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HomeMy WebLinkAbout08-0103COMMONWEALTH OF PENNSYLVANIA r COURT OF COMMON PLEAS Y JUDICIAL DISTRICT NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. p$- d3 0,l Vr) Term NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgement rendered by the District Justice on the date and in the case mentioned below. NAME OF APPELLANT MAG. DIST. NO. OR NAME Or U,1. About Tim Snow Removal 109-3-04 ADDRESS OF APPELLANT CITY STATE ZIP CODE 45 Buck Road Huntingdon Valle- PA 819006 (Defendant) DATE OF JUDGEMENT IN THE CASE OF (Ptainfit) CLAIM I OF vs. Abort Time Snow =0NT HIS ATTORNEY, OR AWtT CV -0000329-07 LT This block will be signed ONLY when this notation is required under Pa. R.C.P.J.P. No. 1008B. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. Signature of Prothonotary or Deputy If appellant was CLA. (see Pa. R.C.P.J.P. No. 1001 (6) in action before District Judge, he MUST FILE A COMPLAINT within twenty (20) days after 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 copy of notice of appeal to be served upon appellee). PRAECIPE: To Prothonotary Enter rule upon Donald M Wood d/b/a Woody's appellee(s), to file a complaint in this appeal Name of appellee(s) (Common Pleas No. Qs3- Its (?.i'Yi 1lerrA ) within twenty (20) days after service of rul r suffer try of judgement of non pros. i 7 Signatu or his attorney or agent RULE: To Donald M. Wood d/b/a Woody's , appellee(s). Name of appellees) (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. (3) The date of service of this rule if service was by mail is the date of mailing. Date: 1 17 /,OQ C15-1w 5 ug I 6r Signature of Prothonotary or Deputy AOPC 312-90 COURT FILE TO BE FILED WITH PROTHONOTARY PROOF F Ft P ..! _. ... ,. ?.. .:. rcGS}( CJQxc";7i COMMONWEALTH OF PENNSYLVANIA COUNTY OF AFFIDAVIT. ' hereby swear or -,ff€rm fh,if i serv .P a copy of the Notice o' Appeal, kCon-mic upui .f,r. his v? Justice des grlated t°s'ret"et } ' r ZN-Y"SCn Ins; ? s is a hL' [t ., (registered) 1,miii, sender's ., !e•ceipt ai",.. _ I -ret') Tip '.1 ------- ---. ___ . _ _ ??r service '? rVf ed) (registered) maii, sender's- receipt attach( ktere-€ . and' further that I served the Rile s=iie Cdr acccnTrl:.-" } re a f,,? Notice of Appeal upon the appeils?pi, , "'VIx n the Rule was addressed c<< - _.____ by personal service .? by (certified) gis'F!red) mail, senders receipt attache! SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF ------ Signature of official before whwn affidavit was made Signature of affiart Title of officiai My commission expires on N o (7 C= f v_l...? ITT r!Y^y.:_ -' 7 r l N "+ Q? v1 v ° D G> { CMAMONWEALTH OF PENNSYLVANIA (`nl INTV nF• CUMBERLAND Mag. Dist. No.: 09-3-04 MDJ Name: Hon. THOMAS A. PLACEY Address: 104 S SPORTING HILL RD MECHANICSBURG, PA Telephone: (717 ) 761-8230 17050 ATTORNEY DEF PRIVATE : SEAN M. GREBE BUCKS CNTY LOUR 124 8 COURT ST DOYLESTOWN, PA 18901 THIS IS TO NOTIFY YOU THAT: DEFAULT J'r1DGKINT PLTF Judgment: NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS I'DONALD M. WOOD DBA: WOODY IS NORTH FRONT ST. ENOLA, PA 17025 L J VS. DEFENDANT: NAME and ADDRESS FA-BOUT BOUT TIME SNOW REMOVAL 45 BUCK ROAD HUNTINGDON VALLEY, PA 19006-1501 L -? Docket No.: CV-0000329-07 Date Filed: 5/29/07 (Date of Judgment) 12/20/07 ® ment was entered for: Jud (Name) DONALD M. WOOD DBA: WOODY' S g Fx1 Judgment was entered against: 1 (Name) 149 0 ABOUT TIME SNOW RZKOVAL in the amount of $ Defendants are jointly and severally liable. Damages will be assessed on Date & Time 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 of Judgment $ 1,061.58 Judgment Costs $ 7 • 7 Interest on Judgment $ .00 Attorney Fees $ .00 Total $ 1,149.05 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 JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE .JUDGMENT HOLDER EL'ECTS.TO ENTER THE JUDGMENT IN THE COURT OF COMMON 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 JUDGMENT4S ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED Ili THE JWGMENT MAY FILE A REQUEST FOWENTRY-OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR-PA? S IN FULL, - SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. 6 IL6 0' Date 7::- , Magisterial District Judge I certify that this is a true ark(correct ?copy t. a,xecaxd.,oJ_tt ,, pcd'..ceedings containing the judgment. ,. n. Date h, Magisterial District Judge My commission expires first Monday of January, 2010 SEAL AOPC 315-07 D Bryan W. Shook, Esquire ID # 203250 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 BShook a:dcdlaw.net Attorney for Plaintiff DONALD WOOD, d/b/a WOODY'S Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. ABOUT TIME SNOW REMOVAL, Defendant : CIVIL ACTION - LAW :No: 08-103 CIVIL TERM NOTICE TO DEFEND 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 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 OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP: CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas signuientes, usted tiene vienta (20) dias de plazo al partir de al fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona a por abogado y archivar en la corte en forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. Sea avisado que si usted no se fefiende, la corte tomara medidas y puede una orden contra usted sin previo aviso o notificacion y por cualquier queja o akuvui que es pedido en la peticion de demanda. Usted puedo parder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DIMERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEPONO A LA OFICINA CUYA DIRECCION SE EMCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSSGUTA ASISTENCIA LEGAL. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 Bryan W. Shook, Esquire ID # 203250 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 BShook'Adcdlaw.net Attorney for Plaintiff DONALD WOOD, d/b/a WOODY'S Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No: 08-103 - CIVIL TERM COMPLAINT AND NOW, comes the Plaintiff, Donald Wood d/b/a Woody's, by and through his attorneys, THE LAW OFFICE OF DARRELL C. DETHLEFS, by Bryan W. Shook, Esquire, and makes the within Complaint against the Defendant, About Time Snow Removal, and, in support thereof, avers as follows: 1. Plaintiff, Donald Wood d/b/a Woody's operates as a business with an office at North Front Street, Enola, Cumberland County, Pennsylvania 17025 2. Defendant, About Time Snow Removal, operates as a business with an office located at 410 Brendwood Drive, Langhorne, Bucks County, Pennsylvania 19047. 3. On or about December 5, 2006 Plaintiff and Defendant entered into a contact in the form of a Service Provider Agreement for Snow Service (a copy of the original contract is attached hereto, made part hereof and marked as Exhibit "A") for snow removal service in and around Dauphin County. 4. Defendant, About Time Snow Removal, has a large number of accounts for which they have contracted for snow removal services. 5. These accounts are serviced primarily by About Time Snow Removal, brokering out the work to independent service providers. 6. At all times material hereto, Plaintiff, Don Wood d/b/a Woody's was one of the aforementioned independent service providers. 7. Plaintiff believes, and, therefore, avers, that Defendant, About Time Snow Removal, had a contract or contracts with The Home Depot to provide snow removal services for store number 4120, Mechanicsburg, Cumberland County, Pennsylvania, store number 4149 Carlisle, Cumberland County, Pennsylvania and the Delco Plaza, York, York County, Pennsylvania. (Copies of this contract are believed, by Plaintiff, to exist however is not attached because Plaintiff is only aware of it, as a matter of course, and is not in possession of it). 8. At all times material hereto, this case arises out of services performed at The Home Depot store numbers 4120 and 4149 and the Delco Plaza, York, York County, Pennsylvania during February 2007. COUNT I - BREACH OF CONTRACT Donald Wood d/b/a Woody's v. About Time Snow Removal 9. Plaintiff incorporates and makes part of this Count, paragraphs 1 through 8 of this Complaint as if fully set forth. 10. Plaintiff invoiced Defendant for the snow removal work performed at the aforementioned The Home Depot store numbers 4120 and 4149 and the Delco Plaza, York, York County, Pennsylvania on several invoices (Copies of all invoices and related time and material sheets referenced below are attached hereto, made part hereof and marked as Exhibit "B") 11. The total amount of the invoices referenced above and billed to Defendant, About Time Snow Removal for The Home Depot store number 4120 is $1,066.58. 12. The total amount of the invoices referenced above and billed to Defendant, About Time Snow Removal for The Home Depot store number 4149 is $161.75. 13. The total amount of the invoices referenced above and billed to Defendant, About Time Snow Removal for the Delco Plaza, York, York County, Pennsylvania is $373.50. 14. Payment of the aforementioned $1,601.83 has been demanded by Plaintiff. 15. To date, no payment on the aforementioned $1,601.83 has been received by Plaintiff. 16. Consequently, by reason of the non-payment of the aforementioned $1,601.83, Defendant has breached its contract with Plaintiff. 17. Plaintiff has been harmed and damaged by not receiving payment of the aforementioned $1,601.83 for snow removal work performed on behalf of Defendant at Plaintiff's time and expense with Plaintiffs manpower and equipment. WHEREFORE, Plaintiff demands judgment against Defendant, About Time Snow Removal, in the amount of $1,601.83 which represents actual damages and expenses incurred by reason of Defendant's breach of contract with respect to the aforementioned snow removal service provider contract plus costs and attorney's fee and any other relief that this Honorable Court deems necessary and just. Dated: 3- cl- 0 6' Respectfully Submitted, Bryan W Shook, Esquire Attorney Id. No.: 203250 2132 Market Street Camp Hill, PA 17011 (717) 975-9446 VERIFICATION I hereby verify that the statements of fact made in the foregoing documents are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are subject to the criminal penalties contained in 18 Pa C. S. Section 4904, relating to unsworn falsification to authorities. Date: A, Donald Wood d/b/a Woody's Bryan W. Shook, Esquire ID # 203250 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 BShook &dcdlaw.net Attorney for Plaintiff DONALD WOOD, d/b/a WOODY'S Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW :No: 08-103 CIVIL TERM CERTIFICATE OF SERVICE Pursuant to agreement of the parties counsel, Defendant's Counsel as agreed to accept service on behalf of Defendant, therefore, I hereby certify that a copy of the foregoing Complaint, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: About Time Snow Removal c/o Sean M. Gresh, Esquire Benstead & Mabon, PC 124 East Court Street Doylestown, PA 18901 Respectfully Submittd, Dated: ti- 0 -7?', 0 we, A 61 Bryan W. Shook, Esquire Attorney Id. No.: 203250 2132 Market Street Camp Hill, PA 17011 (717) 975-9446 Independent Service provider's Agreement, Page I of 3 SNOW REMOVAL 410 Brendwood Drive Langhorne, PA 1904' Service Provider Agreement for Snow Service TERM: This Agreement is made between FHG (C'ompanies, DBA About Time Snow, 410 Brendwood Drive, Langhorne, PA 19047 ((called "ATS") and b.-I L 1X1SZ (Individual's Name) DBA iJIlit.t s (Company Name) (called "service provider") for the 2006-2007 snow season OBJECTIVE: ATS is in the business of providing snowplowing, ice control, and similar services. Over the years it has developed a large number of accounts throughout Langhorne, PA and the surrounding suburban area and is continuously adding additional accounts for these services. These accounts are serviced primarily by ATS brokering out the work to independent service providers who provide their own equipment and perform the actual work. The intent of this agreement is to establish a working relationship between ATS and service provider for this purpose. In order to establish and effectuate this relationship, the parties agree as follows: 1. SERVICE PROVIDER SERVICES. The service provider will be engaged by ATS as an independent and agrees to provide services for ATS's accounts as directed by ATS during the period stated above. The service provider has the following equipment which will be provided, along with a qualified operator, at all times when requested by.ATS: 2. EQUIPMENT Year Make 5. e_ A- OZ-6LI-1 J Model No., Transmission Color/Description Size of Rate per Slade/Bucket hour PAYMENT. a. Snow/Ice Events. ATS will compensate the service provider the rates shown above for the service providers services and/or equipment. It is required that time sheets are to be turned in at the end of each event, no more than 24 hours after each event. If the timesheet is not received within 24 hours at the completion of each event, there will be a 5% penalty for the first day late and then a 1 % for every day after that until the timesheet is received in the office. Each time sheet must be clear, complete and legible; incomplete and illegible time sheets will be returned to the Service provider for correction and re-submittal. All time sheets must be reviewed and approved by a Manager of ATS to be considered complete. On all time sheets, exact times must be recorded in order to receive payment for services performed. Starting and ending times, breaks and down time will be randomly checked with store managers. Payment will be made within 45 days from receipt of the completed and approved time sheet. b. Paper work Submittal. Payment for the first event of the 2006-2007 will not be released until all required paperwork has been submitted to ATS. c. Property Damage. In the event there are any damages done by the service provider to the property of ATS's customers, or poor workmanship that has caused ATS to have to credit the customer's account, these damages will be paid for by the service provider and shall be deducted from any amounts due the service provider. 4. TRAVEL TIME. Service provider will be paid for travel time between the various jobs that have been assigned to them. Agreed rate will begin at time service provider arrives on the 151 job site and will end at completion of the last job. No travel time will be paid from the last job site on the assigned route. ATS will not compensate for "break time` or "downtime". This does not apply to service providers driving equipment owned by ATS. SERVICE PROVIDER'S EXPENSES. Service provider will provide all fuel for their equipment. All maintenance will be at service provider's expense and their equipment is to be properly maintained to avoid breakdown during an urgent snow removal period. Service provider will not be paid when their equipment is broken down or inoperable. SERVICE PROVIDER AND INSURANCE. Service provider is engaged as an independent contractor and will not be considered an employee of ATS. Service provider wili provide their own equipment as noted above, as well as any other tools or supplies which they deem necessary in order to provide the services which service provider is engaged to provide. The service provider must provide transportation for themselves and their employees. The service provider must have a telephone where they can be reached by AT S. The service provider must provide any office or administrative services which they require apart from ATS property and without cost to ATS. The service provider must Independent Service provider's Agreement. Page -2 of provide their own Worker's Compensation insurance for ther , au: for their ernpioyees. T he service provider s-,raust provide auto liability insurance with recommended limits not less than $300,000. The service provider will provide ATS : with appropriate current certificates of insurance. The service provider wil! be responsible for payments to 'heir employees for their work and any withholding. If, for some reason, additional insurance premiums and/or taxes are levied against ATS because of the services provided by the service provider, then those costs will be paid tc ATS by service provider. ATS has the right to withhold any such costs from the service provider's compensation that results in any additional insurance premiums and/or tax, levies against AT S. If t e compensation is not suit ciem enough to cover the costs, then the service provider shail repay ATS within, 30 day's from their receipt of :.once iherecf from ATS. if payment is not made, ATS may proceed to co!lect from the se .Ice provider by iegal process any :ri as service provider shall also be responsible for ATS's reasonable ces s and attorney's fees. m any even;: failure to provide a certificate of insurance will result in 25% of amounts due to service provider being retained by ATS to cover additional insurance premiums that may be levied against Me ;e:n'ice provider by their insurance compen - in o.rder'e adequately insure that apparent uninsured senlice provider. nis retainage w 1f be pad to ?;e service p-c..!der 30 days of receipt of a valid certificate of insurance. and vdii! be paid ;;: the foitova,:ng marine: 15% o` ret4:gage ue to be paid within 30 days of receipt of actual "Certificate of insurance', 10% retainage to ne paid if Ccmprehensive General Liability coverage in the amount of $100,000 is shown e-i "-ie certificate. SUPERVISION. Service provider wilt e responsible fcr vvorli assigned to i im and ',;c e con:r_uc' then sue: and their employees and will provide adequate suoervision for them They wil ,assure th i;e!? +n.ork ar` he v.'orK their employees is provided in a good and workmanlike `ashsor ai,d M c r a„tee wjt,h " - it, tn Z;: o, ATS. Within these limits, service provider may perform, he e„ & ?a see %A, ?e s a ;e;ine5 t;, cr p° n established. They agree to coordinate with AT S anc that h,.. .,:c n, ro o.c..,ee he ?ira _,iness work. However, ATS Will have no obligation to provide supervision ci- coni:rci of service Nprovide: s manner :r performing the work or of their employees. 8. STARTING TIME. Time is of the essence to ATS's customers. The service provider shall keep aware of weatrer conditions and when there is threatening weather, is required to contact their ATS Site Manager via phone or email to indicate that they are ready and available to be dispatched. In the event of the possibility of snowfall the service provider agrees to keep ATS informed of whereabouts and availability if service provider will not be a` their regularly designated phone number. The service provider and equipment small be "rolling" within 30 minutes of the tjrne `:hat ATS gives notice to the service provider. 9. MINIMUM USAGE. ATS will not estimate the nouns o usage fcr the above equipment nor guarantee a -ninimi;n, usage, due to the uncertainty of winter weather patterns. 10. NEW ACCOUNTS. It is understood that ATS has a iarge nuriber of accounts for which it has done work aver the past years and that it is continuously engaged in advertising and sales promotions in an effor_ t ; acquire accounts. Therefore, all accounts for which work is done are acc_unts o- ATS. Serv-ce provider -mav so!ici ew accounts fc- ATS. Such new accounts will be accounts of ATS ere, ihoi:ch < .ey were orocc -ev fG. : ,-5 by s2n:i;.e provider Service provider will receive a commission for all ew accour;. Secure'd by i fG;, ;4" ECi, GGtT:^ tSJ p<,'.._` l8 equai tc 5°c of ATS's gross billings to that account for the first year. T i.e ccrnrnission w:;l be paid On 110z : 15'". providi:,y tt at A T has been paid in full by the account. 11. NON-COMPETE. Because ATS has expendeu .-many ;ea:s age ail, our the accounts which it has, and because Service provider vvi!i "<: olace_' in contact vdit ; tar tincue, accc:.;-t': performing the services under this Agreemen, , service p,r d2s agrees th '..ae VIA: ;lG. .."vii: ^lc A v as employee, Sub-Service provider, service provider or in ar?-u .::ter capacity, ;;L providi-a;; rye services ere subject of this Agreement for any of ATS's customers Tc• - ri `three ;3j year - s - V-- reason whatsoever of their engagement with ATS as an ,r epo r,je ? service provider in an;jttiOr sen? e pro c , not disclose to any other person, or use on, their own behalf, aml customer names or o der confidential inforrnatio- gained from ATS. The parties agree that in the event of service provider's violation of this agreement not. to compete ATS will be entitled to both temporary and permanent injunctions and, at its option, liquidate dam, ages In an amour-, equal to the total gross amount which service provider earns from competing jobs during the three (3) year period a lei termination with ATS, plus ATS's costs of enforcing this Agreement including its Court costs and attorney fees 12. BILLING AND ADVERTISING. ATS will be responsible for bitting customers fcr the work done by service arovi es hereunder and for collecting from those customers. It will continue its advertising and sales promotions activities order to obtain new accounts and main ajn existing accounts. 13. TAXES. ATS will not be responsible for any vviih toi?;lnc, r_,„;',come taxes. Sociai Security, or the tike frog arr ounis cote to service provider under this Agreement. it will not be providing •Norkers Cornperisation insurance or seiv,ce provider. It will not provide any cosriipany bene its of any fcr service provider. ifs obi+ga:ion io Service urov,cer vri,; be solely those set forth in this Agreernent. AT S lv;!i se; c r-c, :o serIii- ,rc orii r 1 -,F a. after the end of the calendar year. Independent Service provider's Agreement, Page -, OF 3 14. TERMINATION. It is the intention: of the parties ! r.. 'I ,. A men? 2r ye in , .}; until terminated by the parties. Service provider `<a ry 'er: is ate tke "green e~,. ?.' t , , notice to ATS. However, when .SITS obtains a ; ! service provider accepts the work, he will not ter, in2'o the A reenienf. exce-' for cam--- completed. completed. ATS may terminate the Agreement ir.ma?; _ for ?, -;- c?! !se 15. CHARGING AGAINST COMPANY. Service pmvidef will _ -name -of c , the purpose of buying or charging fuel, parts, tires or - ae !!at WOU d ir.jre t _ - .y, _ 's here" anything is charged to ATS without authorzaticn. servicn- omv der can expect ATS to' . ;e w•-2feve-'ega' ac'ie- 's necessary to seek reimbursement and wit! be responsible fc- ali expenses incurred by AT S. Asc this %vould be ca, e for termination of this Agreement by A.T& 16. DAMAGES. Service provider understands they will be ft.10v responsible for any damaces :c the oroueq o` art o," ATS's customers which is done by service provider or any of t`'.eir e,mp!oyees. ATS -nay v.-it-hold z Tds o repair sv damage from any amounts owed by ATS to the service provider. If the amount of he damage exceeds a:-,y owed by ATS to the service provider at the time the amount o` ti-ae damage is ascertaired, seen the service provider shall pay over to ATS the difference within 30 days thereafter. If payment is not inade. ATS :may puns ue coilectior by legal means and the Service provider shall then also be responsibie for ATS's costs and attorney fees. 17. MISCELLANEOUS. This Agreement is made in the Ccr ;=anti of ?e a^s;:i+rania 2^ i to r.. ?^?orr to Pennsylvania Law. If any part of the Agreement -e fc is ;2i 't mac. ?i .._: e * =r - V Agreement. The Agreement may be a :ended only by a vlri;in, ::firer ;: ho'n rG ;-S y 18. MODIFICATION. This Agreement shat; not be ros;;:ec ass 2..v sty ; - _ same manner as this Agreement is executed. v vy 19. ENTIRE AGREEMENT. This Agree.--nent contains t e;. .",;,e;, „ obligations, covenants, representations, staternents or Gv;. u,!v ;j, v, t { je{ JiSe, . G f K;. r a transaction. - 20. INTERPRETATION. This Agreement shall be inteTp;elea to such factors as the party who prepared [or caused the .n.s inst.,: -em or re -- LarLia.nir tG power of the parties. 21. AUTHORITY TO BIND. Each party sigr-,mg this Agrca; ne: , rc ;;ess;its ano :var ants to -;,2 tar rariy :r:a. I,- 'ay the full legal power, authority and right to execute, deliver :.his Agreenanent and the party on v? i?ose behalf thay are executing has the full legal power, authority to perform its cbhgaticris under this Agreement, and each patty's performance hereunder and the transaction contemplated hereby have been duly authorized by all requisite actions or, the part of such party, and no remaining action or third party action is required to maKe this Agreement banding upon such party. 22. FACSIMILE. All parties will deem fam,.-riile copies of !his agr eel e ai ac,?ptable. he par:es agree ;G caev, up signed originals. By application of their signature below, the parties acknowiedge that they have rea a :his Agreernent, anaer??ana the Agreement, and have received a copy of it and agree to aoide ;;v tile lei rr;s and cc)ndr fo: is ei eart IN WITNESS WHEREOF, intending to be iegally bounC her °nw oarties her-__, a.,,e s as of the date first above written. 6EKVICE PROVIDER Signature ??- Print Na e 12- /0-b Date Sri.. n a -ae For Office Use Only INCVT Y/N 1 = SUBCONTRACTOR, s/'INFORMATION SHEET' SNOW REMOVAL *** Please complete all fields of information - Thanks *** CONTRACTOR COMPANY INFORMATION (if applicable) COmDanv Name Es Contact Name r,,,,, ?w FTitle N? Street Address J City Ott State/Zip PA »02 s Company Phone/Ext (71 - 3 2- - qc> U3 Company Fax 3 2 _ yoe 3 Cell Phone .,, ,? _ 7G Referred By Website Email SUBCON TRACTOR PERSONAL INFORMA TION Social Security or EIN # 25 - 1(?J2ti15 Insurance Co Name MA"'! A,?'! Ins. Policy # -70&(-'25- Sub Home Address City State/Zip Home Phone Priori Phone Date of Birth 14 -7f Desired Pay $ / hour Previous Plow Co ' Drivers License No. z - - 13-3 Issuin State P i A- Misc Into Dates Not Avail to work Truck & Equipment Type 1. (note: skip only if listed on Independent Contractor's Agreement) # Years Make Check Payable To: 2. 3. 4- 5. 10 4f- n'C,-U, I certify that my answers are true and complete to the best of my knowledge. l understand that false or misleading information given may result in my release. -? Signature: Date: 5--U`zo Mail to About Time Snow Removal, 410 Brendwood Drive, Langhorne, PA 19047, Phone 215-757-8840 Or Fax to 215-757-0143 r F u ` = Oqp est for Taxpayer her ti?i e? ; - Number and Certification in[?rr:d ?.zvrwr x:!ce .... t 2 -. -sss name, it d:fferer.: from atove mr a o ? trcrv?u=V Cia"`c spar -? , Ix Sale proprietor l_7 Co -'Lxa von Pa tnership El Other cx,:?ate oo..: n i ------------------ o r. ? Address (nurnrer, street, and apt- or suite no.) M 1 City, state. and ZIP code D 1 I -7? J-e.-J 06 1 n!,mtseris) here (optional; c, U i on hum be. ?ilii) --- _.,: FN Nrc•E.: ;.. .:v!a c:: the !>ne given on Line t to avoid ?socia4? rnrar?res --ca,.:y ,:ar nber (SSN)_ However, fora resident i _ _ t.. ruc ios on page 3. For other w uu%:S, h is r n. ,. n -a if vo!, c,• r,:r 4s rc? ? number, see fro .t_ a acco. -_ ._ _;re n < na ne, se cr'ar' O';r=ge 4 i'?rc,ia racer ;,e:-asties of pcfi:??y.: certify tno?: I h.: K-;-, F ii F 101 i`., , corraut :.arpay i E:r3d;icabon , tumOer (or i am waiting for a rximbef to be issued to roe), and a, i , ; L. suo ac: to ;ackup witifnclding because. (a) I am exempt from bacimp withholding, or (b) I gave not been notified by the Internal e , . ;e tee- ?f.: "at ? am subject to bac-a:p wit"h?mlding as a result of a failure to report all interest or dividends, or (c) the IRS has .=•:r € -..?::e}rte t to ' r gyp r„ist,::•i4?E?1?. and 3 _ U.., , ?'son iirkGluainq a U.S. resident afien). CCrt`:frc_'Ynn °nsr -ucto; s. Ycu Tost cross out item :2 Novi i11 you have been notified by the IRS that you are cunentiy subject to backup h soiding because you have failed to report all interest and dividends on your tax return. For real estate hansachans, item 2 does not apply. For mortgage interest paid, acquisRion or abandonment of secured property, cancellation of debt, contribubons ID an kxkvidttaf retirement arraryrye!alent (iF?}, a =ri generally, payments other than interest and dvidends, you are not required to sign the Certification, but you must orovirie your correct TIM (See the instructions on page 4.) sigil j iig„ah,re aF ,? 12 8 ere , us Person fa Date P_ H Purpose of Fora A oerso; < .no is required to file an information r et r; ,Ath `he must obtain: your _-3 Tect taxpayer identification number 7N) 'x;7 , inco,mne r84 to You, t.lnco ,i „? J^yn !eres: y:' _ Paid, acquisif "n -. 2_,_?: .. rt .. .... •r••y??;-s:, ? •??t•?a,E.E,??L,.* n..-4ten'• nr orc, rw- HO4! CC''•rr . _ _._ _ ..., zi?„i, 1Rric:.=.::Oatlie. Ii'' flat-:t1o Wit. tioldino ;)aciwic, w4ohoidir:y if yo;- a ti 8 u. . e, em at payee. U a- .. , P ,our a fo.nm o?her th.=:? Fort! 14r-9 to s r-, .; t (: is fZC7U:'S' 1?;._e- e is ,j:;L' ... ?::L :I:;? ciic rc3tyiieS'tcr•':: _. i, suosta,y-idly s:.^dar tc iris Form Vr-9_ s.e : ya• are :)sitie:eC a pe:scr: if you ?s7c- e Ar, Mdivioual wao s a cnizen or resident of isle United States, A partnership, cc: oration, company, or association created or organized in the United States or under the laws of the United States, or Give form to the requester. Do not send to the tRS witt*ioldinq Requester's name and address (opborml) w to get a 17N on page 3. or ,4nes on whose number ?rM+A? er r?rnher Io12- Ig 1-7 15- 6 Any estate (other than a foreign estate) or bust. See Regulations sections 301.7701-6(a) and 7(a) for additional ;nformaiion_ Foreign person. If you are a foreign person, do not use Form W-9. instead, use the appropriate Form W-8 (see Publication 515, Withholding of Tax on Nonresident Aliens and Foreign Entities). Nonresident alien who becomes a resilient alien. Generally, only a nonresident alien individual may use the Teems of a tax treaty to reduce or eliminate U.S_ tax on certain types of income- However, most tax treaties contain a provision known as a "saving clause." Exceptions specfied in, tr,e saving clause may permit an exemption from tax to continue for certain types of income even after the recipient has otherwise become a U.S. resident alien for tax purposes. if you are a U.S. resident alien who is relying on an exception contained in the saving louse of a tax treaty to claim an exemption from U.S. tax on certain types of income, you must attach a $t3tement to Form W-9 that specifies the following five items: 1. The treaty country. Generally, this must be the same treaty under which you claimed exemption from tax as a nonresident alien. The treaty article addressing the income. 3. The article number (or location) in the tax treaty that contains the saving clause and its exceptions. Cat No. f±)231X Form W-9 (Rev- 1-2005) Dec-08-06 11:04A THE McDONOUGH AGENCY 717 938 9514 XE 7316 I Company Name CERTIFICATE OF INSURANCE National Liability & Fire ins 3024 Harney Street • Omaha. Nebraska 68131-3580 P_O1 This certificate of in$Urahce is NOT an insurance policy and does not amend, extend or alter the coverage afforded by the policies listed herwn Notwithstanding any r uwremerst. term or condition o1 any contract or other document with respect to which this certificate may be issued or may pertain; the insurance forded by the POIKies described herein is subject to all the terms. exclusions and conditions of such policies which may substantially limit coverage Where reference is made to an Aggregate Lamm. those limits are Company's maximum liability under the Policy for the entire policy period regardless of tits number of insureds, cb+manb or occurrences NAME OF INSURED P.O. ADDRESS _ Date 12/07/06 NALD K WOOD T/A WOODY S FRONT F POLICY NUMBER KINDS OF INSURANCE LIMITS EFFECTIVE EXPIRES COMMERCIAL GENERAL LIA61L11Y ? Occurrence Form ? Claims-Made Form Coverages 0 Premises-Opwatrons ? ProductsiComplivied Operations ? Other (Specify) 73TRE708625 73 TRE708625 General Aggregate Limit Products-Con?pletedOperatrom Aggregate Limit Pee umal A Advertising Injury 1 and Each Occurrence Limit Fire Damage Limit (Any One Fire) Medical E gmnse Limit {Any One Person) Aggregate Lim it on Clarets Expenses AUTOMOBILE LIA8111TY S S s S S S s_ Noddy Intuty Each Person $ EachAaident S `-- - Property Damage Each Accident s - - - Bodilylnqury and Property Damage Combined Single Lim it S 1,000, 000 GARAGE LIABILITY Roddy Injury and Property Damage Auto Only Other than Auto Combined Single Lovirt S, S Aggregate Limit S Garagelieepenlnsiuance Legal Liability ? Duect Excess S ? Direct Primary 1 EXCESS LIABILITY ? Automobile ? General Liability Name of Primary Insurer: Primary Limits S Excess Lanus S " -- General Aggregate Lures $ 11 Aggregate Limit inckmve of Claims Expenses - Other UM- 35. 000 UIM-35. 000 Specifle mart-stOrWerd ¦ nr. *...?.......? __ eltdorserrtertts which cosy be restrictive o 07/11/2006-07/11/2007 07/11/2006-07/11/2007 in natum. 1991 FRSIGA MF K TRACTOR VINN# 1PUUPDSS?SA655904 1989 KENWORTH CTOR VINN 1 MH395896 SA- 7.000 DED, 1000 / 1988 INTERNATI AL ?B9XLKJ522335 1000 DUMP TRUCK VINN 1HTZLDDR6JH541560 un the event of any nnijtena I change in or cancellation of said policies, the COMPANY intends to, but is not oblga thiscertitiote n adc ir01414 Of such change or canceIlatxm and COMPANY u ndertakes "V0' q r red to. Wordy the party to whom This Certificate ijSS?jed SpM% by rlason of any failure todoso FHG COMPANIES, LLC T/A ABOUT FINE SNOW REMOVAL LANGHORNE FA 19 1.ANGTfoRlilE FA 19047 By Title P- RESIDE M-too?Nist! WOODY's Don Wood N. Front Street West Fairview, PA 17025 Office (717) 732-4083 171 Date 2- 3 & Phone (" t 7 ? -?' go Name Address "-/ /O 0 City, State, Zip Lc..2? ?^ ?? t ?? 12v `l 7 DATE DESCRIPTION PRICE 2 a'7 W3e ,)4 sk: -- 7 0ra.t- yl3f qiC - CAP 45 A,. x- a.J- q113 _ X113 7 ?? 2u 2-9 ::U c412 D TOTAL 6 --^-' THANK YOU REORDER FORM A247901 ILA 2,o D ?z1 Z r n K z O 2 .i ? { U ? _ O A p . N ? C T L 1 S _ a m m < zQ?O . o io ? of ?Zpflw n O y - Q p ? F pQ I .fry6 Q T R1 1i a g G 7 C't . T 0 C n C CR z r' a 3:. s OVA R C a O 7 :k m y T' CH? O Z Z O ? 0 m Z ^ N rn V ??NCcr,n S2 ~ 1 x ? T = n 'F ? 1f :A y ` 7 c O fi ? G 00 a o? l { m } c Eh i y y T J f n rn I I x O 4 a 4 L 9 a w ..i .. _ .:_....1 .t it ?.. .v o l?n t 4 1- i { 1 i ' i t ! ; 1 ! I k i i f 1 V !n a o 0 o d of m t?va C c V im m f z -? r { 4 ? N?ir 1? ? ?w I to N N N . _ -a 1 -, 1 ? ? ? rn w ? d ?- C [ d L. c0 m; i'. >v; Ri- F -?. ?rtA { i ? I ?--? r y g} i 1 ? I .n g ?1Aill rt. n ' pp F< rn 12 to O rn In, l? a rn r,. l ' v` O -n `rn r :? w r { ? i m r Z r < ?? i alt that apply x 0 C ,. N w d ( L G ( , ! i 4 c C ~ k d m in W s. ?` ? f `?' ? t t ? f j ` C N o z 1 n ? M n 9 z d -- OIL a C-1 L4 iz ?r t r -? oo .S1 vi o v 00 o [fw ^?. ? J W ?Nl? _ S v CE 3" I ?C C ?J c d n? z j IN I I a t y W '? r 0 0 Nan a' rt ?? N i vv W ?n V J a z v a ? y N N acs a J } O J? U G4 r Ct C 0 C? y m C N n N ? 'LS C ti r N O s N d f vv. 7 '`f G n a a z d c y n ?v y N N 'fl h v) r?1 V rnrn? vw m ?wz d ? V C win a v W N d c" c o rf ? O v '?b ... o p ? o W ?No 00 0. O V W N v O t ? p Z CTI 00 -m 7+r L t • r ?i f3 t CD CO 7:1. < A=b -. ? rt': ? ?' 1 i ? `t c It ?< ;? 00 ? ,•?? '?.._., i J ? 'F•,Z f ' -GD ? ° ?_ man 2 t i 1 1 C co TV --?,4, v-i Ck- y--{ i is ; i 1 , tEf} re, J y-o s C? tD •-? Zit: + CJ rP i n i5 L Do 7 70 -+ O r 1 h i • ?,,,..?,--^.."'" It ,-?„ O L ?. j Vi py ;c T -n •C ! ?? Cif C, t `' o Omn Ii c4r ``1 % ?' }m r? +?p? Jg rF 3 m i t ??p j Ti i r-71" 'it `?.,?:- -_`?,,..J---.'. _ - ', ? •.` ,? "? e `, a 1111{ ,{ ' , a', t ,- ?> 1 1 all trim' of r. ^) :n 0 C; - CD i Q) 0 G' Cvmo1 rG'-" Z m m a D Jl ! zAcz= i 0 -n m ^?7 D DZ -l ' Q r=.-. _ ---? L 2 m <m n ? Q m0io D r ^ co J - u' s- - X T-u TI CrI m in S = fI 70 fz- u' n m -2: :z0,fO :^ Z :z Cf) :21 o L ? L (Jj rl r O C' M I.J r G J wJ n " { ( It { ( * y D iD Cc? V -? f y D j • V?. j J !> -'T X41 IJ- i f` -..\ f C.• iC. ('?1 :n I- D trr, X ? !n iD M Z (D iC 5 1 r I m i CJ { I 10 s i IN I m (A j o i t ?\ t f I ° D , 10 7 1 t f y 1 '.! -a- v • r? --r ,?s. ? ? . l,. { .i?:va. s ? . . i: . ? .r _ .i . . . 2 -. • v .. . . '?f . :++p4 .+n?"T?!T!..•f a -?' Z3 J Mr. ! i (•? 1 . Ci ( ! DC"J p o G7 v7, ' Z Y" ? n o `F ? . C) Q ? In i d co O m t? <? +?,•- ' r x 1 cn m o ' i; CTI D i =. i o 0-- CIO A i i 1 ( i I y iCID ?X? (mi m Fil, i (3 X 1 c l ! m ?f io ( k• f I? t; !tt ?a I? i r- i t) fA -u ,a Ci 0 i0 !mc m f "xx" all.. that apply ?sc El ' vl cr .e ? Z ? rn o S ? _ zmrn .Cl j i -j r L i r- zDp f { Cn C) G ?+ -r i 4 _ O n U C4 ? m < r C D co = ^c T ? r I` N 1T?r rr1 V [L = rns--a n 0 7 ?c C ? S y f't 7 J ? ;zoo > Cl) --i O F t7-n Cr r A cn m ? c ? J Z) f) a i I Ir ID cr `J 1? i X S i G d C G -C ! csa 'm i v } ! t ' `? I ! 1 f t A O M1 l I ? ? I ? , { ; j + I w V ? i i t i J I i ! l ? l . "`! Ica ' w v ? `? ' ??? ???; -?.._-?-.1,_ j ? r F ?' v` C v? `? :' I I m ic- 71 N {? f i Z? z i4' uw. 1 r_J ? ., (7 ICJ rD i-? 1 r J •L '7 ;7 !? 7' i';J .7 / ,_ { !Z ?7 ?Z i^ Z O 1.,L J` J!(n 10-0 ---- 7- T _-- a - n. -?. I I ;T { J O v V" ? " !O D T iD r E:l ` m F 5 cn { m O L z _ C^. 0C < r 1 ? ?c?? m IT i F->O- I: rn l? >a 3 !^J ii ! s: C itt I ? M1 I X' "xx" ail that apply CCC n? c ? ? c J 71 3 vt ; n D>zU'I j ; f I ? .= T L@ t i ? ; J ? 4 ? ! X17 i . c ti r mfrs s > > - I c -- - -- - Z C> ^' f ;o? u. ,.r cn !.? 1 a .. +? cr. !r. !n tG^. ?4J G? !C i ! { .75 • :? ;u - is ;o fo im n ! t I ?? _?ex,•e ,.°_:. i ? ..?'i. - _ ? ``irk. _?=-3 .'•'Sx:'? 'M.l„• hTJ .:"`'%?n•'!S' ri; r A c ,? ! p p IO r 1 f? < - - 10 cf) 37 - T- n - n I '•xx" all that apply WOODY'S 196 Don Wood @ & N. Front Street -? West Fairview, PA 17025 `? Office (717) 732-4083 Date 2 7 1 /1 Phone 75-7 s `/c Name Address `"Il O n' ??v"C 6a City, State, Zip DATE DESCRIPTION PRICE ?c -4 Zv o7 1 '/z 144 / I z c cio A/K Ar: ?r; oc TOTAL y 37F THANKYOU r 4 a.re?w?? mn ..Rn REORDER FORM #247901 -- ----- - _ r 0 - { _zt 10 co O l < P is. (? it 1 m -' c -CM y il.+ r OJ t j C, I v v- C C? Z -i t? I - j • ;? + f 'u Z m j Z i +1 i ?1 i a o C O n! ? I I ! i I ' ' i ? ! w a D H D?_Zti'j F y i 1 i ! nl G TI I ' ' i t I 0 > > ED o '? D r n ! t T rr, C) LOIN _ co F!3 i i > I:n m 'c` e { cr. T G^. +oi !acn CD C l7 J If IZ iZ 1Z 1L iL (fff{Q Ii? `f I .. i zr -n cr, 17 v ? S ` i f Ot cq F, On D i t m i_ r I -4 i T _ _ _ Z aZ i? < i i L 1 l 1' -? j r ?O I v r I j- j N Cn m I l - -- _ ??_ - i "Yx" ail that aooly w 1i _ z. r1 v' r > -7 - n 77, -G . 7 - - _ a i m L O t • fi w 0 (D - rz N e 1 j ? v i V, y r 1, ?, - u 1 r r ! !t v - fr, ' r> ? 12 ?r i i =.x aii that acoi 0 a •C::) M r can, ;t, n o ?s o ?..A z 40 A ? -Ant J ? ? A c: N fi ONE ? O s r o a 1 -0 C -1:41 e) O .14 1 M?,?? a C T Ir IC CS Nr°,, o ?' 3 t mat " cD Z ?U 0, x eo - 1 ' V r1 14 CIO 1 1 M r- M s? N N C ? u zoo Ao o C ,77 ri ti BENSTEAD & MABON, P.C. Attorney for Defendant By: Sean M. Gresh, Esquire Attorney I.D. #90107 124 East Court Street Doylestown, PA 18901 (215) 345-9100 COURT OF COMMON PLEAS-CUMBERLAND COUNTY CIVIL ACTION-LAW DOANLD WOOD, d/b/a WOODY'S No.: 08-103 CIVIL TERM Plaintiff vs. ATTORNEY I.D. #90107 ABOUT TIME SNOW REMOVAL Defendant DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant, About Time Snow Removal, by and through its attorney Sean M. Gresh, Esquire, and with him the Law Offices of Benstead & Mabon, P.C., who respectfully states and avers as follows: 1. Admitted. 2. Admitted. 3. Admitted in part, Denied in part. It is admitted that there was a contract entered into on or about December 5, 2006. However, the remaining allegations are denied as they refer to a document that speaks for itself and to which no addition response is necessary. 4. Denied. The allegations set forth in this paragraph is a conclusion of law to which no response is necessary. Strict proof is demanded at the time of trial on this matter. 5. Admitted in that Defendant does utilize subcontractors to fulfill its contractual agreements. 6. Admitted in that Donald Wood d/b/a Woody's was a subcontractor utilized by Defendant to fulfill its contractual obligations. 7. Admitted. 8. Admitted in part, Denied in part. It is admitted that the allegations as they arise concerning this specific case concerns performance of services at Home Depot store number 4120 and 4149. It is denied, however, that the issues in this case arise solely from the performance of those stores. COUNT I-BREACH OF CONTRACT Donald Wood d/b/a Woody's v. About Time Snow Removal 9. Defendant incorporates by reference the Answer set forth in Paragraphs 1 through 8 above as though set forth in length herein. 10. Denied. The allegations in this paragraph refer to documents that speak for themselves and to which no additional response is necessary. 11. Denied. This averment refers to documents that speak for themselves and to which no additional response is necessary. 12. Denied. This averment refers to documents that speak for themselves and to which no additional response is necessary. 13. Denied. This averment refers to documents that speak for themselves and to which no additional response is necessary. 14. Admitted. 15. Denied. After reasonable investigation, About Time Snow Removal is without sufficient information to form a belief as to the truth of the allegation contained in this paragraph. Strict proof is demanded at the time of trial on this matter. 16. Denied. The allegation in this paragraph represents a conclusion of law to which no response is necessary. Strict proof is demanded at the time of trial on this matter. 17. Denied. The allegation in this paragraph represents a conclusion of law to which no response is necessary. Strict proof is demanded at the time of trial on this matter. WHEREFORE, the Defendant About Time Snow Removal respectfully requests this Honorable Court dismiss the Defendant's Complaint, with prejudice. NEW MATTER 18. Defendant's incorporates the preceding paragraphs as set forth more fully herein. 19. Plaintiff's claims are barred in whole or in part by the ethical statutes of limitations. 20. Plaintiff s claims are barred in whole or in part by the doctrine of the court in satisfaction. 21. Plaintiff s claims are barred in whole or in part by the doctrine of latches. 22. Plaintiff s claims are barred in whole or in part by the doctrine of collateral estoppel. 23. Plaintiff s claims are barred in whole or in part by the doctrine of promissory estoppel. 24. Plaintiff's claims are barred in whole or in part by the failure of performance and/or consideration. WHEREFORE, the Defendant About Time Snow Removal respectfully requests this Honorable Court dismiss the Plaintiff's Complaint, with prejudice. COUNTERCLAIM About Time Snow Removal vs. Donald Wood d/b/a Woody's COUNT I- BREACH OF CONTRACT 25. Defendant incorporates the preceding paragraphs as set forth more fully herein. 26. Plaintiff and Defendant entered into a contract wherein Donald Wood d/b/a Woody's agreed to provide snow removal services to client's About Time Snow Removal. A copy of this document is attached to Plaintiff's initial complaint as Exhibit «A" 27. This contract called for Plaintiff to provide snow removal services at Home Depot stores number 4120. 28. On or about February 14, 2007 a snow event occurred wherein Plaintiff was to provide said services at Home Depot number 4120 pursuant to its contract with Defendant. 29. It is believed and therefore averred that Plaintiff Donald Wood d/b/a Woody's did in fact attempt to render services at Home Depot number 4120 during said snow event. 30. Plaintiff failed to complete this task to the specifications and needs of Home Depot number 4120. 31. Plaintiff's services rendered under this contract were deemed incomplete and insufficient by Home Depot as well as the Defendant, About Time Snow Removal, thus causing Home Depot to call for an emergency excavation service from another service provider. 32. It is believed and therefore averred that Home Depot called upon Liberty Excavators and Tower Cleaning to perform said emergency service on or about February 14, 2007. 33. Home Depot's need to utilize the services of both Liberty Excavators and Tower Cleaning were a direct result of the failure of Plaintiff Donald Wood d/b/a Woody's to provide service in accordance with its contract with Defendant, About Time Snow Removal. 34. It is believed and therefore averred that after Tower Cleaning and Liberty Excavators provided these emergency services to Home Depot, Home Depot then charged Defendant, About Time Snow Removal the sum of Ten Thousand Four Hundred Eight Dollars ($10,408.00) in payment to these service providers pursuant to About Time Snow Removal agreement with Home Depot number 4120. 35. Thus, as a direct result of the Plaintiff's breach of contract with the Defendant, the Defendant has suffered damages in the amount of Ten Thousand Four Hundred Eight Dollars ($10,408.00) WHEREFORE, the Defendant, About Time Snow Removal demands judgment against Plaintiff, Donald Wood, d/b/a Woody's in the amount of Ten Thousand Four Hundred Eight Dollars ($10,408.00) which represents actual damages and expenses incurred by reason of Plaintiff s breach of contract in respect to the aforementioned snow removal service provider contract plus costs and attorney's fees and any other relieved this Honorable Court deems necessary and just. Respectfully Submitted, BENSTEArr- Sean PCBY: a M. resh, Esquire, quire Date: April 8, 2008 Attorney for Defendant, About Time Snow Removal ATTORNEY SUBSTITUTE VERIFICATION Sean M. Gresh, Esquire, Attorney for Defendant, About Time Snow Removal, being duly sworn according to law, deposes and says that he is authorized to take this affidavit on behalf of the Defendant and that the facts contained in the foregoing pleading are true and correct to the best of his knowledge, information and belief. He further understands that false statements made herein are subject to the penalties of 18 PA. C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: April 8, 2008 / SEAN M. GRESH, ESQUIRE Attorney I.D. #90107 9A ?Y u n Bryan W. Shook, Esquire ID # 203250 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 BShookLddcdlaw. net Attorney for Plaintiff DONALD WOOD, d/b/a WOODY'S Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. ABOUT TIME SNOW REMOVAL, Defendant : CIVIL ACTION - LAW :No: 08-103 CIVIL TERM NOTICE TO DEFEND 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 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 OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP: CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas signuientes, usted tiene vienta (20) dias de plazo al partir de al fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona a por abogado y archivar en la corte en forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. Sea avisado que si usted no se fefiende, la corte tomara medidas y puede una Orden contra usted sin previo aviso o notificacion y por cualquier queja o akuvui que es pedido en la peticion de demanda. Usted puedo parder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. Sl NO TIENE ABOGADO O SI NO TIENE EL DIMERO SURCIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEPONO A LA OFICINA CUYA DIRECCION SE EMCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSSGUTA ASISTENCIA LEGAL. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 Bryan W. Shook, Esquire ID # 203250 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 BShook:ii-dcdlaw.net Attorney for Plaintiff DONALD WOOD, d/b/a WOODY'S Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. ABOUT TIME SNOW REMOVAL, Defendant : CIVIL ACTION - LAW : No: 08-103 CIVIL TERM To: About Time Snow Removal c/o Sean M. Gresh, Esquire Benstead & Mabon, P.C. 124 East Court Street Doylestown, PA 18901 You are hereby notified to file a written response to the enclosed New Matter & Counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. QJ Ae'l Bryan . Shook, Esquire Bryan W. Shook, Esquire ID # 203250 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 BShookrrvdcdlaw.net Attorney for Plaintiff DONALD WOOD, d/b/a WOODY'S Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. ABOUT TIME SNOW REMOVAL, Defendant : CIVIL ACTION - LAW : No: 08-103 - CIVIL TERM PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER AND COUNTERCLAIM. PLAINTIFF'S NEW MATTER TO DEFENDANT'S COUNTERCLAIM AND PLAINTIFF'S COUNTERCLAIM TO DEFENDANT'S COUNTERCLAIM AND NOW, comes the Plaintiff, Donald Wood, d/b/a Woody's, by and through his attorneys, THE LAW OFFICE OF DARRELL C. DETHLEFS, by Bryan W. Shook, Esquire, who answers Defendant's New Matter and Counterclaim, brings forth New Matter to Defendant's Counterclaim and by reason of issues raised and facts averred in Defendant's Counterclaim, Plaintiff brings forth his Counterclaim to Defendant's Counterclaim as follows: 18. Paragraph 18 being a paragraph of incorporation does not require a response. 19. The averments in Paragraph 19 of Defendant's New Matter contain conclusions of law to which no response is required. However, if it is judicially determined that a response is required, the averments are specifically denied, with strict proof thereof demanded at the time of trial. By way of further argument, Defendant does not allege sufficient facts to support this allegation. 20. The averments in Paragraph 20 of Defendant's New Matter contain conclusions of law to which no response is required. However, if it is judicially determined that a response is required, the averments are specifically denied, with strict proof thereof demanded at the time of trial. By way of further argument, Defendant does not allege sufficient facts to support this allegation. 21. The averments in Paragraph 21 of Defendant's New Matter contain conclusions of law to which no response is required. However, if it is judicially determined that a response is required, the averments are specifically denied, with strict proof thereof demanded at the time of trial. By way of further argument, Defendant does not allege sufficient facts to support this allegation. 22. The averments in Paragraph 22 of Defendant's New Matter contain conclusions of law to which no response is required. However, if it is judicially determined that a response is required, the averments are specifically denied, with strict proof thereof demanded at the time of trial. By way of further argument, Defendant does not allege sufficient facts to support this allegation. 23. The averments in Paragraph 23 of Defendant's New Matter contain conclusions of law to which no response is required. However, if it is judicially determined that a response is required, the averments are specifically denied, with strict proof thereof demanded at the time of trial. By way of further argument, Defendant does not allege sufficient facts to support this allegation. 24. The averments in Paragraph 24 of Defendant's New Matter contain conclusions of law to which no response is required. However, if it is judicially determined that a response is required, the averments are specifically denied, with strict proof thereof demanded at the time of trial. By way of further argument, Defendant does not allege sufficient facts to support this allegation. WHEREFORE, Plaintiff, Donald Wood d/b/a Woody's, respectfully requests that this Honorable Court dismiss Defendant's New Matter and enter judgment in his favor. PLAINTIFF'S RESPONSE TO DEFENDANT'S COUNTERCLAIM Count I - Breach of Contract 25. Paragraph 25 being a paragraph of incorporation does not require a response. 26. Denied. By way of clarification, on or about December 5, 2006 Plaintiff and Defendant entered into a contact in the form of a Service Provider Agreement for Snow Service (a copy of the original contract is attached and marked as Exhibit "A" to Plaintiff's Complaint) for snow removal service in and around Dauphin, York & Cumberland Counties. Defendant, About Time Snow Removal, has a large number of accounts for which they have contracted for snow removal services. These accounts are serviced primarily by About Time Snow Removal, brokering out the work to independent service providers. 27.Admitted in Part and Denied in Part. This allegation is denied as stated. This allegation refers to a document that speaks for itself and to which no additional response is necessary. If the court deems that an additional response is necessary, this allegation is denied and Plaintiff respectfully submits that the aforementioned contract was a service provider agreement to perform snow removal services, as requested, by Defendant, About Time Snow Removal. By way of further argument, at no place in the aforementioned contact is there specific mention of snow removal services to be provided at Home Depot store number 4120, Mechanicsburg, Cumberland County, Pennsylvania. It is admitted however, that on or about February 14, 2007 a snow and ice event occurred wherein Plaintiff was contacted by Defendant to provide services at Home Depot 4120 pursuant to the aforementioned contact with Defendant. It is additionally argued that Invoice # 3018 dated 2/3/2007 covers services provided during a period of time prior to the February 14, 2007 snow and ice event. Similarly, invoice # 3083 cover services provided during a period of time after February 14, 2007. (Copies of all aforementioned invoices are attached as Exhibit "B" to Plaintiff's Complaint.) Furthermore, pursuant to the contract between Plaintiff and Defendant, Plaintiff provided snow removal services for Defendant in Dauphin, York and Cumberland counties in Pennsylvania. 28.Admitted in Part and Denied in Part. This allegation is denied as stated. This allegation refers to a document that speaks for itself and to which no additional response is necessary. If the court deems that an additional response is necessary, this allegation is denied and Plaintiff respectfully submits that the aforementioned contract was a service provider agreement to perform snow removal services, as requested, by Defendant, About Time Snow Removal. By way of further argument, at no place in the aforementioned contact is there specific mention of snow removal services to be provided at Home Depot store number 4120, Mechanicsburg, Cumberland County, Pennsylvania. It is admitted however, that on or about February 14, 2007 a snow and ice event occurred wherein Plaintiff was contacted by Defendant to provide services at Home Depot 4120 pursuant to the aforementioned contact with Defendant. It is additionally argued that Invoice # 3018 dated 2/3/2007 covers services provided during a period of time prior to the February 14, 2007 snow and ice event. Similarly, invoice # 3083 cover services provided during a period of time after February 14, 2007. (Copies of all aforementioned invoices are attached as Exhibit "B" to Plaintiff's Complaint.) Furthermore, pursuant to the contract between Plaintiff and Defendant, Plaintiff provided snow removal services for Defendant in Dauphin, York and Cumberland counties in Pennsylvania. Any reference to Plaintiff attempting to render services or any inference or reference that the work was incomplete and/or insufficient is specifically denied with strict proof thereof demanded at time of trial. 29.Admitted in Part and Denied in Part. It is admitted that Plaintiff did render services at Home Depot 4120 during the February 14, 2007 snow and ice event. The fact that Plaintiff did render services at Home Depot 4120 is further evidenced by Exhibit B to Plaintiffs Complaint namely invoices showing work which was completed at 4120. Any reference to Plaintiff attempting to render services or any inference or reference that the work was incomplete and/or insufficient is specifically denied with strict proof thereof demanded at time of trial. 30. The averments in Paragraph 30 of Defendant's Counterclaim contain conclusions of law to which no response is required. However, if it is judicially determined that a response is required, the averments are specifically denied, with strict proof thereof demanded at the time of trial. Additionally, there is no mention in the aforementioned contract that a condition precedent to payment for Plaintiff's services, provided, be the satisfactory performance of Plaintiff, as determined by the end-client; in this case, the Home Depot store 4120 or Defendant. By way of further argument, Defendant does not allege sufficient facts to support this allegation. 31.The averments in Paragraph 31 of Defendant's Counterclaim contain conclusions of law to which no response is required. However, if it is judicially determined that a response is required, the averments are specifically denied, with strict proof thereof demanded at the time of trial. Additionally, there is no mention in the aforementioned contract that a condition precedent to payment for Plaintiff's services, provided, be the satisfactory performance of Plaintiff, as determined by the end-client; in this case, the Home Depot store 4120 or Defendant. By way of further argument, Defendant does not allege sufficient facts to support this allegation. Furthermore, after reasonable investigation, Plaintiff is without sufficient knowledge to property respond to this allegation. 32. The averments in Paragraph 32 of Defendant's Counterclaim contain conclusions of law to which no response is required. However, if it is judicially determined that a response is required, the averments are specifically denied, with strict proof thereof demanded at the time of trial. By way of further argument, Defendant does not allege sufficient facts to support this allegation. Additionally, after reasonable investigation, Plaintiff is without sufficient knowledge to property respond to this allegation. 33. The averments in Paragraph 33 of Defendant's Counterclaim contain conclusions of law to which no response is required. However, if it is judicially determined that a response is required, the averments are specifically denied, with strict proof thereof demanded at the time of trial. Additionally, there is no mention in the aforementioned contract that a condition precedent to payment for Plaintiff's services, provided, be the satisfactory performance of Plaintiff, as determined by the end-client; in this case, the Home Depot store 4120 or Defendant. By way of further argument, Defendant does not allege sufficient facts to support this allegation. Furthermore, after reasonable investigation, Plaintiff is without sufficient knowledge to property respond to this allegation. 34. The averments in Paragraph 34 of Defendant's New Matter contain conclusions of law to which no response is required. However, if it is judicially determined that a response is required, the averments are specifically denied, with strict proof thereof demanded at the time of trial. By way of further argument, Defendant does not allege sufficient facts to support this allegation. Additionally, after reasonable investigation, Plaintiff is without sufficient knowledge to property respond to this allegation. Furthermore, Defendant has failed to attach or provide Plaintiff with a copy of the contract and/or agreement between Defendant and Home Depot number 4120. 35. The averments in Paragraph 35 of Defendant's New Matter contain conclusions of law to which no response is required. However, if it is judicially determined that a response is required, the averments are specifically denied, with strict proof thereof demanded at the time of trial. By way of further argument, Defendant does not allege sufficient facts to support this allegation. Additionally, after reasonable investigation, Plaintiff is without sufficient knowledge to property respond to this allegation. WHEREFORE, Plaintiff, Donald Wood d/b/a Woody's, respectfully requests that this Honorable Court dismiss Defendant's Counterclaim and enter judgment in his favor. PLAINTIFF'S NEW MATTER TO DEFENDANT'S COUNTERCLAIM 36. Plaintiff incorporates and makes part hereof the preceding paragraphs as if fully set forth herein. 37. Defendant's Counterclaim is barred by doctrine of laches. 38. Defendant's Counterclaim is barred by the doctrine of res judicata. 39. Defendant's Counterclaim is barred by the doctrine of estoppel. 40. Defendant's Counterclaim is barred by the doctrine of waiver. 41. Defendant's Counterclaim is barred in whole or in party by the ethical statute of limitations. 42. Defendant's Counterclaim is barred by Plaintiff's performance pursuant to the aforementioned contract entered into between Plaintiff and Defendant. 43. Defendant's Counterclaim is barred by the Contractor and Subcontractor Payment Act, 73 Pa. C.S. § 501, et seq., hereinafter the "CSPA." 44. Defendant is a "Contractor" as defined by the CSPA. 45. Plaintiff is a "Subcontractor" as defined by the CSPA. 46. The CSPA is applicable to the Snow Service contract entered into between Plaintiff and Defendant. 47. Plaintiff fully executed his duties pursuant to the contract. 48. Plaintiff is not in breach of the contract. 49. Plaintiff provided snow removal services pursuant to the contract on February 14, 2007 and on several other dates. 50. Pursuant to 73 Pa. C.S. § 504, performance by Plaintiff, in accordance with the provisions of the contract entitle Plaintiff to payment from the Defendant. 51. Plaintiff invoiced Defendant for work completed by Plaintiff as provided for under the contract. 52. The work completed by Plaintiff is more specifically detailed in Plaintiffs Complaint and evidence more specifically through the invoices attached to Plaintiff's Complaint as Exhibit "B." 53. To date Plaintiff has not been paid by Defendant for aforementioned work completed. 54. Defendant did not notify Plaintiff of any deficiency of Plaintiffs work within seven calendar days after receipt of the notice of the deficiency item pursuant to 73 Pa. C.S. § 511, therefore, Defendant is barred from withholding payment from Plaintiff and is further barred from asserting a counterclaim for $5,580.00 for work allegedly completed by another company. 55. Pursuant to the terms of the aforementioned contract, Defendant is barred from their requested remedy. 56. Pursuant to the terms of the aforementioned contract, Defendant is barred from withholding payment based upon determinations of quality and/or sufficiency of work performed. 57. There is no mention in the aforementioned contract that a condition precedent to payment for Plaintiffs services, provided, be the satisfactory performance of Plaintiff, as determined by the end-client; in this case, the Home Depot store 4120 or Defendant. 58. Defendant, as a going concern in the snow removal business, knew or should have known that a significant snow and ice event, such as that which occurred on or about February 14, 2007 may have the effect of making snow and ice remediation attempts unsuccessful. 59. Defendant, as a going concern in the snow removal business, knew or should have known that several major interstates such as 1-78 and the Pennsylvania Turnpike were closed for all or a portion of February 14, 2007 by reason of the inclement weather related to the snow and ice event that occurred on or about February 14, 2007. 60.A proclamation of disaster emergency was signed into effect and issued by Edward G. Rendell, Governor of the Commonwealth of Pennsylvania relative to the snow and ice event of February 14, 2007 on or about February 15, 2007. WHEREFORE, Plaintiff, Donald Wood d/b/a Woody's, respectfully requests that this Honorable Court enter judgment against Defendant, About Time Snow Removal, in the amount of $1,601.83 which represents actual damages and expenses incurred by reason of Defendant's breach of contract with respect to the aforementioned snow removal service provider contract plus costs and attorney's fee and any other relief that this Honorable Court deems necessary and just. PLAINTIFF'S COUNTERCLAIM TO DEFENDANT'S COUNTERCLAIM 61. Plaintiff incorporates and makes part hereof the preceding paragraphs as if fully set forth herein. 62. Plaintiff sets forth this instant Counterclaim by reason of issues raised and facts alleged in Defendant's Counterclaim. 63. Pursuant to the facts alleged in Defendant's Counterclaim Plaintiff hereby alleges this Counterclaim of Defendant's Counterclaim pursuant Contractor and Subcontractor Payment Act, 73 Pa. C.S. § 501, et seq., hereinafter the "CSPA." 64. Defendant is a "Contractor" as defined by the CSPA. 65. Plaintiff is a "Subcontractor" as defined by the CSPA. 66. The CSPA is applicable to the Snow Service contract entered into between Plaintiff and Defendant. 67. Plaintiff fully executed his duties pursuant to the contract. 68. Plaintiff is not in breach of the contract. 69. Plaintiff provided snow removal services pursuant to the contract on February 14, 2007 and several other dates. 70. There is no mention in the aforementioned contract that a condition precedent to payment for Plaintiffs services, provided, be the satisfactory performance of Plaintiff, as determined by the end-client; in this case, the Home Depot store 4120 or Defendant. 71. Pursuant to 73 Pa. C.S. § 504, performance by Plaintiff, in accordance with the provisions of the contract entitle Plaintiff to payment from the Defendant. 72. Plaintiff invoiced Defendant for work completed by Plaintiff as provided for under the contract. 73. The work completed by Plaintiff is more specifically detailed in Plaintiff's Complaint and evidence more specifically through the invoices attached to Plaintiff's Complaint as Exhibit "B." 74. To date Plaintiff has not been paid by Defendant for aforementioned work completed. 75. Plaintiff learned that Defendant's dissatisfaction with Plaintiffs work was the reason for nonpayment to Plaintiff by Defendant, constructively on April 14, 2008, the date upon which Defendant's Counterclaim was filed. 76. Defendant did not notify Plaintiff of any deficiency of Plaintiffs work within seven calendar days after receipt of the notice of the deficiency item pursuant to 73 Pa. C.S. § 511, therefore, Defendant is barred from withholding payment from Plaintiff and is further barred from asserting a counterclaim for $10,408.00 for work allegedly completed by another company. 77. As a result of Defendant's failure to comply with the CSPA, Plaintiff is entitled to recover the following quantifiable damages: a. Interest from April 1, 2007, the date established by the CSPA (14 calendar days after issuance of the final invoice at a rate of 1 % per month pursuant to 73 Pa. C.S. § 507(d). b. A penalty for failure to comply with the CSPA equal to 1 % per month of the amount wrongfully withheld pursuant to 73 Pa. C.S. § 512(a). c. An award of attorney's fees, costs and expenses to Plaintiff as the prevailing party in this proceeding pursuant to 73 Pa. C.S. § 512(b). WHEREFORE, Plaintiff, Donald Wood d/b/a Woody's, respectfully requests that this Honorable Court enter judgment against Defendant, About Time Snow Removal, in the amount of $1,601.83 with a penalty of 1% from April 1, 2007 per month pursuant to 73 Pa. C. S. § 507(d). A penalty for failure to comply with the CSPA equal to 1 % per month of the amount wrongfully withheld pursuant to 73 Pa. C.S. § 512(a) and an award of attorney's fees, costs and expenses to Plaintiff as the prevailing party in this proceeding pursuant to 73 Pa. C.S. § 512(b). Respectfully Submitted: Date: S -c- a OO 3 Bryan W. Shook, Esquire I D# 203250 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant VERIFICATION 1, Donald Wood d/b/a Woody's, hereby verify that the statements of fact made in the foregoing documents are true and correct to the best of my knowledge, information and belief. i understand that any false statements therein are subject to the criminal penalties contained in 18 Pa C. S. Section 4904, relating to unsworn falsification to authorities. Date: May 4, , 2008 (Zaql - Donald Wood d/b/a Woody's Bryan W. Shook, Esquire ID # 203250 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 BShook ti,dcdlaw.net Attorney for Defendant DONALD WOOD, d/b/a WOODY'S : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW ABOUT TIME SNOW REMOVAL, : No: 08-103 - CIVIL TERM Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing pleading, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: About Time Snow Removal c/o Sean M. Gresh, Esquire Benstead & Mabon, P.C. 124 East Court Street Doylestown, PA 18901 Respectfully Submitted, Dated: S I&, Bryan W Shook, Esquire Attorney Id. No.: 203250 2132 Market Street Camp Hill, PA 17011 (717) 975-9446 r-41 C7 BENSTEAD & MABON, P.C. By: Sean M. Gresh, Esquire Attorney I.D. #90107 124 East Court Street Doylestown, PA 18901 (215) 345-9100 Attorney for Defendant COURT OF COMMON PLEAS-CUMBERLAND COUNTY CIVIL ACTION-LAW DOANLD WOOD, d/b/a WOODY'S Plaintiff vs. ABOUT TIME SNOW REMOVAL Defendant No.: 08-103 CIVIL TERM ATTORNEY I.D. #90107 DEFENDANT, ABOUT TIME SNOW REMOVAL'S RESPONSE TO PLAINTIFF'S NEW MATTER TO DEFENDANT'S COUNTERCLAIM AND NOW, comes Defendant, About Time Snow Removal, by and through its attorney Sean M. Gresh, Esquire, and with him the Law Offices of Benstead & Mabon, P.C., who respectfully states and avers as follows: 36. This paragraph is one of incorporation to which no response is required. 37. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 38. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 39. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 40. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 41. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 42. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 43. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 44. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 45. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 46. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 47. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 48. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 49. Admitted in part, Denied in part. It is admitted that Plaintiff did provide snow removal services. It is denied, however, these services were provided appropriately and in the manner set out under the contract. 50. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 51. Admitted in part, Denied in part. It is admitted that Plaintiff did invoice Defendant for work allegedly completed. However, it is specifically denied that said work was completed and/or completed within the provisions of the contract. 52. Admitted in part, Denied in part. It is admitted that Exhibit "B" of Plaintiff's initial Complaint details Plaintiff alleged invoices under the contract. It is denied that those invoices constitute work appropriately completed under the contract. 53. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 54. Denied. After reasonable investigation, the Defendant is without sufficient knowledge to ascertain the truth or veracity of this allegation. By way of further answer and denial, the contents of this paragraph represent a conclusion of law to which no additional response is required. 55. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 56. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 57. Denied. The allegations in this paragraph refer to a document which speaks for itself and no additional response is required. 58. Denied. After reasonable investigation, the Defendant is without sufficient knowledge to ascertain the truth or veracity of this statement. Strict proof is demanded at the time of trial of this matter. 59. Denied. After reasonable investigation, the Defendant is without sufficient knowledge to ascertain the truth or veracity of this statement. Strict proof is demanded at the time of trial of this matter. 60. Admitted. WHEREFORE, the Defendant respectfully requests this Honorable Court dismiss the Plaintiff's New Matter, with prejudice. DEFENDANT'S RESPONSE TO PLAINTIFF'S COUNTERCLAIM 61. Defendant incorporates and makes part hereof the preceding paragraphs as if fully set forth herein. 62. Denied. After reasonable investigation, the Defendant is without sufficient knowledge to ascertain the truth or veracity of this allegation. Strict proof is demanded at the time of trial on this matter. 63. Denied. After reasonable investigation, the Defendant is without sufficient knowledge to ascertain the truth or veracity of this allegation. Strict proof is demanded at the time of trial on this matter. 64. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 65. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 66. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 67. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 68. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 69. Admitted in part, Denied in part. It is admitted that Plaintiff invoiced the Defendant for having provided snow removal services. It is denied, however, that these services were rendered in a manner called for and agreed to under the contract. 70. Denied. The allegation in this paragraph refer to a document which speaks for itself and to which no additional response is required. 71. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 72. Admitted in part, Denied in part. It is admitted that the Plaintiff invoiced the Defendant for work allegedly completed. It is denied, however, this work was completed and/or completed in an appropriate manner under the contract. 73. Admitted in part, Denied in part. It is admitted that Exhibit "B" of Plaintiff's initial Complaint details Plaintiff alleged invoices under the contract. It is denied that those invoices constitute work appropriately completed under the contract. 74. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 75. Denied. After reasonable investigation, the Defendant is without sufficient knowledge to ascertain the truth or veracity of this allegation. 76. Denied. After reasonable investigation, the Defendant is without sufficient information to ascertain the truth or veracity of the allegations in this paragraph. Strict proof is demanded at the time of trial on this matter. By way of further answer and denial, the allegations raised in this paragraph represent a conclusion of law to which no additional response is required. 77. Denied. The allegations set forth in this paragraph are conclusions or law to which no additional response is required. WHEREFORE, the Defendant respectfully requests this Honorable Court deny and dismiss Plaintiff's Counterclaim, with prejudice. Respectfully Submitted, BENSTEAD & MABON, P.C. BY: Sean M. Gresh, Esquire, Esquire Date: May 30, 2008 Attorney for Defendant, About Time Snow Removal VERIFICATION I, STEPHEN SUMMER, verify that the statements made herein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. 4904 relating to unsworn falsification to authorities. DATE: 4-3-OF STEPHEN SUMMER CADocuments and Settings\lroche.ATS\Local Settings\Temporary Internet Files\Content.Outlook\6UTKITJ 1 \Verification.doc BENSTEAD & MABON, P.C. By: Sean M. Gresh, Esquire Attorney I.D. #90107 124 East Court Street Doylestown, PA 18901 (215) 345-9100 Attorney for Defendant COURT OF COMMON PLEAS-CUMBERLAND COUNTY CIVIL ACTION-LAW DOANLD WOOD, d/b/a WOODY' S Plaintiff vs. ABOUT TIME SNOW REMOVAL Defendant No.: 08-103 CIVIL TERM ATTORNEY I.D. #90107 CERTIFICATE OF SERVICE AND NOW, this 4c" day of June, 2008, a true and correct copy of Defendant's Response to Plaintiff's New Matter to Defendant's Counterclaim, was served upon Plaintiff's attorney, Bryan W. Shook, Esquire, via first class mail, as follows: Bryan W. Shook, Esquire 2132 Market Street Camp Hill, PA 17011 Respectfully Submitted, BENSTEAD & MABON, P.C. BY: Sean M. Gresh, Esquire, Es TOW, Attorney for Defendant, About Time Snow Removal .:: ON a O 07 Bryan W. Shook, Esquire ID # 203250 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 BShook@dcdlaw.net Attorney for Plaintiff Sean M. Gresh, Esquire ID # 90107 BENSTEAD & MABON, P.C. 124 East Court Street Doylestown, PA 18901 Telephone - (215) 345-9100 Fax - (215) 230-0771 SGresh"ueksLaw.com Attorney for Defendant DONALD WOOD, d/b/a WOODY'S : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, No: 2008-103 Defendant DONALD WOOD, d/b/a WOODY'S : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, No: 20084491 Defendant DONALD WOOD, d/b/a WOODY'S : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, No: 2008-4492 Defendant JOINT PETITION FOR CONSOLIDATION Pursuant to Pennsylvania Rule of Civil Procedure No. 213(a), Plaintiff, Donald Wood d/b/a Woody's, by and through his attorneys, The Law Offices of Darrell C. Dethlefs, by Bryan W. Shook, Esquire and Defendant, About Time Snow Removal, by and through their attorneys, Benstead & Mabon, P.C., by Sean Gresh, Esquire, jointly petition this Honorable Court to enter an Order permitting consolidation of the above-captioned actions for purposes of trial and in support avers as follows: 1. At all times material hereto, Plaintiff's principal place of business was North Front Street, Enola, Cumberland County, Pennsylvania 17025. 2. At all times material hereto, Defendant's principal place of business was 410 Brendwood Drive, Langhorne, Bucks County, Pennsylvania 19047. 3. All of the above captioned maters arise out a single contract entered into in Cumberland County, Pennsylvania. (A true and correct copy of this contract is attached to Plaintiff's Complaint, in both matters, and marked as Exhibit "A"). 4. The aforementioned contract called for Plaintiff to provide snow removal services for Defendant, as an independent contractor, whenever Defendant contacted Plaintiff throughout the snow season of 2006/2007. 5. The work performed under the contract was performed in Dauphin County, York County and Cumberland County, Pennsylvania. 6. Docket Number 2008-103 was commenced before the Honorable Thomas A. Placey, Magisterial District Number 09-3-04 on May 29, 2007. 7. Docket Number 2008-4491 was commenced before the Honorable Michael J. Smith, Magisterial District Number 12-2-01 on May 29, 2007 in Dauphin County, Pennsylvania. 8. Upon appeal of the Judgment in favor of Plaintiff, Donald Wood d/b/a Woody's, the case was assigned Docket Number 2007-CV-10211-DJ in the Court of Common Pleas of Dauphin County and was according transferred to this Honorable Court (2008-4491) pursuant to an Order of the Honorable Bruce Batton on July 1, 2008. 9. Docket Number 2008-4492 was commenced before the Honorable Joseph S. Lindsey, Magisterial District Number 12-1-06 on May 29, 2007 in Dauphin County, Pennsylvania. 10. Upon appeal of the Judgment in favor of Plaintiff, Donald Wood d/b/a Woody's, the case was assigned Docket Number 2007-CV-9906-DJ in the Court of Common Pleas of Dauphin County and was according transferred to this Honorable Court (2008-4492) pursuant to an Order of the Honorable Bruce Batton on July 1, 2008. 11. Defendant timely appealed all judgments and Plaintiff timely filed the respective Complaints. 12. All pleadings are closed with respect to the above-captioned matters. 13. i ki causes of action arise from the same contract, consolidation is proper and appropriate. 14. Absent consolidation, the possibility exists for inconsistent verdicts. 15. The consolidation of these two actions will not prejudice the substantial rights of any of the parties. It will be in the best interest of the parties and the Court to consolidate and resolve all three causes of action at one trial, since all of the causes of action are premised on the same contract. 16. Copies of this petition have been served on all counsel and parties in both cases. 17. Although concurrence of Defendants is anticipated, Plaintifr's counsel was unable to specifically obtain concurrence of Defendants through Defendant's counsel, Sean M. Gresh, Esquire, by reason of Attorney Gresh being out of the office through August 3, 2008. WHEREFORE, Donald Wood d/b/a Woody's and About Time Snow Removal, jointly and respectfully request that this Honorable Court order consolidation of these cases for trial. Resp Ily?Su9bmitted, Bryan %. Shook, Esquire Attorney for Plaintiff Respectfu Submitted, Sean M. Gresh, Esquir Attorney for Defendant r co ^" ? r + ?'' C rj' Ck:; AUG 19 2008 DONALD WOOD, d/b/a WOODY'S : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW ABOUT TIME SNOW REMOVAL, : No; 2008-103 Defendant DONALD WOOD, "/a WOODY'S : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, : No: 20084491 Defendant DONALD WOOD, d/b/a WOODY'S : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, : No: 20084492 Defendant ; AND NOW, on this the 41 day of T2008, upon the Joint Petition of --- Donald Wood d/b/a Woody's and About Time Snow Removal, it is HEREBY ORDERED that the above captioned cases are CONSOLIDATED for the purposes of trial in this matter. 6? - 0 0? CO 1 L} Q DONALD WOOD, d/b/a WOODY'S IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW ABOUT TIME SNOW REMOVAL, No: 2008-103 ? Defendant DONALD WOOD, d/b/a WOODY'S IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW ABOUT TIME SNOW REMOVAL, No: 2008-4491 Defendant DONALD WOOD, d/b/a WOODY'S IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW ABOUT TIME SNOW REMOVAL, No: 2008-4492 Defendant ORDER AND NOW this, the day of , 200_, upon consideration of Plaintiff's Motion for Judgment on the Pleadings, Judgment is hereby entered, in favor of Plaintiff, Donald Wood d/b/a Woody's and against Defendant, About Time Snow Removal, in the amount of $11,556.55 (which is derived from $1,601.81 requested in Docket No. 2008-103, $5,824.28 requested in Docket No. 2008-4491 and $4,130.44 requested in Docket No. 2008-4492), plus interest from April 1, 2007, the date established by the CSPA (14 calendar days after issuance of the final invoice at a rate of 1 % per month pursuant to 73 Pa. C.S. § 507(d); plus a penalty for failure to comply with the CSPA equal to 1 % per month of the amount wrongfully withheld pursuant to 73 Pa. C.S. § 512(a); plus an award of attorney's fees, costs and expenses to Plaintiff as the prevailing party in this proceeding pursuant to 73 Pa. C.S. § 512(b). BY THE COURT: J. I Bryan W. Shook, Esquire ID # 203250 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 BShook?&i;dcdhm.net Attorney for Plaintiff DONALD WOOD, d/b/a WOODY'S IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW ABOUT TIME SNOW REMOVAL, No: 2008-103 Defendant DONALD WOOD, d/b/a WOODY'S IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW ABOUT TIME SNOW REMOVAL, No: 2008-4491 Defendant DONALD WOOD, d/b/a WOODY'S IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW ABOUT TIME SNOW REMOVAL, No: 2008-4492 Defendant PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW comes the Plaintiff, Donald Wood, d/b/a Woody's, by and through his Attorneys, The Law Office of Darrell C. Dethlefs, by Bryan W. Shook, Esquire, who motions this Honorable Court pursuant to Pa. R.C.P. 1034 to enter Judgment on the I i Pleadings against Defendant, About Time Snow Removal, and in support thereof avers as follows: 1. At all times material hereto, Plaintiff's principal place of business was North Front Street, Enola, Cumberland County, Pennsylvania 17025. 2. At all times material hereto, Defendant's principal place of business was 410 Brendwood Drive, Langhorne, Bucks County, Pennsylvania 19047. 3. Pursuant to C.C.R.P. 208.3(a)(9) the concurrence of opposing counsel was not sought in this matter. 4. Docket Number 2008-103 was commenced before the Honorable Thomas A. Placey, Magisterial District Number 09-3-04 on May 29, 2007. 5. Upon appeal of the Judgment in favor of Plaintiff, Donald Wood d/b/a Woody's, the case was assigned Docket Number 2008-103 in the Court of Common Pleas of Cumberland County. 6. A Complaint in Docket Number 2008-103 was filed on March 4, 2008. 7. An Answer with New Matter and Counterclaim was filed by Defendant, in Docket Number 2008-103, on April 14, 2008. 8. An Answer to Defendant's New Matter and Counterclaim and New Matter and a Counterclaim to Defendant's Counterclaim was filed by Plaintiff, in Docket Number 2008-103, on or about May 6, 2008. 9. An Answer to Plaintiff's New Matter and Counterclaim to Defendant's Counterclaim was filed by Defendant on June 6, 2008. s 10. Docket Number 2008-4491 was commenced before the Honorable Michael J. Smith, Magisterial District Number 12-2-01, on May 29, 2007 in Dauphin County, Pennsylvania. 11. Upon appeal of the Judgment in favor of Plaintiff, Donald Wood d/b/a Woody's, the case was assigned Docket Number 2007-CV-10211-DJ in the Court of Common Pleas of Dauphin County and was according transferred to this Honorable Court (Docket Number 2008-4491) pursuant to an Order of the Honorable Bruce Batton on July 1, 2008. 12.A Complaint in Docket Number 2008-4491 was filed on November 27, 2007. 13. An Amended Complaint in Docket Number 2008-4491 was filed on February 11, 2008. 14. An Answer with New Matter and Counterclaim was filed by Defendant, in Docket Number 2008-4491, on April 10, 2008. 15.An Answer to Defendant's New Matter and Counterclaim and New Matter and a Counterclaim to Defendant's Counterclaim was filed by Plaintiff, in Docket Number 2008-4491, on or about May 6, 2008. 16.An Answer to Plaintiff's New Matter and Counterclaim to Defendant's Counterclaim was filed by Defendant on June 6, 2008. 17. Docket Number 2008-4492 was commenced before the Honorable Joseph S. Lindsey, Magisterial District Number 12-1-06, on May 29, 2007 in Dauphin County, Pennsylvania. 18. Upon appeal of the Judgment in favor of Plaintiff, Donald Wood d/b/a Woody's, the case was assigned Docket Number 2007-CV-9906-DJ in the Court of Common Pleas of Dauphin County and was according transferred to this Honorable Court (2008-4492) pursuant to an Order of the Honorable Judge Bratton on July 1, 2008. 19.A Complaint in Docket Number 2008-4492 was filed on November 27, 2007. 20. An Amended Complaint in Docket Number 2008-4492 was filed on February 11, 2008. 21.An Answer with New Matter and Counterclaim was filed by Defendant, in Docket Number 2008-4492, on April 10, 2008. 22.An Answer to Defendant's New Matter and Counterclaim and New Matter and a Counterclaim to Defendant's Counterclaim was filed by Plaintiff, in Docket Number 2008-4492, on or about May 6, 2008. 23. An Answer to Plaintiff's New Matter and Counterclaim to Defendant's Counterclaim was filed by Defendant on June 6, 2008. 24. All pleadings are closed with respect to the above-captioned matters. 25.All of the captioned matters were consolidated pursuant to the Honorable Judge Oler's Order dated August 21, 2008. 26.All of the above captioned matters arise out a single contract entered into in Cumberland County, Pennsylvania. 27. The aforementioned contract called for Plaintiff to provide snow removal services for Defendant, as an independent contractor, whenever Defendant contacted Plaintiff throughout the snow season of 2006/2007. 28. The work performed under the contract was performed in Dauphin County, York County and Cumberland County, Pennsylvania. 29. The pleadings on file and the documents attached thereto demonstrate that Defendant has no claim for defense or counterclaim. 30. Throughout Defendants various responses to Plaintiff's claims, Defendant has, on numerous occasions, failed to deny specifically or by necessary implication averments in Plaintiff's claims that required such a response in violation of Pa. R.C.P. 1029(b). 31.A general denial or demand for proof ... shall have the effect of an admission. Pa. R.C.P. 1029(b). 32. "The word 'denied' repeatedly has been held an insufficient responsive pleading, tantamount to an admission. See, e.g., County of Delaware v. Mingin, 38 Del. Co. 102 (1950); Ottaviani v. Kinkus, 26 Fayette 1 (1962); Lower Salford Township v. Colgan, 84 Montg. 51 (1963); Roman v. Alizauskas, 54 Luz. 169 (1964). See also Carafoil-Silverman Co. v. Elton, 47 Schuyl. 67 (1949); 2 Goodrich-Amram 2d § 1029(b):3." Bogley, Harting & Reese, Inc. v. Stuart, 11 Pa. D. & C.3d 303, 309). 33.A motion for judgment on the pleadings is similar to a demurrer and may be entered only where there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. Kosor v. Harleysville Mutual Insurance Company, 407 Pa. Super. 68, 71, 595 A.2d 128, 129 (1991). 34. If a complaint states a claim for relief, and the defendant's answer states a non- meritorious defense, a plaintiff may move for judgment on the pleadings. Newberry Township v. Stambaugh, 874 A.2d 734 (Pa Commw. 2005). See also Necho Coal Co. v. Denise Coal Co., 387 Pa. 567, 128 A.2d 771 (1957). I 35. Plaintiff is alleging breach of contract and violations of the Contractor and Subcontractor Payment Act, 73 Pa. C.S. § 501, et seq. for nonpayment of invoices issued for work performed at the above referenced locations. 36. Defendant has admitted that there was a contract entered into on or about December 5, 2006. See Defendant's Answer to Plaintiff's Complaint (Docket # 2008-103, 2008-4491 & 2008-4492, 13). 37. Defendant has admitted that they utilized subcontractors to fulfill their contractual agreements. See Defendant's Answer to Plaintiff's Complaint (Docket # 2008- 103, 2008-4491 & 2008-4492, ¶5). 38. Defendant has admitted that they had a contract or contracts with The Home Depot to provide snow removal services for store numbers: 4120, Mechanicsburg, Cumberland County, Pennsylvania; 4149, Carlisle, Cumberland County, Pennsylvania; 4138, Jonestown Road, Harrisburg, Dauphin County, Pennsylvania; 4113, Derry Street Swatara Township, Dauphin County, Pennsylvania and Delco Plaza, York, York County, Pennsylvania. See Defendant's Answer to Plaintiff's Complaint (Docket # 2008-103, 2008-4491 & 2008-4492,117). 39. Defendant has admitted that Plaintiff, Donald Wood d/b/a Woody's, was a subcontractor utilized by Defendant to fulfill its contractual obligations. See Defendant's Answer to Plaintiff's Complaint (Docket # 2008-103, 2008-4491 & 2008-4492, ¶6). 40. Defendant has admitted that Plaintiffs claims arise out of services performed at The Home Depot store numbers 4113, 4120, 4138 and 4149 and the Delco Plaza in York, Pennsylvania.' See Defendant's Answer to Plaintiff's Complaint (Docket # 2008-103, 2008-4491 & 2008-4492, ¶8). 41. Defendant has admitted that Plaintiff has invoiced Defendant for services rendered. See Defendant's Answer to Plaintiff's Complaint (Docket # 2008-4491 & 2008-4492, ¶10). See also, Defendant's Answer to Plaintiffs New Matter to Defendant's Counterclaim (Docket # 2008-103 151, 2008-4491 & 2008-4492, ¶48), Defendant's Answer to Plaintiffs Counterclaim to Defendant's Counterclaim (Docket # 2008-103 ¶¶69, 72, 2008-4491 & 2008-4492, ¶66). 42. Defendant has admitted that Plaintiff has demanded payment from Defendant. See Defendant's Answer to Plaintiff's Complaint (Docket # 2008-103 ¶14, 2008- 4491 & 2008-4492, ¶10). 43. Defendant has admitted that Plaintiff provided snow removal services on February 14, 2007 and on several other dates. See Defendant's Answer to Plaintiffs New Matter to Defendant's Counterclaim (Docket # 2008-103 149, 2008-4491 & 2008-4492, 146). 44. Defendant has admitted that Plaintiffs invoices detail work performed by Plaintiff under the contract. See Defendant's Answer to Plaintiffs New Matter to Defendant's Counterclaim (Docket # 2008-103 152, 2008-4491 & 2008-4492, ¶49). See also, Defendant's Answer to Plaintiffs Counterclaim to Defendant's Counterclaim at Docket # 2008-103 ¶73. ' It must be noted that Defendant's Answer to ¶8 at all three dockets states "It is denied, however, that the issues in this case arise solely from the performance of those stores." Plaintiff is admittedly unsure what this statement means but assures this Honorable Court that Plaintiff only makes the claims for breach of contract and violations of the Contractor and Subcontractor Payment Act, 73 Pa. C. S. § 501, et seq. for nonpayment of invoices issued for work performed at the above referenced locations. t 45. Defendant has admitted that a proclamation of disaster emergency was signed into effect and issued by Edward G. Rendell, Governor of the Commonwealth of Pennsylvania relative to the snow and ice event of February 14, 2007 on or about February 15, 2007. See Defendant's Answer to Plaintiff's New Matter to Defendant's Counterclaim (Docket # 2008-103 160, 2008-4491 & 2008-4492, ¶57). 46. Defendant has denied that which Defendant knows or should know to be true. 47. Defendant's response to Plaintiff's Complaints' $4, at all three dockets, which reads: "Defendant, About Time Snow Removal, has a large number of accounts for which they have contract for snow removal services" is as follows: "Denied. The allegations set forth in this paragraph is (sic) a conclusion of law to which no response is necessary. Strict proof is demanded at the time of trial on this matter." 48. It is obvious that Defendant knows or should know the number of accounts that they service, accordingly, Defendant's response should be treated as an admission. 49. Defendant's response to Plaintiff's Complaint ¶10 at Docket Number 2008-103, which reads: "Plaintiff invoiced Defendant for snow removal work performed at the aforementioned The Home Depot store numbers 4120 and 4149 and the Delco Plaza, York, York County, Pennsylvania on several invoices" is as follows: "Denied. The allegations in this paragraph refer to documents that speak for themselves and to which no additional response is necessary." M 50. Defendant's response to Plaintiff's Complaint 110 at Docket Number 2008-103 directly conflicts with Defendant's admission at 151 of Defendant's Response to Plaintiff's New Matter to Defendant's Counterclaim and similarly with Defendant's Admission at 72 of Defendant's Response to Plaintiffs Counterclaim to Defendant's Counterclaim. 51. "Reliance on ... [Pa. R.C.P. 1029(c)] does not excuse a failure to admit or deny a factual allegation when it is clear that the pleader must know whether a particular allegation is true for false. See Cercone v. Cercone, 254 Pa. Super. 381, 386 A.2d 1 (1978)." Note at Pa. R.C.P. 1029(c). 52. Defendant's response to Plaintiffs Complaints' ¶15, at Docket Number 2008-103 and ¶13 at Docket Numbers 2008-4491 & 2008-4492, which reads: "To date, no payment on the aforementioned $1,601.83 has been received by Plaintiff" is as follows: "Denied. After reasonable investigation, About Time Snow Removal is without sufficient information to form a belief as to the truth of the allegation contained in this paragraph. Strict proof is demanded at the time of trial on this matter." 53. It is obvious that Defendant knows or should know whether Defendant has acted upon Plaintiff's demand for payment (see Plaintiffs Complaints' 114, at Docket Number 2008-103 and ¶12 at Docket Numbers 2008-4491 & 2008-4492), and paid Plaintiff, accordingly, Defendant's response should be treated as an admission. 54. Defendant's response to Plaintiff's New Matter to Defendant's Counterclaim ¶54, at Docket Number 2008-103 and ¶51 at Docket Numbers 2008-4491 & 2008- A 4492, which reads: "Defendant did not notify Plaintiff of any deficiency of Plaintiff's work within seven calendar days after receipt of the notice of deficiency item pursuant to 73 Pa. C.S. § 511, therefore, Defendant is barred from withholding payment from Plaintiff and is further barred from asserting a counterclaim for $5,580.00 for work allegedly completed by another company" is as follows: "Denied. After reasonable investigation, Defendant is without sufficient information to form a belief as to the truth or veracity of this allegation. By way of further answer and denial, the contents of this paragraph represent a conclusion of law to which no additional response is required." 55. It is obvious that Defendant knows or should know whether and when they notified Plaintiff of the alleged deficiency in Plaintiff's performance under the contract, accordingly, Defendant's response should be treated as an admission that they did not notify Plaintiff of the alleged deficiency within seven calendar days as required pursuant to 73 Pa. C.S. § 511. 56. Defendant's response to Plaintiff's New Matter to Defendant's Counterclaim 158, at Docket Number 2008-103 and ¶55 at Docket Numbers 2008-4491 & 2008- 4492, which reads: "Defendant, as a going concern in the snow removal business, knew or should have known that a significant snow and ice event, such as that which occurred on or about February 14, 2007 may have the effect of making snow and ice remediation attempts unsuccessful" is as follows: "Denied. After reasonable investigation, Defendant is without sufficient information to form a belief as to the truth or veracity of this allegation. Strict proof is demanded at time of trial in this matter." 57. It is obvious that Defendant knows or should know that a significant snow and ice event, such as that which occurred on or about February 14, 2007 may have the effect of making snow and ice remediation attempts unsuccessful; accordingly, Defendant's response should be treated as an admission. By way of further argument, see Defendant's Response to Plaintiff's New Matter to Defendant's Counterclaim ¶60 at Docket Number 2008-103 and ¶57 at Docket Numbers 2008-4491 & 2008-4492 wherein Defendant admits that there was a disaster emergency signed into effect and issued by Governor Rendell relative to the snow and ice event of February 14, 2007 on or about February 15, 2007. 58. Defendant's response to Plaintiff's New Matter to Defendant's Counterclaim ¶59, at Docket Number 2008-103 and ¶56 at Docket Numbers 2008-4491 & 2008- 4492, which reads: "Defendant, as a going concern in the snow removal business, knew or should have known that several major interstates such as 1-78 and the Pennsylvania Turnpike were closed for all or a portion of February 14, 2007 by reason of the inclement weather related to the snow and ice event that occurred on or about February 14, 2007" is as follows: "Denied. After reasonable investigation, Defendant is without sufficient information to form a belief as to the truth or veracity of this allegation. Strict proof is demanded at time of trial in this matter." 59. It is obvious that Defendant knows or should know that several major interstates such as 1-78 and the Pennsylvania Turnpike were closed for all or a portion of February 14, 2007 by reason of the inclement weather related to the snow and ice event that occurred on or about February 14, 2007; accordingly, Defendant's .. response should be treated as an admission. By way of further argument, see Defendant's Response to Plaintiff's New Matter to Defendant's Counterclaim TO at Docket Number 2008-103 and ¶57 at Docket Numbers 2008-4491 & 2008- 4492 wherein Defendant admits that there was a disaster emergency signed into effect and issued by Governor Rendell relative to the snow and ice event of February 14, 2007 on or about February 15, 2007. 60. Defendant's response to Plaintiff's Counterclaim to Defendant's Counterclaim ¶63, at Docket Number 2008-103 and 160 at Docket Numbers 2008-4491 & 2008-4492, which reads: "Pursuant to the facts alleged in Defendant's Counterclaim Plaintiff hereby alleges this Counterclaim of Defendant's Counterclaim pursuant to the Contractor and Subcontractor Payment Act, 73 Pa. C.S. § 501 et seq. hereinafter the 'CSPA."' is as follows: "Denied. After reasonable investigation, Defendant is without sufficient information to form a belief as to the truth or veracity of this allegation. Strict proof is demanded at time of trial in this matter." 61. It is obvious that Defendant knows or should know based upon a reading of Plaintiff's Counterclaim to Defendant's Counterclaim the reason and statutory basis for Plaintiff's Counterclaim, accordingly, Defendant's response should be treated as an admission. 62. Defendant's response to Plaintiffs Counterclaim to Defendant's Counterclaim ¶75, at Docket Number 2008-103 and 172 at Docket Numbers 2008-4491 & 2008-4492, which reads: "Plaintiff learned that Defendant's dissatisfaction with Plaintiff's work was the reason for nonpayment to Plaintiff by Defendant, A constructively on April 14, 2007, the date upon which Defendant's Counterclaim was filed." is as follows: "Denied. After reasonable investigation, Defendant is without sufficient information to form a belief as to the truth or veracity of this allegation. Strict proof is demanded at time of trial in this matter." 63. It is obvious that Defendant knows or should know when it notified Plaintiff of its dissatisfaction with Plaintiff's work; accordingly, Defendant's response should be treated as an admission that Defendant did not notify Plaintiff of its dissatisfaction with Plaintiff's work until April 14, 2007, the date upon which Defendant's Counterclaim was filed. 64. Defendant's apparent defense and reason for nonpayment of Plaintiff's invoices is that Plaintiff failed to complete snow removal services during the aforementioned February 14, 2007 snow and ice event to the specifications and needs of the companies with which Defendant had contracted with to provide them with snow removal services. 65. In Defendant's Counterclaim to Plaintiff's Complaint at Docket Number 2008-103, Defendant alleges in ¶¶ 29 & 30 that Defendant failed to render services at Home Depot number 4120 during said snow and ice event on February 14, 2007 to the specifications and needs of the Home Depot store 4120. 66. Plaintiff is claiming a total of $1,601.83 is due and owing from Defendant for services rendered at Home Depot Store 4120 ($1,066.58), Home Depot Store 4149 ($161.75) and Delco Plaza ($373.50) at Docket Number 2008-103. t s 67. On or about February 14, 2007 a snow and ice event occurred wherein Plaintiff was contacted by Defendant to provide services at Home Depot 4120 pursuant to the aforementioned contact with Defendant. 68. Plaintiff further presents that Invoice # 3018 dated 2/3/2007 covers services provided during a period of time prior to the February 14, 2007 snow and ice event. Similarly, invoice # 3083 cover services provided during a period of time after February 14, 2007. (Copies of all aforementioned invoices are attached as Exhibit "B" to Plaintiff's Complaint.) 69. In Defendant's Counterclaim to Plaintiffs Complaint at Docket Number 2008- 4491, Defendant alleges in ¶¶ 26, 27 that Defendant failed to render services at Home Depot number 4113 during said snow and ice event on February 14, 2007 to the specifications and needs of the Home Depot store 4113. 70. On or about February 14, 2007 a snow and ice event occurred wherein Plaintiff was contacted by Defendant to provide services at Home Depot 4113 pursuant to the aforementioned contact with Defendant. 71.It is additionally argued that Invoice # 3018 dated 2/3/2007 covers services provided during a period of time prior to the February 14, 2007 snow and ice event. Similarly, invoices # 3083, 3103, 3139 (which is made up of invoices 3138 & 3139) and 3161 (which is made up of invoices 3159, 3160, 3161) cover services provided during a period of time after February 14, 2007. (Copies of all aforementioned invoices are attached as Exhibit "B" to Plaintiffs Complaint.) 72. In Defendant's Counterclaim to Plaintiff's Complaint at Docket Number 2008- 4492, Defendant alleges in ¶¶ 26, 27 that Defendant failed to render services at z Home Depot number 4138 during said snow and ice event on February 14, 2007 to the specifications and needs of the Home Depot store 4138. 73. On or about February 14, 2007 a snow and ice event occurred wherein Plaintiff was contacted by Defendant to provide services at Home Depot 4138 pursuant to the aforementioned contact with Defendant. 74. It is additionally argued that Invoice # 3018 dated 2/3/2007 covers services provided during a period of time prior to the February 14, 2007 snow and ice event. Similarly, invoices # 3103, 3139 (which is made up of invoices 3138 & 3139) and 3161 (which is made up of invoices 3159, 3160, 3161) cover services provided during a period of time after February 14, 2007. (Copies of all aforementioned invoices are attached as Exhibit "B" to Plaintiff's Complaint.) 75. Pursuant to the contract between Plaintiff and Defendant, Plaintiff provided snow removal services for Defendant in Dauphin, York and Cumberland counties in Pennsylvania. 76. Additionally, there is no mention in the aforementioned contract that a condition precedent to payment for Plaintiff's services, provided, be the satisfactory performance of Plaintiff, as determined by the end-client; the Home Depot stores Delco Plaza, or Defendant. 77-At no place in the aforementioned contact are there any measures and/or provisions by which Defendant could legally withhold payment for services, actually rendered. 78. To date Plaintiff has not been paid by Defendant for aforementioned work completed. -• 4 AV- 79. Plaintiff learned that Defendant's dissatisfaction with Plaintiffs work was the reason for nonpayment to Plaintiff by Defendant, constructively on April 14, 2008, the date upon which Defendant's Counterclaim was filed. 80. Defendant did not notify Plaintiff of any deficiency of Plaintiffs work within seven calendar days after receipt of the notice of the deficiency item pursuant to 73 Pa. C.S. § 511, therefore, Defendant is barred from withholding payment from Plaintiff and is further barred from asserting their counterclaims for work allegedly completed by another company. 81.As a result of Defendant's breach of contract and failure to comply with the CSPA, Plaintiff is entitled to recover the following quantifiable damages: a. Interest from April 1, 2007, the date established by the CSPA (14 calendar days after issuance of the final invoice at a rate of 1 % per month pursuant to 73 Pa. C.S. § 507(d); b. A penalty for failure to comply with the CSPA equal to 1 % per month of the amount wrongfully withheld pursuant to 73 Pa. C.S. § 512(a); and c. An award of attorney's fees, costs and expenses to Plaintiff as the prevailing party in this proceeding pursuant to 73 Pa. C.S. § 512(b). 82. Based upon the pleadings and the documents attached thereto, judgment should be entered in favor of Plaintiff, Donald Wood d/b/a Woody's, and against Defendant, About Time Snow Removal for breach of contract and failure to comply with the CSPA. WHEREFORE, Plaintiff, Donald Wood d/b/a Woody's, respectfully requests that his Motion be granted and that Judgment be entered in his favor and against Defendant, About Time Snow Removal. Respectfully Submitted, Date: r GL 00 Bryan 1V Shook, Esquire I.D. # 203250 2132 Market Street Camp Hill, Pennsylvania 17011 4. DONALD WOOD, d/b/a WOODY'S Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No: 2008-103 DONALD WOOD, d/b/a WOODY'S Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW No: 2008-4491 DONALD WOOD, d/b/a WOODY'S Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No: 2008-4492 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing, Motion for Judgment on the Pleadings, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: About Time Snow Removal c/o Sean M. Gresh, Esquire Benstead & Mabon, P.C. 124 East Court Street Doylestown, PA 18901 Respectfully Submitted, Date: ?&?- Bryan Shook, Esquire ? r-? = E-- c? i rt ?,.. ' ^ rya T '_ i ? ??, ? j-'• "??M fyj??? .'i_ -' --G ,.{ ?? .r Bryan W. Shook, Esquire ID # 203250 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 Attorney for Plaintiff BShooka tlcdtaw.nc,t DONALD WOOD, d/b/a WOODY'S IN THE CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CUMBELAN V. : CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, No: 2008-103 Defendant DONALD WOOD, d/b/a WOODY'S IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, No: 2008-4491 Defendant DONALD WOOD, d/b/a WOODY'S : IN THE COURTOF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, : No: 20084492 Defendant PRAECIPE FOR LISTING CASE FOR ARGUMENT To the Prothonotary of Cumberland County: Please list the within matter for the next available Argument Court. 1. State matter to be argued: Plaintiff, Donald Wood d/b/a Woody's, Motion for Judgment on the Pleadings 2. Identify counsel who will argue cases: a. for plaintiff. Bryan W 'hook, Law Office of Darrell 2132 arrell C. Dethlefs Market Street b. for defendant: Camp Hill, Pennsylvania 17011 Sean M. Gresh, Esquire Benstead & Mabon C 124 East Court ' p P. C. 3. I will notify all parties Doylestown Street Pennsylvania 18901 in writing argument: Yes g within two days that this case has been listed 4. Argument Court Date: December 3, 2008 Dated: Res 0 pectfully Submitted: Bryan l S --,- I•D. # 203250 'Esquire 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Plaintiff ? ? ?,?r ?? .... s-- z ? t??. :?; ? ? .?> ?? _ ..?.?,. BENSTEAD & MABON, P.C. Attorney for Defendant By: Gregory F. Mitsch, Esquire Attorney I.D. #78381 124 East Court Street Doylestown, PA 18901 (215) 345-9100 DONALD WOOD, d/b/a WOODY' S, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, NO.: 2008-103 Defendant DONALD WOOD, d/b/a WOODY' S, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, NO.: 2008-4491 Defendant DONALD WOOD, d/b/a WOODY'S, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, NO.: 2008-4492 Defendant DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW, comes Defendant, About Time Snow Removal, by and through their counsel, Benstead & Mabon, P.C., and specifically Gregory F. Mitsch, Esquire, who hereby responds to Plaintiff's Motion for Judgment on the Pleadings as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted. By way of further answer, Plaintiff filed an Amended Complaint in response to Defendant's Preliminary Objections to Plaintiff's Complaint. 14. Admitted. 15. Admitted. By way of further answer, in Plaintiff's Counterclaim to Defendant's Counterclaim, Plaintiff first raises the alleged violations of the Contractor and Subcontractor Payment Act, 73 Pa.C.S. § 501, et seq. hereinafter "CSPA." 16. Admitted. 17. Admitted. 18. Admitted. 19. Admitted. By way of further answer, Plaintiff filed an Amended Complaint in response to Defendant's Preliminary Objections to Plaintiffs Complaint. 20. Admitted. 21. Admitted. 22. Admitted. By way of further answer, in Plaintiffs Counterclaim to Defendant's Counterclaim, Plaintiff first raises the alleged violations of the Contractor and Subcontractor Payment Act, 73 Pa.C.S. § 501, et seq. hereinafter "CSPA." 23. Admitted. 24. Admitted. 25. Admitted. 26. Admitted in part, Denied in Part. It is admitted that a contract was executed by Plaintiff where said contract was executed is unknown to Defendant. It is therefore denied. 27. Admitted. 28. Admitted in part, Denied in part. It is admitted that Plaintiff partially performed under the contract. It is denied that there was substantial performance in a workmanlike manner. 29. Denied. To the contrary, Defendant has viable defenses that Plaintiff breached the contract and failed to perform in a workmanlike manner. Defendant has filed counterclaims against Plaintiff due to the breach of contract by Plaintiff and the damages caused to Defendant. 30. Denied. It is denied that Defendant has failed to answer with the required specificity any allegation of Plaintiff. Defendant specifically answered any and all of Plaintiff's allegations which required a specific response. By way of further answer, Defendant's responses and counterclaims are necessarily specific to put Plaintiff on notice of the issues in this case. 31. Admitted that the language quoted exists is Pa.R.C.P. 1029(b). However, the following language also appears "Averments in a pleading to which a responsive pleading is required..." Pa.R.C.P. 1029(b) (emphasis added). 32. It is denied that Defendant simply used the word "Denied" in its responsive pleadings. By way of further answer, Plaintiff's reliance upon cases from other county courts is illustrative but not binding upon this Honorable Court. 33. Admitted. The language of Koser vs. Harleysville Mutual Insurance Company, 595 A.2d 128, 129 (1991) is admitted. By way of further answer, there are disputed facts inherent in this case including, but not limited to, whether Plaintiff performed under the contract; whether Defendant was harmed by Plaintiff's failure to perform under the contract; and whether the CSPA is applicable to the act of snow removal. By way of further answer a reading of the docket entries could lead to the conclusion that disputed facts exist, i.e. three Complaints, two sets of preliminary objections; two amended complaints; three answers, new matter and counterclaims; three counterclaims to counterclaim and response and new matter thereto. 34. Admitted in part, Denied in part. It is admitted that the language is quoted correctly. It is denied that Defendant failed to state a meritorious defense. To the contrary, Defendant with specificity articulated the defense based upon Plaintiff's failure to properly perform under the contract. 35. Admitted in part, Denied in part. It is admitted that Plaintiff has alleged breach of contract. By way of further answer and denial, Plaintiff only claimed a violation of the CSPA in a counterclaim to Defendant's counterclaim. It is denied that Defendant breached the agreement. It is denied that the Contractor Subcontractor Payment Act is applicable to snow removal and hence the parties hereto. 36. Admitted. 37. Admitted. 38. Admitted. 39. Admitted. 40. Admitted. By way of further answer, the answer given was prior to the consolidation of the three actions now before this Honorable Court. The answer was intended as notice of Defendant's claims of breach by Plaintiff at all locations where work was to be performed by Plaintiff. 41. Admitted in part, Denied in part. It was admitted that Plaintiff sent the invoices. It was specifically denied that the work referenced in the invoices was completed or completed within the terms of the contract. Defendant's answer to Plaintiff's New Matter to Defendant's Counterclaim, Docket No. 2008-4491 and Docket No. 2008-4492, Paragraph 48 and Defendant's Answer to Plaintiff's New Matter to Defendant's Counterclaim and Defendant's Answer to Plaintiff's Counterclaim to Defendant's Counterclaim, Docket No. 2008-4491 and 2008-4492, Paragraph 66). 42. Admitted. 43. Admitted in part, Denied in part. Defendant admitted some work was performed. Defendant specifically denied that the work completed was done appropriately and in the manner as contracted for. Defendant's Answer to Plaintiff s New Matter to Defendant's Counterclaim (Docket No. 2008-103, Paragraph 49, Docket No. 2008-4491 and Docket No. 2008-4492, Paragraph 46). 44. Admitted in part. Denied in part. It was admitted in the pleadings that the invoices detailed work allegedly performed by Plaintiff. The answers also deny that the invoices accurately reflect the work that was actually performed and further the answers deny that the work was performed appropriately under the contract. (Defendant's Answer to Plaintiff s New Matter to Defendant's Counterclaim, Docket No. 2008-103, Paragraph 52, Docket No. 2008- 4491 and Docket No. 2008-4492, Paragraph 49). See also Defendant's Answer to Plaintiffs Counterclaim to Defendant's Counterclaim at Docket No. 2008-103, Paragraph 73). 45. Admitted. 46. Denied. Defendant's responsive pleadings were made with the adequate specificity throughout the pleadings. 47. Admitted in part. Denied in part. It is admitted that the language is stated correctly. It is denied that the averment has any material bearing on the litigation or the instant motion. 48. Again, this averment and the response thereto has no bearing on this litigation nor the instant motion. 49. Admitted in part. Denied in part. It is admitted that said language is correct. However, it was admitted that the invoices were received and denied that the invoices accurately reflected the work performed. Defendant's Answer to Plaintiff's New Matter to Defendant's Counterclaim (Docket No. 2008-103, Paragraph 52, Docket No. 2008-4491 and Docket No. 2008-4492, Paragraph 49). See also Defendant's Answer to Plaintiff's Counterclaim to Defendant's Counterclaim at Docket No. 2008-103, Paragraph 73). 50. Admitted in part. Denied in part. It is admitted that said language is correct. However, it was admitted that the invoices were received and denied that the invoices accurately reflected the work performed. Defendant's Answer to Plaintiff's New Matter to Defendant's Counterclaim (Docket No. 2008-103, Paragraph 52, Docket No. 2008-4491 and Docket No. 2008-4492, Paragraph 49). See also Defendant's Answer to Plaintiff s Counterclaim to Defendant's Counterclaim at Docket No. 2008-103, Paragraph 73). 51. Admitted that the cited language is correct. It is denied that the Defendant has failed to admit or deny any material fact without specificity. 52. Admitted. It is admitted that in numerous responses, Defendant admitted the invoiced amount was demanded but not paid. It was further answered that Plaintiff breached the contract and failed to perform. Specifically, Defendant stated that the invoiced amount of $1,601.83 was received by Defendant but that the amount in question was denied because that work was not appropriately performed under the contract. Defendant's Response to Plaintiff's New Matter to Defendant's Counterclaim (Docket No. 2008-103, Paragraph 52). 53. Admitted. It is admitted that in numerous responses, Defendant admitted the invoiced amount was demanded but not paid. It was further answered that Plaintiff breached the contract and failed to perform. Specifically, Defendant stated that the invoiced amount of $1,601.83 was received by Defendant but that the amount in question was denied because that work was not appropriately performed under the contract. Defendant's Response to Plaintiff's New Matter to Defendant's Counterclaim (Docket No. 2008-103, Paragraph 52). 54. Admitted. 55. Denied. Plaintiff states that there should be an admission not of fact but of law, i.e. (1) that the parties hereto are subject to the CSPA; (2) that because of the applicability of the CSPA that notice requirements were in effect; (3) that the assumed applicability of the CSPA created the notice requirement which was breached by Defendant; and (4) that the lack of notice then legally barred Defendant from asserting a defense and counterclaim for breach of contract. Plaintiff s averment is the epitome of a conclusion of law to which no responsive pleading is required. 56. Admitted. 57. Denied. The Governor's proclamation of a State of Emergency relative to individuals stranded on Interstate 1-78 has no bearing upon the ability of Plaintiff to perform under the contract. Plaintiff's obligation under the contract was to remove ice and snow at the behest of Defendant. (See Plaintiff's Motion for Judgment on the Pleadings, Paragraph 27). If this matter is treated as an admission, is it not the Plaintiff who is admitting their breach of contract? Whether Plaintiff or Defendant breached the contract are issues of material fact which precludes the entry of a judgment on the pleadings. 58. Admitted. By way of further answer, Plaintiff is seeking to use the Governor's proclamation as an excuse for failure of performance. Plaintiff's attempt to excuse their lack of performance is another issue of material fact which exists precluding a judgment on the pleadings. 59. Admitted. By way of further answer, Plaintiff is seeking to use the Governor's proclamation as an excuse for failure of performance. Plaintiff's attempt to excuse their lack of performance is another issue of material fact which exists precluding a judgment on the pleadings. 60. Admitted. 61. Denied. The averment is a conclusion of law, citing previously pleaded allegations as a legal basis for applicability of a statutory claim (not previously pleaded by Plaintiff). Said averment requires no responsive pleadings. By way of further answer, Defendant denies the applicability of the CSPA to this action. 62. Admitted. 63. Denied. Plaintiff alleges that Defendant should "know" when Plaintiff became aware of Defendant's dissatisfaction with the alleged work performed. Defendant has no way of knowing the truth of an averment which is solely in the mind of Plaintiff. Plaintiff states Defendant "should know when Defendant notified Plaintiff of dissatisfaction with Plaintiffs work." However, that was not the averment at question. Said averment was about Plaintiff's state of mind, which after reasonable investigation, Defendant still cannot determine. 64. Denied. Defendant's defense is based upon Plaintiff's failure to perform under the contract which caused Defendant considerable damages in excess of Plaintiff's demand. 65. Admitted. 66. Admitted in part. Denied in part. It is admitted that Plaintiff is claiming the amounts. Defendant has specifically denied that said amounts are due and owing. Furthermore, this paragraph seems to be incomplete. Therefore, Defendant reserves the right to supplement its answer hereto. 67. Admitted. 68. Admitted in part. Denied in part. It is admitted that said invoices are attached to Plaintiff's complaint. It is denied that said invoices are valid and/or authenticated. The mere assertion and attachment of an unauthenticated document to a pleading does not make it fact. Plaintiffs must prove the facts behind the invoice hence judgment on the pleadings is inappropriate. 69. Admitted. 70. Admitted. 71. Admitted in part. Denied in part. It is admitted that said invoices are attached to Plaintiff's complaint. It is denied that said invoices are valid and/or authenticated. The mere assertion and attachment of an unauthenticated document to a pleading does not make it fact. Plaintiff must prove the facts behind the invoice, hence judgment on the pleadings is inappropriate. The fact that counsel had to explain the invoices in such a parenthetical fashion is more evidence that a genuine issue of fact exists which precludes a judgment on the pleadings. 72. Admitted in part. Denied in part. It is admitted that said invoices are attached to Plaintiff's complaint. It is denied that said invoices are valid and/or authenticated. The mere assertion and attachment of an unauthenticated document to a pleading does not make it fact. Plaintiff must prove the facts behind the invoice, hence judgment on the pleadings is inappropriate. The fact that counsel had to explain the invoices in such a parenthetical fashion is more evidence that a genuine issue of fact exists which precludes a judgment on the pleadings. 73. Admitted. 74. Admitted in part. Denied in part. It is admitted that said invoices are attached to Plaintiff s complaint. It is denied that said invoices are valid and/or authenticated. The mere assertion and attachment of an unauthenticated document to a pleading does not make it fact. Plaintiff must prove the facts behind the invoice, hence judgment on the pleadings is inappropriate. The fact that counsel had to explain the invoices in such a parenthetical fashion is more evidence that a genuine issue of fact exists which precludes a judgment on the pleadings. 75. Admitted in part. Denied in part. It is admitted that snow removal was attempted by Plaintiff. It was routinely denied that the Plaintiff performed pursuant to the contract. 76. Admitted. However, the law of contracts is clear that satisfactory performance and substantial completion of the contract is necessary. Plaintiff failed to satisfactorily perform the contracted service as pleaded by the Defendant. 77. Admitted. However, the law of contracts is clear that satisfactory performance and substantial completion of the contract is necessary. Plaintiff failed to satisfactorily perform the contracted service as pleaded by the Defendant. It is denied that Plaintiff substantially performed pursuant to the contract. 78. Admitted in part. Denied in part. It is admitted that Defendant has not paid Plaintiff. It is denied that Plaintiff is entitled to payment. 79. Denied. Defendant cannot reasonably answer when Plaintiff learned of Defendant's dissatisfaction. By way of further answer, Plaintiff should have been aware of Defendant's dissatisfaction when they were not paid. 80. Denied. Plaintiff assumes a legal conclusion that the parties hereto are subject to the CSPA. Plaintiff's further assumptions based upon the applicability of the CSPA are misguided and are a factual dispute which precludes the grant of judgments on the pleadings. 81. Denied. Defendant has neither breached the agreement nor violated the CSPA. Therefore, section A through C are not compensable because the parties are not subject to the CSPA. 82. Denied. Plaintiff s motion should be denied because issues of fact exist which preclude the entry of a judgment on the pleadings. WHEREFORE, Defendant, About Time Snow Removal, respectfully requests this Honorable Court deny Plaintiff s Motion for Judgment on the Pleadings. Respectfully Submitted, BENSTEAD & MABON, P.C. BY: tRiGdAY F. MITSCH, ESQUIRE Attorney for Defendant Date: November 26, 2008 °?..3 <. ._ m _? r ?;i."fit :; '= ?. °77 ??? :? _ .? 0 46 BENSTEAD & MABON, P.C. By: Gregory F. Mitsch, Esquire Attorney I.D. #78381 124 East Court Street Doylestown, PA 18901 (215) 345-9100 Attorney for Defendant DONALD WOOD, d/b/a WOODY' S, Plaintiff vs. ABOUT TIME SNOW REMOVAL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW : NO.: 2008-103 DONALD WOOD, d/b/a WOODY' S, Plaintiff VS. ABOUT TIME SNOW REMOVAL, Defendant DONALD WOOD, d/b/a WOODY'S, Plaintiff vs. ABOUT TIME SNOW REMOVAL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO.: 2008-4491 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.: 2008-4492 CERTIFICATE OF SERVICE I, Gregory F. Mitsch, Esquire, hereby certify that a true and correct copy of Defendant's Response to Plaintiff's Motion for Judgment on the Pleadings and Brief in support thereof, was served upon Plaintiff's attorney, Bryan W. Shook, Esquire, via regular mail and e-mail on the r • w 26th day of November, 2008, as follows: Bryan W. Shook, Esquire 2132 Market Street Camp Hill, PA 17001 BShook@dedlaw.net Respectfully Submitted, BENSTEAD & MABON, P.C. BY: dk46Ry'F-. MITS H, ESQUIRE Attorney for Defendant DONALD WOOD, d/b/a : IN THE COURT OF COMMON PLEAS OF WOODY' S, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : CIVIL ACTION-LAW ABOUT TIME SNOW REMOVAL, Defendant : NO. 2008-103 CIVIL TERM DONALD WOOD, d/b/a : IN THE COURT OF COMMON PLEAS OF WOODY'S, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : CIVIL ACTION-LAW ABOUT TIME SNOW REMOVAL, Defendant : NO. 2008-4491 CIVIL TERM DONALD WOOD, d/b/a : IN THE COURT OF COMMON PLEAS OF WOODY' S, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vi. ABOUT TIME SNOW REMOVAL, Defendant CIVIL ACTION-LAW NO. 2008-4492 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS, OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this 8`" day of January, 2009, upon consideration of Plaintiff s Motion for Judgment on the Pleadings in the above-captioned cases, and for the reasons stated in the accompanying opinion, the motion is denied. 'VIWAlAa* MNM`'.?F9 L h :Z Nd 9- NVF AWj. ONOtilOUd k -40 /Bryan W. Shook, Esq. 2132 Market Street Camp Hill, PA 17011 Attorney for Plaintiff .Greg Mitsch, Esq. Benstead & Mabon, P.C. 124 East Court Street Doylestown, PA 18901 Attorney for Defendant maLLCL BY THE COURT, DONALD WOOD, d/b/a : IN THE COURT OF COMMON PLEAS OF WOODY' S, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant CIVIL ACTION-LAW NO. 2008-103 CIVIL TERM DONALD WOOD, d/b/a : IN THE COURT OF COMMON PLEAS OF WOODY'S, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : CIVIL ACTION-LAW ABOUT TIME SNOW REMOVAL, Defendant : NO. 2008-4491 CIVIL TERM DONALD WOOD, d/b/a : IN THE COURT OF COMMON PLEAS OF WOODY' S, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : CIVIL ACTION-LAW ABOUT TIME SNOW REMOVAL, Defendant : NO. 2008-4492 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS, OLER and GUIDO, JJ. OPINION and ORDER OF COURT ?N ??? ?, a ?? ?' WWI 40 OLER, J., January 8, 2009. In these consolidated civil cases,' (a) Plaintiff, a snow remover, has sued Defendant, another snow remover, for payment for certain snow removal projects which Plaintiff allegedly performed on Defendant's behalf,2 (b) Defendant has counterclaimed on the basis of an allegedly deficient performance of the projects by Plaintiff,3 and (c) Plaintiff has "counterclaim[ed] to Defendant's counterclaim" on the basis of Defendant's failure to comply with its obligations to a subcontractor under Pennsylvania's Contractor and Subcontractor Payment Act.4 For disposition at this time is Plaintiff's motion for judgment on the pleadings.s Plaintiff's motion was argued on December 3, 2008. For the reasons stated in this opinion, the motion will be denied. STATEMENT OF FACTS Procedural history. The procedural history of these cases has been well summarized in the brief by Plaintiff's counsel, Bryan W. Shook, Esq., as follows: Docket Number 2008-103 was commenced before the Honorable Thomas A. Placey, Magisterial District Number 09-3-04 on May 29, 2007. Upon appeal of the Judgment in favor of Plaintiff, Donald Wood d/b/a/ Woody's, the case was assigned Docket Number 2008-103 in the Court of Common Pleas of Cumberland County. A Complaint in Docket Number ' See Order of Court, August 21, 2008. z Plaintiff's Complaint, No. 08-103 Civil Term, filed March 4, 2008; Plaintiff's Amended Complaint, No. 08-4491 Civil Term, filed February 11, 2008; Plaintiff's Amended Complaint, No. 08-4492 Civil Term, filed February 11, 2008. 3 Defendant's Answer to Plaintiff's Complaint, No. 08-103 Civil Term, filed April 14, 2008; Defendant's Answer to Plaintiff's Amended Complaint, No. 08-4491 Civil Term, filed April 10, 2008; Defendant's Answer to Plaintiff's Amended Complaint, No. 08-4492 Civil Term, filed April 10, 2008. 4 Plaintiff's Reply to Defendant's New Matter and Counterclaim, Plaintiffs New Matter to Defendant's Counterclaim and Plaintiff's Counterclaim to Defendant's Counterclaim, No. 08-103 Civil Term, filed May 6, 2008; Plaintiff's Reply to Defendant's New Matter and Counterclaim, Plaintiff's New Matter to Defendant's Counterclaim and Plaintiff's Counterclaim to Defendant's Counterclaim, No. 08-4491 Civil Term, filed May 6, 2008; Plaintiff's Reply to Defendant's New Matter and Counterclaim, Plaintiff's New Matter to Defendant's Counterclaim and Plaintiff's Counterclaim to Defendant's Counterclaim, No. 08-4492 Civil Term, filed May 6, 2008; 5 Plaintiff s Motion for Judgment on the Pleadings, filed November 12, 2008. 2 2008-103 was filed on March 4, 2008. An Answer with New matter and Counterclaim was filed by Defendant, in Docket Number 200-103, on April 14, 2008. An Answer to Defendant's New Matter and Counterclaim and New Matter and a Counterclaim to Defendant's Counterclaim was filed by Plaintiff, in Docket Number 2008-103, on or about May 6, 2008. An Answer to Plaintiff's New Matter and Counterclaim to Defendant's Counterclaim was filed by Defendant on June 6, 2008. Docket Number 2008-4491 was commenced before the Honorable Michael J. Smith, Magisterial District Number 12-2-01, on May 29, 2007 in Dauphin County, Pennsylvania. Upon appeal of the Judgment in favor of Plaintiff, Donald Wood d/b/a Woody's, the case was assigned Docket Number 2007-CV-10211-DJ in the Court of Common Pleas of Dauphin County and was according[ly] transferred to this Honorable Court (Docket Number 2008-4491) pursuant to an Order of the Honorable Bruce Batton on July 1, 2008. A Complaint in Docket Number 2008-4491 was filed on November 27, 2007. An Amended Complaint in Docket Number 2008- 4491 was filed on February 11, 2008. An Answer with New Matter and Counterclaim was filed by Defendant, in Docket Number 2008-4491, on April 10, 2008. An Answer to Defendant's New Matter and Counterclaim and New Matter and a Counterclaim to Defendant's Counterclaim was filed by Plaintiff, in Docket Number 2008-4491, on or about May 6, 2008. An Answer to Plaintiff's New Matter and Counterclaim to Defendant's Counterclaim was filed by Defendant on June 6, 2008. Docket Number 2008-4492 was commenced before the Honorable Joseph S. Lindsey, Magisterial District Number 12-1-06, on May 29, 2007 in Dauphin County, Pennsylvania. Upon appeal of the Judgment in favor of Plaintiff, Donald Wood d/b/a Woody's, the case was assigned Docket Number 2007-CV-9906-DJ in the Court of Common Pleas of Dauphin County and was according[ly] transferred to this Honorable Court (2008- 4492) pursuant to an Order of the Honorable Judge Bratton on July 1, 2008. A Complaint in Docket Number 2008-4492 was filed on November 27, 2007. An Amended Complaint in Docket Number 2008-4492 was filed on February 11, 2008. An Answer with New Matter and Counterclaim was filed by Defendant, in Docket Number 2008-4492, on April 10, 2008. An Answer to Defendant's New Matter and Counterclaim and New Matter and a Counterclaim to Defendant's Counterclaim was filed by Plaintiff, in Docket Number 2008-4492, on or about may 6, 2008. An Answer to Plaintiffs New Matter and Counterclaim to Defendant's Counterclaim was filed by Defendant on June 6, 2008. All pleadings are closed with respect to the above-captioned matters. All of the captioned matters were consolidated pursuant to [a Cumberland County] Order dated August 21, 2008.6 Allegations of pleadings. In these cases, Plaintiff alleges a failure to pay on the part of Defendant for snow removal projects at various Home Depot stores. 6 Brief of Plaintiff on Plaintiff's Motion for Judgment on the Pleadings, submitted November 12, 2008, at 1-3. 3 Home Depot had allegedly engaged Defendant to perform, or cause to be performed, these services.8 The complaint/amended complaints sound in breach of contract.9 Defendant's answers with new matter and counterclaim, when read as a whole, allege that the work performed by Plaintiff was so unsatisfactory that the various Home Depot stores had to engage alternative snow removal services, the costs of which Home Depot billed to Defendant.10 Defendant's counterclaims sound in breach of contract.' 1 Plaintiff's replies to Defendant's answers with new matter and counterclaim each contain (a) a "Counterclaim to Defendant's Counterclaim"' 2 ' Plaintiff's Complaint, No. 08-103 Civil Term, ¶11-15, filed March 4, 2008; Plaintiff's Amended Complaint, No. 08-4491 Civil Term, ¶109-13, filed February 11, 2008; Plaintiff's Amended Complaint, No. 08-4492 Civil Term, ¶10-13, filed February 11, 2008. 8 Plaintiffs Complaint, No. 08-103 Civil Term, ¶7, filed March 4, 2008; Plaintiffs Amended Complaint, No. 08-4491 Civil Term, ¶7, filed February 11, 2008; Plaintiffs Amended Complaint, No. 08-4492 Civil Term, ¶7, filed February 11, 2008. 9 Plaintiffs Complaint, No. 08-103 Civil Term, ¶16, filed March 4, 2008; Plaintiffs Amended Complaint, No. 08-4491 Civil Term, ¶14, filed February 11, 2008; Plaintiffs Amended Complaint, No. 08-4492 Civil Term, ¶14, filed February 11, 2008. to Defendant's Answer to Plaintiffs Complaint, No. 08-103 Civil Term, ¶30-35, filed April 14, 2008; Defendant's Answer to Plaintiffs Amended Complaint, No. 08-4491 Civil Term, ¶26-32, filed April 10, 2008; Defendant's Answer to Plaintiffs Amended Complaint, No. 08-4492 Civil Term, ¶26-32, filed April 10, 2008. 11 Defendant's Answer to Plaintiff s Complaint, No. 08-103 Civil Term, ¶35, filed April 14, 2008; Defendant's Answer to Plaintiff s Amended Complaint, No. 08-4491 Civil Term, ¶32, filed April 10, 2008; Defendant's Answer to Plaintiff s Amended Complaint, No. 08-4492 Civil Term, ¶32, filed April 10, 2008. 12 Plaintiffs Reply to Defendant's New Matter and Counterclaim, Plaintiffs New Matter to Defendant's Counterclaim and Plaintiffs Counterclaim to Defendant's Counterclaim, No. 08-103 Civil Term, ¶61-77, filed May 6, 2008; Plaintiffs Reply to Defendant's New Matter and Counterclaim, Plaintiffs New Matter to Defendant's Counterclaim and Plaintiffs Counterclaim to Defendant's Counterclaim, No. 08-4491 Civil Term, ¶58-74, filed May 6, 2008; Plaintiffs Reply to Defendant's New Matter and Counterclaim, Plaintiffs New Matter to Defendant's Counterclaim and Plaintiffs Counterclaim to Defendant's Counterclaim, No. 08-4492 Civil Term, ¶58-74, filed May 6, 2008. Whether a "counterclaim to a counterclaim" is a permissible pleading is beyond the scope of this opinion. See Pa. R.C.P. 1017(a) (pleadings allowed). 4 and (b) various defenses to Defendant's counterclaim.13 In the counterclaim to a counterclaim, Plaintiff purports to assert a cause of action against Defendant in Plaintiff's capacity as a "subcontractor" of Defendant under Pennsylvania's Contractor and Subcontractor Payment Act. 14 Specifically, it is alleged that Defendant failed to notify Plaintiff of deficiencies in Plaintiff's performance as a "subcontractor" within seven days after receipt of notice of the deficiencies, as required by Section 511(b) of the Act.15 Among the defenses to Defendant's counterclaim, Plaintiff cites the aforesaid notice provision of the Pennsylvania statute16 and apparently also advances an impossibility-of-performance argument as to some of Plaintiff's work, based upon a certain "proclamation of disaster emergency" issued by the Governor of Pennsylvania. 17 13 Plaintiffs Reply to Defendant's New Matter and Counterclaim, Plaintiffs New Matter to Defendant's Counterclaim and Plaintiff's Counterclaim to Defendant's Counterclaim, No. 08-103 Civil Term, ¶37-43, filed May 6, 2008; Plaintiff's Reply to Defendant's New Matter and Counterclaim, Plaintiff's New Matter to Defendant's Counterclaim and Plaintiff's Counterclaim to Defendant's Counterclaim, No. 08-4491 Civil Term, 134-40, Filed May 6, 2008; Plaintiffs Reply to Defendant's New Matter and Counterclaim, Plaintiff's New Matter to Defendant's Counterclaim and Plaintiff's Counterclaim to Defendant's Counterclaim, No. 08-4492 Civil Term, ¶34-40, filed May 6, 2008. 14 Act of February 17, 1994, P.L. 73, 73 P.S. §§501-516. 15 Act of February 17, 1994, P.L. 73, §11(b), 73 P.S. §51 l(b). 16 Plaintiff's Reply to Defendant's New Matter and Counterclaim, Plaintiffs New Matter to Defendant's Counterclaim and Plaintiff's Counterclaim to Defendant's Counterclaim, No. 08-103 Civil Term, ¶54, filed May 6, 2008; Plaintiff's Reply to Defendant's New Matter and Counterclaim, Plaintiff's New Matter to Defendant's Counterclaim and Plaintiff's Counterclaim to Defendant's Counterclaim, No. 08-4491 Civil Term, $51, Filed May 6, 2008; Plaintiffs Reply to Defendant's New Matter and Counterclaim, Plaintiff's New Matter to Defendant's Counterclaim and Plaintiffs Counterclaim to Defendant's Counterclaim, No. 08-4492 Civil Term, ¶51, filed May 6, 2008. 17 Plaintiffs Reply to Defendant's New Matter and Counterclaim, Plaintiffs New Matter to Defendant's Counterclaim and Plaintiff's Counterclaim to Defendant's Counterclaim, No. 08-103 Civil Term, ¶58-60, filed May 6, 2008; Plaintiffs Reply to Defendant's New Matter and Counterclaim, Plaintiffs New Matter to Defendant's Counterclaim and Plaintiffs Counterclaim to Defendant's Counterclaim, No. 08-4491 Civil Term, ¶55-57, filed May 6, 2008; Plaintiff's Reply to Defendant's New Matter and Counterclaim, Plaintiffs New Matter to Defendant's Counterclaim and Plaintiffs Counterclaim to Defendant's Counterclaim, No. 08-4492 Civil Term, ¶55-57, filed May 6, 2008. 5 DISCUSSION Statement of law. "When ruling on a motion for judgment on the pleadings [the court] must view all of the opposing party's allegations as true, and only those facts that the opposing party has specifically admitted may be considered against the opposing party. We may consider only the pleadings themselves and any documents properly attached thereto. We may grant a motion for judgment on the pleadings only when there is no genuine issue of fact and the moving party is entitled to judgment as a matter of law." Parish v. Horn, 768 A.2d 1214, 1215 n.I (Pa. Commw. 2001), aff'd, 569 Pa. 45, 800 A.2d 294 (2002) (citations omitted). A motion for judgment on the pleadings which seeks to conclude the litigation in question is not, of course, a proper substitute for a motion for a more specific pleading. Cf. Garrett Electronics Corp. v. Conwell, 46 Cumberland L.J. 256, 260 (1997) ("claim should not be stricken or dismissed for mere lack of specificity") (citation omitted). In addition, under Pennsylvania Rule of Civil Procedure 126, it is provided that [t]he rules [of civil procedure] shall be liberally construed to secure the just, speedy and expensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties. Finally, the Pennsylvania Contractors and Subcontractors Payment Act applies to "construction contracts," 18 and a subcontractor is defined as "[a] person who has contracted to furnish labor or materials to, or has performed labor for, a contractor or another subcontractor in connection with a contract to improve real property." 19 18 Act of February 17, 1994, P.L. 73, § 15, 73 P.S. §515. 19 Act of February 17, 1994, P.L. 73, §2, 73 P.S. §502. 6 Application of law to facts. In the present case, while Defendant's responses to Plaintiffs allegations in the pleadings are in some instances deficient in terms of specificity and, in others, more substantively at variance with the procedural requirements as to affirmative denials, a fair reading of Defendant's pleadings as a whole reveals the existence of genuine issues of material fact as to the quality of Plaintiff's work on the projects at issue. Similarly, the question of whether the circumstances surrounding a proclamation of the governor somehow rendered Plaintiff's performance on some of the projects impossible, and the question of whether snow removal by Plaintiff rose to the level of engagement in a "construction contract" involving "the improvement of real property," are more properly disposed of on a more developed record than the current pleadings. For these reasons, the following order will be entered: ORDER OF COURT AND NOW, this 8t' day of January, 2009, upon consideration of Plaintiff's Motion for Judgment on the Pleadings in the above-captioned cases, and for the reasons stated in the accompanying opinion, the motion is denied. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. -/Bryan W. Shook, Esq. 2132 Market Street Camp Hill, PA 17011 Attorney for Plaintiff Greg Mitsch, Esq. Benstead & Mabon, P.C. 124 East Court Street Doylestown, PA 18901 Attorney for Defendant 7 Bryan W. Shook, Esquire ID #203250 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 B ShookLa)dplgl aw. com Fll D-OFFICE OF THE OTHONOT Y 2011 JUL I 11: 0 PENNSYLVANIA r , +C-3 r-o -1 m C x'73 r' r- ? M ^ cn -- - ? c;a r T. ?Cr r. c ? Attorney for Plaint iff DONALD WOOD, d/b/a WOODY'S IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - L/AW ABOUT TIME SNOW REMOVAL, : No: 2008-103 '`? Defendant DONALD WOOD, d/b/a WOODY'S : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW ABOUT TIME SNOW REMOVAL, No: 2008-4491 Defendant DONALD WOOD, d/b/a WOODY'S : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW ABOUT TIME SNOW REMOVAL, No: 2008-4492 Defendant PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, JUDGES OF SAID COURT: Bryan W. Shook, Esquire, counsel for the Plaintiff in the above actions, respectfully represents that: 1. The above-captioned actions are at issue. Cw)r XN' tt P? a ny C tc I? Ill S8 tba v? f r 2. The claim of Plaintiff in the action is of $11,556.55 (which is derived from $1,601.81 requested in Docket No. 2008-103, $5,824.28 requested in Docket No. 2008-4491 and $4,130.44 requested in Docket No. 2008-4492), plus interest from April 1, 2007, the date established by the Contractor Subcontractor Payment Act ("CSPA") (14 calendar days after issuance of the final invoice at a rate of 1 % per month pursuant to 73 Pa. C.S. § 507(d)); plus a penalty for failure to comply with the CSPA equal to 1% per month of the amount wrongfully withheld pursuant to 73 Pa. C.S. § 512(x); plus an award of attorney's fees, costs and expenses to Plaintiff as the prevailing party in this proceeding pursuant to 73 Pa. C.S. § 512(b). 3. The counterclaim of the Defendant in the action is of $25,001.00. (which is derived from $9,013.00 requested at Docket No. 2008-4491, $5,580.00 requested in Docket No. 2008-4492 and $10,408.00 requested in Docket No. 2008-103). The following attorneys are interested in the cases as counsel or are otherwise disqualified to sit as arbitrators: All Attorneys from the Dethlefs-Pykosh Law Group, LLC (Counsel for Plaintiff) and All Attorneys from the Benstead, Mabon & Mitsch (Counsel for Defendant). WHEREFORE, your petition prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully Submitte , Date: 7-13_ ,Z D I/ _ Bryan Shook, Esquire I. D. # 203250 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Email: BShook(aD_dplglaw. com ORDER OF COURT AND NOW, this the day of , 2011, in consideration of the forgoing petition, , Esq. and are appointed arbitrators in the above captioned actions as prayed for. By the Court, Esq., and Esq. J. 2. The claim of Plaintiff in the action is of $11,556.55 (which is derived from $1,601.81 requested in Docket No. 2008-103, $5,824.28 requested in Docket No. 2008-4491 and $4,130.44 requested in Docket No. 2008-4492), plus interest from April 1, 2007, the date established by the Contractor Subcontractor Payment Act ("CSPA") (14 calendar days after issuance of the final invoice at a rate of 1% per month pursuant to 73 Pa. C.S. § 507(d)); plus a penalty for failure to comply with the CSPA equal to 1% per month of the amount wrongfully withheld pursuant to 73 Pa. C.S. § 512(a); plus an award of attorney's fees, costs and expenses to Plaintiff as the prevailing party in this proceeding pursuant to 73 Pa. C.S. § 512(b). 3. The counterclaim of the Defendant in the action is of $25,001.00. (which is derived from $9,013.00 requested at Docket No. 2008-4491, $5,580.00 requested in Docket No. 2008-4492 and $10,408.00 requested in Docket No. 2008-103). The following attorneys are interested in the cases as counsel or are otherwise disqualified to sit as arbitrators: All Attorneys from the Dethlefs-Pykosh Law Group, LLC (Counsel for Plaintiff) and All Attorneys from the Benstead, Mabon & Mitsch (Counsel for Defendant). WHEREFORE, your petition prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully Submitte , Date: 7- l3- a D // Bryan Shook, Esquire I. D. # 203250 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Email: BShookCa)_dplglaw.com ORDER OF COURT AND NOW, this the a0_0 day of , 2011, in consideration of the forgoing petition, , Esq., and ,Esq. and , Esq. ;a .app ted arbitr tors in the above caption actions as prayed for. 7 o ny l By the Court, ? ? . l?'! '?Se,? CS '? _' ?? C J / >- Wo- __j ERE :z Lt.- ? uj mL ?F? Ps ??G , l eat ,._ ?t a elz DONALD WOOD, d/b/a IN THE COURT OF COMMON PLEAS OF WOODY'S, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW vs. NO. 2008-103 CIVILV ABOUT TIME SNOW REMOVAL, : Defendant DONALD WOOD, d/b/a IN THE COURT OF COMMON PLEAS OF WOODY'S, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : CIVIL ACTION - LAW VS. NO. 2008-4491 CIVIL ABOUT TIME SNOW REMOVAL, : Defendant DONALD WOOD, d/b/a IN THE COURT OF COMMON PLEAS OF WOODY'S, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW VS. NO. 2008-4492 CIVIL ABOUT TIME SNOW REMOVAL, : Defendant ORDER AND NOW, this 2I day of August, 2011, the appointment of Jennifer Hipp, Esquire, as a member of the Board of Arbitrators in the above-captioned case is VACATED. Jason Kutulakis, Esquire, is appointed in her place. ? Ron Turo, Esquire ?'Court Administrator CCpy mpled alit aL BY THE COURT, ,?f ? ?? / / / rn ?• r-? Kevin ess, P. J. M ? r- U ) > C:) CJ .< N ? a r DONALD WOOD d/b/a IN THE COURT OF COMMON PLEAS OF WOODY'S, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff C-) C CIVIL ACTION - LAW VS. NO. 08-0103 CIVILV x r # NO. 08-4491 CIVIL ?" rev ABOUT TIME SNOW REMOVAL NO. 08-4492 CIVIL Defendant "t ORDER AND NOW, this 2 Z? day of September, 2011, the appointment of a Board of Arbitrators in the above-captioned case is VACATED. Ron Turo, Esquire, Chairman, shall be paid the sum of $50.00. BY THE COURT, --/(Z /?? - -"- in . Hess, P. J. ? Ron Turo, Esquire kl Court Administrator Am eco ,hado;;d gb)-v11 Rl