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Home My WebLink About08-1037F ,J IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CASSELL CONCRETE, LLC, Plaintiff No. O$ - I W7 C i v i(_l a m vs. R. HART ENTERPRISES, INC., Defendant NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defense or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 Telephone (717) 249-3166 PECHT & ASSOCIATES, PC By: k??? Herbert P. Henderson, II, Esquire Attorney for Plaintiff 55 West High Street Elizabethtown, PA 17022 Telephone: (717) 367-2800 Attorney I.D. #56304 s IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CASSELL CONCRETE, LLC, Plaintiff No. O ?- - /0 3 7 &,L! -r_, ...._. vs. R. HART ENTERPRISES, INC., Defendant COMPLAINT Plaintiff herein is Cassell Concrete, LLC, a Pennsylvania Limited Liability Company with a principal place of business located at 1205 Manor Drive, Suite 100, Mechanicsburg, Pennsylvania 17055. 2. Defendant herein is R. Hart Enterprises, Inc., believed to be a Pennsylvania business corporation with a principal place of business located at 5154 Kylock Road, Mechanicsburg, Pennsylvania 17055. 3. At all times relevant hereto Plaintiff was in the business of providing materials, supplies and labor in what is commonly referred to as the concrete installation and construction business. 4. At all times relevant hereto, Plaintiff provided all supplies, materials and labor in a good and workmanlike manner and in accordance with accepted principles of construction within the concrete installation and construction industry. COUNTI BREACH OF CONTRACT 5. Paragraphs 1 through 4 are incorporated herein by reference as though set forth at length. 6. Commencing in the Spring of 2007, Plaintiff and Defendant entered into a series of oral contracts whereby Plaintiff was to provide certain concrete construction services for Defendant. 7. Plaintiff provided Defendant with certain concrete construction labor, services, and materials and issued Defendant statements as follows: Statement Date Job Identification Contract Price a. May 22, 2007 Fair Oaks $ 8,000.00 b. May 29, 2007 Mech Townhouse $ 3,584.00 Total $11,584.00 8. Plaintiff has issued Defendant a series of statements and demanded payment but Defendant has failed or otherwise refused to make payment. A true and correct copy of the statements issued totaling $11,584.00 are attached hereto, and incorporated herein by reference as though set forth at length and marked collectively as Exhibit "A". 9. Defendant's failure to pay the invoices when due is a material breach of the parties' oral contract. 10. As a result of Defendant's breach of the parties' oral contract, Plaintiff has suffered damages in the amount of $11,584.00. 11. As set forth Plaintiff has made repeated demands for payment to which the Defendant has refused or otherwise failed to pay or to state, what, if any, portion of the invoice or services performed was not in accord with the contractual specifications or were considered to be a "deficiency item" as defined in the Contractor and Subcontractor Payment Act. 12. As a result of the Defendant's failure to comply with the Contractor and Subcontractor Payment Act, Plaintiff is entitled to a penalty equal to 1% per month of the amount not paid from May 29, 2007 through trial and until time of payment and Plaintiff, if a recovery is awarded, is entitled to reasonable attorney's fees and expenses related to the prosecution of this matter. WHEREFORE, Plaintiff, Cassell Concrete, LLC, demands judgment in its favor and against Defendant, R. Hart Enterprises, Inc., in the amount of $11,584.00 plus a penalty of 1% per month on said amount until paid, plus reasonable attorney fees, litigation expenses and costs of suit. COUNT II UNJUST ENRICHMENT 13. Paragraphs 1 through 12 are incorporated herein by reference as though set forth at length. 14. Plaintiff conferred benefits on Defendant. 15. The benefits conferred were non-gratuitous. 16. There was an appreciation of those benefits by Defendant. 17. Acceptance and retention of these benefits by Defendant, under the circumstances, is inequitable and without payment of value. 18. As a result of Defendant's failure to pay Plaintiff, Defendant has been unjustly enriched in the amount of $11,584.00. WHEREFORE, Plaintiff, Cassell Concrete, LLC, demands judgment in its favor and against Defendant, R Hart Enterprises, Inc., in the amount of $11,584.00 plus a penalty of 1% per month on said amount until paid, plus reasonable attorney fees, litigation expenses and costs of suit. Respectfully Submitted, By: Herbert P. Henderson, II, Esquire Attorney for Plaintiff 55 West High Street Elizabethtown, PA 17022 (717) 367-2800 I.D. # 56304 VERIFICATION I, Stephen P. Gift, hereby swear and affirm that I am the Managing Member of Cassell Concrete, LLC, Plaintiff herein, and that I am authorized on behalf of the Company to execute this verification. I hereby verify that all the information set forth within the preceding are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. CASSELL CONCRETE, LLC Date: Stephen P. Gift, Man er Cassell Concrete, LLC 1205 Manor Dr, Suite 100 Mechanicsburg, PA 17055 Phone: 717 766-3555 Fax: 717 766-4005 } Xr ? ?} h Attention: Quantity Terms Due U 800.0 Sidewalks 96.0 Patio Description 4.00 SQ FT 4.00 SQ FT Salesperson Extended Amount 3,200.00 384.00 Item Total 3,584.00 Plus Sales Tax 0.00 Invoice Total 3,584.00 EXHIBIT Invoice No.: 1449 Page No.: 1 Date: 05/29/07 Customer No.: 515 Due Date P.O. Number 05/29/07 Mech Townhouse Unit Price A Cassell Concrete, LLC 1205 Manor Dr, Suite 100 Mechanicsburg, PA 17055 Phone: 717 766-3555 Fax: 717 766-4005 Bilt'T,p es"thc` t Attention: Invoice No.: 1444 Page No.: 1 Date: 05/22/07 Customer No.: 515 Terms Due Date Due Upon Receipt P.O. Number Salesperson 05/22/07 Fair Oaks Quantity Description Unit Price Extended Amount 2,000.0 Sidewalks 4.00 SQ FT 8,000.00 Item Total 8,000.00 Plus Sales Tax 0.00 Invoice Total 8,000.00 ?4 ? '?' ? C? .v ? ?:? c7 ? ??-? ` ? (31 ? ? r' r?-, - o ? ? w ?, r?? „? " _. r ? ??- j d _ ? r i ? 't? ? t? _ tt? •-G SHERIFF'S RETURN - REGULAR CASE NO: 2008-01037 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CASSELL CONCRETE LLC VS R HART ENTERPRISES INC MARK CONKLIN Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon R HART ENTERPRISES INC the DEFENDANT , at 1100:00 HOURS, on the 15th day of February , 2008 at 5154 KYLOCK ROAD MECHANICSBURG, PA 17055 NANCY HART by handing to ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 12.48 Affidavit .00 Surcharge 10.00 .00 40.48 Sworn and Subscibed to before me this day So Answers: f R. Thomas Kline 02/19/2008 PECHT & ASSOCIATES By. X?z Deputy Sheriff of A. D. C' Brian K. Zellner, Esquire Supreme Court ID #59262 315 Bridge Street, Lower Level New Cumberland, PA 17070 (717) 774-1357 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CASSELL CONCRETE, LLC, NO. 08-1037 CIVIL TERM Plaintiff V. R. HART ENTERPRISES, INC., Defendant NOTICE TO PLEAD To: Cassell Concrete, LLC c/o Herbert P. Henderson, II, Esquire 55 West High Street Elizabethtown, PA 17022 You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from the service hereof or a judgment may be entered against you. L k' q4ff*--' Brian K. Zellner, Esquire Michael A. Hynum, Esquire Attorney for Defendant Hynum Law Attorney Id. 59262 315 Bridge Street, Lower Level New Cumberland, PA 17070 (717) 774-1357 Brian K. Zellner, Esquire Supreme Court ID #59262 315 Bridge Street, Lower Level New Cumberland, PA 17070 (717) 774-1357 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CASSELL CONCRETE, LLC, NO. 08-1037 CIVIL TERM Plaintiff V. R. HART ENTERPRISES, INC., Defendant DEFENDANT'S ANSWER TO THE COMPLAINT WITH NEW MATTER 1. Admitted. 2. Admitted. 3. Denied. After reasonable investigation, the Defendant can not determine the truth or veracity of this averment. 4. Denied. After reasonable investigation, the Defendant can not determine the truth or veracity of this averment. COUNTI BREACH OF CONTRACT 5. Paragraphs 1 through 4 of the Defendant's Answer with New Matter are incorporated herein by reference as if fully set forth herein. 6. Denied. After reasonable investigation, the Defendant can not determine the truth or veracity of this averment. 7. Denied. After reasonable investigation, the Defendant can not determine the truth or veracity of this averment. 8. Denied. The Defendant avers to the contrary that on September 12, 2007, Brad Cassell, authorized agent, for the Plaintiff approached Richard P. Hart, Jr., President of the Defendant about payment of invoice number 1449 dated 5/29/07 totaling $3,584. Brad Cassell instructed Mr. Hart to write out a check in his name for $3,200.00 in full payment and satisfaction of the invoice number 1449. Attached hereto as Exhibit "A" is a copy of the check. The Defendant further avers to the contrary that on November 12, 2007, Brad Cassell, authorized agent, for the Plaintiff approached Richard P. Hart, Jr., President of the Defendant about payment of invoice number 1444 dated 5/22/07 totaling $8,000.00. Brad Cassell instructed Mr. Hart to write out a check in his name for $5,000.00 in full payment and satisfaction of the invoice number 1444. Attached hereto as Exhibit "B" is a copy of the check. 9. Denied. The averment contained in this paragraph is a legal conclusion as to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. 10. Denied. The averment contained in this paragraph is a legal conclusion as to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. 11. Denied. The averment contained in this paragraph is a legal conclusion as to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. 12. Denied. The averment contained in this paragraph is a legal conclusion as to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. COUNT II UNJUST ENRICHMENT 13. Paragraphs 1 through 12 of the Defendant's Answer with New Matter are incorporated herein by reference as if fully set forth herein. 14. Denied. The allegations contained in this averment are legal conclusions as to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. 15. Denied. The allegations contained in this averment are legal conclusions as to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. 16. Denied. The allegations contained in this averment are legal conclusions as to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. 17. Denied. The allegations contained in this averment are legal conclusions as to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. 18. Denied. The allegations contained in this averment are legal conclusions as to which no response is required pursuant to the Pennsylvania Rules of Civil Procedure. WHEREFORE, the Defendant requests judgment in its favor and against the Plaintiff. NEW MATTER 19. Paragraphs 1 through 18 of the Defendant's Answer with New Matter are incorporated herein by reference as if fully set forth herein. 20. The Plaintiffs claim is barred by the Statute of Limitations. 21. The Plaintiffs claim is barred by accord and satisfaction. 22. The Plaintiff's claim is barred by the Statute of Frauds. WHEREFORE, the Defendant requests judgment in its favor and against the Plaintiff. lag Brian K. Zellner, Esquire Michael A. Hynum, Esquire Attorney for Defendant Hynum Law Attorney Id. 59262 315 Bridge Street, Lower Level New Cumberland, PA 17070 (717) 774-1357 VERIFICATION The undersigned, Brian K. Zellner, Esquire, hereby certifies that he is the Attorney for Defendant, R. Hart Enterprises, Inc. in the within action, that he is authorized to make this verification and that the foregoing facts are true and correct to the best of his knowledge, information and belief. He further acknowledges that false statements contained herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsifications to authorities. Date: ' 3 6 Brian K. Zellner, Esquire Attorney for Defendant, R. Hart Enterprises, Inc. CERTIFICATE OF SERVICE On this 31St day of March, 2008, 1 certify that a copy of the foregoing DEFENDANT'S ANSWER TO THE COMPLAINT WITH NEW MATTER was served upon the following counsel of record for the Defendants by placing the same in the United States mail, first class, addressed as follows: Herbert P. Henderson, 11, Esquire 55 West High Street Elizabethtown, PA 17022 Brian K. Zellner, Esquire Hynum Law 315 Bridge Street, Lower Level New Cumberland, PA 17070 EXHIBIT "A" ORRSTTOWNBANK A TnidMon of FAvellence - 1272 a ow 9B S wc, a161011O0a1i. OY R p ?11 WIN aquas 8 QN%w Poo 519141 , 7 e00tt72r 130311001M lit 900 ?e --L- Chk # 1272 10/11107 03200.00 Date 10/31/07 Page 5 Account Number 00000111900277 awnwn BMW xCa msaw mO 1278 SISa0100[O ?gOnNM1.Sti;iOea MICKV40rim?.a1Aa5 8l/17120?7 , Wt'. UGIGITIiTIFS S402.59 "Fo?rHad,tdTwoffi 59,1W ?••"•?•••w•?a.r..w..... OMIAn maw :a?744-$$104: SISIM /.ECMWEC iOPI S" to 11WRK INC. n4aa?ss1 M saneo 01 -9 Vab*-bsadbFrimtdepa- 1'QOLIMV 5:0343450361: LLL9002??a' 10000040I59P Chk # 1278 10/01/07 $402.59 EXHIBIT "B" w03i3Di8L6C_ _ 134 03 i5 Check 315, $1,600.00 Date Presented 11/06/2007 0374 - ACOOU r na S 1 z i r.r:a ?? 0'7 J t it 11-5 MY? ?3sz.?:.9 c? csQ ? 's?? cammww ?w.wtiaw CM06m.wawte x:03 Oi 46r: (337 Check 374, $5,000.00 Date Presented 11/15/2007 CO313D i846? D 3 i6 L-- im Check 316, $5,000.00 Date Presented 11/07/2007 p. ? ?roounrNO..S.t c+oea.a?x 037 otc 11 *.tixi,?? t o3 arm= V I ....ersamew++nMtarY? ":03430i8LSS: 0375 Check 375, $2,034.10 Date Presented 11/20/2007 _' ? ? :W.s . ?'? `t: -n '?? p? ? ? ?? _ ,, t r r?? ? f.. -...1 "" ...? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CASSELL CONCRETE LLC, Plaintiff No. 08-1037 vs. R. HART ENTERPRISES, INC, Defendant RESPONSE TO NEW MATTER 19. No answer required. 20. Denied. Strict proof otherwise is demanded at the time of trial. 21. Denied. Strict proof otherwise is demanded at the time of trial. 22. Denied. Strict proof otherwise is demanded at the time of trial. WHEREFORE, the Plaintiff requests judgment in its favor and against Defendant as set forth in Plaintiff's Complaint. PECHT & ASSOCIATES, PC By: Herbert P. Henderson, II, Esquire Attorney for Plaintiff 55 West High Street Elizabethtown, PA 17022 Telephone: (717) 367-2800 Attorney I.D. #56304 ?-.a ?-`Y wb `` " --i t .. ... ?:. ??4..s ??l" ?' _ ?,? r r . CASSELL CONCRETE, LLC Plaintiff vs. R. HART ENTERPRISES, INC. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-1037 RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the Following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Herbert P. Henderson, II, counsel for the Plaintiff in the above action, respectfully represents that: 1. The above-captioned action is at issue. 2. The claim of Plaintiff in the action is $15,059.20 There is no counterclaim. The following attorneys are interested in the case as counsel or are otherwise disqualified to sit as arbitrators: Herbert P. Henderson, II, Esquire; Brian K. Zellner, Esquire and Michael A. Hynum, Esquire WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully Submitted, Herbert P. Henderson, II, Esquire ORDER OF COURT AND NOW, , 2008, in consideration of the foregoing petition, Esq., and Esq., and for Esq., are appointed arbitrators in the above captioned action as prayed for. By the Court, Edgar B. Bayley Ilp g, b O D CASSELL CONCRETE, LLC Plaintiff VS. R. HART ENTERPRISES, INC. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-1037 RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the Following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Herbert P. Henderson, H, counsel for the Plaintiff in the above action, respectfully represents that: 1. The above-captioned action is at issue. 2. The claim of Plaintiff in the action is $15,059.20 There is no counterclaim. The following attorneys are interested in the case as counsel or are otherwise disqualified to sit as arbitrators: Herbert P. Henderson, II, Esquire; Brian K. Zellner, Esquire and Michael A. Hynum, Esquire WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully Submitted, Herbert P. Henderson, 11, Esquire ORDER OF COURT AND NOW 2008, in consi ation of the foregoing petition, Esq., and Esq., and Esq., are appointed arbitrators in the above ca coned action as prayed By the urt, Edgar B. Bayley iltu ?vz 5z' -golbilb je,W V) 71. . 00 I I :Z! ltd L 1435 8001 -fP 0 a Nor' ' c P ca ca> XVVj +N&uG,W 3HI 30 3ji David D. Bueff Trothonotary lUrkS. Sohonage, ESQ Solicitor 0 v 1754 &nee X Simpson 1" Deputy ftothonotary Irene E. Morrow 2' Deputy 1tothonotary office of the Prothonotary Cum6erfand County, Pennsylvania 163 ! CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 25TH DAY OF OCTOBER, 2011, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE -THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P 230.2 BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square a Suite 100 9 Carfiste, P,4 17013 • (717) 240-6195 • Faa,? (717) 240-6573