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HomeMy WebLinkAbout03-50410 ERIC L. DIFFENBAUGH, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. No. ct? - -), q1 Civil Term JOHN BURKENTINE AND CARL SENSENIG, Defendants NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint of 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 ERIC L. DIFFENBAUGH, Plaintiff V. JOHN BURKENTINE AND CARL SENSENIG, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 03- s0y1 Civil Term COMPLAINT 1. Plaintiff, Eric L. Diffenbaugh, is an adult individual residing at 457 Whitmer Road, Shippensburg, Cumberland County, PA 17257. 2. Plaintiff Diffenbaugh is in the business of rendering professional land surveying and engineering services, with offices located at 25 Broad Street, Newville, Cumberland County, PA. 3. Defendant, John Burkentine, is an adult individual of Glenville, York County, PA 17329. 4. Defendant, Carl Sensenig, is an adult individual with the last known address of 1015 Steinmetz Road, Denver, Lancaster County, PA 17517. 5. Defendants, Burkentine and Sensenig are the owners of a real estate development project known as "Shippensburg Village" located in Southampton Township, Cumberland County, PA. 6. On or about April 30, 2000 Plaintiff Diffenbaugh and Defendants Burkentine and Sensenig entered into an agreement whereby Plaintiff Diffenbaugh would provide surveying and engineering services on the Shippensburg Village project owned by Defendants Burkentine and Sensenig. A copy of the agreement is attached and made a part hereto. 7. The agreement provided that Plaintiff Diffenbaugh would receive payment of $60,000.00 for work done to gain preliminary plan approval from Southampton Township, Cumberland County and such sum would be paid in two equal installments of $30,000.00 with the finial installment to paid no latter than April 30, 2003. 8. Plaintiff Diffenbaugh did provide such surveying and engineering services as to gain preliminary plan approval from Southampton Township, Cumberland County and was paid the initial some of $30,000.00 on or about March 4, 2000. 9. Despite repeated demand the Defendants have failed and refused to pay the second sum of $30,000.00 which is due to Plaintiff and has been due since April 30, 2003. 10. The Defendants, pursuant to the agreement signed by them with Plaintiff, now owe Plaintiff Eric Diffenbaugh the sum of $30,000.00 plus interest from April 30, 2003 until the date of this Complaint and until date of trial and judgment. WHEREFORE, for all the above reasons, Plaintiff Eric Diffenbaugh hereby demands judgment in his favor against defendants Burkentine and Sensenig jointly and severally in the sum of $30,000.00, plus interest and costs of this action. Date Submitted RO?IAW FFICES Ron Turo, Esquire 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff VERIFICATION I, Ron Turo, Esquire, attorney for the Plaintiff herein, have sufficient knowledge of the facts contained in this Complaint and verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, based upon information received from the Plaintiff. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. A verification executed by the Plaintiff will be filed of record as soon as it becomes available. Date on Turo, Esquire ERIC L. DIFFENBAUGH, Plaintiff V. JOHN BURKENTINE AND CARL SENSENIG, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : No. 03-5041 Civil Term ACCEPTANCE OF SERVICE I Neil Slenker, Esquire am the attorney for John Burkentine, defendant in the above captioned matter. I have been authorized by my client to accept service in this case and do so as evidenced by my signature below. io i d3 Date Slenker, Esquire Attorney for Defendant c7 mT ? COY c 'J ERIC L. DIFFENBAUGH, Plaintiff V. JOHN BURKENTINE AND CARL SENSENIG, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA No. 03-5041 Civil Term ACCEPTANCE OF SERVICE I Matthew Creme, Jr., Esquire am the attorney for Carl Sensenig, defendant in the above captioned matter. I have been authorized by my client to accept service in this case and do so as evidenced by my signature below. 1 ccf? Date (7 0 C- w . r m o `? -? ' i ?::, --? ?-n - ? t . c ;'a ??.. ,. ` c? _.... ?., ? ?? - r! - -n ?C; _ ? :J i? !' ? ?? -< IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ERIC L. DIFFENBAUGH, Plaintiff No. 03-5041 V. JOHN BURKENTINE and CARL SENSENIG, Defendants NOTICE TO PLEAD TO PLAINTIFF: YOU ARE HEREBY NOTIFIED to file a written response to the enclosed document within twenty (20) days of service hereof or a default judgment may be entered against you. Respectfully .submitted, NIKOLAUS & HOHENADEL, LLP By:'Matthew J. Creme, Jr. Attorney I.D. 432141 Bernadette M. Hohenadel Attorney I.D. 428330 Nadine C. Smith Attorney I.D. #89388 212 North Queen Street Lancaster, PA 17603 (717) 299-3726 Attorneys for Defendant Carl Sensenig a d3 Date: ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ERIC L. DIFFENBAUGH, Plaintiff V. No.: 03-5041 JOHN BURKENTINE and CARL SENSENIG, Defendants ANSWER OF DEFENDANT CARL SENSENIG TO THE COMPLAINT AND CROSS CLAIM Defendant Carl Sensenig, by and through his undersigned attorneys, hereby responds to the Complaint in this matter as follows: 1. Denied. Defendant is without sufficient information or knowledge to admit or deny the averments of this paragraph. Strict proof thereof is demanded. 2. Denied. Defendant is without sufficient information or knowledge to admit or deny the averments of this paragraph. Strict proof thereof is demanded. 3. Admitted. Admitted. It is specifically denied that Defendants are the owners of a development project known as "Shippensburg Village" located in Southampton Township, Cumberland County, Pennsylvania. To the contrary, it is averred that Shippensburg Village, LTD, of which Defendants are equal Shareholders and Directors, owns the real estate development project. 6. It is admitted that on April 30, 2000 PlaintiffDiffenbaugh and Defendants Burkentine and Sensenig signed an Agreement to pay Plaintiff for surveying and engineering services on the Shippensburg Village project. A copy of the Agreement is attached to the 03-5041 Complaint and the language thereof speaks for itself. It is averred that the work was performed by Plaintiff prior to the date of the agreement and before Defendant Sensenig became involved in the Shippensburg Village project. 7. It is admitted that the Agreement provided that Plaintiff would be paid compensation in the amount of $60,000.00, for the surveying and engineering work performed to gain preliminary plan approval for the project and that the payments were to be made in two equal installments of $30,000.00. The Agreement, a copy of which is attached to the Complaint, speaks for itself. 8. It is admitted that Plaintiff Diffenbaugh did provide the surveying and engineering services as agreed for preliminary plan approval from Southampton Township, Cumberland County and that the initial installment of $30,000.00 was paid by Defendant Carl Sensenig. It is specifically averred that said surveying and engineering services were performed before Defendant Sensenig became involved in the project and before the agreement was signed and that the payment was made by Defendant Sensenig on or about March 8, 2000. It is admitted that Plaintiff has demanded payment of the second installment of $30,000.00 due on or before April 30, 2003. It is specifically denied that this sum is due to Plaintiff from Defendant Carl Sensenig and strict proof thereof is demanded. 10. This paragraph states a conclusion of law to which no response is required. Strict proof thereof is demanded. The terms of the Agreement, a copy of which is attached to the Complaint, speak for themselves. WHEREFORE, Defendant Carl Sensenig respectfully requests the entry of judgment in his favor on the claim set forth in the Complaint. 2 03-5041 CROSS CLAIM The averments of all preceding paragraphs are incorporated as if set forth herein at length. 2. On or about April 30, 2000, Plaintiff Diffenbaugh entered into an Agreement with Defendants John Burkentine and Carl Sensenig to provide surveying and engineering services for preliminary plan approval in exchange for $60,000.00, such to be paid in two $30,000.00 installments. 3. The surveying and engineering services on Shippensburg Village were performed before Defendant Sensenig became involved in the project and before the Agreement was signed. 4. Defendants John Burkentine and Carl Sensenig signed the Agreement in an individual capacity on behalf of Shippensburg Village. Defendants John Burkentine and Carl Sensenig are equal Shareholders and Directors of Shippensburg Village, LTD, pursuant to the terms of an "Agreement Relating to the Common Stock of Shippensburg Village, LTD." 6. Defendant Sensenig paid the first installment of $30,000.00, by personal check, on March 8, 2000, which was after the work was performed. 7. Defendant Burkentine failed to pay the final installment of $30,000.00 due April 30, 2003 or any other amount due under the agreement. 8. Defendant Sensenig is not in breach of the Agreement entered into with Plaintiff Diffenbaugh and that he made payment of $30,000 under the Agreement. 9. In the event it is determined that Plaintiff has stated a claim entitling him to relief, then Defendant John Burkentine is solely liable to Plaintiff on that claim by reason of his failure to have made any payment pursuant to the terms of the Agreement. 03-5041 10. In the event Defendants are found liable for the balance due Plaintiff under the terms of the Agreement and judgment entered as to them, then Defendant Burkentine is liable to Defendant Sensenig for the $30,000.00 together with interest thereon. WHEREORE, Defendant Carl Sensenig respectfully requests the entry of judgment in his favor and against Defendant Burkentine on the claim asserted and requests this Court to find that Defendant John Burkentine is solely liable to Plaintiff Diffenbaugh for the sum owed, or is liable over to Defendant Sensenig in the amount of $30,000.00 together with interest thereon and costs of suit. Respectfully submitted, NIKOLAUS & HOHENADEL, LLP A By: / Matthew J. Creme, Jr. Attorney I.D. #32141 Bernadette M. Hohenadel Attorney I.D. #28330 Nadine C. Smith Attorney I.D. #89388 212 North Queen Street Lancaster, PA 17603 (717) 299-3726 Attorneys for Defendant Carl Sensenig 4 VERIFICATION I, Carl Sensenig, verify that the facts set forth in the foregoing Answer and Cross Claim are true and correct to the best of my knowledge, information and belief. I acknowledge that had I knowingly made false statements in this document, I would be subject to the penalties of a misdemeanor of the third class pursuant to 18 Pa. C.S.A. Section 4904 regarding unsworn falsification to authorities. Date: CaIZ e Carl Sensenig G;pr CERTIFICATE OF SERVICE; 1 hereby certify that I have this day served a true and correct copy of the foregoing document upon the following person(s) and in the manner listed below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure Service Delivered By First-Class Mail as Follows: Ron Turo, Esquire Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 NIKOLAUS & HOHENADEL, LLP Date: LOA c By: Matthew J. Creme, Jr. Attorney I.D. #32141 Bernadette M. Hohenadel Attorney I.D. #28330 Nadine C. Smith Attorney I.D. #89388 212 North Queen Street Lancaster, PA 17603 (717) 299-3726 Attorneys for Defendant Carl Sensenig ?? `, , . ?, ?? _ ?: _. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA i ERIC L. DIFFENBAI-GH, laintiff VS. JOHN BURKENTP CARL SENSENIG, AND NOW, and through his attc Plaintiff. 1. Adm 2. Adm 3. Adm 4. Adm AND No. 03-5041 Civil Term day of October, 2003, comes the Defendant, John Burkentine, by the law firm of Stock and Leader, to answer the Complaint filed by upon information and belief. upon information and belief. 5. Denied The facility known as "Shippensburg Village" is a mobile home park located in Cumberl d County, Pennsylvania owned by a corporation called "Shippensburg Village, Inc." 6. Admitt d in part, denied in part. Admitted that :Defendant John Burkentine signed the Agreement, a cop of which is attached to the Complaint. The remainder of this averment is denied in that it is attempt to characterize and/or restate the terms of a written agreement, which speaks for 7. Denied. This averment is an attempt to characterize and/or restate the terms of a written agreement, which speaks for itself and it is therefore denied. 8. Admitt$d. 9. . Admitted in part, denied in part. Admitted that Defendant John Burkentine has not paid to Plaintiffn additional Thirty Thousand and NO/100 ($30,000.00) Dollars. The I remainder of this averment is a conclusion of law to which no response is required, and it is therefore denied. 10. Denied] This averment constitutes a conclusion of law to which no response is required, and it is therefore denied. Defendant, John Burkentine, demands judgment in his favor and against Plaintiff Eric L. Respectfully submitted, STOCK AND LEADER By: DWif A. Slenker, Esquire Supreme Court I.D. #77974 Susquehanna Commerce Center East Suite 600 221 West Philadelphia Street York, PA 17404 Telephone Number: (717) 846-9800 Fax: (717) 843-6134 Attorney for Defendant John Burkentine .doc 2 10/22/2003 21:26 7] ATPJDMTGMD PAGE 02 VERIFICATION I hereby upon tniormatiot language of the , extent that the s correct to the be: ANSWER is thx acknowledge tha the penalties of I Date m that the following facts are correct: The attached ANSWER is base ich has been furnished to counsel in the preparation of this document. Th WER is that of counsel and not mine. I have read the ANSWER and to th is based upon information which I have given to counsel, it is true an my knowledge, information and belief. To the extent that the content of th counsel, I have relied upon counsel in making this Verification. I hereh averments of fact set forth in the atirre.said ANSWER are made subject t C S 49(W relating to unsworn falsification to authorities. .1?4. 77 ERIC L. DIFFENB, vs. JOHN BURKENTII CARL SENSENIG, AND NOW, Esquire, of the law hereby certify that depositing the same to: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JGH, No. 03-5041 Civil Term Plaintiff AND CERTIFICATE OF SERVICE isZJ! day of 2003, I, Neil A. Slenker, rm of Stock and Leader, attorneys for the Defendant, John Burkentine, served the within Answer of Defendant, John Burkentine this day by the United States mail, postage prepaid, in York, Pennsylvania, addressed n Turo, Esquire RO LAW OFFICES South Pitt Street •lisle, PA 17013 STOCK AND LEADER / By An, Esquire Supreme Court I.D. 477974 Susquehanna Commerce Center East Suite 600 221 West Philadelphia Street York, PA 17404 Telephone Number: (717) 846-9800 Fax: (717) 843-6134 Attorney for Defendant, John Burkentine LI) W3 CA ERIC L. DIFFENBAUGH, Plaintiff V. JOHN BURKENTINE AND CARL SENSENIG, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA No. 03-5041 Civil Term ANSWER OF PLAINTIFF TO CROSS CLAIM OF DEFENDANT SENSENING 1. No answer required. 2. Admitted. 3. The allegations of this paragraph are not within the knowledge of plaintiff and proof of the same is demanded at trial. 4. The allegations of this paragraph are not within the knowledge of plaintiff and proof of the same is demanded at trial. 5. The allegations of this paragraph are not within the knowledge of plaintiff and proof of the same is demanded at trial. 6. Admitted. 7. Admitted. 8. Denied. This allegation is legal conclusion to which no responsive pleading is Required. It is denied that Defendant Sensening has no further legal obligation to the plaintiff pursuant to the written document which has been made a part of this compla nt. 9. The allegations of this paragraph are legal conclusions to which no responsive pleading is required. The allegations of this paragraph are directed to Defendant Burkentine consequently the plaintiff cannot answer the same. WHEREFORE, for all the above reasons, plaintiff requests judgment in his is favor in the amount of $30,000.00, jointly and severally against the defendants Burkentine and Sensening. y ubmitted, 7Rey, Zo Tdro, Esquire furo aw Offices 28 S uth Pitt Street Carli le, PA 17013 M7 245-9688 CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Answer of Plaintiff to Cross Claim of Defendant Senening upon Matthew J. Creme, Jr., Esquire and Neil A. Slenker, Esquire, by depositing same in the United States Mail, first class, postage pre- paid on the _ 4day of C)?_eerL, 2003, from Carlisle, Pennsylvania, addressed as follows: Matthew J. Creme, Jr., Esquire 212 North Queen Street Lancaster, PA 17603 Neil A. Slenker, Esquire Stock & Leader 221 West Philadelphia Street, Suite E600 York, PA 17404 TURO LAW OFFIC Ron Turo, Esq ire 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff ?, ..? u, ? ?? --? tit ?. ? ? T 'S "° u ? n ? ? ? . -? ? -, ,. '? yC ° x'Y? +V \ ry, 2?+ f.D ?: 03 - S&i( CERTIFICATE OF SERVICE I hereby certi that I have this day served a true and correct copy of the foregoing document upon the following person(s) and in the manner listed below, which service satisfies the requirements of the P nnsylvania Rules of Civil Procedure Service Delivered By First-Class Mail as Follows: Ron Turo, Esquire Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Neil A. Slenker, Esquire Stock and Leader Susquehanna Commerce Center East Building, 6`h Floor 221 West Philadelphia Street York, PA 17404 Date: /o - 57 -0 NIKOLAUS & HOHENADEL, LLP By:L 'K- A&ta ? Matthew J. Creme, Jr. Attorney I.D. #32141 Bernadette M. Hohenadel Attorney I.D. #28330 Nadine C. Smith Attorney I.D. #89388 212 North Queen Street Lancaster, PA 17603 (717) 299-3726 Attorneys for Defendant Carl Sensenig c7 ?-? o t.s -r? ?,?? _ G= , rf v,.. -<•- 'rig y ?_ <> ,? -> ``c. < ? - IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ERIC L. DIFFENBAUGH, No. 03-5041 Plaintiff VS. JOHN BURKENTINE and CARL SENSENIG, Defendants CIVIL ACTION - LAW NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER., THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service of The York County Bar Association The York County Bar Center 137 East Market Street York, Pennsylvania 17401 Telephone No. (717) 854-8755 AVISO Le han demandado en corte. Si usted desea defender contra las demandas dispuestas en las paginas siguientes, usted debe tomar la accion en el plazo de veinte (20) dias despues de esta queja y se sirve el aviso, incorporando un aspecto escrito personalmente o y archivando en escribir con la corte sus ddefensas u objeciones a las demandas dispuestas contra usted el abogado le advierte que que si usted no puede hacer asi que el caso puede proceder sin usted y un juicio se puede incorporar contra usted compra la corte sin aviso adicional para cualquier dinero demandado en la queja o para cualquier otra demanda o relevacion pedida por el demandante. Usted puede perder el dinero o la caracteristica de otra endereza importante a usted. USTED DEBE LLEVAR ESTE PAPEL SU ABOGADO INMEDIATAMENTE. SI USTED NO HACE QUE UN ABOGADO VAYA A O LLAME POR TELEFONO LA OFICINA DISPUESTA ABAJO. ESTA OFICINA PUEDE PROVEER DE USTED LA INFORMACION SOBRE EMPLEAR A UN ABOGADO. SI USTED NO PUEDE PERMITIRSE AL HIRE A UN ABOGADO, ESTA OFICINA PUEDE PODER PROVEER DE USTED LA INFORMACION SOBRE LAS AGENCIAS QUE LOS SERVICIOS JURIDICOS DE LA OFERTA DE MAYO A LAS PERSONAS ELEGIBLES EN UN HONORARIO REDUCIDO O NINGUN HONORARIO. Lawyer Referral Service of the York County Bar Association York County Bar Center 137 East Market Street York, Pennsylvania 17401 Telephone No. (717) 854-8755 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ERIC L. DIFFENBAUGH, Plaintiff VS. JOHN BURKENTINE and CARL SENSENIG, Defendants No. 03-5041 CIVIL ACTION - LAW ANSWER OF JOHN BURKENTINE TO CROSS CLAIM OF CARL SENSENIG AND CROSS CLAIM PURSUANT TO PA.R.C.P. 2252(d) AND, NOW, this // day of November, 2003, comes the Defendant, John Burkentine, by and through his attorneys, the law firm of Stock and Leader, to answer the Cross Claim of Defendant Carl Sensenig, and to assert a cross claim against Defendant Carl Sensenig, based upon the following averments: ANSWER Defendant John Burkentine incorporates by reference his Answer to the allegations contained in Plaintiffs Complaint as if they were set forth in full. 2. Admitted. 3. Admitted in part. Denied in part. Some of the surveying and engineering services to be performed by Plaintiff were performed before Defendant Sensenig became involved with the project. Defendant Sensenig was aware of the work performed, and the work remaining to be performed, when he sign the Agreement. 4. Denied. This averment constitutes a conclusion of law to which no response is required, and it is therefore denied. 5. Admitted in part. Denied in part. Defendants John Burkentine and Carl Sensenig each own twenty-five (25%) percent of the corporation known as Shippensburg Village, Ltd. It is admitted that there is an agreement between the shareholders of Shippensburg Village, Ltd. known as "Agreement Relating to the Common Stock of Shippensburg Village, Ltd." 6. Admitted in part, denied in part. It is admitted that Defendant Carl Sensenig tendered a personal check for Thirty Thousand and 00/100 ($30,000.00) Dollars to Plaintiff on or about March 8, 2000, after the work was performed. It is denied that the check tendered to Plaintiff represented Defendant Carl Sensenig's share of any obligation created by the agreement with Plaintiff. On the contrary, Defendant Carl Sensenig's payment of Thirty Thousand and 00/100 ($30,000.00) Dollars to Plaintiff was tendered as payment for the benefit of Shippensburg Village, Ltd., and was tendered as a portion of Defendant Carl Sensenig's capital contribution to Shippensburg Village, Ltd. 7. Admitted that Defendant John Burkentine did not make payment of Thirty Thousand and 00/100 ($30,000.00) Dollars on April 20, 2003. 8. Denied. This averment constitutes a conclusion of law to which no response is required, and it is therefore denied. It is averred that to the extent it is determined by this Court that Defendant John Burkentine is in breach of the Agreement with Plaintiff, Defendant Carl Sensenig is equally in default of the terms of said Agreement. 9. . Denied. This averment constitutes a conclusion of law to which no response is required. It is specifically denied that in the event Plaintiff is entitled to relief, Defendant John Burkentine is liable to Plaintiff. 2 10. Denied. This averment constitutes a conclusion of law to which no response is required. It is specifically denied that in the event Defendants are found liable to Plaintiff, Defendant John Burkentine is liable to Defendant Carl Sensenig for Thirty Thousand and 00/100 ($30,000.00) Dollars plus interest. WHEREFORE, Defendant John Burkentine respectfully requests the entry of judgment in his favor and against Defendant Carl Sensenig, and award Defendant Carl Sensenig nothing. CROSS CLAIM/NEW MATTER PURSUANT TO PA.R.C.P. 2252(d) (V. DEFENDANT CARL SENSENIG) 11. Defendant John Burkentine incorporates by reference his response to the allegations in the Complaint as set forth in his Answer, and the averments set forth in Paragraphs 1 through 10 hereof, as if set forth at length. 12. In the event that this Court should find that Defendant John Burkentine is liable to Plaintiff on Plaintiff s cause of action, then Defendant Carl Sensenig is: A. Solely liable to Plaintiff on Plaintiff s cause of action; B. Liable over to Defendant John Burkentine on the Plaintiffs cause of action; or C. Jointly or severally liable with Defendant John Burkentine on Plaintiff's cause of action. WHEREFORE, Defendant John Burkentine respectfully requests that this Court enter judgment in his favor on the claim asserted by Plaintiff and requests that should Plaintiff be entitled to relief, this Honorable Court find that Defendant Carl Sensenig is solely liable to Plaintiff for the amount claimed, or is liable over to Defendant John Burkentine in the amount of 3 Thirty Thousand and 00/100 ($30,000.00) Dollars together with interest thereon and costs of suit, or that Defendants John Burkentine and Carl Sensenig are jointly and severally liable on the Plaintiffs cause of action. Respectfully submitted, STOCK AND LEADER / //N?v 3 By: Date Ne iPK. Slenker, Esquire Supreme Court I.D. #77974 Susquehanna Commerce Center East Suite 600 221 West Philadelphia Street York, PA 17404 Telephone: (717) 846-9800 Fax: (717) 843-6134 Attorney for Defendant John Burkentine 4 11/13/2003 01:37 11, 11,21101 11:54 FAX 76324693 ATPJDMTGMD PAGE 02 STO['K AND LEADER VERIFIQ,ATIQN T hereb} PA.R.C.P. 2252(d) is based upon information which has been fumished to BURICENT1NE I TO CROSS CLAIM OF CART, SLNSENIG AND CROSS CLAIM PURSUANT 'counsel in the I not mine. I h: which I have gi belief. To the in making this aforesaid Anse falsification to by 1 Date ?Unn Oln that the following facts are correct The attached ANSWER OF JOT-1:V of this docwnent. The language of the Answer is that of cntulsel and read the Answer turd to the extent that the same is based upon information to counsel, it is true and correct to the best of my luiowledge, information and that the content of the Answer is that of counsel, I have relied upon counsel I hereby acknowledge that the averments of fact set forth ill the are made subject to the penalties of 18 Pa. C.S. 4904 relating to unworn John Bu mine IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ERIC L. DIFFENBAUGH, No. 03-5041 Plaintiff VS. JOHN BURKENTINE and CARL SENSENIG, Defendants CIVIL ACTION - LAW CERTIFICATE OF SERVICE AND NOW, this// day of ?trd4??'d?/L-_> 2003, I, Neil A. Slenker, Esquire, of the law firm of Stock and Leader, attorneys for Defendant John Burkentine, hereby certify that I served the within ANSWER OF JOHN BURKENTINE TO CROSS CLAIM OF CARL SENSENIG AND CROSS CLAIM PURSUANT TO PA.R.C.P. 2252(d) this day by depositing the same in the United States mail, postage prepaid, in York, Pennsylvania, addressed to: Ron Turo, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 Bernadette M. Hohenadel, Esquire NIKOLAUS & HOHENADEL, LLP 212 North Queen Street Lancaster, PA 17603 Matthew J. Creme, Jr., Esquire NIKOLAUS & HOHENADEL, LLP 212 North Queen Street Lancaster, PA 17603 STOCK AND LEADER By: ? A. Slenker, Esquire Supreme Coma I.D. #77974 Susquehanna Commerce Center East Suite 600 221 West Philadelphia Street York, PA 17404 Telephone Number: (717) 846-9800 Fax: (717) 843-6134 Attorney for Defendant John Burkentine ?) ?... c. _.:. .. Z ?< _ ?? , r , 1 _ c n cL? r.; ? _, '?? _.. ? -.i }-; _ S? ?ni -? -? rn IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ERIC L. DIFFENBAUGH, Plaintiff vs. JOHN BURKENTINE and CARL SENSENIG, Defendants PRAECIPE To the Prothonotary: No. 03-5041 CIVIL ACTION-LAW Please substitute the enclosed original Defendants, Verification for the facsimile Verification attached to the Answer of Defendant, John Burkentine which was filed on October 27, 2003. Respectfully submitted, STOCK AND LEADER Z?/? a/?3 Date By: eil A. Slen.ker, Esquire I.D. #77974 Attorney for Defendants Susquehanna Commerce Center East Building, 6th Floor 221 W. Philadelphia Street York, PA 17,404 (717) 846-9800 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ERIC L. DIFFENBAUGH, Plaintiff No. 03-5041 vs. JOHN BURKENTINE and CARL SENSENIG, Defendants CIVIL ACTION - LAW CERTIFICATE OF SERVICE AND NOW, this ? day of 2003, I, Lynn B. Lowe, Secretary for Neil A. Slenker, Esquire, of the law firm of t ck and Leader, attorneys for Defendants, hereby certify that I served' the within Praecf S this day b the United States mail, postage prepaid, in York, Pennsylvania, addressed depositing the same in Ron Turo, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 Matthew J. Creme, Jr., Esquire NIKOLAUS & HOHENADEL, LLP 212 North Queen Street Lancaster, PA 17603 Bernadette M. Hohenadel, Esquire NIKOL AUS & HOHENADEL, LLP 212 North Queen Street Lancaster, PA 17603 STOCK AND LEADER BY 1 4L nn B. Lowe, Secretary for Neil A. Slenker, Esquire I.D. #77974 Attorney for Defendants Susquehanna Commerce Center East Building, 6th Floor 221 W. Philadelphia Street York, PA 17404 (717) 846-9800 C> ?; Crv ?? 2't: .. r.? <R ?, s ` - _:. ? , . r i' ^' 1 Y C •• 7 i< .a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ERIC L. DIFFENBAUGH, No. 03-5041 Plaintiff vs. JOHN BURKENTINE and CARL SENSENIG, Defendants CIVIL ACTION - LAW PRAECIPE To the Prothonotary: Please substitute the enclosed original Defendants' Verification for the facsimile Verification attached to the Answer of John Burkentine to Cross Claim of Carl Sensenig and Cross Claim Pursuant to Pa.R.C.P. 2252(d) which was filed on November 17, 2003. Respectfully submitted, STOCK AND LEADER Z /2 By: _ Date eil A. Slenker, Esquire I.D.#77974 Attorney for Defendants Susquehanna Commerce Center East Building, 6th Floor 221 W. Philadelphia Street York, PA 17404 (717) 846-9800 STOCK AND LEADER 11!11%2001 11:54 FAX VERIFICATION I. hereby affirm that the following facts are correct: The attached ANSWER OF JOI-hI BURKENTINE TO CROSS CLAIM OF CARL SLNSENIG AND CROSS CLAIM PURSUANT TO PA.R.C.P. 2252(d) is based upon information which has been furnished to counsel in the preparation of this document. The language of the Answer is that of counsel and not mine. I have read the Answer and to the extent that the same is based upon information which I have given to counsel, it is true and correct to the best of my luiowledge, information and belief. To the extent that the content of the Answer is that of counsel, I have relied upon counsel in malting this Verification. I hereby acknowledge that the averments of fact set forth in the aforesaid Answer are made subject to the penalties of IS Pa. C.S. 4904 relating to unswom falsification to authorities. John Date IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ERIC L. DIFFENBAUGH, Plaintiff No. 03-5041 VS. JOHN BURKENTINE and CARL SENSENIG, Defendants CIVIL ACTION - LAW CERTIFICATE OF SERVICE AND NOW, this day of 2003, I, Neil A. Slenker, Esquire, of the law firm of Stock and Leader, attorneys for Defendants, hereby certify that I served the within Praecipe this day by depositing the same in the United States mail, postage prepaid, in York, Pennsylvania, addressed to: Ron Turo, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 Bernadette M. Hohenadel, Esquire NIKOLAUS & HOHENADEL, LLP 212 North Queen Street Lancaster, PA 17603 Matthew J. Creme, Jr., Esquire NIKOLAUS & HOHENADEL, LLP 212 North Queen Street Lancaster, PA 17603 STOCK AND LEADER By?? Neil ,Ienker, Esquire I.D.#77974 Attorney for Defendants Susquehanna Commerce Center East Building, 6th Floor 221 W. Philadelphia Street York, PA 17404 (717) 846-9800 ry .. :.CC IJ 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ERIC L. DIFFENBAUGH, Plaintiff No, 03-5041 V. JOHN BURKENTINE and CARL SENSENIG, Defendants ANSWER OF CARL SENSENIG TO CROSS CLAIM PURSUANT TO Pa.RCP 2252(d) 1-10. No response required. 11. No response required. Defendant Sensenig incorporates herein his averments in his Answer and in his Cross Claim against Defendant Burkentine as if fully set forth. 12. No response required. This paragraph states conclusions of law to which no response is required. To the extent a response is required, Defendant Sensenig specifically denies all averments therein and strict proof thereof is demanded. WHEREFORE, Defendant Carl Sensenig respectfully requests the entry of judgment in his favor on the claim asserted by Plaintiff. To the extent that this Court determines that Plaintiff is entitled to relief, that Defendant Burkentine be deemed to be solely liable for any such amount. Respectfully submitted, NIKOLAUS & HOHENADEL, LLP By: i'`n'?kkl t& Matthew J. Creme, Jr. Attorney I.D. #32141 Bernadette M. Hohenadel Attorney I.D. #28330 Nadine C. Smith Attorney I.D. #89388 212 North Queen Street Lancaster, PA 17603 (717) 299-3726 Attorneys for Defendant Carl Sensenig 2 CERTIFICATE OF SERVICE I hereby certify that I have this day served a true and correct copy of the foregoing document upon the following person(s) and in the manner listed below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure Service Delivered By First-Class Mail as Follows: Ron Turo, Esquire Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Neil A. Slenker, Esquire Stock and Leader Susquehanna Commerce Center East Building, 6'h Floor 221 West Philadelphia Street York, PA 17404 NIKOLAUS & HOHENADEL, LLP Date: ?a a-63 By: Matthew J. Creme, Jr. Attorney I.D. #32141 Bernadette M. Hohenadel Attorney I.D. #28330 Nadine C. Smith Attorney I.D. #89388 212 North Queen Street Lancaster, PA 17603 (717) 299-3726 Attorneys for Defendant Carl Sensenig ti cs w o s c c' -G F THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ERIC L. DIFFENBAUGH, Plaintiff No. 03-5041 V. JOHN BURKENTINE and CARL SENSENIG, Defendants P, E TO THE PROTHONOTARY: Bernadette M. Hohenadel, Please withdraw the appearance of Matthew J. Creme, Esq., Esq Counsel for Defendant . and Nadine C. Smith, Esq. and Nikolaus & Hohenadel, LLP as Date: January 2, 2004 Please enter the appearance of Michael J. & Attorney I.D. #3 41 \ Bernadette M. H henade Attorney I.D. 928330 Nadine C Smith Attorney I.D. 489388 212 North Queen Street Lancaster, PA 17603 (717) 299-3726 as 1. Date: January 2, 2004 [.D. # 27687 109S . Mar Street Elizabethtown, PA 17022 (717)367-9440 ` R +t 7r i cl, -f.•iTi J.7 Fri Iv U1 CHARLES LYNCH and LISA LYNCH, his wife, Plaintiffs V. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 03-5343 YINGST HOMES, INC., WHEATLAND CUSTOM HOMES, INC., AMOS ESH t/d/b/a CIVIL ACTION -LAW DEER RIDGE CONSTRUCTION and BYLER CONSTRUCTION COMPANY, Defendants NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claim set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice is served, by entering a written appearance personally or by attorney and filing in writing with the Court your defense or objections to the claim set forth against you. You are warned that if you fail to do so the case may proceed without you and judgement 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 GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. AVISO Le han demandado en corte. Si usted desea defender contra las demandas dispuestas en las paginas siguientes, usted debe tomar la acci6n en el plazo de veinte (20) dias despues de esta queja y se sirve el aviso, incorporando un aspecto escrito personalmente o y archivando en escribir con la corte sus defensas u objeciones a ]as demandas dispuestas contra usted el abogado le advierte que que si usted no puede hacer asi que el case puede proceder sin usted y unjuicio se puede incorporar contra usted compra la corte sin aviso adicional para cualquier dinero demandado en la queja o para cualquier otra demands o relevaci6n pedida por el demandante. Usted puede perder el dinero o la caracteristica de otra endereza importante a usted. USTED DEBE LLEVAR ESTE PAPEL SU ABOGADO INMEDIATAMENTE. SI USTED NO HACE QUE UN ABOGADO VAYA A O LLAME POR TELEFONO La OFICINA DISPUESTA ABAJO. ESTA OFICINA PUEDE PROVEER DE USTED LA INFORMACION SOBRE EMPLEAR A UN ABOGADO. SI USTED NO PUEDE PERMITIRSE AL HIRE A UN ABOGADO, ESTA OFICINA PUEDE PODER PROVEER DE USTED LA INFORMACION S013RE LAS AGENCIAS QUE LOS SERVICIOS JURIDICOS DE LA OFERTA DE MAYO A LAS PERSONAS ELEGIBLES EN UN HONORARIO REDUCIDO O NINGUN HONORARIO COURT ADMINISTRATOR 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 Telephone: (717) 240-6200 A, HAND ,Aen OSENBERG,LLP By leld, Esquire I. D. No. 726,63 1300 Linglestown Road Harrisburg PA 17110 (717) 238-2000 Attorneys for Plaintiff(s) F:\wpdocuments\kas\complaints\premisesliability\hole in floor\lynch.wpd CHARLES LYNCH and LISA :IN THE COURT OF COMMON PLEAS OF LYNCH, his wife, :CUMBERLAND COUNTY, :PENNSYLVANIA Plaintiffs V. NO. 03-5343 YINGST HOMES, INC., WHEATLAND CUSTOM HOMES, CIVIL ACTION - LAW INC., AMOS ESH T/D/B/A DEER RIDGE CONSTRUCTION, and BYLER CONSTRUCTION COMPANY, Defendant COMPLAINT AND NOW, comes the Plaintiffs, Charles Lynch and Lisa Lynch by and through their attorneys, HANDLER, HENNING & ROSENBERG, by Stephen Held, Esquire, and bring forth this Complaint against Defendants Yingst Homes, Inc., Wheatland Custom Homes, Inc., Amos Esh t/d/b/a Deer Ridge Construction (hereinafter Deer Ridge Construction), and Byler Construction Company, and avers as follows: 1. Plaintiffs, Charles and Lisa Lynch, are adult individuals residing at 826 Reese Avenue, Hershey, Dauphin County, Pennsylvania, 17033. 2. Defendant, Yingst Homes, Inc., is a corporation registered and established under the laws of Pennsylvania, with a registered office located at 7100 Fishing Creek Valley Road, Harrisburg, Dauphin County, Pennsylvania, 17112. 3. Defendant, Wheatland Custom Homes, Inc., is a corporation registered and established under the laws of Pennsylvania, with a registered office located at 449 Granite Run Drive, Lancaster, Lancaster County, Pennsylvania, 17604. 1 4. Defendant, Deer Ridge Construction, is a corporation registered and established under the laws of Pennsylvania, with a registered office located at 159 A Ridgeview Road, Loysville, Perry County, Pennsylvania, 17047. 5. Defendant, Byler Construction Company, is a corporation registered and established under the laws of Pennsylvania, with a registered office located at RR 2, Box 1245, Port Royal, Juniata County, Pennsylvania. 6. At all times material hereto Yingst Homes, Inc. was in ownership, possession, management, and control of the Premises located at and known as 4034 Caissons Court, Enola, Cumberland County, Pennsylvania, 17025. 7. At all times material hereto Wheatland Custom Homes, Inc. was in ownership, possession, management, and control of the Premises located and known as 4034 Caissons Court, Enola, Cumberland County, Pennsylvania, 17025. 8. At all times material hereto Deer Ridge Construction was in ownership, possession, management, and control of the Premises located and known as 4034 Caissons Court, Enola, Cumberland County, Pennsylvania, 17025. 9. At all times material hereto Byler Construction Company was in ownership, possession, management and control of the Premises located and known as 4034 Caissons Court, Enola, Cumberland County, Pennsylvania, 17025. 10. At all times material hereto, Plaintiff, Charles Lynch, was an invitee upon said Premises. 11. At all times material hereto, Defendants, who had exclusive control of said Premises, allowed an open hole in the floor to exist without a guardrail. 12. At all times material hereto, there were no warning signs posted on the 2 Premises warning of the open hole in the floor. 13. On or about October 27, 2001, Plaintiff, Charles Lynch, was entering the Premises to deliver drywall for the ongoing construction of the Premises. While pulling the drywall on a cart across the floor of the Premises, Plaintiff was caused to fall through the open hole in the floor and land harshly upon the basement floor below, causing personal injuries to the Plaintiff. COUNT I - NEGLIGENCE Charles Lynch v. Yingst Homes, Inc. 14. Paragraphs 1 - 13 are incorporated herein by reference as if fully set forth at length. 15. At all times material hereto, Plaintiff, Charles Lynch, believes and therefore avers that Defendant, Yingst Homes, Inc.,was in possession, management, and control of the Premises and was responsible for maintaining the safe condition of the property known as 4034 Caissons Court, Enola, Cumberland County, Pennsylvania, 17025. 16. At all times material hereto Defendant, Yingst Homes, Inc., assumed the duty to provide a reasonably safe workplace for all individuals who assisted in the construction of the Premises at 4034 Caissons Court, Enola, Cumberland County, Pennsylvania, 17025. 17. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, Charles Lynch, were caused directly and proximately by the negligence of Defendant, Yingst Homes, Inc., by its agents, servants, workmen or employees, acting in the scope of their authority and employment, generally and more specifically as set 3 forth below: (a) In causing or permitting an open hole in the floor of said Premises to remain, thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the premises; (b) In causing or permitting an open hole in the floor to remain without a guardrail when Defendant knew or should have known of the likelihood that the hole in the floor could cause injury; (c) In failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by the open hole in the floor, and thereby allowing the same to be and remain a dangerous condition when the Defendant knew or should have known of it; (d) In failing to ensure the open hole in the floor of said Premises was maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (e) In failing to post a warning sign or device in the area to notify of the dangerous condition of the open hole in the floor of said Premises; (f) In failing to cover or remedy the hole in the floor of said Premises so as to avoid the situation in which the Plaintiff fell; and (g) In failing to maintain the floor of the Premises in a reasonably safe condition that would prevent Charles Lynch from falling through the open hole. (h) In causing or permitting a floor opening measuring twelve inches or 4 more in its least dimension to remain unguarded in the floor of the Premises [29 C.F.R. § 1910.21(a)(2)]; (i) In failing to protect each employee walking on the Premises from falling through the floor opening, which was more than six feet above the basement floor, by not providing a cover or guardrail around the floor opening [29 C.F.R. § 1926.501(b)(4)(i)]; 0) In failing to guard the stairway floor opening with a standard railing or hinged floor opening cover with removable standard railings [29 C.F.R. 1910.23(a)(1)]; (k) In failing to guard the ladderway floor opening or platform by a standard railing with a standard toeboard on all exposed sides [29 C.F.R. § 1910.23(a)(2)]. 18. Defendant, Yingst Homes, Inc., had actual knowledge or should have known through the exercise of ordinary care and diligence that there was an open hole in the floor where Plaintiff, Charles Lynch, fell. 19. As a direct and proximate result of the negligence of Defendant, Yingst Homes, Inc., Plaintiff, Charles Lynch, sustained serious injuries resulting in lower back pain, left shoulder pain, collar bone pain, and left rib pain. 20. As a direct and proximate result of the negligence of Defendant, Yingst Homes, Inc., Plaintiff, Charles Lynch, has undergone great physical pain, discomfort, and mental anguish, and he will continue to enure the same for an indefinite period of time in the future, to his great detriment and loss, physically, emotionally, and financially. 5 21. As a direct and proximate result of the negligence of Defendant, Yingst Homes, Inc., Plaintiff, Charles Lynch, has been, and will in the future be, hindered from attending to his daily duties to his great detriment, loss, humiliation, and embarrassment. 22. As a direct and proximate result of the negligence of Defendant, Yingst Homes, Inc., Plaintiff, Charles Lynch, has, and will in the future, suffer a loss of life's pleasures. 23. As a direct and proximate result of the negligence of Defendant, Yingst Homes, Inc., Plaintiff, Charles Lynch, has suffered lost wages/income and will in the future continue to suffer a loss of income and/or loss of earning capacity. 24. As a direct and proximate result of the negligence of Defendant, Yingst Homes, Inc., Plaintiff, Charles Lynch, has been compelled, in order to affect a cure for the aforesaid injuries, to expend large sums of money for medicine and medical attention and will be required to expend large sums of money for the same purposes in the future, to his great detriment and loss. WHEREFORE, Plaintiff, Charles Lynch, seeks damages from Defendant, Yingst Homes, Inc., in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. COUNT II - NEGLIGENCE Charles Lynch v. Wheatland Custom Homes, Inc. 25. Paragraphs 1 - 24 are incorporated herein by reference as if fully set forth at length. 26. At all times material hereto, Plaintiff, Charles Lynch, believes 6 and therefore avers that Defendant, Wheatland Custom Homes, Inc., was in possession, management, and control of the Premises and was responsible for maintaining the safe condition of the property known as 4034 Caissons Court, Enola, Cumberland County, Pennsylvania, 17025. 27. At all times material hereto Defendant, Wheatland Custom Homes, Inc., assumed the duty to provide a reasonably safe workplace for all individuals who assisted in the construction of the Premises at 4034 Caissons Court, Enola, Cumberland County, Pennsylvania, 17025. 28. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, Charles Lynch, were caused directly and proximately by the negligence of Defendant, Wheatland Custom Homes, Inc., by its agents, servants, workmen or employees, acting in the scope of their authority and employment, generally and more specifically as set forth below: (a) In causing or permitting an open hole in the floor of said Premises to remain, thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the premises; (b) In causing or permitting an open hole in the floor to remain without a guardrail when Defendant knew or should have known of the likelihood that the hole in the floor could cause injury; (c) In failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by the open hole in the floor, and thereby allowing the same to be and remain a dangerous condition when the Defendant knew 7 or should have known of it; (d) In failing to ensure the open hole in the floor of said Premises was maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (e) In failing to post a warning sign or device in the area to notify of the dangerous condition of the open hole in the floor of said Premises; (f) In failing to cover or remedy the open hole in the floor of said Premises so as to avoid the situation in which the Plaintiff fell; and (g) In failing to maintain the floor of the Premises in a reasonably safe condition that would prevent Charles Lynch from falling through the open hole. (h) In causing or permitting a floor opening measuring twelve inches or more in its least dimension to remain unguarded in the floor of the Premises [29 C.F.R. § 1910.21(a)(2)1; (i) In failing to protect each employee walking on the Premises from falling through the floor opening, which was more than six feet above the basement floor, by not providing a cover or guardrail around the floor opening [29 C.F.R. § 1926.501(b)(4)(i)]; (j) In failing to guard the stairway floor opening with a standard railing or hinged floor opening cover with removable standard railings [29 C.F.R. 1910.23(a)(1)]; (k) In failing to guard the ladderway floor opening or platform by a standard railing with a standard toeboard on all exposed sides [29 8 C.F.R. § 1910.23(a)(2)]. 29. Defendant, Wheatland Custom Homes, Inc., had actual knowledge or should have known through the exercise of ordinary care and diligence that there was an open hole in the floor where Plaintiff, Charles Lynch, fell. 30. As a direct and proximate result of the negligence of Defendant, Wheatland Custom Homes, Inc., Plaintiff, Charles Lynch, sustained serious injuries resulting in lower back pain, left shoulder pain, collar bone pain, and left rib pain. 31. As a direct and proximate result of the negligence of Defendant, Wheatland Custom Homes, Inc., Plaintiff, Charles Lynch, has undergone great physical pain, discomfort, and mental anguish, and he will continue to enure the same for an indefinite period of time in the future, to his great detriment and loss, physically, emotionally, and financially. 32. As a direct and proximate result of the negligence of Defendant, Wheatland Custom Homes, Inc., Plaintiff, Charles Lynch, has been, and will in the future be, hindered from attending to his daily duties to his great detriment, loss, humiliation, and embarrassment. 33. As a direct and proximate result of the negligence of Defendant, Wheatland Custom Homes, Inc., Plaintiff, Charles Lynch, has, and will in the future, suffer a loss of life's pleasures. 34. As a direct and proximate result of the negligence of Defendant, Wheatland Custom Homes, Inc., Plaintiff, Charles Lynch, has suffered lost wages/income and will in the future continue to suffer a loss of income and/or loss of earning capacity. 9 35. As a direct and proximate result of the negligence of Defendant, Wheatland Custom Homes, Inc., Plaintiff, Charles Lynch, has been compelled, in order to affect a cure for the aforesaid injuries, to expend large sums of money for medicine and medical attention and will be required to expend large sums of money for the same purposes in the future, to his great detriment and loss. WHEREFORE, Plaintiff, Charles Lynch, seeks damages from Defendant, Wheatland Custom Homes, Inc., in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. COUNT III - NEGLIGENCE Charles Lynch v. Deer Ridge Construction 36. Paragraphs 1 - 35 are incorporated herein by reference as if fully set forth at length. 37. At all times material hereto, Plaintiff, Charles Lynch, believes and therefore avers that Defendant, Deer Ridge Construction, was in possession, management, and control of the Premises and was responsible for maintaining the safe condition of the property known as 4034 Caissons Court, Enola, Cumberland County, Pennsylvania, 17025. 38. At all times material hereto Defendant, Deer Ridge Construction, assumed the duty to provide a reasonably safe workplace for all individuals who assisted in the construction of the Premises at 4034 Caissons Court, Enola, Cumberland County, Pennsylvania, 17025. 39. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, Charles Lynch, were caused directly and proximately by the negligence of 10 Defendant, Deer Ridge Construction, by its agents, servants, workmen or employees, acting in the scope of their authority and employment, generally and more specifically as set forth below: (a) In causing or permitting an open hole in the floor of said Premises to remain, thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the premises; (b) In causing or permitting an open hole in the floor to remain without a guardrail when Defendant knew or, should have known of the likelihood that the open hole in the floor could cause injury; (c) In failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by the open hole in the floor, and thereby allowing the same to be and remain a dangerous condition when the Defendant knew or should have known of it; (d) In failing to ensure the open hole in the floor of said Premises was maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (e) In failing to post a warning sign or device in the area to notify of the dangerous condition of the open hole in the floor of said Premises; (f) In failing to cover or remedy the open hole in the floor of said Premises so as to avoid the situation in which the Plaintiff fell; and (g) In failing to maintain the floor in a reasonably safe condition that would prevent Charles Lynch from falling through the open hole. 11 (h) In causing or permitting a floor opening measuring twelve inches or more in its least dimension to remain unguarded in the floor of the Premises [29 C.F.R. § 1910.21(a)(2)]; (i) In failing to protect each employee walking on the Premises from falling through the floor opening, which was more than six feet above the basement floor, by not providing a cover or guardrail around the floor opening [29 C.F.R. § 1926.501(b)(4)(i)]; (j) In failing to guard the stairway floor opening with a standard railing or hinged floor opening cover with removable standard railings [29 C.F.R. 1910.23(a)(1)]; (k) In failing to guard the ladderway floor opening or platform by a standard railing with a standard toeboard on all exposed sides [29 C.F.R. § 1910.23(a)(2)]. 40. Defendant, Deer Ridge Construction, had actual knowledge or should have known through the exercise of ordinary care and diligence that there was an open hole in the floor where Plaintiff, Charles Lynch, fell. 41. As a direct and proximate result of the negligence of Defendant, Deer Ridge Construction, Plaintiff, Charles Lynch, sustained serious injuries resulting in lower back pain, left shoulder pain, collar bone pain, and left rib pain. 42. As a direct and proximate result of the negligence of Defendant, Deer Ridge Construction, Plaintiff, Charles Lynch, has undergone great physical pain, discomfort, and mental anguish, and he will continue to enure the same for an indefinite period of time in the future, to his great detriment and loss, physically, emotionally, and 12 financially. 43. As a direct and proximate result of the negligence of Defendant, Deer Ridge Construction, Plaintiff, Charles Lynch, has been, and will in the future be, hindered from attending to his daily duties to his great detriment, loss, humiliation, and embarrassment. 44. As a direct and proximate result of the negligence of Defendant, Deer Ridge Construction, Plaintiff, Charles Lynch, has, and will in the future, suffer a loss of life's pleasures. 45. As a direct and proximate result of the negligence of Defendant, Deer Ridge Construction, Plaintiff, Charles Lynch, has suffered lost wages/income and will in the future continue to suffer a loss of income and/or loss of earning capacity. 46. As a direct and proximate result of the negligence of Defendant, Deer Ridge Construction, Plaintiff, Charles Lynch, has been compelled, in order to affect a cure for the aforesaid injuries, to expend large sums of money for medicine and medical attention and will be required to expend large sums of money for the same purposes in the future, to his great detriment and loss. WHEREFORE, Plaintiff, Charles Lynch, seeks damages from Defendant, Deer Ridge Construction, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. COUNT IV - NEGLIGENCE Charles Lynch v. Byler Construction Company 47. Paragraphs 1 - 46 are incorporated herein by reference as if fully set forth at length. 13 48. At all times material hereto, Plaintiff, Charles Lynch, believes and therefore avers that Defendant, Byler Construction Company, was in possession, management and control of the Premises and was responsible for maintaining the safe condition of the property known as 4034 Caissons Court, Enola, Cumberland County, Pennsylvania, 17025. 49. At all times material hereto Defendant, Byler Construction Company, assumed the duty to provide a reasonably safe workplace for all individuals who assisted in the construction of the Premises at 4034 Caissons Court, Enola, Cumberland County, Pennsylvania, 17025. 50. The occurrence of the aforementioned incident and the resulting injuries to Plaintiff, Charles Lynch, were caused directly and proximately by the negligence of Defendant, Byler Construction Company, by its agents, servants, workmen or employees, acting in the scope of their authority and employment, generally and more specifically as set forth below: (a) In causing or permitting an open hole in the floor of said Premises to remain, thereby posing an unreasonable risk of injury to the Plaintiff and to other persons lawfully upon the premises; (b) In causing or permitting an open hole in the floor to remain without a guardrail when Defendant knew or should have known of the likelihood that the open hole in the floor could cause injury; (c) In failing to make a reasonable inspection of said Premises which would have revealed the existence of the dangerous condition posed by the open hole in the floor, and thereby allowing the same 14 to be and remain a dangerous condition when the Defendant knew or should have known of it; (d) In failing to ensure the open hole in the floor of said Premises was maintained in a safe condition to prevent injury to the Plaintiff and other persons lawfully upon the Premises; (e) In failing to post a warning sign or device in the area to notify of the dangerous condition of the open hole in the floor of said Premises; (f) In failing to remove or remedy the open hole in the floor of said Premises so as to avoid the situation in which the Plaintiff fell; and (g) In failing to maintain the floor in a reasonably safe condition that would prevent Charles Lynch from falling through the open hole. (h) In causing or permitting a floor opening measuring twelve inches or more in its least dimension to remain unguarded in the floor of the Premises [29 C.F.R. § 1910.21(a)(2)]; (i) In failing to protect each employee walking on the Premises from falling through the floor opening, which was more than six feet above the basement floor, by not providing a cover or guardrail around the floor opening [29 C.F.R. § 1926.501(b)(4)(i)]; (j) In failing to guard the stairway floor opening with a standard railing or hinged floor opening cover with removable standard railings [29 C.F.R. 1910.23(a)(1)]; (k) In failing to guard the ladderway floor opening or platform by a standard railing with a standard toeboard on all exposed sides [29 15 C.F.R. § 1910.23(a)(2)]. 51. Defendant, Byler Construction Company, had actual knowledge or should have known through the exercise of ordinary care and diligence that there was a hole in the floor where Plaintiff, Charles Lynch, fell. 52. As a direct and proximate result of the negligence of Defendant, Byler Construction Company, Plaintiff, Charles Lynch, sustained serious injuries resulting in lower back pain, left should pain, collar bone pain, and left rib pain. 53. As a direct and proximate result of the negligence of Defendant, Byler Construction Company, Plaintiff, Charles Lynch, has undergone great physical pain, discomfort, and mental anguish, and he will continue to enure the same for an indefinite period of time in the future, to his great detriment and loss, physically, emotionally, and financially. 54. As a direct and proximate result of the negligence of Defendant, Byler Construction Company, Plaintiff, Charles Lynch, has been, and will in the future be, hindered from attending to his daily duties to his great detriment, loss, humiliation, and embarrassment. 55. As a direct and proximate result of the negligence of Defendant, Byler Construction Company, Plaintiff, Charles Lynch, has, and will in the future, suffer a loss of life's pleasures. 56. As a direct and proximate result of the negligence of Defendant, Byler Construction Company, Plaintiff, Charles Lynch, has suffered lost wages/income and will in the future continue to suffer a loss of income and/or, loss of earning capacity. 57. As a direct and proximate result of the negligence of Defendant, Byler 16 Construction Company, Plaintiff, Charles Lynch, has been compelled, in order to affect a cure for the aforesaid injuries, to expend large sums of money for medicine and medical attention and will be required to expend large sums of money for the same purposes in the future, to his great detriment and loss. WHEREFORE, Plaintiff, Charles Lynch, seeks damages from Defendant, Byler Construction Company, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. COUNT V - LOSS OF CONSORTIUM Lisa Lynch v. Yingst Homes, Inc. 58. Paragraphs 1-57 are incorporated herein by reference as if fully set forth at length. 59. As a direct and proximate result of the negligence of Defendant, Yingst Homes, Inc., Plaintiff, Lisa Lynch, has suffered a loss of consortium, society and comfort from her husband, and she may continue to suffer similar loss in the future. 60. As a direct and proximate result of the negligence of Defendant, Yingst Homes, Inc., Plaintiff, Lisa Lynch, has been compelled, in order to affect a cure for her husband's injuries, to expend large sums of money for medicine and medical attention and may be required to expend large sums of money for the same purposes in the future, to her great detriment and loss. WHEREFORE, Plaintiff, Lisa Lynch, seeks damages from the Defendant, Yingst Homes, Inc., in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. 17 COUNT VI - LOSS OF CONSORTIUM Lisa Lynch v. Wheatland Custom Homes, Inc. 61. Paragraphs 1-60 are incorporated herein by reference as if fully set forth at length. 62. As a direct and proximate result of the negligence of Defendant, Wheatland Custom Homes, Inc., Plaintiff, Lisa Lynch, has suffered a loss of consortium, society, and comfort from her husband, and she may continue to suffer similar loss in the future. 63. As a direct and proximate result of the negligence of Defendant, Wheatland Custom Homes, Inc., Plaintiff, Lisa Lynch, has been compelled, in order to affect a cure for her husband's injuries, to expend large sums of money for medicine and medical attention and may be required to expend large sums of money for the same purposes in the future, to her great detriment and loss. WHEREFORE, Plaintiff, Lisa Lynch, seeks damages from the Defendant, Wheatland Custom Homes, Inc., in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. COUNT VII - LOSS OF CONSORTIUM Lisa Lynch v. Deer Ridge Construction 64. Paragraphs 1-63 are incorporated herein by reference as if fully set forth at length. 65. As a direct and proximate result of the negligence of Defendant, Deer Ridge Construction, Plaintiff, Lisa Lynch, has suffered a loss of consortium, society and comfort from her husband, and she may continue to suffer similar loss in the future. 18 66. As a direct and proximate result of the negligence of Defendant, Deer Ridge Construction, Plaintiff, Lisa Lynch, has been compelled, in order to affect a cure for her husband's injuries, to expend large sums of money for medicine and medical attention and may be required to expend large sums of money for the same purposes in the future, to her great detriment and loss. WHEREFORE, Plaintiff, Lisa Lynch, seeks damages from the Defendant, Deer Ridge Construction, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. COUNT VIII - LOSS OF CONSORTIUM Lisa Lynch v. Byler Construction Company 67. Paragraphs 1-66 are incorporated herein by reference as if fully set forth at length. 68. As a direct and proximate result of the negligence of Defendant, Byler Construction Company, Plaintiff, Lisa Lynch, has suffered a loss of consortium, society and comfort from her husband, and she may continue to suffer similar loss in the future. 69. As a direct and proximate result of the negligence of Defendant, Byler Construction Company, Plaintiff, Lisa Lynch, has been compelled, in order to affect a cure for her husband's injuries, to expend large sums of money for medicine and medical attention and may be required to expend large sums of money for the same purposes in the future, to her great detriment and loss. 19 WHEREFORE, Plaintiff, Lisa Lynch, seeks damages from the Defendant, Byler Construction Company, in an amount in excess of the compulsory arbitration limits of Cumberland County, exclusive of interest and costs. Respectfully submitted, Dated: V d 3 HANDLER, HENNING & ROSENBERG Stephen G. Held I.D. # 72663 1300 Linglestown Road P.O. Box 1177 Harrisburg, PA 17108-1177 (717) 238-2000 Attorneys for Plaintiffs 20 VERIFICATION STEPHEN G. HELD, ESQUIRE, states that he is the attorney for the party filing the foregoing document; that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and that he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa C.S. §4904 relating to u.nswom falsification to authorities. S d, Esquire Date: I Oti - 31- D3 CHARLES LYNCH and LISA :IN THE COURT OF COMMON PLEAS OF LYNCH, his wife, :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 03-5343 YINGST HOMES, INC., WHEATLAND . CUSTOM HOMES, INC., AMOS ESH CIVIL ACTION - LAW t/d/b/a DEER RIDGE CONSTRUCTION . and BYLER CONSTRUCTION COMPANY: Defendants CERTIFICATE OF SERVICE On this 31th day of December, 2003, I hereby certify that a true and correct copy of the foregoing Plaintiffs' Complaint was served upon the following by United States Mail, postage prepaid, addressed as follows: Thomas E. Brenner, Esquire GOLDBERG, KATZMAN & SHIPMAN, P.C. 320 Market Street, Strawberry Square P O Box 1268 Harrisburg PA 17108-1268 Yingst Homes, Inc. 7100 Fishing Creek Valley Road Harrisburg PA 17112 Amos Esh t/d/b/a Deer Ridge Construction 159A Ridgeview Road Loysville PA 17047 Byler Construction Company R D 2, Box 1245 Port Royal PA 17082 HANDLER HENNING & ROSENBERG, LLP By t p e G. Held. Esquire nJ ?) o O ?- c.? 'h ( ? :? ?r ' i :T? fT. ? _ _ ? r ? U9 r. T ?.) f?::l ?? '.;" G.. ..L? it ?(: (7 ;` ? f" ?., ? . - ? ?, , -< "; PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) ( ) for JURY trial at the next term of civil court. ( x ) for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) Eric L. Diffenbaugh (Plaintiff) vs. John Burkentine i&/T*0 CarlSensenig (Defendant) vs. (other) (check one) (x ) Assumpsit ( ) Trespass ( ) Trespass (Motor Vehicle) l ) The trial list will be called on and Trials commence on Pretrials will be held on (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 tc local Rule 214-1.) No. 19 Civil 03-5041 Indicate the attorney who will try case for the party who files Phis praecipe: Ron Turo, Esquire Indicate trial counsel for other parties if known: Neil A. Slenker, Esquire Michael J. Hohenadel, Esquire This case is ready for trial. Date: , 2004 Signed: _ /4ztzvv k Print Nam0o Puro, Esquire_ Attorney for: Plaintiff c? c x- ._v., z,- _-, _,- -,-. , ?? ;_: T, _ ' /') ?? Z rr ???1 rte- =.?? ?.,.? ?e T?' ? ? ril y' `:. c? :< ERIC L. DIFFENBAUGH, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. 03-5041 CIVIL CIVIL ACTION - LAV17 JOHN BURKENTINE and CARL SENSENIG, Defendants IN RE: NONJURY TRIAL ORDER AND NOW, this Z o . day of April, 2004, a pretrial conference in the above captioned matter is set for Friday, May 7, 2004, at 9:00 a.m. in the Chambers of the undersigned. BY THE COURT, '04 - Kevin . Hess, J. Ron Turo, Esquire For the Plaintiff Neil A. Slenker, Esquire 0, Michael J. Hohenadel, Esquire For the Defendants Court Administrator Arn i? ? i ERIC L. DIFFENBAUGH, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. 03-5041 CIVIL CIVIL ACTION - LAW JOHN BURKENTINE and CARL SENSENIG, Defendants IN RE: PRETRIAL CONFERENCE Present at a pretrial conference were Ron Turo, Esquire, attorney for the plaintiff; Michael Hohenadel, Esquire, attorney for the defendant, Carl Sensenig; and Neil A. Slenker, Esquire, attorney for the defendant, John Burkentine. The plaintiff has brought this action seeking to recover the sum of $30,000 which he contends is due and owing from the defendants for professional land surveying and engineering services. The defendants essentially admit that he is owed the money but disagree as to which of them is responsible for payment. There is a lawsuit pending in York County between the defendants. In light of a multitude of issues pending between the parties, the defendant, John Burkentine, intends to submit a motion in limine to preclude testimony concerning some of these matters. Mr. Hohenadel agreed that there is much that would be extraneous to this lawsuit. It would appear that much of the plaintiff's case can be the subject of stipulation. The parties will attempt to agree on those matters. In the meantime, nothing will preclude further discovery in the case though it was agreed that July 15, 2004, will be the discovery cut-off. A trial without a jury in this matter is set for August 6, 2004, at 9:30 a.m. May 7, 2004 -;?F A., Kevi A. Hess, J. 4 ry l ll ! .C i 0. 1._LI O S ? Za 61 ?ll???t L-d?`y4001 ?1CC,CHI C'd 20 3C!?ap-a31(? Ron Turo, Esquire For the Plaintiff Neil A. Slenker, Esquire Michael J. Hohenadel, Esquire For the Defendants Court Administrator Am IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ERIC L. DIFFENBAUGH, No. 03-5041 Plaintiff vs. JOHN BURKENTINE and CARL SENSENIG, Defendants CIVIL ACTION - LAW DEFENDANT JOHN B URKENTINE'S MOTION INLIMINE THIS 29th day of July, 2004, comes Defendant John Burkentine to move this Honorable Court for the entry of an Order granting the relief requested below: Factual Background The within action was commenced by Complaint filed by the Plaintiff on September 23, 2003. 2. Defendant John Burkentine (`Burkentine") filed an Answer thereto on October 27, 2003. 3. Defendant Carl Sensenig ("Sensenig") filed an Answer with Cross Claim on October 21, 2003. 4. In response to the cross claim, Defendant Burkentine filed an Answer with New Matter and Cross Claim Pursuant to Pa.R.C.P. 2252(d). The within matter has been assigned to the Honorable Kevin Hess for trial on August 6, 2004. 6. A Pretrial Conference was held before Judge Hess on May 7, 2004. The Plaintiffs claim relates to an Agreement signed by the three parties on April 30, 2000 (the "Agreement"). The Agreement called for Plaintiff Diffenbaugh to provide professional land surveying and engineering services for the initial preliminary plan approvals for a mobile home facility in Cumberland County known as Shippensburg Village. The facility is owned by Shippensburg Village, Ltd, a Pennsylvania corporation owned by the Defendants and their spouses. The agreement was signed by both Defendants. 8. According to the terms of the Agreement, Plaintiff was to be paid a total sum of $60,000 for his services. The Agreement acknowledged that as of the date of its signing, $30,000 had already been paid. The balance of $30,000 was to be paid no later than three (3) years from the date of the Agreement (April 30, 2003). 9. Defendant John Burkentine (`Burkentine") does not dispute the validity of the Agreement with Plaintiff or that the sum of $30,000.00 is due and payable to Plaintiff by Burkentine and Sensenig, and is prepared to make payment of one-half of this amount. 10. Defendant Carl Sensenig ("Sensenig") claims that Burkentine should be solely responsible for the $30,000.00 claimed by the Plaintiff. He argues that the prior payment made to Plaintiff prior to his execution of the Agreement should be credited solely to him, and that Burkentine should be responsible for the remaining $30,000.00. This position has no support in the facts of the case, and contradicts Sensenig's testimony under oath in a related proceeding. 1 The following are the relevant facts with respect to the within dispute between Burkentine and Sensenig: a. Burkentine and Sensenig are partial owners of Shippensburg Village, Ltd., the corporate entity that, as mentioned above, operates the mobile home facility called "Shippensburg Village." The development of the facility was initially pursued solely by ' The Court should note that the Burkentines and the Sensenigs are presently parties to an action pending in York County, Pennsylvania, wherein the Sensenigs seek to remove the Burkentines from the Company's Board of Directors and wherein the Burkentines are seeking, among other things, a court order compelling the dissolution of the Company and the recovery of $600,000.00 from the Sensenigs based upon the misconduct of Carl and Irma Sensenig in their capacity as officers of the Company. The York County action is scheduled for trial before the Honorable John Kennedy on November 19 - 23, 2004. Burkentine. In early 2000, Sensenig joined the project and the corporation was ultimately formed on March 3, 2000. Burkentine and his spouse own 501/6 of the issued stock and Sensenig and his spouse own 50% of the issued stock. Pursuant to an agreement between the parties, Sensenig and his spouse were to make a capital contribution to the Company in the amount of $150,000.00 in exchange for their stock. Per the agreement between the Burkentines and the Sensenigs, rather than have the Sensenigs make payment to the Company of the capital amount, the Sensenigs agreed to pay various Company expenses directly to the Company's creditors. In furtherance of this agreement, the Sensenigs paid debts of the Company totaling roughly $150,000.00. Included in these expenses was a March 4, 2000 payment to the Plaintiff that is referenced in the Agreement. b. Since the March 4, 2000 payment to Plaintiff by the Sensenigs was a portion of their capital contribution to the Company, the Sensenigs cannot now claim that the payment represents Sensenig's satisfaction of his personal liability under the agreement with Plaintiff. Moreover, the April 30, 2004 agreement with Plaintiff was signed after the March 4, 2000 payment was made on behalf of the Company. Thus by signing the agreement after the payment was made, Sensenig acknowledged that he was jointly and severally liable for the remaining $30,000.00 due to Plaintiff. Accordingly, pursuant to the agreement, each Defendant now owes Plaintiff $15,000. C. Defendant Burkentine specifically alleged these facts in his pleadings filed in the within action. I. Motion For Order Precluding The Introduction Of Third Party Witness Testimony and Unidentiried Exhibits. 11. Paragraphs 1 through 10 are incorporated herein by reference. 12. This Court conducted a Pre-Trial Conference on May 7, 2004. 13. At the Pre-Trial Conference, the parties were represented by their counsel, specifically Ron Turo, Esquire on behalf of Plaintiff Diffenbaugh, Michael Hohenadel, Esquire on behalf of Defendant Sensenig, and the undersigned on behalf of Defendant Burkentine. 14. In accordance with Pa.R.C.P. 212.1 and Cumberland County Local Rule 212-4, Defendant Burkentine provided this Court and counsel with a Pre-Trial Memorandum, setting forth, among other things, witnesses to be called at trial, the subject matter of their testimony, and exhibits to be introduced at trial. 15. Counsel for Defendant Sensenig failed to provide the Court or counsel with a Pre-Trial Memorandum designating his witnesses and exhibits for trial. 16. Despite written request and service of formal written discovery, counsel for Defendant Sensenig has failed to identify the witnesses he plans to call at trial, the subject matter of their testimony, and the exhibits he will introduce at trial. 17. As a result of counsel's failure to comply with the Rules of Civil Procedure and failure to respond to the undersigned's written request and written discovery, Defendant Burkentine is unfairly prejudiced in that he has been unable to prepare a defense to Defendant Sensenig's cross claims. Moreover, if Defendant Sensenig is permitted to introduce testimony from third party witnesses and/or introduce exhibits that have not been disclosed pursuant to the rules of court, Defendant Burkentine will be prejudiced in the form of unfair surprise. WHEREFORE, Defendant John Burkentine requests that this Honorable Court enter an Order precluding Defendant Sensenig from calling third party witnesses and from entering any exhibits into evidence at the trial of this matter. 4 H. Motion For Order Precluding Testimony On Shareholder Dispute 18. Paragraphs 1 through 17 are incorporated herein by reference as if set forth at length. 19. In his Cross Claim, Defendant Sensenig admits that the Agreement was signed by the Defendants, and alleges that he is not liable to the Plaintiff because he previously paid $30,000.00 to the Plaintiff. 20. Defendant Sensenig alleges that he is not in breach of tlae Agreement and that if relief is entered in favor of the Plaintiff, then Defendant Burkentine is liable to Plaintiff "by reason of his failure to have made any payment pursuant to the terms of the .Agreement." 21. In the York County action, Defendant Sensenig has made allegations that Defendant Burkentine failed to make the requisite investment in Shippensburg Village, and that as a result, Defendant Burkentine is liable to Defendant Sensenig for the difference between the amount actually invested and the requisite amount. 22. Although the issue of Defendant Burkentine's contribution is being litigated in York County, along with numerous other issues, it has not been raised by Defendant Sensenig in this proceeding. Moreover, the cross claim makes no mention whatsoever of a dispute concerning Defendant Burkentine's investment and contains no allegations against Defendant Burkentine, other than as stated above. Neither did counsel for Defendant Sensenig submit a Pre-Trial Memorandum to this Court and counsel identifying Defendant Burkentine's corporate investment (or lack thereof) or other liability as legal issues to be decided in this proceeding. 23. It is anticipated that Defendant Sensenig may nonetheless try to introduce testimony on these un-pled and unrelated issues in an effort to cloud the limited and straight-forward issues pending in this third-party collection proceeding. 24. The issue of shareholder misconduct as between the Sensenigs and Burkentines is complex and broad in scope. It has led to lengthy discovery concerning the misappropriation of over $300,000.00 by Defendant Sensenig and other related shareholder issues. These issues are being fully addressed in the York County action and, given the lack of pleadings on point, have no relevance here. The only relevant issues as between Defendants Burkentine and Sensenig are those set forth in the pleadings and Pre-Trial Memorandum. 25. If Defendant Sensenig is permitted to introduce testimony concerning these other unrelated shareholder disputes, either as a purported basis for setoff or to otherwise defend against his failure to make payment as agreed, Defendant Burkentine will likewise have to introduce similar testimony and exhibits at trial. Furthermore, these issues will require the introduction of testimony from various third party witnesses over the course of several days. The admission of such testimony into evidence leads to an absurd result whereby the issues that were properly pled in the York County action and scheduled for trial there would be heard by this Court in a case that relates solely to a third party collection against two individuals. This could result in inconsistent verdicts and would raise the issue of res judicata and collateral estoppel in the York County action. 26. Based upon the discussion between counsel at the Pretrial Conference regarding of Defendant Burkentine's intent to file the within Motion, it is presumed that counsel for Defendant Sensenig does not consent to the relief requested. WHEREFORE, Defendant Burkentine requests that this Honorable Court enter an Order precluding Defendant Sensenig from introducing any testimony or exhibits pertaining to the issue of Defendant Burkentine's shareholder investment in Shippensburg Village, Ltd or otherwise 6 pertaining to the shareholder dispute pending in York County. Respectfully submitted, STOCK AND LEADER July 29, 2004 By: Date A. Sleeker, Esquire -? Supreme Court I.D. #77974 Susquehanna Commerce Center East Suite 600 221 West Philadelphia Street York, PA 17404 Telephone: ('717) 846-9800 Fax: (717) 843-6134 7 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ERIC L. DIFFENBAUGH, No. 03-5041 Plaintiff VS. JOHN BURKENTINE and CARL SENSENIG, Defendants CIVIL ACTION - LAW CERTIFICATE OFSERVIC17 AND NOW, this 29th day of July, 2004, I, Neil A. Slenker, Esquire, of the law firm of Stock and Leader, attorneys for Defendant John Burkentine, hereby certify that I served the within MOTION IN LIMINE OF DEFENDANT, JOHN BURKENTINE this day by depositing the same in the United States mail, postage prepaid, in York, Pennsylvania, addressed to: Ron Turo, Esquire TURO LAW OFFICES 28 South Pitt Street Carlisle, PA 17013 Michael J. Hohenadel, Esquire 109 South Market Street Elizabethtown, PA 17022 STOCK AND LEADER By:--- Neil A. Slenker, Esquire Supreme Court LD. #77974 Susquehanna Commerce Center East Suite 600 221 West Philadelphia Street York, PA 17404 Telephone Number: (717) 846-9800 Fax: (717) 843-6134 Attorney for Defendant John Burkentine N G"J l? rv r?, I Renee K. Simpson Deputy Prothonotary Curtis R. Long Prothonotary - of t e ??ot?jo?.otac?cp ??f.tce ?l (Curaberlaub t OUntp John E. Slike Solicitor CIVIL TERM ORDER OF TERMINATION OF COURT CASES OVEMBER 2007 AFTER M SE - T? AgOV ?F REsPON CE WITH PA AND NOW THIS 5TH DAY OF N ACCORDANCE PROCEED AND RECEIVING N INTENTION TO WITH PREJUDICE IN CASE IS HEREBY TERMINATED R C P 230.2. BY THE COURT, CURTIS R. LONG PROTHONOTARY Carlisle, Pennsylvania 17013 (717) 240-6195 • Fax (717) 240-6573 nne Courthouse Square • Carte