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HomeMy WebLinkAbout07-4284,: '. 11 COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS JUDICIAL DISTRICT NOTICE OF APPEAL FROM 7/Llo~V .~ DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. Q ~'_ ~ a ~ rf cwc,( ~tvv-- 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 Dis- trict Justice on the date and in the case mentioned below. NAME OF APPELLANT MAG. DIST. NO. OR NAME OF D.J. Linda M~ nn~n ~ 1~1ark N1arfi~r ADDRESS OF APPELLANT CITY 20 3 8 e treet Lane Ph~I adet DATE OF JUDGMENT IN THE CASE OF (PLAINTIFF) i t ~.~.0 (. D!o ~ 20 f 07 N .8. H}~orne Imprvlltt~rten+~ gueno CLAIM No. CV YEAR IJIJVU I ~~ - D7 SIGNATURE LT YEAR This block will be signed ONLY when this notation is required under PA. R.C.P.J.P. No. 10086. This notice of Appeal, when received by the District Justice, will operate as A SUPERSEDERS to the Judgment for possession in this case. na re o ro ono ry or epu STATE ZIP CODE h;0. PA 19 ~d3~b576 ~ucrcrvunw ~ / ~S. Linda M~mm0. ~~ If appellant was Claimant (see PA R.C.P.J.P. No. 1001(6)) in action before district Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE o/APPEAL. 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 }}~f'tnnlDUCfYlent / QC r ~UQn~ , appellee(s), to file a complaint in this appeal Name of appellees) (Common Pleas No. U 7- cl ~ ~`/ )within twenty (20) days after service of rule or suffer entry of judgment/of~,n~on_pros. V~1 v~- Si ture of appellant or his attorney or agent RULE: To H . ~ . ~DfY1Z ~ f'1r1 OfbUpi'YI~i1.f"Il~k~fA' ~tlF'/1~ appellees) Name of ppellee (1) You are 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 or 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 UPON PRAECIPE. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: _ ~J~,L., ~ ,Year .~~G ~ White - Prothonotary Copy Green - Court File Copy Yellow - Appelant's Copy Pink - Appellee Copy Gold - D. J. Copy Signature of Prothonotary or D putt' Proth. - 76 PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing the notice of appeal. Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I hereby swear or affirm that I served ^ a copy of the Notice of Appeal, Common Pleas No. ,upon the District Justice designated therein on (date of service) ,year , ~ by personal service ~y (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name , on ,year ~ by personal service ~ by (certified) (registered) mail, sender's receipt attached hereto. and further that I served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appellees) to whom the Rule was addressed on ,year Q by personal service ~by (certified) (registered) mail, sender's receipt attached hereto. SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF ,YEAR Signature o/RHiant Signature of ollicia/ before whom a/lidavit was made ~ C` c~ 't'f ~ Title ofot7icial \ (mil ' ' ~ r~ "'L7tr ~~"i i , ~ ~"" -~'7} ~- ('l~ ~... My commission expires on ,year (S^ " ~ =^~ ~ ~ - ~ rte; f - = t-r'i p .r ;= t~ : ~:~ ~ ~.- ~ ~~. R .~+ `.;OMMONWEALTH OF PENNSYLVANIA ~'OUNTY OF: Ct7;~BERL1~iD !,-t No 09-3-05 NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF' NAME a~~d A~~RE_ss `~>~Is Ho~E IMPROVE>I~ENT/HECTOR HIIENO ~ 2110 FOgFIRE DRIVE MECHANICSHDRG, PA 17055 L J VS. DEFENDANT: NAME and AoDRE ss rffiIIHbIA, LINDA ~ 2038 3PRIICE ST LANE APT/STE 3E PHILADELPHIA, PA 19103-6576 L J Docket No.: CV-0000146-07 ,~: ", Date Filed: 5/01/07 i ..: rd,, ,:~ Hon. MARx >I~ARTIN Address: 507 N YORK 3T MECHANICSBIIRG, PA ~~e6„~o~,e 1717 > 766-4575 17055 LINDA MIIbl~SA 2038 SPRIICE ST LANE APT/STE 3E PHILADELPHIA, PA 19103-6576 THIS IS TO NOTIFY YOU THAT: Judgment: FOR PLAINTIFF LJ Judgment was entered for: (Name) Judgment was entered against: (Name) in the amount of $ 2, 214.51 HB HOME IMPROVEMENT/, HECTOR B bIObJ~iA, LINDA Defendants are jointly and severally liable. Damages will be assessed on Date & Timr This case dismissed without prejudice. Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 ~ --- Portion of Judgment for physical damages arising out of residential lease $ __ Amount cif Judgment $_2.092.50 Judgment Costs $_ 122.00 Interest on Judgment $_~~ Attorney Fees $- . 00 Total $_2, 214.50 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 INCLUDE A COPY OF THIS NOTICE OF JUDGMENTfrRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGEMENT HOLDER LGCTS TO ENTER THE JUDGMENT IN THE COURT OF COPo1MON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE . UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REtZUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAY'S IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. ~'~ ~~ Date ~ f~~/,~ ~ vl~ ~ ,Magisterial District Judge certify t at this is a true-and correct copy of the record of the proceedings containing the judgment. (Date of Judgrnentj 6/20/07 Date My commission expires first Monday of January, 2012 Magisterial District Judge SEAL AOPC 315-06 DATE PRINTED: 6/20/07 3:15:00 PM C7 0 ~ ~_- ~ , , ~_ rn~ _ i ti _ryfT: ~' '`J P^~ ~_~~ J. c C.J1 ~ - t~ ~" PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing the notice of appeal. Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ~~W- ~G/ ~4-cc~ ; ss AFFIDAVIT: I hereby swear or affirm that I served ~a copy of the Notice of Appeal^^Common Pleas No. ®~ "y4~ ~' 7 ,upon th District Justice designated therein on (date of service) ~, (rl~S/ Dl~ ,year, ~by personal service by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name ___,~f sr.~~r -~~(~ ~• B. ~~ ~~,~" , on year ~, ^ by personal service ~y (certified) (registered) mail, sender's receipt attached hereto. and further that I served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appellees) to whom the Rule was addressed on ~G ,year Va 1 ~ by personal service I _I~y (certified) (registered) mail, sender's receipt attached hereto. SWORN (AFFIRM~D) AND SUBSCRIBED BEFORE ME v THIS _ °2 ~ DAY OF ~`t.I l ,YEAR oZ.D© Signature o! ollicial before whom a/lidavd was made Signature of Alliant COMMONWEALTH OF PENNSYLVANIA Title of official My commission expires on ,year Notarial Seal Christine H. Hakel, Notary Public Lemoyne Boro, ClM7lberland COUnty My Ctxnmission Expires Apr. 13, 2009 Member, Pennsylvania Association of Notaries COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS JUDICIAL DISTRICT NOTICE OF APPEAL FROM ' ~I/~ /~~ DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. Q `)' _ ~/ ~ a y (~+~! ~ ~._ 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 Dis- trict Justice on the date and in the case mentioned below. NAME OF APPELLANT MAG. DIST. NO.OR NAME OF D.J. ~ I~ r~~Q ~ G' t~Vl l'~ (l ~ "t r ~ o~'~ ~ l" I- 4 r - ADDRESS OF APPELLANT CITY ~C~ ~ 8 ~ e ~treet (...u~,~ ~nllcrc~~i DATE OF JUDGMENT IN THE CASE OF (PLAINTIFF) i ~ ~~..`. p ~- o~ 120 ~ ©~ H .~. ~at~e 1~-aprUVemen+ j ~ue~~ CLAIM NO. SIGNATURE CV YEAR C~C~U ~ ~ i% _ LT YEAR ~ This block will be signed ONLY when this notation is required under PA. R.C.P.J.P. No. 10088. This notice of Appeal, when received by the District Justice, will operate as A SUPERSEDERS to the Judgment for possession in this case. na ure o ro or epu STATE ZIP CODE _ vs. OF ANT OR HIS ATTORNEY OR AGENT If appellant was Claimant (see PA R.C.P.J.P. No. i00i(ti)) in action. before district Justice, he MUST FILE A COMPLAINT within twenty (20) days alter filing his NOTICE of APPEAL. 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 copyoi notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon }~~ tl~ ~t1~l~r tY~~1f ~ ~-}CCfar igu~'=^I o , appellee(s), to file a complaint in this appeal ame of appellees) (Common Pleas No. C `I- ~/ ~ a '! )within twenty (20) days afterservice of rule or suffer entry of judgment of non pros. . „~ ~~ Si ure of appellant or his attorney or agent RULE: To _~ ..~5 . ~'~D(rC? ~ I"YI (~(~~'(YlC'r1('f ~#'L'~1' j~t~t'i 6 pappellee(s) Name of llee(s} (1) You are notified that a rule is hereby entered upon you to file a complaint in #his appeal within twenty(20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU U PO~.iL P-k~1E,C~I P E. . ".~` .. ." ,i`~. (3) 'fhe.date of servi~`m~this rule if service was by mail is the date of the mailing. ~. 'Date: ~ ~ ~ "'~' ,Year ..1 vy 7 (~ ~, _ / /`, r~-tv r ' - ~^ '~ Signature o/ Prothonotary or De~uty ~ ~ ., r:. J, ~~. r r, White -',~~onotary Copy ~,' Green Ile Copy Yellow - ~~ opy . Pink - AP~ py g Gold - D. J. Proth. - 76 '* -. .~ c ~ ~ `n ~• ru 0 ~ ~' PO~e $ ~, ~. ` ~ G `\~ Z I m ~~ ~ !~,~ ~ Certified Fee ~ ~ ~ ,~ ~ ' 0 ,,,e,~,,.~ 0 ~ - ~ ~ Retum Reciept Fee (Endor~ementRequlred) c ~ \ ~ ~ a ~'9y ,~ d~~y O Reatrkted DelNery Fee ll'1 (Endorsement Required) ~ _ ,~ COS 0 a Taal Postage ti Fees ~ ~ i 5 S , t. ~ ~Q~Q!~._.~I~C11~-------------------------------------------- S4reer,Apr. rik.; !~ (~ or POeoxNo.---17111 Q. ~--'t-'-~ - ----- -- X- ~~-- ~ ~ ~ _~~ ------------------- «n, zr~ PA ~ 055 .~ ~- - .. .. ti d ~- ~- $ _ ~~, ~~ . ~~~ ~ Certlfied Fee f1 '. ~' ~ ~ ~.,7 G _ Y ~ s ~ ~ Retum Redept Fee 6rdric P6 o~ Here ~ (Endorsement Required) ~F 9 ~ ed R ~ E ~ 9y8 d` u i i ndomerrt ( ~ ~s Total Postage & Fees $ ~ C' ~ ~ 3 o r HECTOR BUENO t/a/d/b/a HB HOME IMPROVEMENTS Plaintiff v. LINDA MiJMMA Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-EQUITY No. -07-4284 CIVIL JURY TRIAL DEMANDED 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 Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 717-249-3166 1-800-990-9108 TO: LINDA NiUNIlVIA: YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED COMPLAINT WITHIN TWENTY (2O) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. PETER J. RUSSO DATE: ~S ~ Q ~ ~ LAW OFFICES OF PETER J. RUSSO, P.C. Counsel for Plaintiff By: Peter J. Russo, Esquire PA Supreme Court ID # 72897 3800 Market Street Camp Hill, PA 17011 Ph: (717) 591-1755 F: (717) 591-1756 prusso(a~,pjrlaw.com HECTOR BUENO t/a/d/b/a : IN THE COURT OF COMMON PLEAS HB HOME IMPROVEMENTS :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v, :CIVIL ACTION-EQUITY LINDA )v'IUNIlVIA : No. -07-4284 CIVIL Defendant :JURY TRIAL DEMANDED COMPLAINT NOW COMES the Plaintiff, by and through his attorney, Law Offices of Peter J. Russo, P.C. and states the following in support of his Complaint: PARTIES 1. Plaintiff, Hector Bueno, (hereinafter "BUENO") is an adult citizen of the Commonwealth of Pennsylvania residing at 2110 Foxfire Drive, Mechanicsburg, Pennsylvania 17055. 2. Plaintiff, Hector Bueno, is the owner-operator of HB HOME IMPROVEMENTS, a sole proprietorship, with a business address of 2110 Foxfire Drive, Mechanicsburg, Pennsylvania 17055. 3. Defendant, Linda Mumma (hereinafter "Mumma") is an adult individual citizen of the Commonwealth of Pennsylvania currently residing at 2038 Spruce Street Lane, Philadelphia, Pennsylvania 19103. 4. At all times relevant hereto, Defendant Mumma resided at 512 Creekview Lane, Mechanicsburg, Pennsylvania 17055 and contracted with the Plaintiff to complete home improvement work at that location. FACTUAL AVERMENTS. 5. In or about November of 2006, the parties hereto verbally agreed that Plaintiff would complete various home improvement projects on the Defendant's residence. 6. Plaintiff agreed to: a) insulate the basement b) patch a crack in the hallway ceiling c) caulk in master bathroom d) install several doors in bookshelves previously built by Plaintiff e) install a hole for a vent and switch for a radon mitigation system f) paint a half bath g) paint the living room h) paint four closet shelves and walls i) sand, clean and three coats of paint on the front deck j) paint all stucco walls on exterior of home k) paint one awning in front and one awning in rear of the residence. 7. In or about December of 2006, all of the projects were completed. 8. Plaintiff has previously completed approximately five other home improvement projects for the Defendant. 9. Each prior home improvement project was based on a verbal agreed in the same manner as the home improvement project which is the subject of this litigation. 10. Upon completion of each of the prior project, Plaintiff remitted an invoice to Defendant. 11. With each of the prior projects, upon the submission of an invoice, Defendant remitted payment in full. 12. Upon completion of the project which is the subject of this Complaint, Plaintiff submitted an invoice for Two Thousand Five Hundred Eighty Five Dollars ($2,585.00). 13. On or about February 23, 2007 Defendant asked Plaintiff to re-submit an itemized bill. 14. On or about March 24, 2007, Plaintiff then re-submitted an itemized bill. 15. Plaintiff has requested for payment on several occasions but Defendant has never remitted payment. 16. As of the filing of this Complaint, Plaintiff is still owed $$2,585.00 and Defendant has not paid anything toward the outstanding balance. COUNT ONE -BREACH OF CONTRACT 17. Plaintiff avers each and every allegation set forth in Paragraphs 1 though 16 of the Complaint and incorporates each and every one herein by reference as previously set forth herein. 18. Mumma asked Bueno to complete various home improvement projects. 19. Bueno agreed to complete the various home improvement projects. 20. Bueno exercised good faith and completed the various home improvement projects. 21. Upon completion of the repair project, Defendant refused to execute her promise to pay the Plaintiff. 22. An enforceable contract was created when Mumma directed Bueno to complete the various home improvement projects. 23. The terms of the contract were sufficiently set forth through the parties' discussion and prior business dealings regarding the various home improvement projects. 24. The parties, by their action and words, manifested their obligations and intention to be bound by the terms of the agreement. 25. Plaintiff completed his obligation under the direction of the Defendant. 26. Defendant committed a material breach by failing to remit payment for the various home improvement projects. 27. As a direct and proximate result of Defendant's actions the Plaintiff has been deprived of Two Thousand Eight Hundred Fifty dollars ($2,850.00), in addition to accrued interest. WHEREFORE, Plaintiff, Hector Bueno, respectfully request judgment against Defendant, Linda Mumma in the amount of Two Thousand Five Hundred Eighty Five Dollars ($2,585.00) exclusive of interest, attorney's fees and costs of suit. COUNT TWO -QUANTUM MERUIT 28. Plaintiff avers each and every allegation set forth in Paragraphs 1 though 27 of the Complaint and incorporates each and every one herein by reference as previously set forth herein. 29. Defendant was aware of Plaintiff's customary charges as the Defendant utilized Plaintiff's services in the past. 30. Defendant was provided both a valuable service from the Plaintiff in addition to various building materials and supplies which were provided at Plaintiff's cost. 31. Defendant watched the Plaintiff provide that valuable service, material and supplies. 32. Defendant expected, prior to any work was commenced, that a fee was to be charged for the service, materials and supplies provided. 33. Plaintiff pleads in the alternative that Defendant induced Plaintiff to act on Defendant's behalf. 34. Plaintiff pleads in the alternative that even if a contract does not exist, Plaintiff is entitled equitable relief in the form of quantum meruit for the valuable service, material and supplies provided to the Defendant. WHEREFORE, Plaintiff, Hector Bueno, respectfully request judgment against Defendant, Linda Mumma in the amount of Two Thousand Five Hundred Eighty Five Dollars ($2,585.00) exclusive of interest, attorney's fees and costs of suit. COUNT THREE -UNJUST ENRICHMENT 35. Plaintiff avers each and every allegation set forth in Paragraphs 1 though 34 of the Complaint and incorporates each and every one herein by reference as previously set forth herein. 36. Plaintiff pleads in the alternative that Defendant was unjustly enriched by the Plaintiff in the form of Two Thousand Eight Hundred Fifty dollars ($2,850.00) representing the amount of the value of the service, materials and supplies associated with the various home improvement projects. 37. Plaintiff pleads in the alternative that Defendant was the owner of residence that received the benefit of the various home improvement projects. 38. Plaintiff pleads in the alternative that Defendant permitted Plaintiff to complete the various home improvement projects at Plaintiff's expense. 39. Plaintiff pleads in the alternative that Defendant induced the Plaintiff into believing that Defendant would accept the responsibility for the cost of the various home improvement projects. 40. Plaintiff pleads in the alternative that Defendant watched as Plaintiff completed each of the home improvement projects and did nothing to stop the Plaintiff. 41. Plaintiff pleads in the alternative that Defendant watched as Plaintiff completed each of the home improvement projects and did nothing to inform the Plaintiffthat the Defendant would not be responsible for the cost associated with the completed of the home improvement projects. 42. Plaintiff pleads in the alternative that as a direct and proximate result of the Defendant's conduct, the Defendant derived a benefit from the Plaintiff. 43. Plaintiff pleads in the alternative that Defendant accepted the benefit of each of the home improvement projects without compensating or reimbursing the Plaintiff. 44. Plaintiff pleads in the alternative that permitting Defendant to accept the benefits of the home improvement projects without compensating Plaintiff would unjustly enrich the Defendant. WHEREFORE, Plaintiff, Hector Bueno, respectfully request judgment against Defendant, Linda Mumma in the amount of Two Thousand Five Hundred Eighty Five Dollars ($2,585.00) exclusive of interest, attorney's fees and costs of suit. Respectfully submitted, LAW OFFICES OF P , P.C. Attorneys for Plaintiff Peter J. Russo, Esquire ID No. 72897 Scott A. Stein, Esquire ID No. 81738 Elizabeth J. Saylor, Esquire ID No. 200139 Date: Thursday August 09, 2007 HECTOR BUENO t/a/d/b/a : IN THE COURT OF COMMON PLEAS HB HOME IlViPROVEMENTS :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff - v. CIVII. ACTION-EQUITY LINDA MUMMA No. -07-4284 CIVIL Defendant :JURY TRIAL DEMANDED VERIFICATION I, HECTOR BUENO, verify that the statements made in the forgoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. § 4904 relating to unsworn falsification to authorities. Dated: o ~ ~ /~ ' ~, /,;1~ HECT R BUENO HECTOR BUENO t/a/d/b/a HB HOME IlVIPROVEMENTS Plaintiff v. LINDA MUMMA Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-EQUITY No. -07-4284 CIVIL JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter Russo, hereby certify that I am on this day serving a copy of the foregoing document(s) upon the person(s) and in the manner indicated below: US MAIL ADDRESS TO: Linda Mumma 2038 Spruce Street Lane Philadelphia, Pennsylvania 19103 Peter J. Russo, Esquire Date: Thursday, August 09, 2007 ~'~ ^' o c ~--~ -„ -J ~ i ? ' ~ I } f..~ -3-~ Lt' x ~ ~ - tQ ~ C`} ~ ~ t'T't ._._ --G HECTOR BUENO t!d/b/a HB HOME IMPROVEMENTS v. LINDA MUMMA Plaintiff Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-4284 CIVIL ACTION -LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Peter J. Russo, Esquire Law Offices of Peter Russo The Chelsea Building 3800 Market Street Camp Hill, PA 17011 YOU ARE HEREBY notified to plead to the within New Matter and Counterclaims of Defendant within twenty (20) days. By Elizabe . Snover 2~ Attorney for Defendant DATE: D~~~ Johnson, Duffie, Stewart & Weidner Elizabeth D. Snover I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 eds@jdsw.com HECTOR BUENO t/dlb/a HB HOME IMPROVEMENTS v. LINDA MUMMA Plaintiff Defendant Attorneys for Linda Mumma IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-4284 CIVIL ACTION -LAW JURY TRIAL DEMANDED ANSWER WITH NEW MATTER AND COUNTERCLAIMS OF DEFENDANT AND NOW, comes the Defendant Linda Mumma by and through her attorney and files this Answer with New Matter and Counterclaims and states as follows: 1. Admitted upon information and belief. 2. Admitted upon information and belief. 3. Admitted in part and Denied in part. Defendant is an adult citizen and resident of the Commonwealth; however, she does not reside at 2038 Spruce Street Lane, Philadelphia. 4. Admitted in part and Denied in part. 512 Creekview Lane is Defendant's primary residence; however, during some of the times relevant hereto she resided in Philadelphia. It is admitted that the Defendant verbally contracted with Plaintiff to complete home improvement work in her home over the past several years. FACTUAL AVERMENTS 5. Admitted in part, Denied in part. Defendant verbally contracted with Plaintiff to perform various home improvements projects at 512 Creekview, however, some projects were ongoing from prior verbal contracts. 6. Admitted in part, Denied in part. Plaintiff agreed to: a) insulate the crawl space under the master bedroom, not the basement; b) patch and paint crack in hallway ceiling previously repaired by Plaintiff; c) caulk the shower in the master bathroom, not the entire bathroom; d) change two doors in bookshelves which were installed incorrectly; e) install a hole for a vent and switch for a radon mitigation system; f) paint the half bath; g) paint the step down office, not the living room; h) paint four closet shelves and touch up the walls; i) sand, clean, and three coats of paint on the front deck; j) paint all stucco walls on exterior of home; k) repaint all existing outside areas where Plaintiff had used the wrong paint color so that they would match the rest of home. 7. Denied. Several projects remain unfinished, including the exterior painting, or were not pertormed in a workmanlike manner whereby Defendant anticipates that these projects will need to be completed by another professional. 8. Admitted in part and Denied in part Defendant has contracted with Plaintiff for various home improvements projects over the years; however, she is not certain of the exact number of verbal contracts or projects. 9. Admitted. By way of further response, the prior agreement set forth an hourly rate of $38.00 per hour. 10. Admitted. By way of further response, the invoices submitted by the Plaintiff for projects prior to those contracted for in November 2006 detailed the number of hours worked, the hourly rate, and the cost of materials. The invoice submitted for the work pertormed in November -December 2006 did not contain such a breakdown but, rather, contained an unsubstantiated amount due. 11. Admitted. Upon receipt of the broken down invoice, Defendant would promptly remit payment unless the parties agreed to another arrangement. 12. Admitted. By way of further response, this invoice was submitted by mail and did not provide the usual breakdown of hours, hourly rate, and materials costs. 13. Denied. Defendant requested that Plaintiff provide an invoice with the same format as he had provided in the past with the breakdown of hours worked, hourly rate, and materials costs, not an itemized invoice. 14. Admitted in part, Denied in part. Plaintiff submitted an invoice that shows a breakdown of each project performed and a flat fee for each and listed the materials costs, however, Plaintiff did not provide a breakdown of the hours worked, the hourly rate, nor provide receipts for materials as requested. 15. Admitted in part, Denied in part. Plaintiff has requested payment, however, Defendant has indicated that she will not remit payment until she receives the broken down invoice per verbal agreement with the information regarding hours worked, hourly rate, and materials receipts as was historically provided to the Defendant in prior projects. Instead of submitting the requested invoice for payment, Plaintiff has sued the Defendant and has refused to substantiate the amount requested in the incomplete invoices he has submitted to Defendant. 16. Admitted. By way of further response, Defendant has refused to remit payment until she receives an invoice providing a breakdown of hours worked, hourly rate, and materials costs, which she has not received. COUNT ONE -BREACH OF CONTRACT 17. Admitted in part and Denied in part Defendant incorporates by reference her responses to paragraphs 1-16 as if more fully set forth herein. 18. Admitted. 19. Admitted. 20. Denied. It is denied that Plaintiff completed the projects in a workmanlike manner and that he exercised good faith in these projects as he has refused to substantiate his bill and it is believed that Plaintiff has misrepresented the fee for the work performed based upon the parties' prior business relationship and that Plaintiff has misrepresented the materials costs on his invoices. 21. Denied. It is denied that the Plaintiff has completed the projects as they were not performed in a workmanlike manner. By way of further response, Defendant's promise to pay the Plaintiff was contingent upon the Plaintiff s remittance of an invoice relaying the hours worked, hourly rate, and materials costs as was done historically in the business relationship and course of performance between the parties. 22. Admitted in part, Denied in part. It is admitted that an enforceable contract was created between the parties, however, at no time did the Defendant agree to pay the Plaintiff for work not properly performed, for hours not worked, or for materials which the Plaintiff did not procure or pay for. Furthermore, the course of performance and business relationship between the parties has set an hourly rate of $38.00 per hour, however, it is believed that the incomplete invoice submitted by the Plaintiff charges in excess of this historical rate for work performed, about which Defendant did not agree. 23. Admitted. By way of further response, the Plaintiff is in breach of those terms as set forth by the parties through years of prior business dealings in: refusing to provide a complete invoice as was done in the past; charging in excess of the historical hourly rate; refusing to substantiate materials costs by providing receipts; and charging for work done to correct or fix projects not completed properly. 24. Admitted. See response to paragraph 24. 25. Denied. Plaintiff did not complete the projects in a workmanlike manner. 26. Denied. Defendant is not in breach of the contract as payment was contingent upon the receipt of an invoice detailing the hours worked, hourly rate, and materials costs as was provided by Plaintiff in the past. Furthermore, given Plaintiffs refusal to detail the hours worked or hourly rate, Defendant has requested receipts for the materials invoiced by the Defendant which have not been provided. 27. Denied. Defendant will provide payment for services actually performed at the historical rate and in consideration of the necessity of hiring another professional to complete these projects in a workmanlike manner. As this dispute is the result of Plaintiffs refusal to provide a complete invoice and receipts for materials as requested, Plaintiff should not be entitled to interest as no amount certain has been determined due to Plaintiffs refusal. WHEREFORE, Defendant Linda Mumma respectfully requests that the Plaintiff s Complaint be dismissed and that judgment be entered in favor of Defendant and against the Plaintiff. COUNT TWO -QUANTUM MERUIT 28. Admitted in part, denied in part Defendant hereby incorporates her answers to paragraphs 1-27 as though the same were set forth herein at length. 29. Admitted. 30. Admitted in part, Denied in parf. It is admitted that the Plaintiff performed several projects at Defendant's primary residence, however, the agreed to price for those services, the quality of those services, and the materials purchased by the Plaintiff remain in dispute. 31. Admitted in part, Denied in part See response at paragraph 30. 32. Admitted in part, Denied in part Defendant expected that the parties would proceed according to their prior business dealings and course of performance, however, Plaintiff has refused to provide a complete invoice, substantiate the hours worked or the materials costs, and has charged in excess of his historical hourly rate for services to which the Defendant did not agree. 33. Denied. This paragraph contains conclusions of law and fact to which no response is required, to the extent a response is deemed required, the contents of paragraph 33 are denied. 34. Denied. This paragraph contains conclusions of law and fact to which no response is required, to the extent a response is deemed required, the contents of paragraph 34 are denied. COUNT THREE -UNJUST ENRICHMENT 35. Admitted in part, denied in part Defendant hereby incorporates her answers to paragraphs 1-34 as though the same were set forth herein at length. 36. Denied. This paragraph contains conclusions of law and fact to which no response is required, to the extent a response is deemed required, the contents of paragraph 36 are denied. 37. Admitted in part, Denied in part. Defendant is currently the owner of 512 Creekview Lane, however, the completion, quality and price for the services performed at that residence remain in dispute. 38. Admitted in part, Denied in part The parties agreed that several home improvements projects would be completed by the Plaintiff, however, some of those projects remain uncompleted or were completed in an unworkmanlike manner. Furthermore, the time spent and expenses incurred by the Plaintiff for these projects remains in dispute. 39. Admitted in part, Denied in part It is admitted that Defendant is obligated to remit payment for the services pertormed at 512 Creekview, however, the Plaintiff has misrepresented the charge for the services performed and the materials costs on his invoice based upon the parties' prior relationship and course of performance, which overage Defendant did not agree to pay. 40. Admitted in part, Denied in part. Defendant contracted with Plaintiff to perform several home improvement projects, however, those projects were not completed or were not completed in a workmanlike manner and Plaintiff has refused to submit a complete invoice or substantiate his costs and time spent which has prevented the Defendant from remitting payment for the services performed and materials actually purchased by the Plaintiff. 41. Admitted in part, Denied in part. Defendant contracted with Plaintiff to perform several home improvement projects, however, those projects were not completed or were not completed in a workmanlike manner and Plaintiff has refused to submit a complete invoice or substantiate his costs and time spent which has prevented the Defendant from remitting payment for the services performed and materials actually purchased by the Plaintiff. 42. Admitted in part, Denied in part Defendant contracted with Plaintiff to perform several home improvement projects, however, those projects were not completed or were not completed in a workmanlike manner and Plaintiff has refused to submit a complete invoice or substantiate his costs and time spent which has prevented the Defendant from remitting payment for the services performed and materials actually purchased by the Plaintiff. 43. Admitted in part, Denied in part Defendant contracted with Plaintiff to perform several home improvement projects, however, those projects were not completed or were not completed in a workmanlike manner and Plaintiff has refused to submit a complete invoice or substantiate his costs and time spent which has prevented the Defendant from remitting payment for the services performed and materials actually purchased by the Plaintiff. 44. Denied. This paragraph contains conclusions of law and fact to which no response is required, to the extent a response is deemed required, the contents of paragraph 44 are denied. WHEREFORE, Defendant Linda Mumma respectfully requests that the Plaintiffs Complaint be dismissed and that judgment be entered in favor of Defendant and against the Plaintiff. NEW MATTER 45. The Defendant hereby incorporates her answers to paragraphs 1-44 as though the same were set forth herein at length. 46. Discovery may reveal that the Plaintiff has submitted invoices which contain fraudulent misrepresentations as to the costs of the materials purchased. 47. Discovery may reveal that the Plaintiff has submitted invoices which charge in excess of the amount agreed to by and historically charged to the Defendant. 48. Defendant is justified in not remitting payment on the incomplete invoices provided by the Plaintiff because Plaintiff has refused to provide a broken down invoice as was provided by him historically and has refused to provide receipts substantiating his materials costs. COUNTERCLAIM -BREACH OF CONTRACT 49. The Defendant hereby incorporates her answers to paragraphs 1-48 as though the same were set forth herein at length. 50. The parties had an existing work relationship at the time that the parties entered into the verbal contract regarding the work at 512 Creekview that is the subject of this suit. 51. As had been agreed to currently and in the past between the parties, the Plaintiff would complete each project per the specifications and with the materials requested by the Defendant for which the Plaintiff would submit an invoice detailing: the hours worked by Plaintiff; the hourly rate; and the materials costs. 52. Upon receipt of this invoice, Defendant would review the breakdowns and, if justified by the work performed and costs, Defendant would pay the Plaintiff, within a reasonable period of time, on each invoice. 53. On or about December 2006 or January 2007, Plaintiff submitted an invoice without the breakdowns that were customarily provided in the past. 54. Defendant requested that the Plaintiff submit an invoice showing those breakdowns as he had done in the past; however, Plaintiff submitted an invoice showing a flat fee for each project and neglecting to show the hourly rate, hours worked, or receipts for materials costs as requested. 55. Defendant again asked that the Plaintiff provide a complete invoice showing the breakdowns of hours worked, hourly rate, and provide receipts substantiating the materials costs submitted by Plaintiff. 56. Plaintiff did not submit the requested invoice and instead sued the Defendant for the unsubstantiated amount of $2,585.00. 57. It is believed and averred, based upon the Defendant's estimation of the hours worked at 512 Creekview and the hourly rate that was customary charged for past projects, that the invoices submitted by the Plaintiff with the billed amount of $2,585.00 are inaccurate for the work performed and constitute fraudulent misrepresentations of the hours performed and the materials purchased. 58. It is believed and averred that the Plaintiff's insufficient invoices charge for services necessary to correct projects that were insufficiently performed by the Plaintiff, performed in an unworkmanlike manner, or were performed with paint which was not the brand or color specified by the Defendant so as to match existing trim and surfaces at the property. 59. It was implied in the verbal agreement between the parties, as is true for all agreements, that the projects would be completed in a workmanlike manner by the Plaintiff. 60. In breach of the verbal agreement between the parties, the projects performed by the Plaintiff were not done in a workmanlike manner and the Defendant will be required to engage another professional to correct or complete these projects at her own cost and a claim is made heretofore. 61. The Plaintiffs failure to use the materials specified for several projects, including the use of the requested brand and color of paint, was a breach of the verbal agreement between the parties. 62. The Plaintiffs request for payment which is believed to be over and above the hourly rate set by the prior course of performance and dealings by the parties is a breach of the verbal agreement between the parties. 63. The Plaintiffs bill for services necessary to correct or fix projects done by Plaintiff and invoiced and paid for by Defendant prior to the invoice in question is a breach of the verbal agreement, course of performance, and course of dealings that the Plaintiff would not charge the Defendant for work that had to be redone for Plaintiffs failure to adequately complete the project or to complete the project with materials specified by the Defendant. 64. The Plaintiffs refusal to provide an invoice detailing the hours worked, hourly rate, and substantiating the materials costs as was done in prior verbal contracts between the parties, is a breach of the verbal agreement between the parties which is the subject of this litigation. WHEREFORE, Defendant Linda Mumma requests judgment in her favor for the costs necessary to correct or complete in a workmanlike manner the home improvement projects which are the subject of this litigation, which costs are believed to be in excess of $1,000.00. COUNTERCLAIM -VIOLATION OF THE UNFAIR TRADE PRACTICES ACT 65. The Defendant hereby incorporates her answers to paragraphs 1-48 and allegations at paragraphs 49-64 as though the same were set forth herein at length. 66. The Unfair Trade Practices Act at 73 P.S. §201.92 states: Any person who purchases...goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property... as a result of the use or employment by any person of a method, act, or practice declared unlawful by section 3 of this act, may bring a private action to recover actual damages...The Court may, in its discretion, award up to three times the actual damages sustained... and may provide such additional relief as it deems necessary and proper. The court may award to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorney's fees. 67. The Act declares the following as an unlawful unfair trade practice: engaging in any fraudulent or deceptive conduct which creates likelihood of confusion or of misunderstanding. 73 P.S. §201.2 68. It is believed and averred that the incomplete invoices submitted by the Plaintiff contain misrepresentations as the to services performed and the materials purchased by the Plaintiff for which the Plaintiff is fraudulently requesting payment in excess of: the costs incurred by the Plaintiff; the hours worked; and the hourly rate as historically agreed to by the Defendant and set by the Plaintiff of $38.00 per hour. 69. Defendant will be required to engage the services of another professional to correct or complete the projects for which the Plaintiff seeks payment, the costs of correcting and completing said projects is estimated to be in excess of $1,000.00. 70. Defendant has been forced to retain counsel to defend herself in this suit which was brought by the Plaintiff, which suit he brought instead of submitting the complete invoice for payment substantiating his costs and hours worked as Defendant has repeatedly requested. 71. If Plaintiff had submitted a complete and accurate invoice, Defendant submits that litigation and the Defendant's retention of an attorney would not have been necessary. 72. Plaintiffs conduct is an unfair trade practice as defined by the Act in that his incomplete and unsubstantiated invoices create a likelihood of confusion or misunderstanding as to the proper amount owed to the Plaintiff pursuant to the terms of the verbal contract as set by the course of pertormance and dealings between the parties. WHEREFORE, Defendant Linda Mumma requests a judgment in her favor pursuant to 73 P.S. §201-9.2 of the Unfair Trade Practices Act in excess of $1,000.00, treble damages, costs and attorney's fees as the Court deems appropriate. RespectfuNy submitted, By: E abet . Snover Attorne . D. 200997 Johnson, Duffle, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 (717)761-4540 Fax: {717)761-3015 edsCc~idsw.com Attorneys for Defendant Date: ©~' ~0 "~~ r VERIFICATION I, Elizabeth D. Snover, pursuant to Pa.R.C.P. 1024(c) certify that Defendant Linda Mumma is outside the Commonwealth and her verification could not be obtained within the time necessary for filing this pleading. I certify that the averments contained in Defendant's Answer with New Matter and Counterclaim were made upon information and belief relayed by Linda Mumma to myself and that this information comes from Linda Mumma's own personal knowledge and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. Elizabeth Hover Attorney f efendant, Linda Mumma Dated: ~~~ ~~~~ CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Answer with New Matter and Counterclaim and Notice to Plead has been duly served upon the following counsel of record, by depositing the same in the United States Mail, osta a re aid on Au ust~~, 2007: P 9 P P 9 Peter J. Russo, Esquire Law Offices of Peter Russo The Chelsea Building 3800 Market Street Camp Hill, PA 17011 By Eli abet . Snover <"" > _. ~: ; ..._ ,, .._ ~. ... ~; ~M: -a LAW OFFICES OF PETER J. RUSSO, P.C. Counsel for Plaintiff By: Feter J. Russo, Esquire PA Supreme Court ID #72897 3800 Marhet Street Camp Hill, PA 17011 Ph: (717) 591-1735 F: (?17) 591-1756 aressoCa~y3rlsw.com HECTOR BUENO t/a/d/b/a : IN THE COURT OF COMMON PLEAS HB HOME IMPROVEMENTS :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : v. :CIVIL ACTION-EQUITY LINDA MUMMA Defendant No. -07-4284 CIVIL JURY TRIAL DEMANDED NOTICE TO PLEAD TO: LINDA 11NMMA c% ELIZABETH D. SNOVER, ESQUIRE `.-~ -~; The Law OiTices of Pete~so, P.C. Attorneys for the Plaintiff Peter J. Russo, Esquire ID No. 72897 3800 Market Street Camp Hill, PA 17011 717-591-1755 You are hereby notified to file a written response to the enclosed Plaintiff s Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered ag~einst you. Date: September Y 9, 2007 ~~ ~ •. LAW OFFICES OF PETER J. RUSSO, P.C. Coooael for P1aiuNff By: Peter J. Rnseo, Esquire PA Supreme Court ID #72897 3866 Msrlcet Street Camp Hfi~, PA 17011 PL: (717) 591-1755 F: (71?) 591-1736 anuseoCa~ulr~w.com HECTOR BUENO tidd/b/a : 1N THE COURT OF COMMON PLEAS HB HOME IlVII"ROVEMENTS :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. :CIVIL ACTION EQUITY LINDA MRJMMA : No. -07-4284 CIVIL De~fend~mt :JURY TRIAL DEMANDED AND NOW, COMES Plaintiff, HECTOR BUENO T/D/B/A HB HOME IlVIPROVEMENTS, by and through his attorneys, Law Offices of Peter J. Russo, P.C., and file the within Preliminary Objections and in support thereof, avers as follows: 1. On August 9, 2007, Plaintiff filed a Complaint in the above captioned matter in response to a Notice of Appeal and a Rule to File a Complaint filed by the Defendant. Linda Mumma. 2. On or about August 30, 2007, Defendant, Linda Mumma filed an Answer, New Matter and Counterclaim. 3. Defendant's Answer purports to set forth causes of action against Plaintiff in separate counts, for breach of contract and violations of the Unfair Trade Practices and Consumer Protection Law ("UTPCPL") i ~~ DE1vZIJRRER VIOLATION OF UTPCPL 4. Pazagraphs 1 - 3 are incorporated herein by reference as if fully set forth at length. 5. The allegations set forth in the second un-numbered Counterclaim of Defendant asserts that Plaintiff in violated the Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201- 2, et seq. Defendant's Answer, New Matter and Counterclaims, at pazagraphs 65 - 72. 6. The second un-numbered Counterclaim of Defendant's Answer, New Matter and Counterclaims (hereinafter "Counterclaim") fails to state a claim under the UTPCPL. 7. Defendant's Counterclaim attempts to impose liability on Plaintiff under the "catchall provision" of the UTPCPL. 73 P.S. § 201-2 (xxi). 8. Under current law, in order to maintain an action for violation of the catchall provision of the UTPCPL, Defendant must plead and prove the elements of common law fraud. Booze v. Allstate Ins. Co.. 750 A.2d 877 (Pa, Super. 2000); Sewak v. Lockhart. 699 A.2d 755 (Pa. Super. 1997). 9. Under Pennsylvania law, the elements of common law fraud aze: a. A misrepresentation; b. Which is material to the transaction at hand; c. Which is made falsely, with knowledge of its falsity or recklessly as to whether it is true or false; d. With intent of misleading another into relying on it; e. Justifiable reliance on the misrepresentation; and any resulting injury was proximately caused by the reliance. Bartz v. Noon. 729 A2d. 555, 560 (Pa. 1999). .... . 10. Defendant's Counterclaim fails to plead sufficient facts to allow this Honorable Court to determine Plaintiff made any material misrepresentation. 11. Defendant's Counterclaim fails to plead sufficient facts to allow this Honorable Court to determine Plaintiff made any material misrepresentation falsely, or with knowledge of its falsity or made recklessly as to whether it was true or false. 12. Defendant's Counterclaim fails to plead sufficient facts to allow this Honorable Court to determine Plaintiff made any material misrepresentations with the intent of misleading another to rely on it. 13. Defendant's Counterclaim fails to plead sufficient facts to allow this Honorable Court to determine Defendant justifiably relied on any alleged misrepresentations made by Plaintiff. 14. Defendant's Counterclaim fails to present a cause of action for which relief may be granted under any theory of law as it is legally and factually insufficient. WHEREFORE, Plaintiff respectfully request that this Honorable Court SUSTAIN the Preliminary Objection in the nature of Demurrer and DISMISS the second un-numbered counterclaim of Defendant's Answer, New Matter and Counterclaim with prejudice. Respg~ 1 e , Peter J. Russo, Esquire Attorney ID No. 72897 Scott A. Stein, Esquire Attorney ID No. 81738 Elizabeth J. Saylor, Esquire Attorney ID No. 20013 3800 Market Street Camp Hill, PA 17011 717-591-1755 Date: September 19, 2007 N ~ ~, LAW OFFICES OF PETER J. RUSSO, P.C. By: Pier J. Russo, Esquire PA Sepreme Court ID #72897 3860 Market Street Camp Hill, PA 17611 Ph: (717) 591-1755 F: (717) 591-1756 an~so~airlaw.com HECTOR BUENO t/a/d/bfa HB HOME IMPROVEMENTS Plaintiff' v. LINDA MUIVIMA Defendant Couiuel for Plaintiff IN THE COURT OF COMMt}N PLEAS CU1I+IEERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-EQUITY No. -07-4284 CIVII. JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that I have on this day served a true and correct copy of Defendants' Preliminary Objections to Plaintiffs' Complaint upon the following persons, in the manner indicated: Elizabeth D. Snover, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street Lemoyne, PA 17043 THE LAW OFFICES OF PETER J. RUSSO, P.C. Attorneys for Plaintiff BY: Ashley R. ,Paralegal Date: September 19, 2007 Q ^~s ~ ~+ ~ *• _'U ~ Cl3 .:: e .... ( - ~ tT"! ~, ~ i ~. ~ " ' C 3 lp -.~ a Johnson, Duffle, Stewart & Weidner Elizabeth D. Snover I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 eds@jdsw.com HECTOR BUENO t/d/b/a HB HOME IMPROVEMENTS PENNSYLVANIA Attorneys for Linda Mumma IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, Plaintiff v. LINDA MOMMA NO. 07-4284 CIVIL AGTION -LAW Defendant JURY TRIAL DEMANDED RESPONSE OF DEFENDANT TO PLAINTIFF'S PRELIMINARY OBJECTIONS TO HER COUNTERCLAIM AND NOW, comes the Defendant Linda Mumma by and through her attorneys Johnson, Duffle, Stewart & Weidner and files this Response to Plaintiff's Preliminary Objections to her Counterclaim and states as follows: 1. Admitted. 2. Admitted. 3. Admitted in part, Denied in part Defendant's Answer with New Matter and Counterclaims does indeed set forth two counterclaims, the first for breach of contract and the second for violation of the Unfair Trade Practices and Consumer Protection Law ("UTPCPL") DEMURRER VIOLATION OF UTPCPL 4. The responses to paragraphs 1-3 above are incorporated herein as if the same were more fully set forth herein. 5. Admitted. 6. Denied. This paragraph contains conclusions of law and fact to which no response is required, to the extent a response is deemed required, the contents of paragraph 6 are denied. 7. Admitted in part, Denied in part. Defendant's second counterclaim does indeed assert a claim and demand judgment against the Plaintiff for violation of the UTPCPL. 8. Admitted. 9. Admitted. 10. Denied. The elements of fraud have been sufficiently pled. Defendant asserts that Plaintiff submitted an invoice to Defendant requesting payment in an amount which the Plaintiff knows falsely represents the services performed and the materials purchased by the Plaintiff. (Answer with New Matter and Counterclaims, paragraphs 68 and 72). 11. Denied. See response to paragraph 10. 12. Denied. See response to paragraph 10. 13. Denied. Plaintiff relied upon the invoice for its accuracy in paying Plaintiff for services performed, however, when Defendant asked for a more complete invoice from Plaintiff, Defendant received a lawsuit instead. (Answer with New Matter and Counterclaims, paragraphs 53-57, 68-72). 14. Denied. This paragraph contains conclusions of law and fact to which no response is required, to the extent a response is deemed required, the contents of paragraph 14 are denied. WHEREFORE, Plaintiffs Preliminary Objection in the nature of a demurrer to Defendant's Second Counterclaim for Violation of the Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-2 et. seq. should be DISMISSED. Respectfully submitted, 7 ~1 _ Elizabe . Snover Attorney I.D. 200997 Johnson, Duffle, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 (717)761-4540 Fax: (717)761-3015 edsCa,,,jdsw.com Attorneys for Defendant Date: ~ ~ - ~ y ~ ~~ CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Response to Plaintiff's Preliminary Objection to Defendant's Counterclaim has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid on October ~~~~ , 2007: Peter J. Russo, Esquire Law Offices of Peter Russo The Chelsea Building 3800 Market Street Camp Hill, PA 17011 ~' . By ~ ,~ `~~ L ~7~1-e-L Eliza h D. Snover HECTOR BUENO t/d/b/a HB HOME IMPROVEMENTS v. Plaintiff LINDA MUMMA Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-4284 CIVIL ACTION -LAW JURY TRIAL DEMANDED JOINT PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please mark the above matter settled and discontinued with prejudice. LAW OFFICES OF PETER RUSSO, P.C. Peter Russo, I.D. No. 72897 Attorney for Plaintiff, Hector Bueno t/d/b/a HB Home Improvements JOHNSON DUFFIE By: Elizabet . Snover, Esquire I.D. No. 00997 Attorney for Defendant, Linda Mumma `~ ~ ~~~ ~~ ~~~ r~ .;r-t t ,rte .,~ .~ -- - ~; =' s ,~:_, ~.: -~ ..c.