of my knowledge, information and
belief.
I understand that false statements herein are made subje t to the penal
of 18 Pa. C.S. 4904, relating to unsworn falsification to a horities.
Dated: December 14, 2000
rryK ob //
CERTIFICATE OF SERVICE
AND NOW, this _14th day of December, 2000, 1, Barry K. Tolby, Plaintiff,
do hereby certify that I have this day served by registered mail a copy of the attached Pre-
Trial Statements and Brief to the following address.
Gregory R. Reed, Esquire
Attorney for Defendant
2423 North Third Street
Harrisburg, Pa. 17110
15 Syc*ore C"irc
Etters, a. 17319
EXHIBIT #1
CUSTOMERS NAME
a
CUSTOMERS ADDRESS
CITY STATE All • ZIP 7 J?/9 PIIONE#
ORIGINAL CONTRACT PRICE $ ?39y,
+ NORTHEASTERN
HOME INIPROVEMENT SERVICES
ADJUSTED CONTRACT PRICE 3
J
DESCRIPTION OF CHANGES
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CUSTOMERS SIGNATUREX - /
CUSTOMERS SIGNATURE X
DATE
://4
SALESMAN SIGNATURE %.-•!? ??
MANAGER APPROVAL ??
EXHIBIT #2
Fi'i Aug 27, ffARRI5 ACCOUNT NO: 1500038223
SAVINGS BANK
RESE RCH INLAGE REQUEST
BARRY KENT TOLBY
EMERALD AUCTION SERVICE
15 SYCANORE CIR
ETTERS PA
The in9ge(s) shorn below
represent official copies of
original documents processed
by our institution.
151
EMERALD AUCTION SERVICE
15 SYCAMORE CIRCLE W-723erota
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EXHIBIT #3
COMMCNW I+.ALTH
CC)UNTY OF: cM
M?9• ?L. Y6.
0
WNW,: MGn.
ROBERT v.
a"r"ia' 1901 S'S
C:.SP Ea
caaman<: (7171763
PENNSYLVANIA
[iI.iilDR]
1-02
I
ANLOVE
E STRE3T
PA
17011-000o
0583
OU"lT LATE PAID
FILING COSTS s f ,
SERVING COSTS 5
TOTAL s .? I221-93-
TO THE DEFENDANT: he above named plaintiff(s) asks judgment against you for S S' 9? s together with
osts upon the following claim (Civil tines must include citation of the statute or ordinanrp
ialated): I signed a contract with Norheastem. on April 23, 1999 to put in a cement driveway.
Their price was $2394.00. I agreed, signed the contract, and put $394.00 down payment for the job. I was
told that the work would begin within 4-5 weeks. August came and the driveway had not been put in and
Northeastern had not called. When I called I was given the run around and promised that someone would
call me. This never happened. No one from Nonheastem ever contacted us. At the end of August I finally
got a hold of Jamie, the sales person, and he told the that they were not going to do the job. I informed him
that we had a sighed contract with money down and he said he didn't care they were not going to do the
job. This was also the attitude of John, the'production manager. They told me that they would do what
ever they wanted when it came to my contract
I have a quote from another company and am suing for the dollar amount above Northeastems price, that I
now have to pay, in the amount of 52406.00, my deposit of 5394.00, interest on my money, at 3%, which
comes to S31.25, and court costs in the amount of 566.00. For a total of 5239735.
1, rct /
correct to the ees' c
_ Section 4904 of the
fwledge, ifnW ation and belief.
Code (18 PA. C.S.§ 4904) related to unswgrri f
?j
PlamnKs
Amcrney:
Teteohane•
IF YOU INTEND TO E
TELEPHCNE NUMEE
JUDGMENT WILL EE
If ycu have a c!I
to assert at :he
Iha ra:a e=r.anr
jurisdic:icn, you
are disabled al
above-
CIVIL COMPLAINT
.IY. „. ., 1 8 "pll?ttlilt
PLAINT IPF; !Ii4E am:.CCFE$S
'a ARMY K. TOLBY
15 SYCabSORE CIRCr-.r-
EPI'4.-.c'S, PA. 17319
VS.
iy s
1
i f
i
1
CEF=NCANT: nav_•reAcc;.ess
C:C=ASTERN I:CtvE Ls,TROV&?M3 AND MAPK
PRESIDENT, JAL%1IE-S.:%1ESPEFlSCN, AND DCN- -
PROD. iANAMR
L125 EiOLA DRIVE J
FA.
Docket No.:
-
Date Filed.
AC=55:
to
'Eft A DEFENSE TO TriIS COMFl.AINT, NOTIFY'i HIS OFFICE IMMEDIATELY AT THE ABOVE
YOU MUST APPEAR AT THE 'HEARING AND PRESENT YOUR DEFENSE. UNLESS YOU 00,
NTE=ED AGAINST YOU SY DEFAULT.
against the plainutf which is Nith,m district justice juriscic:ion and which you intend
ring, ycu must file it cn a ccmdaint form at :his oCice at !east five (5) days before
nam,ro If ynu ?Va n ft?im _rjcinc :na raainnft wrlnn is nnr Within divrrin: ;LLCiCa
y recuest infcrmaticn from :his cifce as to the prccecures ,you may fcilew. If you
equire assistance, please contact the Magisterial District office at the address
set•ft??t this complaint are true at
vets/ thatthe
p L facs
' This sia[ement,is made SLbiect to the pfinall l ;'
- ,COMMONWEAI.TH OF PENNSYLVANIA
COUNTY.OF: CUMBERLAND
r Ma9-Dm.Na.: I 09-1-02
DJName: Han.
ROBERT V. MANLOVE
Aaa,eaa. 1901 STATE STREET
CAMP HILL, PA
re!epmna: (717) 761-0583 17011-0000
NOTICE OF JUDGMENTITRANSCRIP T
CIVIL.CASE
PLAINTIFF; NAME and ADDRESS
F
TOLBY, BARRY K
15 SYCAMORE CIRCLE
ETTERS, PA 17319
L J
VS.
DEFENDANT: NAME Ina ADDRESS
rNORTHEASTERN HOME IMPROVEMENTS
125 N ENOLA DR
ENOLA, PA 17025
L J
DocketNo.: CV-0000329-99 sC
Date Filed: 9/27/99
^14 {
.
BARRY K. TOLBY
15 SYCAMORE CIRCLE
ETTERS, PA 17319
THIS IS TO NOTIFY YOU THAT:
Judgment: D A T ITID - ENT PL.TF
I-XI Judgment was entered tor: (Name) Tni AY, BARRY R
Judgment was entered against: (Name) NORTHEASTERN HOME TMPRQVRMFMTS
in the amount of $ 9, Rq7 _25 on:
? Defendants are jointly and severally liable.
? Damages will be assessed on:
? This case dismissed without prejudice.
Amount of Judgment Subject to
? Attachment/Act 5 of 1996 $-
M Levy is stayed for days or ? generally stayed.
Date: Place:
Time.
Amount of Judgment $
Judgment Costs $
Interest on Judgment $
Attorney Fees $
Post Judgment Credits $
Post Judgment Costs $
Certified Judgment Total $
? Objection to levy has been filed and hearing will be held:
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 INCLL{9E A COPY OF THI$1fTgT4E OF,&DGM NT(f fYANSr?PIPT FORM WITH YOUR NOTICE OF APPEAL.
/// 01 _1`f Date
I certifylhat this is a tr
Date
My commission expires first Monday of January
(Date of Judgment) 11 f 0 R /a, a
(Date & Time)
District Justice
containing the judgment.
, District Justice
2000 SEAL
ACFC 315.59
EXHIBIT #4
COURT OF COMMON PLEAS OF CU,VIBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
NOTICE. OF COMPLAINT
COMMON PLEAS NUMBER: 99-7230 CIVIL
PLANTIFF:
re }
BARRY K. TOLBY
15 SYCAMORE CIRCLE
ETTERS,PA. 17319 72
VS. ;.?
DEFENDANT: =
?7 In,
NORTHEASTERN HOME IMPROVEMENTS
125 N. ENOLA RD
ENOLA, PA. 17025
SUBJECT: COMPLAINT
My wife and 1 attended the Home Builders Show at the beginning of 1999 where we came in contact with
Northeastern Home Improvements. We stopped in and talked to them about siding our home, so we wrote
our names down on one of their lead slips and one of the people took it and made a note on it and placed it
in a box that was located at the back of their display.
A few weeks later we got a call from Jamie, a sales rep, to make a appointment to come out and talk with
us and find out what we would like to have done. He came out a few days later and we talked about the
siding and he took the measurements and did what he needed to do and told us that he would get back to us.
He called about a week later and made another appointment for April 28 to come out and explain in detail
what they would do, show us examples of the product, and give us their quote. This all occurred and the
quote was well in the 5 figures and my wife and 1 decided that it was just too much for us to take on at that
time. We sat around a little while longer and made small talk and then I thought about the driveway and
having it replaced with cement.
I asked Jamie if his company did cement driveways and he responded that they do. I asked him what their
quote would be on taking out the old asphalt driveway and put in a cement driveway. He and I went
outside and I showed him exactly how wide I wanted it, how long, and that I wanted it to be flared at the
end. He told me no problem and fie took his measurements and told me what they would do and how they
would do it. I said fine can you get me a quote. His response was, no problem, and asked to use the phone.
He called back to the office and spoke with someone with whom he gave all the measurements,
instructions, and requirements I had asked for. He hung up and came back, sat down, and told us that it
would cost 52,394.00 to put the driveway in.
We sat there for a while and talked about it because this was the "FIRST' quote I had gotten on the
driveway and too me it seemed a little high but vet within our price range and we figured that other
contractors would probably be within the range already quoted. So my wife and I talked about it and we
decided that because it was within our price range we agreed to have it done.
TRUE C3PY FROM RE?OF?D
III r ffAYY? ttlh93i, i'1?1f? URiC 3M ITPJ Siam
Led U10 ?I 7 1p
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p ihenorar,
We talked with Jamie and told him ok and he pulled out a contract put down all the specs that we wanted,
wrote down the price, and asked for a deposit. We both, Jamie and I, signed the contract and I then gave
him a deposit, by check, for S394.00. He gave us a copy of the contract, told us that work would most
likely begin within 4.6 weeks, and we shook hands and he left.
By August of 1999 nothing had been done and we thought we should give them a call and see when
Northeastern was going to begin work on the driveway. We hadn't called before that because we figured
that they were really busy and just weren't able to get out within the time they had said and besides that
gave us time to save the other $2000.00 needed to pay for the drive way. PLEASE NOTE THAT FROM
APRIL 23TU TO THE PRESENT NORTHEASTERN NEVER MADE ONE PHONE CALL TO US.
Approximately the 3'd week in August I called Northeastern and the secretary answered and I explained my
situation and she said she would look into it and give me a call. Well two days later the call never came so
1 called back again and this time I spoke with a person named John. I told him who I was and he took my
information and said he would call me back.; He never did. I called again and this time John answered and
told me that it was in a hold file and he put it on Jamie's desk and he would call us. Jamie never called.
On Monday, a week later, I called again and the secretary told me that Jamie was not in the office that day
but lie would be in on Tuesday. I told her 1 would be away Tuesday and would she please have Jamie call
and leave a message for me. 1 gave her my number, she repeated it, and I said thanks and hung up.
Needless to say there was no message left for me on Tuesday. i called Wednesday and Jamie got on the
line. I asked him why he did not call on Tuesday and he gave me the excuse that he had the wrong number.
Then he proceeded to say that he had thought the job had already been completed knowing full well that it
hadn't. Everyone that I have dealt with, when it came to major projects, would either call or ask if lhejob
was done the way I wanted and was 1 happy with it or send a Thank You card. So here are two instances
within the same conversation that I was lied to by Northeastern. He knew what my number was because it
was in rile and his secretary took it, repeated it, and wrote it down and he knew dam well that the job had
not been done. I asked him what was going on and he said that they had a major personnel change and that
they were not going to do the work that I had contracted for. 1 explained to him that we had a valid
contract and that they were obligated to fulfill it. Re said that John, the production manager, himself, and
the president, Mark had reviewed the contract and were not going to do theJob. Well needless to say I was
quite ticked off. I called back and asked to speak with John, the production manager, and he got on the
line. 1 told him what Jamie had told me and was that really correct. His answer was yes and that they
were not going to honor the contract or do the job. I told him that we had a valid contract and John
informed me that they would do what they wanted with the contract and that was the way it was. This
really ticked me off again, so I called back again and asked the secretary for the full names of the
production manager, president, and sales person. , She handed the phone to john and he informed me that
they would not give me that information and the Mark, the president, would call me back and give me the
information [wanted. Well just like all the other times I never received a call.
Northeaster Home Improvements may try and say they would not honor the contract because there were
personnel problems or there were problems with people giving bad quotes or heaven only knows what
else. This was not the case when our contract was written and accepted. They had no problems with
anything like the above. WHY IS THIS TRUE???? Because if a smart, sharp, prudent business person
knew he had these kinds of problems he would have called in his business staff and sales people and told
them that they were to write into the contracts they produce the following statement or words to this effect
"THIS CONTRACT WILL ONLY BE VALID AFTER REVIEW BY THE PRESIDENTAND ALL
DOWN PAYMENTS WILL BE HELD UNTIL APPROVAL. YOU WILL BE NOTIFIED WITHIN A
WEEK OF OUR DECISION. This statement or one like it "WAS NOT' ON OUR CONTRACT. Our
contract was accepted and there was a meeting of the minds rice, and the dawn payment was cashed and
deposited into their account. "WE WERE NEVER CONTACTED ABOUT ANY TYPE OF PROBLEMS
AT ALL WITH THE CONTRACT, THE WAY IT WAS WRITTEN, OR THE QUOTE".
There are a lot of questions to be asked:
WAS THERE INTENTION ON NORTHEASTERN'S PART TO CREATE A LEGAL RELATION?
YES-THEY CAME OUT WITH THE INTENT TO WRITE A CONTRACT .rO SIDE
INSTEAD WE WROTE A CONTRACT TO DO OUR DRIVEWAY.
WAS THERE AN OFFER AND ACCEPTANCE?
OUR HOUSE.
YES---WE WERE QUOTED A PRICE OF S2394.00 AND WE ACCEPTED IT. THERE WERE "NO"
NEGOTIATIONS AND THERE WAS A CONTRACT DRAWN UP AND SIGNED BY BOTH
PARTIES. A DOWN PAYMENT OF $394.00 WAS GIVEN AND THE CHECK WAS CASHED ON
APRIL 29.
3. WAS THERE A MEETING OF THE MINDS?
YES---NOT ONLY ONCE BUT TWICE. THE FIRST TIME WHEN THE CONTRACT WAS
WRITTEN AND AGREED TO AND SECONDLY WHEN THE CONTRACT WAS TAKEN BACK TO
THE MAIN OFFICE, REVIEWED, AND THE DOWN PAYMENT WAS CASHED AND DEPOSITED
INTO NORTHEASTERNS ACCOUNT.
4. WOULD A "REASONABLE PERSON" BE LEAD TO BELIEVE THAT A VALID CONTRACT
HAD BEEN DRAWN UP AND AGREED TO?
YES---A REASONABLE PERSON WOULD AGREE THAT A CONTRACT HAD BEEN FORMED
5. WAS THERE EVER A MISTAKE MADE DURING THE COMPLETE PROCESS?
NO---THERE ARE 3 FORMS OF MISTAKE:
A. RECTIFICATION ---THERE WERE ryO ERRORS IN THE CONTRACT BECAUSE WE
WERE NEVER INFORMED OF ANY PROBLEMS WITH IT, IN WRITING OR BY PHONE
SO THERE COULD BE NO RECTIFICATION.
B. WAS THERE A MISTAKE IN PAYMENT?---NO
C. WAS THERE A MISTAKE BY CLASSIFICATION-----NO.
Northeastern never tried or made any attempt to contact with us to "REVOKE" the contract. There were no
options in the contract and there were no notices of revocation before they accepted the contract.
There was no "FRUSTRATION". There were no unforeseen events happening that would stop them from
performing their contracted services.
There were no "MISTAKES" made. If there had been they would have contacted us to let us know
something was wrong. This never happened. In fact once again Northwestem Home Improvements has
never called us not even once since we signed the contract on April 28, 1999. The contract was accepted by
Nonheastems rep, Jamie and the company itself again accepted it when they reviewed the contract and then
cashed my deposit check for 5394.00.
As I stated earlier there was never any contact made to us by Northeastern saying there were problems with
the contract In fact after my conversations with Northeastern I still am not sure exactly why they refused
to honor our "VALID" contract.
Northeastern is under the impression that they can write contracts and then just not honor them whenever
they feel like it. In essence they are thumbing their noses at the law and playing the odds that people will
ask for their money back , sign a release, and forget about it.
I;
We have taken Northeastern Home Improvements to SMALL CLAIMS COURT (DISTRICT JUSTICE)
Ind sued them for the damages I incurred above their quote to put in a driveway ($2406.00). Our down i
)ayment of 5394.00, interest on our money that they refuse to return (531.25), and $66.00 court costs. As i .1
,petted Northeastern did not show up because they knew they were guilty and had no defense. As a result
he judgement for S2397.25 was entered against Northeastern Home Improvements. j
eOU HAVE 20 DAYS, FROM THE DATE OF THE CERTIFIED/REGISTERED MAIL, TO RESPOND
fO THIS COMPLAINT.
BARRY K. TOLBY
EXHIBIT #5
BARRY K. TOLBY N THE COURT OF CONINION PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
NORTHEASTERN' HOME N0.99-7230 CIVIL TERM
IMPROVEMENTS
IN RI DEEENDANT'S PRELIMINARY OBJECTIONS
BEFORE HOFFFR P I OI FR GUIDO, IT,
ORDER OF COURT
AND NOW, this 27' day of APRIL, 2000, after review of the briefs submitted
by each party, and after having heard argument thereon, defendant's preliminary
objections are GRANTED. Plaintiff is given leave to file an amended complaint within
twenty (20) days of receipt of this order. Plaintiffs attention is drawn to Pa. Rules of
Civil Procedure 1022, 1023 and 1024.
By the
E.
Barry K. Tolby, Pro Se
Gregory R. Reed, Esquire
For the Defendant
:sld
EXHIBIT #6
4
S .?
IN THE COURT OF COMMON PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
Barry K. Tolby
Plaintiff
V. NO. 99-7230
CIVIL
Northeastern Home Improvements
CIVIL DIVISION -LAW
Defendant
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
Plantiff. You may loose money,. property, or other rights important to you.
5T IAA.
P??t :UGJiM? 'J s/L? 4.tita f: C^:lC LrJ j C- Jl ; fib( j ,
? I
3 ,may; L?t.Fc= v
i
3 1?.1 y Ntc? _
CC C?
I L
IN TFIE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
Barry K. Tolby
Plaintiff
V. NO. 99-7230 CIVIL
Northeastern Home Improvements CIVIL DIVISION - LAW
Defendant
AMENDED COMPLAINT
Now comes, the Plantiff, Barry K. Tolby, and files this complaint in
support of which states as follows:
1. The Plantiff, Barry K. Tolby, is an individual residing at 15 Sycamore
Circle, Etters, County of York, Pennsylvania.
2. The Defendant, Northeastern Home Improvements, is a Corporation
doing business at 125 North Enola Drive, Enola, County of Cumberland,
Pennsylvania.
3. On April 28, 1999, Plantiff met with Jamie Walsh, Field
Representative for Northeastern Home Improvements, and signed a legal
and bindin- contract (encl l) for 52394.00 to have a cement driveway
installed at the Plaintiff's residence, 15 Sycamore Circle, Etters,
Pennsylvania.
4. On or about August 17, 1999, four (4) months later, the Plaintiff was
told by Jamie Walsh, Field Representative for Northeastern Home
Improvements, that they were not going to install the driveway.
5. Northeastern Home Improvements refused to honor a legal and
binding contract (encl 1).
On November 8, 1999, Defendant was taken to Small Claims Court for
I
refusing to 1101 legal and binding contract and was sued for $2406, the
amount of damages au€frc?abohc-quote given by the defendant, the
deposit of $394.00 (encl2), and costs.
vember 8, 1999, Defendant was found "GUILTY" and-a-Default
7--On
111Q -
Judgment was entefed against them in the amount of S-2897.25 (encl-3).
8. As a direct result of the Defendants refusal to honor a legal and binding
Contract, the plaintiff suffered financial damages in the amount of $2406.00,
the amount the Plaintiff had to pay above the quoted price given by the
Defendant.
9. The financial damages suffered do not exceed the jurisdictional amount,
$25,000.00, requiring arbitration.
10. WHEREFORE, the Plantiff, Barry K. Tolby, requests this Honorable
Court to enter judgment against the Defendant, Northeastern Home
Improvements for the sum of money in excess of $2897.25, together with
interest and costs thereon as allowed by law, to fairly compensate the
Plaintiff for the injuries he sustained and for such other relief as the Court
determines isjust, fair, and equitable.
1)
ted; May, O1, 2000
r,
v
Enell Contract x
Enc12 Deposit Check
Encl3 Notice of Judgment
3
Etters, Pa. 17319
717-935-3306
Pro Se
EXHIBIT #7
, _
IPA
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA
BARRY K. TOLBY
Plaintiff
V.
NO. 99-7230 Civil
NORTHEASTERN HOME IMPROVEMENTS CIVIL DIVISION - LAW ,
Defendant "
-n
PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF'S-•%
AMENDED COMPLAINT - -
AND NOW comes Defendant, Northeastern Home Improvements, by
and through its attorney, Gregory R. Reed, Esquire, and makes
Preliminary objections to Plaintiff's Amended Complaint as
follows:
Motion to Strike
1. Failure of the Amended Complaint to conform to law or rule
of court as follows:
a) The alleged Complaint does not specify the relief
to which the Plaintiff deems himself entitled.
b) Plaintiff fails to state a cause of action in a
concise and summary form.
c) Plaintiff alleges voluminous legal conclusions,
unsupported by factual allegations, including but
not limited to:
1) On April 28, '999, Plaintiff signed a
legal and binding contract . . . 93
2) Northeastern Home T_mDrovements re=used to
honor a leg-a-1 and bi.-.ding contract. 95
.i i
i
iw, ,;
,_-.i
EXHIBIT #8
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
Barry K. Tolby
Plaintiff
V.
Northeastern Home Improvements
Defendant
: NO. 99-7230 CIVIL
CIVIL DIVISION - LAW
MOTION TO STRIKE DEFENDANTS PRELIMINARY OBJECTIONS
Now comes, the Plantiff, Barry K. Tolby, and files this Motion to Strike
Defendant's Preliminary Objections in support of which states as follows:
1. The Plantiff, Barry K. Tolby, is an individual residing at 15 Sycamore
Circle, Etters, County of York, Pennsylvania.
2. The Defendant, Northeastern Home Improvements, is a Corporation
doing business at 125 North Enola Drive, Enola, County of Cumberland,
Pennsylvania.
3. On May 1, 2000 , Plaintiff filed Amended Complaint as required by the
Honorable Judges Guido, Oler, and Hoffer in a timely manner and was instructed
by them, in no uncertain terms, that Pennsylvania Rules of Civil Procedure were to
be followed to the letter, were created for a purpose, and were not to be deviated
from.
May 23, 2000, Defendant filed his Preliminary Objections. By tiling on
May 23, 2000 the Defendant violatedfbroke Pennsylvania Rule of Civil Procedure
No. 1026 Time for filing. Notice to Plead. ( Encl I Time Explanation).
5. Pennsylvania Rule of Civil Procedure No. 243 Modification of Time was not
requested in writing to the Plaintiff by the Defendant nor was it Ordered by the
Court.
6. If we, the Lay Persons, are expected and required to follow the Pennsylvania
Rules of Civil Procedures to the Letter, should not ATTORNEYS be required to
Follow the same Rules to the Letter?
WHEREFORE, for all of the above reasons, Plaintiff respectfully requests this
Court to hold a hearing and, after hearing, order the Defendants Preliminary
Objections stricken and send this case to Arbitration.
Submitted
Barry K. ?61by, 1
15 Sycamore Cir
Etters, Pa. 17319
717-933-3306
Pro Se
Encll Time Explanation
Encl2 Letter from the Honorable Judse Guido
End") Certificate of Service
Enc14 Retum Receipt Card from Post Office
EncI5 Prothonatary Stamp on Preliminary Objections
f art
TIME EXPLAINATION
Defendant physically received and signed for the Complaint on the 2nd of May 2000.
If the 20 days began the minute he signed for the Complaint, his 20 days would have
begun on May 2nd and ended on the 215` of May. (From ivfay god to May 215f is 20
Jays).
Because the 2151 was Sunday his 20 days would have ended on the 22nd of May.
If the 20 days began the day after receipt of the Complaint, the 3`d of May
His 20 days would have begun on the 3`d of May and ended on the 22d. (From May 3
To May 22 is 20 days).
Honorable Court, as you can see no matter how you figure the 20 day time requirement,
The Defendant did not file his Preliminary Objections in accordance with Pennsylvania
Rule of Civil Procedure1026 Time for.fifiling. Notice to Plead.
tiC L
EXHIBIT #9
? .J
CIVIL ACTION - LAW
ORDER OF COT IRT
By the
BARRY K. TOLBY IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
NORTHEASTERN HOME NO. 99-7230 CIVIL
IMPROVEMENTS
Preliminary Objections to the amended complaint and plaintiffs Motion to Strike said
Preliminary Objections it is ordered and directed that Paragraphs G and 7 of the amended
complaint be and are hereby STRICKEN. The remainder of defendant's preliminary
objections are DENIED. Defendant is directed to file an answer within twenty (20) days
of service of this order.
AND NOW, this 12TH day of JUNE, 2000, upon consideration of defendant's
Edward E. Guido, J.
Barry K. Tolby
15 Sycamore Circle
Etters, Pa. 17319
Gregory R. Reed, Esquire
For the Defendant
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In i esh.'mcny whe; sc; ,. R_r.r! (? n
and rha seal of said I n e unto _ t my `and
Ccuri ar uriisia, Pa.
ihi...... ?•/....... d-; o
M
i'ottonotary
?e
EXHIBIT #10
W_.. _
i
L
JUL 11 2000/
IN THE COURT OF COiy MON PLEAS OF CUMBERLAND COUNTY
PENNSYLVANIA
Barry K. Tolby
Plaintiff
N'.
Northeastern Home Improvements
Defendant
ORDER OF COURT
NO. 99-7230 CIVIL
CIVIL DIVISION - LAW
AND NOW, this day of 2000, a hearing is scheduled
on the day of , 2000 in Courtroom No. of the
Cumberland County Courthouse, Carlise, Pennsvlvania. Upon consideration of the
Motion to enter Judgment against Defendant.
BY THE COURT,
J.
9-:-, ---
IN THE COURT OF CONEvION PLEAS OF CUiVIBFRLAtND COUNTY,
PENNSYLVANIA
Barry K. Tolby
Plaintiff
V. NO. 99-7230
CIVIL
Northeastern Home Improvements
CIVIL DIVISION- LALV
Defendant
MOTION FOR JUDGMENT AGAINST DEFENDANT
Now comes, the Plantiff, Barry K. Tolby, and files this Motion to enter
Judgment against Defendant.
I. The Plantiff, Barry K. Tolby, is an individual residing at 15 Sycamore
Circle, Etters, County of York, Pennsylvania.
2. The Defendant, Northeastern Home Improvements, is a Corporation
doing business at 125 North Enola Drive, Enola, County of Cumberland,
Pennsylvania.
3. Defendant has not responded to the "Order of Court" (Encl I), dated 12 June
2000 and mailed from Prothonotary's office 14 June 2000, within the required 20
days.
WHEREFORE, for the above reason, Plaintiff respectfully requests this Court
to hold a hearing and, after hearing, order a Judgment entered against the
Defendant for the amount of S3111.50 (Encl2), costs of all certified letters, and
any additional costs incurred during [he process.
Barry K. To y, Dfa.
15 Sycam re Circle
Etters, Pa. 17319
717-933-3306
Pro Se
Encll ORDER OF COURT
Enc12 COST BREAKDOWN.
Enc13 DEFENDANT NOTIFICATION
BARRY K. TOLBY : N THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
NORTHEASTERN HOME NO. 99-7230 CIVIL
IMPROVL•MENTS
CIVIL ACTION-LAW
ORDER OF COURT
AND NOW, this 17' day of JULY, 2000, upon consideration of plaintiff's
Motion for Judgment Against Defendant, no hearing thereon is required. If defendant
fails to respond thereto on or before July 20, 2000, plaintiff may file a praecipe for
default judgment in accordance with Pa. Rule of Civil Procedure 237.1.
By the; urt,
Edward E. Guido, J.
Barry K. Tolby
15 Sycamore Circle
Etters, Pa. 17319
Gregory R. Reed, Esquire
For the Defendant
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EXHIBIT #11
F .t
(? j eecl
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Attorney At Law
2423 N. Third Street
Harrisburg, Pennsylvania 171 10
Phone: (717)23S-0434• Fax: (717)238-3469
e-mail: gregrreed@prodigy.net
July 19, 2000
Barry K. Tolby
15 Sycamore Circle
Etters, PA 17319
RE: Tolbv v. Northeastern Home Imorovements
No. 99-7230
Dear Mr. Tolby:
Today, Wednesday, July 19, 2000, I received from you a copy
of the enclosed order which requires the Defendant to respond to
your Motion for Judgment against Defendant on or before July 20,
2000. If, according to the Order, there is no response you may
file a Praecipe for Default Judgment in accordance with PA Rule
of Civil Procedure No. 237.1.
Since you are representing yourself and so that the
procedural status of this case does not become more complicated,
please understand that all required documents were filed on July
13, 2000. On that date, Defendant filed an Answer to Amended
Complaint with New Matter. On that date, Defendant also filed a
Response to the Motion for Judgment Against Defendant.
In my opinion, you should file a Reply to New Matter and
then list the case for arbitration. Do not attempt to obtain a
default judgment.
Very tr yours,
Gregory R. Ree
GRR/cjw
Enclosure
oc: Prorhonotary of Cumberland Co.
17 k."
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EXHIBIT #12
f?ARR? !?. 101
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J?.l P7k`i r/,El? DER ?.1 FroMF )
/MPkOVrMChj r S
GAM
la The Court Of Common Plaas of
Cumberland County, ?ennsylvania
,
No .- ?9- 7730 19 d
C rVlC ?-c ? o n! `?
tie do solely swear (or affirm) that we will support, obev and defend
the Constitution of the United States and a ution of this Comtor.-
wealth and that we will discharge the duts?of ,atfcer?th fidelity.
AWARD
de, the undersigned arbitrators, having been duly appointed and sworn
(or affirmed), make the following award:
(Note: If damages for delay are awarded, they shall be
separately stated.)
J?,?aro? , /A/ FeINM OF 9rlE ?r?w?rr,?r- //V 7?P,c p-
O? ACLU S' e132.33 iI?Y ?sF f olug Gosh
Arbitrat
applicable.)
Date of Hearing: 54/F -'D0 Z.ooo
Date of Award: 5-4'11Ir ?a Zoo o
NOTICE OF r-`1TM
Now, the zu2? day of Pte. +J aroq ac lo: o4 , R..:i.,
award was entered upon the eo- and notice thereof given by mail
''parties or their attorneys.
Arbitrators' co=ensacicn to be
paid upon appeal:
240.w
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N PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
DEC 0 5 20
Please list the following case:
(Check one) ( ) for JURY trial at the next term of civil court .
r': z
(XXX) for trial without a jury.
------------------------------------ -
CAPTION OF CASE (check one)
(entire caption must be stated in full)
BARRY K. TOLBY ( ) Civil Action
15 SYCA140RE CIRCLE (XX ) Appe
ETTERS, PA. 17319 al from Arbitration
(other)
(Plaintiff)
VS.
NORTHEASTERN HOME I14PROVEMENTS
125 ENOLA DR.
ENOLA, PA. 17025
(Defendant)
VS.
The trial list will be called on
and
Trials commence on 40 / - 7-rf - /
Pretrials will be held on C / 0
(Briefs are due 5 days before pretrials.)
(The party listing this case for trial shall
provide forthwith a copy of the praecipe to
all counsel, pursuant to local Rule 214.1.)
No, 72in Civil ACTIQU LAW 19 99
Indicate the attorney who will try case for the party who files this praecipe:
BARRY K. TOLBY
Indicate trial counsel for other parties if known:
GREGORY R. REED ESQ
This case is ready for trial.
Signed
Name:
Date: )1/21/00
Attorney for:
Richard J. Pierce
Court Administrator
TO:
FROM:
DATE:
IN RE:
BARRY K. TOLBY
V.
OFFICE OF THE COURT ADMINISTRATOR
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
1 Courthouse Square • Carlisle, PA 17013
Phone
(717)240.6200
(717)697.0371
(717)532.7286
(717)240.6462 FAX
MEMORANDUM
The Honorable Edward E. Guido
Taryn N. Dixon, Assistant Court Admini
December 7, 2000
7230 Civil 1999
NORTHEASTERN HOME IMPR
The above case is assigned to you for a non jury trial. F
your scheduling orders and final disposition date so that
statistical purposes.
Attachment
Taryn N. Dixon
Assistant Court Administrator
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
BARRY K. TOLBY
Plaintiff
V. NO. 99-7230 Civil
NORTHEASTERN HOME IMPROVEMENTS CIVIL DIVISION - LAW
Defendant
DEFENDANT'S PRE-TRIAL MEMORANDUM
1. BASIC FACTS AS TO LIABILITY
On April 28, 1999, Plaintiff requested a quote from
Jamie Walsh, a sales representative of Northeastern Home
Improvements, of Harrisburg, Inc., for the cost of replacing his
driveway. Mr. Walsh was unprepared, although he did take
measurements, placed a call to his home office and wrote a
proposal on a "change order form". The quote was $2,394.00
dollars. Mr. Tolby gave Mr. Walsh a $394.00 down payment. It was
later discovered that Mr. Walsh or the home office made a
mathematical error and as such made a quote which was less than
half the amount it should have been. Plaintiff was advised of the
error but he insisted that the job be done for the quoted price.
Northeastern refused. With knowledge of the mistake Plaintiff had
another contractor do the work for $4,800.00 dollars.
II. BASIC FACTS AS TO DAMAGES
Plaintiff has not now nor ever suffered any loss, since
he paid the fair market value for the job and his down payment
has been returned to him. Nevertheless, Plaintiff seeks to make
money by demanding the difference between the quote of $2,394.00
dollars and the actual price paid to another contractor which
totaled $4,800.00 dollars.
III. PRINCIPAL ISSUES OF LIABILITY AND DAMAGES
A. Liability - Is Defendant liable to Plaintiff for
the quote to replace his driveway when the quote was a mistake due
to a mathematical error.
B. Damages - Plaintiff has suffered no loss since he
paid only the fair market value of the job.
IV. SUMMARY OF LEGAL ISSUES
A mistake by one party with knowledge of the mistake by
the other party justifies relief as fully as a mutual mistake.
Line Lex. L.M. Company Inc V. Pa Pub Court., 451 Pa. 154, 301
A. 2d 684 (1973).
V. WITNESSES
A. Mark Kerlin
125 North Enola Street, Suite 106
Enola, PA 17025
B. Bernard McGilvery
125 North Enola Street, Suite 106
Enola, PA 17025
C. Debra Donnelly
125 North Enola Street, Suite 106
Enola, PA 17025
D. John Horne
125 North Enola Street, Suite 106
Enola, PA 17025
E. Jamie Walsh
125 North Enola Street, Suite 106
Enola, PA 17025
F. Cindy Blood
125 North Enola Street, Suite 106
Enola, PA 17025
G. Barry K. Tolby, as on cross examination
15 Sycamore Circle
Etters, PA 17319
H. Mrs. Tolby, as on cross examination
15 Sycamore Circle
Etters, PA 17319
VI. EXHIBITS
Change order form
Standard Northeastern Contract
VII. SETTLEMENT NEGOTIATIONS
Plaintiff's demand is $2,406.00, $132.33 interest plus
costs.
Defendant demands the return of the arbitration
compensation paid by Defendant in the amount of
$290.00.
Date:-" egory R. Reed, Esquire
Attorney for Defendant
2423 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney I.D. ##23705
J
CERTIFICATE OF SERVICE
AND NOW, this 41Z4_4- day of December, 2000, I, Gregory R.
Reed, Esquire, Attorney for Defendant, do hereby certify that I
have this day served by first class mail a copy of the attached
Defendant's Pre-Trial Memorandum to the following address:
Barry K. Tolby
15 Sycamore Circle
Etters, PA 17319
Q?
Gregory Fr. eed, squire
Attorney for Defendant
2423 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney I.D. 23705
??1
BARRY K. TOLBplaintiff
NO. 99-7230 Civil
v.
CIVIL DIVISION - LAW
NORTHEASTERN HOMEndantOVEMENTS
DEFENDANT'S PRE-TRIAL MEMORANDUM
I, BASIC FACTS AS TO LIABILITY
On April 28, 19991 Plaintiff requested a quote from
Jamie Walsh, a sales representative of Northeastern Home
Improvements, of Harrisburg, Inc., for the cost of replacing his
driveway. Mr. Walsh was unprepared, although he did take
measurements, placed a call to his home office and wrote a
proposal on a "change order form". The quote was $2,394.00
dollars. Mr. Tolby gave Mr. Walsh a $394.00 down payment. It was
later discovered that Mr. Walsh or the home office made a
mathematical error and as such made a quote which was less than
half the amount it should have been. Plaintiff was advised of the
error but he insisted that the job be done for the quoted price.
Northeastern refused. With knowledge of the mistake Plaintiff had
another contractor do the work for $4,800.00 dollars.
II. BASIC FACTS AS TO DAMAGES
Plaintiff has not now nor ever suffered any loss, since
he paid the fair market value for the job and his down payment
has been returned to him. Nevertheless, Plaintiff seeks to make
money by demanding the difference between the quote of $2,394.00
dollars and the actual price paid to another contractor which
totaled $4,800.00 dollars.
III. PRINCIPAL ISSUES OF LIABILITY AND DAMAGES
A. Liability - Is Defendant liable to Plaintiff for
the quote to replace his driveway when the quote was a mistake due
to a mathematical error.
B. Damages - Plaintiff has suffered no loss since he
paid only the fair market value of the job.
IV. SUMMARY OF LEGAL ISSUES
A mistake by one party with knowledge of the mistake by
the other party justifies relief as fully as a mutual mistake.
Line Lex L M Company, inc. v. Pa. Pub. Court., 451 Pa. 154, 301
A.2d 684 (1973).
V. WITNESSES
A. Mark Kerlin
125 North Enola Street, Suite 106
Enola, PA 17025
B. Bernard McGilvery
125 North Enola Street, Suite 106
Enola, PA 17025
C. Debra Donnelly
125 North Enola Street, Suite 106
Enola, PA 17025
D. John Horne
125 North Enola Street, Suite 106
Enola, PA 17025
E. Jamie Walsh
125 North Enola Street, Suite 106
Enola, PA 17025
F. Cindy Blood
125 North Enola Street, Suite 106
Enola, PA 17025
G. Barry K. Tolby, as on cross examination
15 Sycamore Circle
Etters, PA 17319
H. Mrs. Tolby, as on cross examination
15 Sycamore Circle
Etters, PA 17319
VI. EXHIBITS
Change order form
Standard Northeastern Contract
VII. SETTLEMENT NEGOTIATIONS
Plaintiff's demand is $2,406.00, $132.33 interest plus
costs.
Defendant demands the return of the arbitration
compensation paid by Defendant in the amount of
$290.00.
Date: I5?,?m
"4
egory it` Reed, Esquire
Attorney for Defendant
2423 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney I.D. #23705
CERTIFICATE OF SERVICE
AND NOW, this day of December, 2000, I, Gregory R.
Reed, Esquire, Attorney for Defendant, do hereby certify that I
have this day served by first class mail a copy of the attached
Defendant's Pre-Trial Memorandum to the following address:
Harry K. Tolby
15 Sycamore Circle
Etters, PA 17319
Gregory Ir. eed, Esquire
Attorney for Defendant
2423 North Third Street
Harrisburg, PA 17110
(717) 238-0434
Attorney I.D. 23705
Attorney At Law
2423 N. Third Street
Harrisburg, PennsyWania 17110
Phone:(717)238-0434•Fax: (717) 238-8469
e-mail: gregrrecd@prodigy.net
December 15, 2000
The Honorable Edward E. Guido
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013-3387
RE: Tolby v. Northeastern Home Improvements
Dear Judge Guido:
Enclosed please find the original and one copy of
Defendant's Pre-trial Memorandum.
Very truly yours,
Gregory R. Reed
GRR/cjw
Enclosures
cc: Barry K. Tolby
DEC 18 2000
I
6 \Settetary\ACCive client.\N"thea.aern Ilene lmpre,ement.. mark Retlin\T.1b,\M9- 4 id. It, OD 12•15.doe
BARRY K. TOLBY
V.
NORTHEASTERN HOME
IMPROVEMENTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-7230 CIVIL TERM
CIVIL ACTION - LAW
AND NOW, this III! day of DECEMBER, 2000, a pretrial
conference in the above-captioned matter is SCHEDULED for
D r 21 2000 at 8 45 a.m. in Chambers of the
T
undersigned judge, Cumberland County Courthouse, Carlisle,
cheduled at the pretrial conference.
Pennsylvania. Trial will be s
Counsel are directed to have their calendars available.
Barry K. Tolby
Gregory R. Reed, Esquire
Court Administrator
By the Cc
Edward E. Guido,
41
I2-I2-O(
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BARRY K. TOLBY,
Plaintiff
V.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-7230 CIVIL TERM
NORTHEASTERN HOME
IMPROVEMENTS,
Defendant CIVIL ACTION - LAW
IN RE: PRETRIAL CONFERENCE
At a pretrial conference held Thursday,
December 21, 2000, before the Honorable Edward E. Guido,
J., the plaintiff, Barry K. Tolby, appeared representing
himself, and present for the Defendant was Gregory R. Reed,
Esquire.
This is a suit on an alleged breach of
contract. There are no complicated legal issues, and the
parties estimate that the case will take no more than
one-half day to try.
The parties are directed to premark their
exhibits and to exchange them with the other party by
February 12, 2001- Any objections to the exhibits must be
raised in the form of a motion in limine.
All motions in limine must be filed, with
supporting authority, by February 22, 2001. Any
responses, with supporting authority, shall be filed at the
time of trial.
Since there have been no settlement
negotiations, a settlement is not likely.
I
Trial in this matter will be held on March
2nd, 2001, at 8:30 a.m.
By the Court,
4 6
Edward E. Guido, J.
Z?? Iq L&J
?z-z1-00
RWg
Barry K. Tolby, Pro Se
15 Sycamore Circle
Etters, PA 17319
Gregory R. Reed, Esquire
2423 North Third Street
Harrisburg, PA 17110
:mae
r,
BARRY K. TOLBY IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
NORTHEASTERN HOME NO. 99-7230 CIVIL
IMPROVEMENTS
CIVIL ACTION - LAW
VERDICT
AND NOW, this 2ND day of MARCH, 2001, we find in favor of Plaintiff and
against Defendant in the amount of 52406 plus prejudgment interest of 5432.72 plus
costs.
If post trial motions are not filed within ten (10) days, the Prothonotary is directed
to enter judgment on the verdict.
By the C ,
Edward E. Guido, J.
Barry K. Tolby
15 Sycamore Circle
Etters, Pa. 17319
Gregory R. Recd, Esquire
For the Defendant
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,._.,_
Y..-
APR o 5 2001/_
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
Barry K. Tolby
Plaintiff
V.
Northeastern Home Improvements
Defendant
NO. 99-7230 CIVIL
CIVIL DIVISION - LAW
RESPONSE TO DEFENDANT'S MOTION'S
1. The Plaintiff, Barry K. Tolby is an individual residing
at 15 Sycamore Circle, Etters,County of York, Pa.
2. The Defendant, Northeastern Home Improvements, is a
Corporation doing business at 125 Enola Drive, Enola,
County of Cumberland, Pa.
3. (Motion #1) The Defense, at no time during the trial,
questioned the Plaintiff about unilateral mistake. The
only time the subject came up was when the Defense
presented its closing arguments. At that time the Court
had a lengthy discussion on the matter and after that
discussion had ended the Plaintiff felt that what was said
was sufficient.
4. (Motion #2) The contract was approved when Mr. Walsh
signed the contract and left my home and when my deposit
check was deposited in the Defendants bank account. If he
were not permitted to write contracts this would not have
occurred.
5. (Motion #9) The trial court did not error in its
interpretation of the law. There was no way the Plaintiff
could have know a mistake may have taken place. The
Plaintiff only received one bid and that was from
Northeastern Home Improvements. The Plaintiff had no
comparables or knowledge of the business to even think that
a mistake had been made let alone, having knowledge, prior
to the contract being written.
6. (Motion #5) Because the Defendant refused to honor a
valid contract the Plaintiff had to spend an additional
$2406 plus interest on the loan to pay for the driveway.
Wherefore, Plaintiff, respectfully requests that the
court uphold its verdict and inform the Prothonotary's
office to enter the verdict.
Resp t lly Submit
Ile
ry K of
15 Syc ore irc e
Etters, Pa. 173 9
717-938-3306
PRO SE
VERIFICATION
I, Barry K. Tolby, Plaintiff herein, do hereby state that
the foregoing information and figures are true and correct
to the best of my knowledge, information, and belief.
I understand that false statements her4ein are made
subject to the penalties of 18 Pa. C>S> 4904, relating to
unsworn falsification to authorities
Dated: April, 5, 2001
CERTIFICATE OF SERVICE
AND NOW, this 5cn day of April, 2001, I, Barry K.
Tolby, Plaintiff, do hereby certify that I have this day
served by registered mail a copy of the attached Response
to Motions to the following address;
Gregory R. Reed, Esquire
Attorney for Defendant
2423 North Third Street
Harrisburg, Pa. 17
',J?q
15 Syc? ore Ci
Etters, Pa. 17
R
APR 0 5 20014e,7
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
Barry K. Tolby
Plaintiff
V.
Northeastern Home Improvements
Defendant
RESPONSE TO DEFENDANT'S BRIEF
ISSUE #1
The document, Contract Change Form, Dated April 28, 1999
was modified by Mr. Walsh to read, Contract form and the
word Change was crossed out. Was this contract Approved and
accepted by Northeastern Home Improvements.
NO. 99-7230 CIVIL
CIVIL DIVISION - LAW
SUGGESTED ANSWER
YES
DISCUSSION
The minute my deposit check was cashed and deposited into
Northeaster Home Improvement's account the Contract was
accepted and a binding agreement existed. For a contract to
be valid you must have an offer, acceptance and
consideration. All three were present and in fact we had
acceptance twice: Once when Mr. Walsh walked out of the
Plaintiff's and secondly when Mr. Tolby's check
was cashed and deposited into the Defendant's account.
r}
i
I
ISSUE #2
WAS THERE A UNILATERAL MISTAKE?
SUGGESTED ANSWER
NO
DISCUSSION
There was absolutely no way Mr. Tolby could have known
there was a mistake. Mr. Tolby had received only one bid on
the driveway and that was from Northeastern Home
Improvements. There were no other comparables to give the
impression or knowledge that a mistake had been made. There
was absolutely no way Mr. Tolby would have had any idea
that a mistake had been made.
Mr. Walsh came out to sell Mr. Tolby siding and when given
the price he decided not to have the job done because of
the high price. After a lengthy discussion, Mr. Tolby
inquired about putting in a cement driveway. Mr. Walsh went
outside with Mr. Tolby took the measurement and when they
returned Mr. Tolby asked Mr. Walsh when he could get a
price on the driveway. His response was I can get it now
and proceeded to call the office. He spoke with the
Production Manager and received a quote from him and then
relayed it to me. I figured that it was within our price
range and decided that we should go ahead and write the
;7,
is
contract and hav e the job done.
Salesmen are out
to make money and I figured
since Mr. ?E
Walsh had spent the time with us for siding that it would
be nice to give him the job and at least get him some
K
commission for h is time. If a professional g ives you a
quote why would I have any reason to assume a mistake had
been made when I received no other bids?
y • i. ra. ?.n-?.\
ISSUE #3
DID MR. TOLBY SUFFER ANY LOSS
SUGGESTED ANSWER
YES
DISCUSSION
Because Northeastern Home Improvements refused to honor the
for me to finance the driveway to
Contract it was necessary
come up with the additional $2406 and also pay interest on
I
the loan.
Mr. Kerlin feels that since I had the driveway put in for
$4800, and that $4800 was the fair market value for the
job. In that line of thinking if I had only received the
first bid of $6200 he would have said that that price was
the fair market value of the job.
If I had received the three bids in addition to
Northeasterns prior to contracting with them I still would
have not believed that they had made a mistake. I would
have had four bids and each getting lower in price. That's
what competition is all about in the Home Improvement Game.
Like all business everyone is trying to out due the other.
Some want to become rich off of one job and others want to
do many jobs at a reasonable price and that would have been
my opinion of Northeastern Home Improvements, had I
received the four bids first. That was not the case. They
came and gave me a bid and I figured they knew what they
were doing and that the other contractors would be about
the same and because of the time Mr. Walsh had spent with
me I figured he deserved the opportunity to do the work.
Northeastern not only accepted my money but kept it for a
year. If, according to Mr. Kerlin's testimony, he realized
that they were not going to do the job, why did he keep the
money for a year instead if writing a letter of
explanation and sending the money back?
Mr. Tolby did attempt to mitigate damages with the
Defendants attorney, Mr. Reed. This occurred after Pre-
Trials. The Defendant rejected the offer and refused any
further negotiation.
ISSUE #4
The Defendants Motion #3 was "Plaintiff is not entitled to
prejudgment interest". In the Defendants Brief issue #4
reads "is the award of $432.72 in prejudgment interest
excessive?
SUGGESTED ANSWER
WHICH ONE IS THE ISSUE?
DISCUSSION
In one document the Defendant says that the Plaintiff is
not entitled to prejudgment interest and then in another
the Defendant feels the amount awarded is excessive. I am
not clear on what the issue is.
Wherefore, Plaintiff respectfully requests the court
to uphold the verdict and inform the Prothonotary's office
to enter judgment against Northeastern Home Improvements.
Resp6ctP611y
15 Sy4oore Circle
Etters/ Pa. 173191
717-938-3306
PRO SE
VERIFICATION
I, Barry K. Tolby, Plaintiff herein, do hereby state that
the foregoing information and figures are true and correct
to the best of my knowledge, information, and belief.
I understand that false statements her4ein are made
subject to the penalties of 18 Pa. C>S> 4904, relating to
unsworn falsification to authorities
Dated: April, 5, 2001
CERTIFICATE OF SERVICE
AND NOW, this 5th day of April, 2001, I, Barry K.
Tolby, Plaintiff, do hereby certify that I have this day
served by registered mail a copy of the attached Response
to Motions to the following address;
Gregory R. Reed, Esquire
Attorney for Defendant
2423 North Third Stre t
Harrisburg, Pa. 17 0
Ba
15
Et
ore Circ
Pa. 1731
__i
BARRY K. TOLBY : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
NORTHEASTERN HOME NO. 99-7230 CIVIL
IMPROVEMENTS
CIVIL ACTION - LA W
AND NOW, this 91H day of APRIL, 2001, after consideration of the defendant's
post trial motions and the brief filed in support thereof, the amount of prejudgment
interest awarded in the verdict is reduced to $266.23. In all other respects, the post trial
motions of defendant are DENIED.
The Prothonotary is directed to enter judgment against defendant and in
favor of plaintiff in the amount of $2406 plus prejudgment interest of $266.23, plus costs.
By the
Barry K. Tolby
15 Sycamore Circle
Etters, Pa. 17319
Gregory R. Reed, Esquire
For the Defendant
Edward E. Guido. J.
4,-?) 1(-Pa
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:sld
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
PRAECIPE FOR WRIT OF EXECUTION
Caption:
BARRY K. TOLBY
15 SYCAMORE CIRCLE
ETPERS, PA 17319
PLAINPIFF
VS.
NORTHEASTERN HOME IMPROVEMENTS
125 ENOLA RD.
ENOLA, PA. 17025
DEFENDANT
TO THE PROTHONOTARY OF THE SAID COURT.
( ) Confessed Judgment
Other ORDER OF COURT
File No. 99-7230
Amount Due 52406.00
Interest $266.23
Ally's Comm
Costs AND COSTS
The undersigned hereby certifies that the below does not arise out of a retail installment sale, contract, or
account based on a confession of judgment, but if it does, it is based on the appropriate original proceeding filed
pursuant to Act 7 of 1966 as amended; and for real property pursuant to Act 6 of 1974 as amended.
Issue writ of execution in the above matter to the Sheriff of CUMBERLAND County,
for debt, interest and costs, upon the following described property of the defendant(s)
SEE ATTACHED SHEET - Pa, N I
PRAECIPE FOR ATTACHMENT EXECUTION
Issue writ of attachment to the Sheriff of C[MERT Ann County, for debt, interest and.
costs, as above, directing attachment against the above-named garnishee(s) for the following property (if real
estate, supply six copies of the description; supply four copies of lengthy personalty list)
' SEE ATTACf]ID
and all other property of the
in the possession, custody or control of the said garnishee(s).
(Indicate) Index this writ against the garnishee(s) as a Ii
defendant(s) described in the attached exhibit.
Date APRIL, 24 2001
Signature:
Print Name:
Address:
Ee i625 61A. 1734
Attorney for: 12&? - 7/7' 42- yGSO
Telephone: _ 7/7 W- `JOV
Supreme Court ID No.:GUE/J- 7 r7- ?3L 330.,
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April 29, 2001
Sheriff of Cumberland County,
Please attach the following until the total amount of the
judgement, interest, and costs have been reached.
1. CHECKING ACCOUNT WITH PNC BANK -.COPY OF ONE
OF THEIR CHECKS ATTACHED.
G 2. ALL OUTSTANDING MONEYS OWED FOR JOBS IN
PROCESS.
p 3. ANY COMPUTERS AND/OR ASSOCIATED COMPUTER
EQUIPMENT.
1) 5. ANY HEAVY EQUIPMENT, TRUCKS, TRAILERS, OR -
VEHICLES.
Two attachments enclosed:
1. A copy of one of Northeastern Home Improvement's
checks with account number.
2. Copy of "Order of Court"
Submi
Bab;-3fy K. o1byV
15 Syca e Cir
Etters, Pa. 17
Plaintiff
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Day Phone ----- 717-267-9650
Evening Phone - 717-938-3306
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BARRY K. TOLBY IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
NORTIIEASTERN HOME NO. 99-7230 CIVIL
IMPROVEMENTS
CIVIL ACTION - LAW
ORDER OP COURT
AND NOW, this 9TU day of APRIL, 2001, after consideration of the defendant's
post trial motions and the brief filed in support thereof, the amount of prejudgment
interest awarded in the verdict is reduced to $266.23. In all other respects, the post trial
motions of defendant are DENIED.
The Prothonotary is directed to enter judgment against defendant and in
favor of plaintiff in the amount of 52406 plus prejudgment interest of 5266.23, plus costs.
By the
J.
Barry K. Tolby
15 Sycamore Circle
Utters, Pa. 17319
Gregory R. Reed, Esquire
For the Defendant
:sld
TRUE COPY FROM RECORD
In Testimo^-/ % h:r of, I here unto set MY terl(,
end to seal of sai? Cou,rt q Carlisle, Pa.
I
e- aAel?
vs.
L.v7.DR d V6.?'1 F?
t
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In the Court or Common Pleas or
Cumberland County, Pennsylvania
No. Civil. 19 S2
Co;3-?S
To
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No.
Term, 19
VS.
PRAECIPE
Filed 19
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SHERIFF'S RETURN - GARNISHEE
CASE NO: 1999-07230 P
COMMONWEALTH OF PENNSLYVANIA
COUNTY OF CUMBERLAND
TOLBY BARRY K
VS
NORTHEASTERN HOME IMPROVEMENTS
And now KENNETH GOSERT
, Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according
to law, at 0013:47 Hours, on the 27th day of April , 2001, attached
as herein commanded all goods, chattels, rights, debts, credits, and
moneys of the within named GARNISHEE ,
PNC BANK SOUTHCENTRAL PA
hands, possession, or control of the within named Garnishee
180 NOBLE BLVD
CARLISLE, PA 17013
, in the
Cumberland County, Pennsylvania, by handing to
KIM MILLS (SALES CONSULTANT)
personally 3 true and attested copies of the within
APPEAL - DJ and made the contents thereof known to Her
Sheriff's Costs: So answers:
Docketing .00
Service .00 T r?
Affidavit .00 i
Surcharge .00 R. Thomas Kline
.00 Sheriff of Cumberland County
.00
04/30/2001
By
D ut eri ff
Sworn and subscribed to before me
this rte day of
A'ID'S Ui-
i. i
^?'1 R. Thomas Kline, Sheriff, who being duly sworn according to law,
5 states this writ is returned SATISFIED.
Docketing $
Poundage
Prothonotary
Milage
Garnishee
Surcharge
18.00
48.12
1.00
3.10
9.00
40.00
119.22 pd by Defendant
Sworn and Subscribed to before me
this .19 rr day of
T
2001 A.D. i
Pr6thonotary
So we
Thomas c Sheriff
By 01 Cwdl n- 13yQ tD?xtt 1-7
9
S
3
W
U
?4 RN
I01 V.d st E SZ'IV
Alkiit: .:. _.iH,'10
AJJH3Hi :iH: JO :i013JO
1.0o
Ck 3 X943
a,.,. 1136,(7
It
,_%
COMMONWEALTH OF PENNSYLVANIA) NO. 99-7230 CIVIL)W TERM
COUNTY OF CUMBERLAND) CIVIL ACTION - LAW
TO THE SHERIFF OF Cumberland -COUNTY:
To satisfy the debt, interest and costs due Barry K. Tolby 15 Sycamore Circle, Etters, Pa. 17319
from Northeastern Home Improvements 125 Fgo1a Ra1d, Rnnta, Pa_ 17079
DEFENDANT(S)
(1) You are directed to levy upon the property of the defendant(s) and to
Any Ccmpulers and/or associated canputer equipment
Any-beasy Frn,Trment, TniCks, Trail ers, or Vehicles
(2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of
PNC RAnk SnuthcQDt A Pa.
EE(S) as follows:
c_hPpkinng Account with PNC Bank - Copy of one check attached. All outstanding
money edd fsT job process. () garnishee(s) paying y
and to no % t arms eels a : a1 an attachment has been issued; b the is/are enjoined from an
debt to or for the account of the defendant(s) and from delivering any property of the defendant(s) or otherwise disposing
thereof;
(3) 11properlyof thedetendant(s) not levieduponan subjectto attachment is found in the possession of anyoneother
than a named garnishee, you are directed to notify hinVherthat he/she has been added as a garnishee and is enjoined as above
stated.
WRIT OF EXECUTION and/or ATTACHMENT
Amount Due $74D6.00 L. L.
Interest
Any's Comm
Due Prothy $1.00
Ally Paid
Plaintiff Paid 39 sn
Date:April 24, 2001
REQUESTING PARTY:
Name Bam K. Tolby
Address: 19 Sycamore Circle
Attorney for:
Telephone: Day 717-267-9650 or 968-4694
Supreme Cokfb W? 717-938-3306
Other Costs
Curtis R. Long
Prothonotary, Civil Division
by: ?V ?2L ?? / • IXCI
/ Deputy
1
1 ,
DISTRIBUTION
ATTORNEY Barry K. Tolby
WRIT NO. 1999-7230 Civil
Barry K. Tolby
VS
Northeastern Home Improvements
Real Debt $ 2406.00
Interest 266.23
Attorney's Comm.
Writ Costs, Atty
Writ Costs, Pltff. 39.50
Miscellaneous Attorneys Fees $ 2711.73
Sheriff's Costs:
Docketing $ 18.00
Poundage 48.12
Posting Sale Bills
Law Library
Prothonotary 1.00
Service 3.10
Postpone Sale
Surcharge 40.00
Garnishee 9.00
Levy $ 119.22
Defendant Paid to Sheriff $ 2830.95
Advance Costs $ 2980 95
Total Collected
DISTRIBUTION
So Answers:
Pd. To Pltff. S 2711.73
Refund of Adv. Costs 150.00
Pd. To Prothonotary 1.00 R, Thomas Kline, Sheriff
By ?' ?cLu?Qla I?vto,,>?