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HomeMy WebLinkAbout04-0628ALAN GOBAT and AMY GOBAT, 292 Liberty Drive Shippensburg, PA 17257 Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. ? 41- 6 ^7W CLAYTON BONAWITZ and BRANDIE BONAWITZ 1466 Woods Road, Lot #35 Shippensburg, PA 17257 Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 ALAN GOBAT and AMY GOBAT, 292 Liberty Drive Shippensburg, PA 17257 Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CLAYTON BONAWITZ and BRANDIE BONAWITZ 1466 Woods Road, Lot #35 Shippensburg, PA 17257 : CIVIL ACTION - LAW Defendants : JURY TRIAL DEMANDED COMPLAINT AND NOW comes the Plaintiffs, Alan Gobat and Amy Gobat, by and through their attorneys, Killian & Gephart, LLP, and does hereby file this Complaint against the above-referenced Defendants and in support thereof avers as follows: 1. Plaintiffs, Alan and Amy Gobat are adult individuals that are currently married and reside at 292 Liberty Drive, Shippensburg, Cumberland County, Pennsylvania 17257. 2. Defendants, Clayton Bonawitz and Brandie Bonawitz are adult individuals that currently reside at 1466 Woods Road, Lot #35, Shippensburg, Cumberland County, Pennsylvania 17257. 3. Plaintiffs agreed to purchase the property located at 292 Liberty Drive, Shippensburg, Pennsylvania from the Defendants in February 2003. 4. Prior to completion of the sale, the Plaintiffs requested that the Defendants repair a certain fence that enclosed the property. 5. The Defendants agreed to pay the cost of the repair to the fence. (See escrow agreement attached as Exhibit "A"). 6. An estimate for the cost of the repairs exceeds $500 which is the amount deposited in an escrow account by the Defendants. 7. The Defendants were asked to pay additional monies into the escrow account to cover the repairs to the fence but refused to do so. COUNTI BREACH OF CONTRACT 8. Plaintiff hereby incorporates paragraphs 1 through 7 as though fully set forth herein. The Plaintiffs and the Defendants entered into a contract whereby the Defendants would deposit into an escrow account the cost to cover repairs to a certain fence enclosing the property located at 292 Liberty Drive, Shippensburg, Pennsylvania. 10. The Defendants violated this agreement by refusing to deposit additional monies into the escrow account to cover the cost of repairs to the fence. 11. As a result of this breach, the aforesaid fence is currently in disrepair and needs to be replaced by a new fence. (See estimate attached as Exhibit `B"). WHEREFORE, Plaintiffs Alan Gobat and Amy Gobat requests this Honorable Court enter judgment in their favor and against Defendants Clayton Bonawitz and Brandie Bonawitz in an amount that does not exceed the compulsory arbitration limit of $25,000 plus costs and fees and such other relief as this Court deems just and proper. Respectfully submitted, Dated: February, 2004 Michael onnor, Esquire Killian & Gephart 218 Pine Street P. O. Box 886 Harrisburg, PA 17108 (717) 232-1851 Attorney I. D. #76127 Attorneys for Plaintiffs EXHIBIT "A" ESCROW AGREEMENT Barley, Snyder, Senft & Cohen, LLC 247 Lincoln Way East, Chamberaburg, PA 17201 Date: /- 31- 0-? r n t^G I/we request you to retain in escrow the sum of $ Y0 0, - F ?G (A v(Jotco from your settlement dated /-3f - C3 for premises located at ?. q L/ReCry az,vf_ SN: Pv Q.I tO,raG ?"? for the following purpose: - KQ,PA;J- ILEANiM9 fC^, Ce oo,r; AF Re,V Y4^3 In the event your insurance is imperiled, you are hereby authorized to use any or all of the sum retained to protect your insurance. I/we do hereby agree to indemnify and save you harmless from any loss you may sustain by reason of your issuing Title Insurance Policy clear of the above objection. Upon fulfillment of? the above conditions, which are to be approved by; ,*& /i_ F+N CT Y t)mr (? GV6A7-41 A>~1 G -C'Ahar pfd G . aottAT ,S1J/J1l.SuAK1t" 10ee J AOmi.4c_rA) OZC,44&N^Kl' ikt-?l/11?1 'a?l?te you are authorized to pay the stated sum to CI aYfnW * er,1nd, ri .a:7-T k ,ba b.ql Any expenses incurred by you as a result of litigation or otherwise, arising out of the holding of the fund, will be paid by us and may be retained by you out of the fund. In the event the amount retained is not sufficient, I/we will on demand deposit the additional amount necessary. It is further agreed and understood that this fund is to be disbursed within `` As to or 4Ir VM C* TN P"r,«r rd /gEPr:? N b r- 7o t v,P, /Qs n?J z)?`?+^Q Jf If the fund is disbursed at any time within six (6) months from the date hereof, a charge of $25.00 shall be made. An additional charge of $25.00 shall be made for each year beyond the initial six 16) months period. It Is agreed that no interest will be paid on any funds held by you for the disposition of exceptions or your protection; such funds may be deposited with your funds and used by you; any income from funds held by you will become your property. Witness: a,, 4:::5 1/J'10 1.31.031aRM/21 5370.1 EXHIBIT "B" ill/'L"/260_J lb:7/ 1/1/Lb/b4L/ ?+LHrv VuDHI Duiv r;+,uC 1L PROPOSAL PROPOSAL SUBMITTED TO I fill ,ill d{ I,un :'i1 ?I 11 i(I I IIII'I .lr?? 4 h PHONE NO. )I Aa, Sml 1A: v e m't''. DATE WORK TO BE PERFORMED AT DATE OF PLANS ARCHITECT tIlil r,• Iho*y ? to 1 IMnislq Iha IMateddls aad porforfh the fail nacbtiesry tWr the completion of I .. 'I 1 1 I ??.I'' 1?i eu I• ..• I ?n^ p I rs/?Nfi?Q AI Imo,. r r-?' Q 14 174e Ce. ?G ? u ? ['. a NrJfei? 44"(0 Pri l nveATn1 Mr ASS c H iil-i i q k - QeATe I . lty l q &4'pai u? /X44 r*-7:;a c E* 1A-,*a,ps , 57;L00 All pW+yr? svr Y? c ?l8'I dvtill< C?tRfS /t L;uTQf+ GlrAa?e RarK 1- 4o " wplk G+,rcr, /uo 5xr4A G'??7"QS All material Is guaranteed to be as specified, and the above work to be pertormed.in accordance with the drawings and specifl_ cats gubmftled Ypr above wok and co Ed in a substantial workmanlike manner for the sum of 3,(*) / -Y,.cywi "4 ) Dollars ($ pl oo ) with payments to be made as follows. u f,.q Comp l e-T ION Respectfully submitted J\ y ?+er ???f ?, I Any allerallon of davladon Inm above epecltoul involving extra ooste / V will be exac:Aad only upon wdden order, and will Deooma an extra charge Per over and above the aebmele. All agmemema mnlingant upon et&ee, ao- oldamo, or deleya beyond our mnlrol Note-This proposal may be withdrawn by us if not accepted within days. 'h -ji III l'I' Il?lo III ,'..i l? I il'I It r 'll6 ??I?ri7R?1?ryLl r+ ? .I authohZed to db this WA are eatlakacta l9 ahd' ark hereby accepted. You are I I? y lllutlttrsrd bve. Sig; r l t1a as o II .. I S nalt+lre Date Signature sa-- NC sete-so USA PROPOSAL MADE IN VERIFICATION I hereby verify that the statements of fact made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements made therein are subject to the penalties contained in 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. / 9- 1`7 4 Alan Gobat VERIFICATION I hereby verify that the statements of fact made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements made therein are subject to the penalties contained in 18 Pa.C.S.A. §4904, relating to unworn falsification to authorities. Amy Go ?] N _ 'fl W ?n cl? c,.t t! °`) N (-1 -?l _r I `f: -T7 `C7 "a 'J n IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA CUMBERLAND COUNTY 9TH JUDICIAL DISTRICT Alan Gobat and Amy Gobat, 04 - 628 Civil Term Plaintiffs, V. Clayton Bonawitz and Brandie Bonawitz, Defendants MOTION FOR JOINDER OF THIRD PARTY Facts 1. Plaintiffs Alan Gobat and Amy Gobat (hereinafter referred to as the Gobats) reside at 292 Liberty Drive, Shippensburg, Cumberland County, Pennsylvania 17257. 2. First party defendants Clayton Bonawitz and Brandie Bonawitz (hereinafter referred to as the Bonawitzs) reside at 1466 Woods Road, Lot #35, Shippensburg, Cumberland County, Pennsylvania 17257. 3. Adam Stotz, Jr. is an officer in the A.L. Fence Co. (hereinafter referred to as the company). 4. Some time before July 30, 2002, the company constructed a fence on what was then the Bonawitz's property at 292 Liberty Drive, Shippensburg, Pa., which fell down in a windstorm a few months later. 5. The Bonawitz's refused to compete payment on the fence until the company properly repaired the defective installation. 6. Sometime about January 2003, the Bonawitz's sold the property to the Gobats subject to completing the fence repairs. An escrow account was set up by the law firm of Barley Snyder to manage the $500.00 deposit by the Bonawitz's and any additional deposits or disbursements as agreed. (James Fry Letter, Barley Snyder, May 16, 2003.) Procedural History 7. On February 20, 2003, the Bonawitz's filed a civil action against the company for cost of repairing the defective fence construction (estimated at $3,989.90); the hearing was set for March 17, 2003. (Civil Action Hearing Notice, CV-0000048-03, Mag. Dist. No.: 09 - 3 - 01, D.J. Harold Bender.) 8. On March 24, 2003, judgment was entered against the company for the outstanding balance of the amount owed to the company by the Bonawitzs ($2,370.00) plus the court costs of $83.00. (Notice of Judgment in a Civil Case, CV-0000048-03, Mag. Dist. No.: 09 - 3 - 01, D.J. Harold Bender.) 9. On April 21, 2003, the company filed a timely appeal with the Court of Common Pleas from the district courtjudgment CV-0000048-03. (Notice of Appeal, Cumberland County Court of Common Pleas, Civil Term 03-1803.) 10. On June 16, 2003, the Gobats filed a civil complaint against the Bonawitz's for failure to comply with the escrow agreement, and asked for $2,300.00 to carry out the fence repairs. (Civil Complaint CV-166-03, Mag. Dist. No.: 09 - 3 - 01, D.J. Harold Bender.) 11. On December 1, 2003, Judgment for $2,408.10 was entered for the Gobats and against the Bonawitz's. (Notice of Judgment in a Civil Case, CV-0000166-03, Mag. Dist. No.: 09 - 3 - 01, D.J. Harold Bender.) 12. On January 9, 2004, the Gobats appealed the CV-0000166-03 judgment. (Notice of Appeal, Civil Term 04-0013.) 13. On February 19, 2004, the Gobats filed their formal complaint with the Cumberland County Court of Common Pleas against the Bonawitz's (Notice and Complaint, Gobat v. Bonawitz, Civil Term 04-628.) Motion for Joinder 14. Adam Stotz and the company deliberately prolonged the process of remedying their defective construction of the fence on what was at the time the Bonawitz's property at 292 Liberty Drive, Shippensburg, Pa. 15. As a direct result of Adam Stotz's and the company's refusal to remedy their defective construction and delaying tactics, the Bonawitz's had to default on the escrow agreement with the Gobats. 16. Absent Adam Stotz's and the company's refusal to remedy their defective construction the agreement between the Bonawitzs and the Gobats would have been fully satisfied, so Adam Stotz and the company are liable for any judgment against the Bonawitzs for the Gobats in this action. 17. Given that Adam Stotz and the company initiated and exacerbated the events that lead to the Gobats' complaint, joining Adam Stotz and the company facilitates the just, speedy and less expensive determination of the Gobats' action. Bianculli v. Turner, 660 A.2d 461, n5 (Pa. Super. 1994). WHEREFORE, the Defendant requests joinder of Adam Stotz and the A.L. Fence Co. to this matter under Pennsylvania Rules of Civil Procedure 2252(a)(1, 2, 4). R Date: March 29. 2004 Supreme Court IN 71786 50 East High Street Carlisle, PA 17013 (717) 258-8558 Attorney for Defendant IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA CUMBERLAND COUNTY 9TH JUDICIAL DISTRICT Alan Gobat and Amy Gobat, 04 - 628 Civil Term Plaintiffs, V. Clayton Bonawitz and Brandie Bonawitz, Defendants CERTIFICATE OF SERVICE I hereby certify that on this date, I caused a copy of Clayton Bonawitz's and Brandie Bonawitz's Motion for Joinder of A.L. Fence Company and Mr. Adam Stotz to be served upon the following person at the following address via United States Post Office First Class Mail delivery: Date: March 29, 2004 Michael O'Connor, Esquire Killian & Gephart 218 Pine Street Harrisburg, 171 8 Paul radford Orr, Esqu 50 East High Street Carlisle, PA 17013 (717) 258-8558 Attorney for Defendant Supreme Court ID# 71786 IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA CUMBERLAND COUNTY 9TH JUDICIAL DISTRICT Alan Gobat and Amy Gobat, 04 - 628 Civil Term Plaintiffs, V. Clayton Bonawitz and Brandie Bonawitz, Defendants ATTORNEY VERIFICATION The undersigned, Paul Bradford Orr, Esquire, hereby verifies and states that: 1. He is the attorney for Clayton Bonawitz and Brandie Bonawitz; 2. He is authorized to make this verification on Clayton Bonawitz's and Brandie Bonawitz's behalf, 3. The facts set forth in the foregoing Motion are known to him and not necessarily to his client; 4. The facts set forth in the foregoing Motion are true and correct to the best of his knowledge, information, and belief, and 5. He is aware that false statements herein are made subject to the penalties of 18 Pa. C. S. §4904, relating to unsworn falsification to authorities. Respectfully submitted, THE LAW Date: March 29. 2004 By: 50 East High Street Carlisle, PA 17013 (717) 258-8558 Attorney for Defendant Supreme Court ID# 71786 SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2004-00628 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GOBAT ALAN ET AL VS BONAWITZ CLAYTON ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: BONAWITZ CLAYTON but was unable to locate Him deputized the sheriff of FRANKLIN in his bailiwick. He therefore serve the within COMPLAINT & NOTICE County, Pennsylvania, to On March 31st , 2004 , this office was in receipt of the attached return from FRANKLIN Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Franklin Co 60.44 .00 97.44 03/31/2004 KILLIAN & GEPHART So an °?- R. Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this day of J?O j o?00 A. D. Prothonotary SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2004-00628 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GOBAT ALAN ET AL VS BONAWITZ CLAYTON ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT BONAWITZ BRANDIE but was unable to locate Her in his bailiwick deputized the sheriff of FRANKLIN serve the within COMPLAINT & NOTICE to wit: He therefore County, Pennsylvania, to On March 31st , 2004 , this office was in receipt of the attached return from FRANKLIN Sheriff's Costs: Docketing 6.00 Out of County .00 Surcharge 10.00 .00 .00 16.00 03/31/2004 KILLIAN & GEPHART So answer $. Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this day of C . mss. d0 / A. D. Prothono ono/{ J ta'r SHERIFF'S RETURN - REGULAR CASE NO: 2004-00042 T COMMONWEALTH OF PENNSYLVANIA: COUNTY OF FRANKLIN ALAN GOBAT, ET AL VS CLAYTON BONAWITZ, ET AL THEODORE L KONCSOL Deputy Sheriff of FRANKLIN County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT was served upon BONAWITZ CLAYTON _ the DEFENDANT , at 0008:56 Hour, on the 5th day of March 2004 at 1466 WOODS ROAD LOT # 35 SHIPPENSBURG, PA 17257 by handing to CLAYTON BONAWITZ a true and attested copy of COMPLAINT together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 9.00 Service 9.00 Affidavit 4.00 Surcharge 10.00 Mileage 10.44 42.44 Sworn and Subscribed to before me this day of C?1, V A.D. Notary So Answers: THEODORE L?KONCSOL By 1? Deputy Sheriff 03/24/2004 CUMBERLAND CO. SHERIFF Notarial Seal Richard D. McCarty, Notary Nblic Chambersbm6 Bom, Franklin County My Commission Expir Jm. 29, 2007 In The Court of Common Pleas of Cumberland County, Pennsylvania Alan Gobat et al Oq V5. Clayton Bonawitz et al SERVE: Clayton Bonawitz 04-628 civil No. Now, February 18, 2004 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Franklin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. .j' Sheriff of Cumberland County, PA Affidavit of Service Now, %? S? , 20d'i" , at 6'a2 o'clock _Z-f M. served the within jyoG /Ij < i? upon C L /.t1/Lc?r % Z at J ? Gflde ®s ec e /LorF,O? L&, 3 s? 'S<s6G by handing to C l- lkf Tllr/ a and made known to Art inj Notanat seal I Aicbard D. McCSty, Notary Public Cb mbssburg Bono, rrarddin County My Commission Expires Jan. 29, 2007 Sworn and bscrib efore me day o 20 &/ copy of the original the contents thereof. So answers, Sheriff of County, PA COSTS SERVICE $ MILEAGE AFFIDAVIT $ u/, 0, qc(- SHERIFF'S RETURN - REGULAR CASE NO: 2004-00042 T COMMONWEALTH OF PENNSYLVANIA: COUNTY OF FRANKLIN ALAN GOBAT, ET AL VS CLAYTON BONAWITZ, ET AL THEODORE L KONCSOL ?.o Deputy Sheriff of FRANKLIN County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT was served upon BONAWITZ BRANDIE the DEFENDANT , at 0008:56 Hour, on the 5th day of March 2004 at 1466 WOODS ROAD LOT # 35 SHIPPENSBURG, PA 17257 by handing to CLAYTON BONAWITZ a true and attested copy of COMPLAINT together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing .00 Service 6.00 Affidavit 2.00 Surcharge 10.00 .00 18.00 Sworn and Subscribed to before 1S'? me this day A.D. Notary So Answers: THEODORZLNCSOL B y ? Deputy Sheriff 03/24/2004 CUMBERLAND CO SHERIFF Notarial Seal Richard D. McCarty, Notary Public Chambcrsburg Borc, Franldin County My Commission Expires Jan. 29, 2007 In The Court of Common Pleas of Cumberland County, Pennsylvania Alan Gobat et al vs. Clayton Bonawitz et al SERVE: Brandie Bonawitz No 04-628 civil Now, February 18, 2004 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Franklin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. P Sheriff of Cumberland County, PA Affidavit of Service Now, // NOI2 c,/( ? , 20 0?, at S'6 o'clock /1 M. served the within [? ,* /VZ /I i." / T upon '4?2A IL / E -1:Lj A44 a// i Z at /4/(o r, by handing to a -" - and made known to ,111-7 Notarial Seal Richard D. McCarty, Notary Public Chambenburg Born, rrawin County My Coarrn 91n Expires Jan. 29, 2007 Sworn and bscrib before, me this day o ?O V y- copy of the original the contents thereof. So answers, Sheriff of County, PA COSTS SERVICE MILEAGE AFFIDAVIT $ $ 6044 ALAN GOBAT and AMY GOBAT, Plaintiffs V. CLAYTON BONAWITZ and BRANDIE BONAWITZ, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-0628 CIVIL TERM ORDER OF COURT AND NOW, this 12a' day of April, 2004, upon consideration of the Motion for Joinder of Third Party, a Rule is hereby issued upon Plaintiffs to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. Michael O'Connor, Esq. 218 Pine Street Harrisburg, PA 17108 Paul Bradford Orr, Esq. 50 East High Street Carlisle, PA 17013 Attorney for Defendants ,/-/3- vY A.L. Fence Co. 1345 Goldenville Road Gettysburg, PA 17325 BY THE COURT, - to Mr. Adam Stotz, Jr. c/o A.L. Fence Co. 1345 Goldenville Road Gettysburg, PA 17325 :rc ALAN GOBAT and AMY GOBAT, Plaintiffs V. CLAYTON BONAWITZ and BRANDIE BONAWITZ Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-0628 CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFFS' ANSWER TO DEFENDANTS' MOTION FOR JOINDER OF THIRD PARTY Plaintiffs Alan and Amy Gobat by and through their attorneys, Killian & Gephart, LLP, hereby responds to Defendants' Motion for Joinder of Third Party as follows: Plaintiffs do not object to Defendants' Motion for Joinder of A.L. Fence Co. to the above-captioned action. Respectfully submitted, ?e J6" Michael J. O'Connor, Esquire Dated: April d '2004 Killian & iGephart 218 Pine Street P. O. Box 886 Harrisburg„ PA 17108 (717) 232-1851 Attorney I. D. #76127 Attorneys for Plaintiffs CERTIFICATE OF SERVICE On this q day of -W-, 2004, I hereby certify that I served the foregoing document on the following by depositing a true and correct copy in the United States Mail, postage prepaid, addressed to: Paul Bradford Orr, Esquire 50 East High Street Carlisle, PA 17013 A.L. Fence Co 1345 Goldenville Road Gettysburg, PA 17325 KILLIAN & GEPHART G-J4 Michael J. O'Connor, Esquire Attorney I.D. #76127 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 C7 0 s "Olt, A -[I 3> C`: W N Q+ m? 52% Qn Ej'm ALAN GOBAT and AMY GOBAT, Plaintiffs V. CLAYTON BONAWITZ and BRANDIE BONAWITZ, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ADAM L. STOTSKY, JR., t/d/b/a A. L. Fence Company, by and through his attorney, Hunter & Daniels, hereby answers Defendant's Motion for Joinder of Third Party as follows: 1. Admitted. 2. Admitted. 3. Correctly stated as Adam L. Stotsky, Jr., owner of A. L. Fence Company (hereinafter referred to as the "Company"). 4. Admitted in part; denied in part. Pursuant to Defendant's order for the least expensive type of wooden privacy fence, a quote of $2,770 was given for the installation of untreated spruce fencing. Defendant directed Company to proceed accordingly. On June 25, 2002, Defendant called, after installation had proceeded for about one week in Defendant's presence and was about one hour away from completion, to change from untreated wood to treated wood fencing. Since a change of materials at this point was infeasible, Defendant unilaterally reduced his obligation by an estimated figure ($400.00) for cost of painting. Defendant next contacted Company concerning the condition of the fence on or about February 1, 2003, when he expressed problems with the fence's leaning and the posts' not being anchored with enough concrete. Defendant proceeded to seek damages for the value of an independent replacement before Company could effect a preferred remedy of repairs or compensation to Defendant for reasonable cost for straightening. 5. Denied. On the contrary, Defendant Bonawitz made payment by personal check to installation crew upon their completion of work in the amount of $2,370.00, stating thereon "Payment in full." This check was cashed as written, but was returned July 19, 2002, marked insufficient funds. Defendant refused to make GOOD the payment of $2,370 until one day before a scheduled hearing on the matter in District Justice Court brought by Company. 6. Company was never consulted or advised regarding terms and conditions of a real estate transaction between Defendant and Plaintiff, and is thus without knowledge or information sufficient to determine the accuracy of this averment. Therefore, Denied, subject to proof of agreement. PRO D RA . HISTORY-. 7. Admitted. 8. Admitted. 9. Admitted. By way of further explanation, Defendant received said Notice on April 23, 2003 as evidenced by Return Receipt wiib Restricted Delivery, and no response was made by or for Defendant until on or about July 2, 2003, subsequent to Plaintiff's District Justice lawsuit against Defendant. 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted. MOTION FOR IOINDFR• 14. Denied. Adam L. Stotsky, Jr., and Company have never refused to remedy promptly defects presented by either the Defendant or the Plaintiff as to the fence on 292 Liberty Drive, Shippensburg, PA. On the contrary, the initiative to remediate to the owners' satisfaction has been taken repeatedly by Company and on behalf of Mr. Stotsky. The fulfillment of adequate remedy has been delayed and stymied, despite repeated attempts by and on behalf of Company to perform, because of the failure of responsive communications and cooperation. 15. Denied. At no time did Adam L. Stotsky, Jr., and Company prolong repairing reported defects that appeared in the fence that Company constructed for Defendant. For whatever causes or reasons, Acts of God or otherwise, the problems appearing and reported were pursued by Company which sought the opportunity to correct them to reasonable satisfaction and without compensation. On the contrary, Defendant who acknowledged himself to have worked in the fence construction trade, was delinquent in timely requesting the corrective measures which Company offered to make and has remained willing to do. Defendant instead preferred to seek money damages. The only delaying tactics exercised appear to be in the strategy applied by Defendant and Plaintiff in seeking monetary damages. Company in no way affected Defendant's compliance with his arrangements made with Plaintiff. See letter, marked as Exhibit 1, attached hereto and incorporated by reference. 16. Admitted in part and Denied in part. Indeed there has been an absence of refusal to remedy by Company. There has been, as stated above, no refusal ever to correct the problems appearing in stabilizing the subject fence. It is averred that the parties' preference for monetary damages over remediation of existing fencing, as evidenced by their reluctance to cooperate with Company's initiative in pursuit of full satisfaction, has created the extant basis for action-not Company's activities or lack thereof. 17. Denied. Adam L. Stotsky, Jr., and Company consistently have remained ready, willing and able to provide continued services of remediation without request for or receipt of compensation therefor. Plaintiffs have received the benefit of changes in the configuration of gates, new sections of fencing, posts and additional concrete reinforcement of the inherited fencing. Follow-up by Company, despite repeated attempts for access to ensure full satisfaction, has gained no response or opportunity from Plaintiff. It is averred that the just, immediate and least expensive determination of the dispute between Plaintiff and Defendant is to permit the relatively minor work of Company to be completed, and allow Adam L. Stotsky, Jr., and Company to be removed from the controversy. WHEREFORE, the proposed Third Party, Adam L. Stotsky, Jr., t/d/b/a A. L. Fence Company, requests that the within Motion for Joinder as Third Party Defendant in this matter be denied. Respectfully Submitted, HUMER & DANIELS c Dated: S-3 -0 By: William S. Daniels, Esquire One West High Street, Ste. 205 Carlisle, PA 17013 (717) 243-3831 Supreme court ID# 27735 Attorney for Adam L. Stotsky, Jr. LAW OFFICES HUMER & DANIELS 205 FA8ME84 TRUST BUILDING ONE WEST HIGH STREET WILLIAM S. DANIELS CARLISLE, PENNSYLVANIA 17010 JAMES R. HuMER (io88) (717) 240-0801 July 9, 2003 FAX (717) 243-6618 Amy and Alan Gobat 292 Liberty Drive Shippensburg, PA 17257 Re: Residential Fencing Dear Mr. & Mrs. Gobat: This letter is on behalf of Adam Stotsky (A.L. Fence Co.), whom I represent. The purpose is to coordinate the favorable reconciliation of the dispute now pending among Clayton Bonawitz, Mr. Stotsky, and yourselves involving the fence on your property It is my present understanding that it is agreeable among all parties to have the existing fence, as originally contracted for, properly installed in good workmanlike fashion. This would include appropriate repairs, but not the removal or replacement of the fencing materials initially bought, paid for and on site. Please contact Mr. Stotsky as soon as possible at 717-677-6141 (or me at 717-243-3831), to arrange for an assessment on the spot of what is desired and required. Thereafter, Mr. Stotsky will have the assessed work performed, and subsequently inspected to confirm full satisfaction before August 18, 2003. When suitably completed, a joint release will be presented for the signatures of all parties to memorialize for the record the resolution of this controversy. Should you have any questions or concerns, which I may accommodate, please don't hesitate to call me. I am hopeful that good faith and best efforts on the part of all interested parties shall contribute to a successful outcome. Thank you for your cooperation in this matter. /Sincerely, William S. Daniels W SD/s cc: Attorney Orr A. L. Fence Co. District Justice Bender Lax.(. ? ? L ALAN GOBAT and AMY GOBAT, Plaintiffs V. CLAYTON BONAWITZ and BRANDIE BONAWITZ, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-0628 CIVIL TERM The undersigned, ADAM L. STOTSKY, JR., hereby verifies and states that: 1. He is the Owner of A. L. Fence Company. 2. The facts and allegations set forth in the foregoing Answer to Motion for Joinder of1hird Party as an additional defendant are known to him. 3. The facts and allegations set forth in the foregoing Answer to Motion for Joinder of Third Party as an additional defendant are true and correct to the best of his knowledge, information and belief. 4. He is aware that false statements herein are made subject to the Penalties 18 Pa C.S.A. §4904 relating to unworn falsification to authorities. Respectfully submitted, Dated .; - ,3 • cS y -6?' L 44tA I Adam L. Stotsky, Jr. T/d/b/a A. L. Fence Companyt ALAN GOBAT and AMY GOBAT, Plaintiffs V. CLAYTON BONAWITZ and BRANDIE BONAWITZ, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-0628 CIVIL TERM CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the Answer to Motion for Joinder of Third Party was served by depositing same in the United States Mail at the Carlisle, Pennsylvania post office, postage prepaid for first class delivery addressed to the following: Michael O'Conner, Esquire KILLIAN & GEPHART 218 Pine Street Harrisburg, PA 17108 Paul Bradford Orr, Esquire 50 East High Street Carlisle, PA 17013 Dated: J ' -may HUMERR & DANIELS William S. Daniels, Esquire One West High Street, Suite 205 Carlisle, PA 17013 (717) 243-3831 PA Supreme Court ID# 27735 r_ -? W 0 n i U T..-Ti (?C: .7 ALAN GOBAT and AMY GOBAT, : IN THE COURT OF COMMON PLEAS OF 292 Liberty Drive :CUMBERLAND COUNTY, PENNSYLVANIA Shippensburg, PA 17257 Plaintiffs NO. 2004-628 CIVIL TERM CLAYTON BONAWITZ and BRANDIE BONAWITZ 1466 Woods Road, Lot #35 Shippensburg, PA 17257 CIVIL ACTION-LAW Defendants ANSWER TO COMPLAINT AND NOW, this 5"' day of May, 2004, comes the Defendants, Clayton Bonawitz and Brandie Bonawitz, by and through their attorneys, The Law Offices of Paul Bradford Or; and does hereby file this Answer to previously filed Complaint in the above captioned matter and in support thereof as follows: Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. However, byway of further answer, Defendants have joined an additional Defendant, A.L. Fence Company due to the inferior workmanship conducted by A.L. Fence Company upon being hired and paid by Defendants to repair said fence. 8. No answer is required. 9. Admitted. 10. Admitted. By way of further answer, Defendants are asserting that the third party Defendant, A.L. Fence Company, should cover said costs of repairs to fence. 11. Admitted. By way of further answer, Defendants have joined A.L. Fence Company in this action as they are the responsible party thereto. Submitted: Date: 413 ? 0 By: Paul Bradford Orr, Esquire Attorney for Defendants 50 East High Street Carlisle, PA 17013 (717) 258-8558 ID No.: 71786 ORR ALAN GOBAT and AMY GOBAT, 292 Liberty Drive Shippensburg, PA 17257 Plaintiffs CLAYTON BONAWITZ and BRANDIE BONAWITZ 1466 Woods Road, Lot 435 Shippensburg, PA 17257 Defendants NO. 2004-628 CIVIL TERM CIVIL ACTION- LAW ATTORNEY VERIFICATION 2. 3. 4. 5. The undersigned, Paul Bradford Orr, Esquire, hereby verifies and states that: He is the attorney for the Defendants; He is authorized to make this verification on their behalf; The facts set forth in the foregoing Answer to Complaint are known to him and not necessarily to his client; The facts set forth in the foregoing Answer to Complaint are true and correct to the best of his knowledge, information and belief; and He is aware that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsificatio ,R : IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA raui tsraaroru, Esquire 50 East High Street Carlisle, PA 17013 (717) 258-8558 ALAN GOBAT and AMY GOBAT, 292 Liberty Drive Shippensburg, PA 17257 Plaintiffs CLAYTON BONAWITZ and : IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004-628 CIVIL TERM BRANDIE BONAWITZ 1466 Woods Road, Lot #35 Shippensburg, PA 17257 CIVIL ACTION- LAW Defendants CERTIFICATE OF SERVICE I, Paul Bradford Orr, Esquire, Attorney for Defendants, hereby certify that a copy of attached Answer was served upon the following person at the following address by U.S. Mail, delivered to addressee only. Michael J. O'Conner, Esquire Killian & Gephart 218 Pine Street PO Box 886 Harrisburg, PA 1 08 " X16 ? Dated: By: Paul Bradford Attorney for Defendants n N d Tt C r ,? , flip ,t, n ?,: ern p0 !`„ t y? cn :t 0 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) ALAN GOBAT and AMY GOBAT, ORIGINAL (Plaintiff) V5. CLAYTON BONAWITZ and BRANDIE BONAWITZ, (Defendant) No' 04-0628 Civil LAW M 2004 1. State matter to be argued (i.e., plaintiff's motion for new, trial, defendant's demurrer to complaint, etc.): Defendants' Motion for Joinder of Third Party. 2. Identify counsel who will argue case: (a) for plaintiff: Michael J. O' Connor, Esq., Aty #76127 Address: Killian & Gephart, LLP, PO Box 886, Harrisburg, PA 17108-0886 (b) for defendant: Paul Bradford Orr, Esq. Address: 50 East High Street, Carlisle, PA 17013 (c) fot additional defendant A.L. Fence Co.: William S. Daniels, Address: One West High Street, Suite 205, Carlisle, PA Esq. 3. I will notify all parties in writing within two days that this case bas 17013 been listed for argument. 4. Argument Court Date: February 2, 2005 Dated. Attorney or Plaintiffs IT) n7 .7 CO ALAN GOBAT AND AMY GOBAT PLAINTIFF V. CLAYTON BONAWITZ AND BRANDIE BONAWITZ, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04-0628 CIVIL TERM IN RE: MOTION OF DEFENDANTS FOR JOINDER OF THIRD PARTY BEFORE BAYLEY, J. AND HESS, J. ORDER OF COURT AND NOW, this RQ\ day of February, 2005, the motion of defendants, Clayton Bonawitz and Brandie Bonawitz, for joinder of a third party, IS GRANTED. ,Michael O'Connor, Esquire For Plaintiff ,Paul Bradford Orr, Esquire For Defendants illiam S. Daniels, Esquire For Adam L. Stotsky A Or sal ?? _, ?? _ r IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA CUMBERLAND COUNTY 9m JUDICIAL DISTRICT Alan Gobat and Amy Gobat, : 04 - 0628 Civil Term Plaintiffs, Clayton Bonawitz and Brandie Bonawitz, Adam Stotz d/b/a A. L. Fence Company Co-Defendants NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following Complaint, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 Phone: (717) 249-3166 IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA Ci NMERLAND COUNTY 9' JUDICIAL DISTRICT Alan Gobat and Amy Gobat, 04 - 0628 Civil Term Plaintiffs, V. Clayton Bonawitz and Brandie Bonawitz, Adam, Stotz d/b/a A. L. Fence Company Co-Defendants CO-DEFENDANT BONAWITZ THUM PARTY COMPLAINT The above-referenced Co-Defendants, Clayton Bonawitz and Brandie Bonawitz, by and through their attorney, Paul Bradford Orr, Esquire, respectfully avers the following: Plaintiffs Alan Gobat and Amy Gobat reside at 292 Liberty Drive, Shippensburg, Cumberland County, Pennsylvania 17257. 2. First party defendants Clayton Bonawitz and Brandie Bonawitz reside at 1466 Woods Road, Lot 435, Shippensburg, Cumberland County, Pennsylvania 17257. 3. Second Party Defendant Adam Stotz d/b/a A.L. Fence Co. has a business address of 1345 Goldenville Road, Gettysburg, PA 17325. 4. On or before July :30, 2002, the A.L. Fence Co. constructed a fence on what was then the Bonawitz's property at 292 Liberty Drive, Shippensburg, Pa., which fell down in a windstorm a few months later. 5. The Bonawitz's refused to complete payment on the fence until the company properly repaired the defective installation. 6. Sometime about January 2003, the Bonawitz's sold the property to the Gobats with the condition that the fence be satisfactorily repaired. An escrow account was set up by the Law Firm of Barley Snyder to manage the $500.00 deposit by the Bonawitz's and any additional deposits or disbursements as agreed. (See copy of Letter attached and marked as Co-Defendant's Exhibit "A") Procedural History On February 20, 2003, the Bonawitz's filed a civil action against the company for cost of repairing the defective fence construction (estimated at $3,989.90); the hearing was set for March 17, 2003. (See copy of Complaint attached and marked as Co-Defendant's Exhibit "B") 8. On March 24, 2003, judgment was entered against the company for the outstanding balance of the amount owed to the company by the Bonawitzs ($2,370.00) plus the court costs of $83.00. (See copy of Notice of Judgment attached and marked as Co-Defendant's Exhibit "C") 9. On April 21, 2003, the company filed a timely appeal with the Court of Common Pleas from the district court judgment CV-0000048-03. (See copy of Notice of Appeal attached and marked as Co-Defendant's Exhibit "D") 10. On June 16, 2003, the Gobats filed a civil complaint against the Bonawitz's for failure to comply with the escrow agreement, and asked for $2,300.00 to carry out the fence repairs. (See copy of Complaint attached and marked as Co- Defendant's Exhibit "E") 11. On December 1, 2003, Judgment for $2,408.10 was entered for the Gobats and against the Bonawitz's. (See copy of Notice of Judgment attached and marked as Co-Defendant's Exhibit" F") 12. On January 9, 2004, the Gobats appealed the CV-0000166-03 judgment. (See copy of Notice of Appeal attached and marked as Co-Defendant's Exhibit "G") 11 On February 19, 2004, the Gobats filed their formal complaint with the Cumberland County Court of Common Pleas against the Bonawitz's (See copy of Notice and Complaint attached and marked as Co-Defendant's Exhibit If') cow-4f I - ?96A(-N of UOTFA(7 14. Adam Stotz and the company e er3??ery p nngSttiPSt:[5 oc> ess of remedying their defective construction of the fence on what was at the time the Bonawitz's property at 292 Liberty Drive, Shippensburg, Pa. 15. As a direct result of Adam Stotz's and the company's refusal to remedy their defective construction and delaying tactics, the Bonawitz's had to default on the escrow agreement with the Gobats. 16. Absent Adam Stotz's and the company's refusal to remedy their defective construction the agreement between the Bonawitzs and the Gobats would have been fully satisfied, so Adam Stotz and the company are liable for any judgment against the Bonawitzs for the Gobats in this action. 17. Given that Adam Stotz and the company initiated and exacerbated the events that lead to the Gobats' complaint, joining Adam Stotz and the company facilitates the just, speedy and less expensive determination of the Gobats' action. Bianculli v. Turner, 660 A. 2d 461, n5 (Pa. Super. 1994). 18. On April 2, 2004, the Bonawitz's filed a Motion for Joinder of Third Party requesting joinder of Adam Stotz and the A.L. Fence Co. to this matter under Pennsylvania Rules of Civil Procedure 2252(a)(1,2,4). 19. Per Court Order dated February 4, 2005, the Honorable Edgar B. Bayley GRANTED the Motion for Joinder of Third Party (See copy of Order attached and marked as Co-Defendant's Exhibit "I") WHEREFORE, the Co-Defendant's respectfully request that Judgment be entered in their favor against Co-Defendant. Adam Stotz d/b/a A.L. Fence Co. for any and all damages, including but not limited to Delay Damages, Filing Fees, Expenses, Attorney fees, and any other remedy this Honorable Court deems just and proper not to exceed $15,000. THE LA Date: March 9, 2005 Paul Bradford OrV'st(uire 50 East High Street Carlisle, PA 17013 (717) 258-8558 Attorney for Defendant Supreme Court lD# 71786 ORR IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA CUMBERLAND COUNTY 9' JUDICIAL DISTRICT Alan Gobat and Amy Gobat, ; 04 - 0628 Civil Term Plaintiffs, V. Clayton Bonawitz and Brandie Bonawitz, Adam Stotz d/b/a A. L. Fence Company Co-Defendants ATTORNEY VERIFICATION The undersigned, Paul Bradford Orr, Esquire, hereby verifies and states that: 1. He is the attorney for Clayton Bonawitz and Brandie Bonawitz; 2. He is authorized to make this verification on Clayton Bonawitz's and Brandie Bonawitz's behalf, The facts set forth in the foregoing Motion are known to him and not necessarily to his client; 4. The facts set forth in the foregoing Motion are true and correct to the best of his knowledge, information, and belief; and 5. He is aware that false statements herein are made subject to the penalties of 18 Pa.C. S. §4904, relating to unsworn falsification to authorities. THE LA Date: March 9, 2005 By: Paul Bradfordd Orr, Esquire 50 East High Street Carlisle, PA 17013 (717) 258-8558 Attorney for Defendant Supreme Court ID# 71786 ORR IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA CUMBERLAND COUNTY 9m JUDICIAL DISTRICT Alan Gobat and Amy Gobat, 04 - 0628 Civil Term Plaintiffs, V. Clayton Bonawitz and Brandie Bonawitz, Adam Stotz d/b/a A. L. Fence Company Co-Defendants CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the Co-Defendant Bonawitz Third Party Complaint was served by depositing same in the United States Mail at the Carlisle, Pennsylvania post office, postage prepaid for first class delivery addressed to the following: Michael O'Connor, Esquire Killian & Gephart 218 Pine Street Harrisburg, PA 17108 William S. Daniels, Esquire 1 West High Street Suite 205 S Date: March 9, 2005 CIYU FEE-04-2005 11 32 BARLEY SNYDER --' ESCROW AGREEMENT - 'f 264 16bG F'. 02/bZ Barley, Snyder, Senft & Cohen, LLC 247 Lincoln Way East, Chambersburg, PA 17201 Date: 1- 3 - OZ I/we request you to retain in escrow the sum of $ y00, - F ?? l u Noceo from your settlement dated /-31- o3 for premises located at -2 q'7 Lr?eSTY a2v_e , f larae?fa.oc R+??, for the following purpose: Fc- ce p 44- -1 e t OeC4 •y Y",Q In the event your insurance is imperiled, you are hereby authorized to use any or all of the sum retained to protect your insurance. I/we do hereby agree to Indemnify and save you harmless from any loss you may sustain by reason of your issuing "title Insurance Policy clear of the above objection. Upon fulfillment of the above conditions, which are to be approved by; you are authorized to pay the stated sum to t Il) e.?f1i+ ...?. a ; YL dw p?l0rd3. Any expenses incurred by you as a result of litigation or otherwise, arising out of the holding of the fund, will be paid by us and may be retained by you out of the fund, In the event the amount retained is not sufficient, I/we will on demand deposit the additional amount necessary. it is further agreed and understood that this fund is to be disbursed within ,••i oor ar WHGtnr? AMArff Je-- w/ D r To ryM r0 ?..rr AF-Sciikoe-rr (-:9-45-- 043 If the fund is disbursed at any time within six (61 months from the date hereof, a charge of $25.00 shall be made. An additional charge of $25.00 shall be made for each year beyond the initial six (8) months period. It Is agreed that no interest will be paid on any funds held by you for the. disposition of exceptions. or your protection; such funds may be deposited with your funds and used by you; any income from funds held by you will become your property. Witness: 1.31.03/0 RM/916370.1 Co-Defendant's Exhibit "An TOTAL P.02 4o FEB-04-2025 11:31 BARLEY SNYDER 717 264 1662 P.01i02 ATTORNEYS AT LAW 247 Lincoln Way East Chambersburg, PA 17201 Tel: 717.264.6494 Fax: 717.264.1662 Fax Date: February 4, 2005 No. of Pages (including cover): 2 To: Paul B. Orr Fax No.: 717.258.5289 From: Michael J. Connor 717.264.6494 mconnor@barley.com Remarks Re: Clayton and Brandie Bonawitz Per your request, attached is a copy of the escrow agreement. Please note that James A. Fry is no longer with our firm and I am now handling this matter. (It may appear confusing at first, since Michael J. O'Connor, Esquire is representing Mr. And Mrs. Gobat, but we are unrelated.) W THE EVENT OF A PROBLEM, PLEASE NOTIFY: MICHAEL J. CONNOR at ext. 3118 THIS MESSAGE IS INTENDED FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE I.AW. If the reader of this message is not the intended recipient or the employee or agent responsible for delivering die message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone (collect), and return the original message to us at the above address via the U.S. Postal Scrvicc. 'thank you. Barley, Snyder, Senft & Cohcn, LLC COMMONWEALTH OF PENNSYLVANIA Ur., ?.uawunaanaeu 09-3-01 DJ Name: Hon. HAROLD E. BENDER &AN.Se: 91 WALNUT BOTTOM P.O. BOX 361 SHIPPENSBURG, PA Telephone: (717)532-7676 ROAD 17257-0361 AMOUNT DATE PAID FILING COSTS $ :? l.?o r n3 POSTAGE $ SERVICE COSTS E CONSTABLE ED. E TOTAL $ CIVIL COMPLAINT PLAINTIFF: NAME and ADDRESS ' `?ur?y?oa Vc7oNAw?? L- a?r a ?,'?:,? r pR r '5 ,A,/ a 5 L sbi&-wbue DEFENDANT: NAME and ADDRESS rfi?G Fr'r??'? ?C e (3yS Geldr,pp L417 gcA d4d Docket No.: el/-'0? Date Filed: ? TO THE DEFENDAN r: The above named plalntilf(s) asks judgment against you for $ costs upon the following claim (Civil fines must include citation of he / violated): `?[. / ?) f,iCr- IrvsYA'1eo/ A 4?ptC Aar Wq,3 No4 PnDyr,(ZI(? J FIN w': ?t 5G"JvR? ` M0 1ks ?-?ti DoWN J J together with tatute or ordinance r Ny//afJJ i=ce ?e ? F k! I, ?? Psi 10 !? ?>7 Aw r ?- verity that the Facts set forth in this complaint are true and correct to the best of my knowledge, information, and belief. This statement is made subject to file penalties of Section 4904 of the Crimes Code (16 PA. G.S. § 4904) related to unworn tals' ' ' n to aulh ies. e , X ( lgnalure o tdl or ut io lz gent) Platnlifs Attorney: Telephone: Address: IF YOU INTEND TO ENTER A DEFENSE TO THIS COMPLAINT, YOU SHOULD SO NOTIFY THIS OFFICE IMMEDIATE-L' AT THE ABOVE TELEPHONE NUMBER. YOU MUST APPEAR AT THE HEARING AND PRESENT YOUR DEFENSE. UNLESS YOU DO, JUDGMENT MAY BE ENTERED AGAINST YOU BY DEFAULT. If you have a claim against the plaintiff which is within district justice jurisdiction and which you intend to assert at the hearing, you must file it on a complaint form at this office at least live days before the dale set for the hearing. It you are disabled and require assistance, please contact the Magisterial District Co-Defendant's Exhibit nBn AOPC 8N8A D? COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mtg. Dist. No. - 09-3-01 DJ Name: Non. HAROLD E. BENDER Address. 81 WALNUT BOTTOM P.O. BOX 361 SHIPPENSBURG, PA Telephone. (717) 532-7676 ROAD 17257-0361 NOTICE OF JUDGMENT/TRANSCRIPT PLAINTIFF/JUDGMEN E!E 09ASE NAME rBONAWITZ, CLAYTONnd ADDRESS 292 LIBERTY DR SHIPPENSDURG, PA 17257 L J VS. DEFENDANT/JUDGMENT CIT? an DRESS `A.L. FENCE CO. 1345 GOLDENVILLE RD GETTYSBURG, PA 17324 CLAYTON BONAWITZ L J 292 LIBERTY DR DocketNo.: CV-0000048-03 SHIPPENSBURG, PA 17257 Date Filed: 2/20/03 evv THIS IS TO NOTIFY YOU THAT: Judgment: FOR PLAINTIFF ?X Judgment was entered for (Name) TINANITZ, CLAYMN 0 Judgment was entered against: (Name) A- T. _ FENCE CA. in the amount of $ 2, 453 _ on on: (Date of Judgment) 1/24/01 Defendants are jointly and severally liable. (Date & Time) D Damages will be assessed on: 0 This case dismissed without prejudice. Amount of Judgment Subject to Attachment/Act 5 of 1996 $ Amount of Judgment Judgment Costs Interest on Judgment Attorney Fees Total Post Judgment Credits $ Post Judgment Costs $ Cerlif; .,d Judgment Total $ ANY PAR rY HAS THE RIGHT 10 APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FIL114G A NOTICE OF APPEAL WITH THE PROTHONOTARYICLERK 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 DISTRICT JUSTICES, IF THE JUDGMENT HOLDER ELECTS 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 DISTRICT JUSTICE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE DISTRICT JUSTICE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. ?u -0- Date Q.w-ti/ 2 ___, District Justice that this is a true and correct copy of the rec of the proceedings containing the judgment. 51-l_ Date District Justice My commission expires firs Co-Defendant's Exhibit nCn SEAL 7!y 6 AOPC 315-03 YEALTHOF PENNSYLVANIA s''?;, _ COURT OF COMMON PLE, JUDICIAL DISTRICT Notice is given that the appellant has filed in the above Cowl date and in the case mentioned below. FE,- ?/VsC e. Co. -y fY,TE JUX,MENT N THE CASE OF (FWdiftF ?A-- 1: cv LT This block will be signed ONLY when this notation is requitec 1008B. This Notice of Appeal, when received by the -District Juv SUPERSEDEAS to the judgment for. possession in this case NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMMON PLEAS Na OF A EAL ion Plea ", appeal fro( I the judgment rendered by the District Justice on the CIT ATE 2P CODE 17 va -ley r"'? T El ATTOR Y OR A NT r Nay ItAppellant was CLAIMANT (see Pa. R.C.P.J.P. No. a 1001(6) in action before DistridJustice,;heMUST 'FILE A COMPLAINT within twenty (gpi Op FSva(Cer ;;, filing his NOTICE of APPEAL:` PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of fort 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 appear to be served upon appellee). PRAECIPE: To Prothonotary { t.? - ±P Enter rule upon oppellee(s), to file a complaint in this appeal - -? Name of appelleets) (Common Pleas No. .`.3 ! PL Q within twenty (20) days after service of rule` or s offer entry of judgment of non pros. Sag we of apps cr na homey or agent RULE: To S .(. appellee(s). Name" of appelA e(s). : (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenfy (20) days, after'thf date of service of this rule upon you by personal service or by certified . or registered moil L •'`?:"-` ,.. .. ,. ti,. (2) If you do not file a complaint within this time, a JUDGMENT OF NON, PROS WILL BE ENTERED AGAINST YOU: (3) The dote of service of this rule if service was by mail. is the date of aldiling. Dole: signaf m of Abaznowy or coxity AOPC 312-90 Co-Defendant's Exhibit "D" COMMONWEALTH OF PENNSYLVANIA Ut-: 09-3-01 DJN.,.e: Hon. HAROLD E. BENDER Ad" 81 WALNUT BOTTOM ROAD P.O. BOX 361 SHIPPENSBURG, PA 17257-0361 releptume: (717)532-7676 AMOUNT DATE PAID CIVIL COMPLAINT PLAINTIFF: NAME aid ADDRESS L sh,?pe?zs62? ?'" /?a57 VS. DEFENDANT: NAME wd ADDRESS FCLA-from 4- SRJrJDr ?XNA1)sT2, I y(e 6 cxnDS `?? I-7as7 Docket No.: 01-16 e!p . O a Dale Filed: / lye FILING COSTS $ POSTAGE $ SERVICE COSTS $ CONSTABLE ED. $ TOTAL $ TO THE DEFENDANT: The above named ptaintilf(s) asks judgi costs upon the following claim (Civil fine violated): ?0/IQGtlr ?z S ??tr /C(1 7/U C/oi/ 7 Ie/ IVI'&I LO-5L "?°f C ?dS?J f nt against you for $ 6? 3 60 a C>0 together with must include citation of the statute or ordinance r?? ?Ji. S?Iiv/JZnSrt ?Ybr 1, /q,) ? f g1d 17 f70 L?Ci Z verify that the facts set forth in this complaint are true and correcOo'the best of my knowledge, information, and belief. This statement is made subject to the penalties of Section 4904 of the Crimes Code (18 PA. C.S. § 4904) related t unsworn falsification to authorities. Plainlllrs Attorney: Telephone: IF YOU INTEND TO ENTER A DEFENSE TO THIS COMPLAIN, YOU SHOULD SO NOTIFY THIS OFFICE IMMEDIATE AT THE ABOVE TELEPHONE NUMBER. YOU MUST APPEAR T THE HEARING AND PRESENT YOUR DEFENSE. UNLESS YOU DO, JUDGMENT MAY BE ENTERED AGAINST YOU BY DEFAULT. 11 you have a claim against the plaintiff which is within disc ct justice jurk;diction and which you intend to assert at the hearing, you must file it on a complaint for at this office at least five days before the date set for the hearinn. Ityouaredisabledat Co-Defendant's :s to the Magisterial District Court and its service: Exhibit above address or tele one number. W NEn AnPc 30RA_na COMMONWEALTH OF PENNSYLVANIA r.ni il\ITV nF CUMBERLAND 09-3-01 DJN.Me Hon. HAROLD E. BENDER Addwsss. 81 WALNUT BOTTOM P.O. BOX 361 SHIPPENSBURG, PA a?Pnee 17171 532-7676 ROAD 17257-0361 NOTICE OF JUDGMENT/TRANSCRIPT PLAINTIFF CIVIL CASE NAME and ADDRESS l-GOBAT, AMY & ALAN 292 LIBERTY DR SHIPPENSBURG, PA 17257 L J VS. DEFENDANT: NAME a,d ADDRESS FBONAWITZ, BRANDIE, ET AL. 1466 WOODS RD LOT 35 SHIPPENSBURG, PA 17257 ANY & ALAN GOBAT L J 292 LIBERTY DR DocketNo.: CV-0000166-03 SHIPPENSBURG, PA 17257 Date Filed: 6/17/03 THIS IS TO NOTIFY YOU THAT: Judgment: FOR PLAINTIFF Judgment was entered for: (Name) wRAm. AMY a AT.AN Judgment was entered against: (Name) RONAwTT%, rT.AYTON in the amount of $ 2,4nA _ 1 n on: (Date of Judgment) 1/n1 /os F Defendants are jointly and severally liable. (Date & Time) 11 Damages will be assessed on: 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 $ 2,300.0 0 Judgment Costs $ 108.10 Interest on Judgment $ .00 Attorney Fees $ .00 Total $ 2,408.10 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 JUDGMENTITRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR DISTRICT JUSTICES, IF THE JUDGMENT HOLDER ELECTS 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 DISTRICT JUSTICE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE DISTRICT JUSTICE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. _ Date District Justice I certify that this is a true and correct copy of the record of the proceedings contaitling the judgment. Date My commission expires fit Co-Defendant's Exhibit nFn , District Justice SEAL AOPC 315-03 DATE PR COMMONWEALTH OF PENNSYLVANIA NOTICE OF APPEAL FROM COURT OF COMMON PLEAS CUMBERLAND COUNTY DISTRICT JUSTICE JUDGMENT JUDICIAL DISTRICT COMMON. PLEAS No. 41 NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the Dis- trict Justice on the date and in the case mentioned below. NAME OF APPELLANT MAG. DIST. NO. OR NAME OF D.J. ADDRESS OF APPELLANT CITY STATE ZIP CODE 12/01/03 Amy and Alan Gobat vs. Sranldio and Clayton Hnnawitz CLAIM NO. WNATURE OF APPELLANT OR HIS ATTORNEY OR AGENT CV YEAR LT YEAR ;. l _..?. This block will be signed ONLY when this notation is required under PA. If appellant was Claimant (see PA R.C.P.J.P. R.C.P.J.P. No. 10086. This notice of Appeal, when received by the District Justice, will operate as No. 1001(6)) in action before district Justice, he A SUPERSEDEAS, to the Judgment for possession in this case. MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. gna ure o room ary or epu y 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 appellee(s), to file a complaint in this appeal Name of appellees) (Common Pleas No. ) within twenty (20) days after service of rule or suffer entry of judgment of non pros. Signature or appellant or his attorney or agent RULE: To_ appellee(s) Name of appellee(a) ` (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty(20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU UPON PRAECIPE. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: Year Signature of Prothonotary or Deputy White - Prothonotary Copy Green - Court File Copy Yellow - Appelant's Copy Pink - Appellee Copy Gold - D. J. Copy Co-Defendant's Exhibit nGn Proth. - 76 FILE CC Y ALAN GOBAT and AMY GOBAT, : IN THE COURT OF COMMON PLEAS 292 Liberty Drive : CUMBERLAND COUNTY, PENNSYLVANIA Shippensburg, PA 17257 Plaintiffs V. NO. D?? (ya?i CLAYTON 13ONAWITZ and BRANDIE BONAWITZ Z .? 1466 Woods Road, Lot #35 Shippensburg, PA 17257 CIVIL ACTION - LAW Defendants : JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 ?n 10i ?a y w,?nsersI, I lts,re rrnto ^Wt M Magic and u," f r :,:>4s; l:o'.cst at Catllsl . Pa. Co-Defendant's Exhibit "Hn pC CEIVED FEB 19 2004 FRANKLIN COUNTY SHERIFFS OFFICE Ia..31 /; C ALAN GOBAT and AMY GOBAT, 292 Liberty Drive Shippensburg, PA 17257 Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CLAYTON BONAWITZ and BRANDIE BONAWITZ 1466 Woods Road, Lot #35 Shippensburg, PA 17257 : CIVIL ACTION - LAW Defendants : JURY TRIAL DEMANDED COMPLAINT AND NOW comes the Plaintiffs, Alan Gobat and Amy Gobat, by and through their attorneys, Killian & Gephart, LLP, and does hereby file this Complaint against the above-referenced Defendants and in support thereof avers as follows: 1. Plaintiffs, Alan and Amy Gobat are adult individuals that are currently married and reside at 292 Liberty Drive, Shippensburg, Cumberland County, Pennsylvania 17257. 2. Defendants, Clayton Bonawitz and Brandie Bonawitz are adult individuals that currently reside at 1466 Woods Road, Lot #35, Shippensburg, Cumberland County, Pennsylvania 17257. 3. Plaintiffs agreedto purchase the property located at 292 LibertyDrive, Shippensburg, Pennsylvania from the Defendants in February 2003. 4. Prior to completion of the sale, the Plaintiffs requested that the Defendants repair a certain fence that enclosed the property. 5. The Defendants agreed to pay the cost of the repair to the fence. (See escrow agreement attached as Exhibit "A"). 6. An estimate for the cost of the repairs exceeds $500 which is the amount deposited in an escrow account by the Defendants. 7. The Defendants were asked to pay additional monies into the escrow account to cover the repairs to the fence but refused to do so. COUNTI BREACH OF CONTRACT 8. Plaintiff hereby incorporates paragraphs 1 through 7 as though fully set forth herein. 9. The Plaintiffs and the Defendants entered into a contract whereby the Defendants would deposit into an escrow account the cost to cover repairs to a certain fence enclosing the property located at 292 Liberty Drive, Shippensburg, Pennsylvania. 10. The Defendants violated this agreement by refusing to deposit additional monies into the escrow account to cover the cost of repairs to the fence. It. As a result of this breach, the aforesaid fence is currently in disrepair and needs to be replaced by a new fence. (See estimate attached as Exhibit `B"). WHEREFORE, Plaintiffs Alan Gobat and Amy Gobat requests this Honorable Court enter judgment in their favor and against Defendants Clayton Bonawitz and Brandie Bonawitz in an amount that does not exceed the compulsory arbitration limit of $25,000 plus costs and fees and such other relief as this Court deems just and proper. 2 Respectfully submitted, Dated: February --(L, 2004 Michael Lonnor, Esquire Killian & Gephart 218 Pine Street P. O. Box 886 Harrisburg, PA 17108 (717) 232-1851 Attorney I. D. #76127 Attorneys for Plaintiffs EXHIBIT "A" ESCROW AGREEMENT Barley, Snyder, Senft & Cohen, LLC 247 Lincoln Way East, Chambersburg, PA 17201 Date: j - 03 I/we request you to retain in escrow the sum of s 5-00 - Fi?c. i-IvrJo{co from your settlement dated _/- 3 ( - c 3 for premises located at -1 q 'I Lr get?-Y az,vr r -PH aoo,,r_,Ag Cz 19,? for the following purpose: 17Q v APAW ?, Fore ao.? f ,PC it ?A.ra In the event your insurance )a imperiled, you are hereby authorized to use any or all of the sum retained to protect your insurance. I/we do hereby agree to Indemnify and save you harmless from any loss you may sustain by reason of your issuing Title Insurance Policy clear of the above objection. Mr you are authorized to pay the stated sum to ( avsnu r BrA,vj', ri . f?tAy a r ill ? 6.roi,-k i, Any expenses incurred by you as a result of litigation or otherwise, arising out of the holding of the fund, will be paid by us and may be retained by you out of the fund. In the event the amount retained is not sufficient, I/we will on demand deposit the additional amount necessary. It is further agreed and understood that this fund is to be disbursed within n AS saor -0r WH47frp Pcr,krt.f rPFaA.v n? D r ro ry?._-/OS ??.r nF?JC{t<{C-,?eJ"f; ?S/S o3? If the fund is disbursed at any time within six (6) months from the data hereof, a charge of $25.00 shall be made. An additional charge of $25.00 shell be made for each year beyond the initial six (e) months period. It Is agreed that no interest will be paid on any funds held by you for the disposition of exceptlons. or your protection; such funds may be deposited with your funds and used by you; any income from funds held by you will become your property. Witness: n i ai?J ? ?C ? ?1 r It to 1 .31 .0319AM/91 8370.1 Upon fulfillment of the above conditions, which are to be approved by: EXHIBIT "B" 'ROPOSAL GATE ROPOSAI SUBMITTED TO: WORK TO AF PFRPn RAAFn AT vNe hbteb? toYntsly rib triaterlbls Arsdrfo+tn that tax mec"eary fbr Ills completion of r . 1 .. , I Qu/, Ce ReA e IIA 7A Wig Pie Ar 8 4' - l x C? ? Tjm?v,Y?, ?G ?ai2 .BOAS O IV.idvh 1- Go " wAtk ?1TC? U Tea All material IB guaranteed to be as specified, and the above work to be performed in accordance with the drawings and specifl- catl ubmitted r above wok and cc ed in a substantial workmanlike manner for the sum of cur c I =) Dollars ($ ??? ) wrth payments to be made as follows. Jji{ a poq CoMpl _ Respectfully submitted 6C V' r I IZ/4l V) Any aoerall.}I or dovilloon IIpf1 pw! lpeoltKAhOn6 inVplVin9 extra costs will Iw uxecood only upon wdllen order, and will become an extra charge Per over and above the Ashmore . All agreements contingent upon strikes. ec olden,. a delay. beyond our conaml Note - This proposal may be withdrawn by us It not accepted within days. *Arr[sr I; o end 6nt?long are aatl ory ahd' arl hereby accepted. You are authorized to do the wc?i "d 6ul dbbve Slgnafi+ne Date Signature -- Ncse,e-sa PROPOSAL M?E IN lj? I 4111 VERIFICATION I hereby verify that the statements of fact made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements made therein are subject to the penalties contained in 18 Pa.C.S.A. §4904, relating to unworn falsification to authorities. / ??Jy - ?- ?7 r7l Alan Gobat VERIFICATION I hereby verify that the statements of fact made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements made therein are subject to the penalties contained in 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. G" la 1 Amy Go ALAN GOBAT AND AMY GOBAT PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CLAYTON BONAWITZ AND BRANDIE BONAWITZ, DEFENDANTS 04-0628 CIVIL TERM IN RE: MOTION OF DEFENDANTS FOR JOINDER OF THIRD PARTY BEFORE BAYLEY, J. AND HESS, J. ORDER OF COURT AND NOW, this _ u'[ \ day of February, 2005, the motion of defendants, Clayton Bonawitz and Brandie Bonawitz, for joinder of a third party, IS GRANTED. Michael O'Connor, Esquire For Plaintiff Paul Bradford Orr, Esquire For Defendants William S. Daniels, Esquire For Adam L. Stotsky :sal Co-Defendant's Exhibit nin ALAN GOBAT and IN THE COURT OF COMMON PLEAS, AMY GOBAT, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. : CIVIL ACTION -LAW CLAYTON BONAWITZ and BRANDIE BONAWITZ, Defendants NO. 04-0628 CIVIL TERM V. ADAM L. STOTSKY, JR. t/d/b/a A.L. FENCE COMPANY, Additional 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 defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Phone: (717) 249-3166 ALAN GOBAT and AMY GOBAT, Plaintiffs V. CLAYTON BONAWITZ and BRANDIE BONAWITZ, Defendants V. ADAM L. STOTSKY, JR. t/d/b/a A.L. FENCE COMPANY, Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 04-0628 CIVIL TERM ANSWER TO COMPLAINT AGAINST THIRD PARTY AS ADDITIONAL DEFENDANT WITH NEW MATTER ADAM L. STOTSKY, JR., t/d/b/a A. L. Fence Company, by and through his attorney, Hunter & Daniels, hereby answers Defendant's Complaint Against Third Party as Additional Defendant as follows: 1. Admitted. 2. After reasonable investigation the Additional Defendant is without knowledge sufficient to form a belief as to the truth of the averment. The same is therefore denied. 3. The Additional Defendant's name is correctly Adam L. Stotsky, Jr.; the remainder is admitted. 4. Admitted that the Additional Defendant installed the fence using materials specified by the Defendant. As to the remaining allegations, answer to Paragraph 2 above is incorporated by reference. 5. Denied that fence was defective or defectively installed. 6. Answer to Paragraph 2 above is incorporated by reference. 7. Admitted, but answer to Paragraph 5 above is incorporated by reference. 8. Admitted. 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted 13. Admitted. 14. Denied. 15. Denied as to Additional Defendant's alleged commissions or omissions; as to Defendant's default, answer to Paragraph 2 above is incorporated by reference. 16. Conclusion of law; therefore, same is denied. 17. Conclusion of law; therefore, same is denied. 18. Admitted. 19. Admitted. WHEREFORE, the Additional Defendant, Adam L. Stotsky, Jr., respectfully requests that the Defendant's Complaint Against said Additional Defendant be dismissed. NEW MATTER 20. Answers to Paragraphs 1 through 19 above are incorporated herein by reference. 21. Escrow Agreement dated January 31, 2003, for retention of Five Hundred ($500) Dollars from settlement on conveyance of premises, 292 Liberty Drive, Shippensburg, Pennsylvania, to "repair leaning fence post at rear yard" was a contract between the Plaintiff and the defendant that the cost of said fence repair was to run up to $500. 22. After the appeal was filed on April 21, 2003, by Adam L. Stotsky, Jr., t/d/b/a A.L. Fence Company (Common Pleas No. 03-1803) from the District Justice judgment of March 24, 2003, (Docket No. CV-0000048- 03), Defendant Bonawitz failed to file a complaint. 23. On April 2, 2004, this Honorable Court issued a Rule to Show Cause why Defendant's request for joinder of Adam L. Stotsky, Jr., t/d/b/a A.L. Fence Company, in Common Pleas No. 04-0628, under Pennsylvania Rules of Civil Procedure 2252(a)(1, 2 and 4) should not be granted. 24. On May 3, 2004, Adam L. Stotsky, Jr., t/d/b/a A.L. Fence Company, filed timely Answer to Defendant's Motion for Joinder, which was served by United States Mail on May 4, 2004, to Plaintiffs' and Defendants' respective counsel. 25. Defendant Bonawitz failed to initiate further process for a determination of liability against Adam L. Stotsky, Jr., t/d/b/a A.L. Fence Company, under the said Rule. WHEREFORE, the Additional Defendant, Adam L. Stotsky, Jr., respectfully requests that the Defendant's Complaint Against said Additional Defendant be dismissed. Respectfully Submitted, HUMER & DANIELS Dated: ? 2e-ds By: William S. Daniels, Esquire One West High Street, Ste. 205 Carlisle, PA 17013 (717) 243-3831 Supreme court ID# 27735 Attorney for Adam L. Stotsky, Jr. ALAN GOBAT and AMY GOBAT, Plaintiffs V. CLAYTON BONAWITZ and BRANDIE BONAWITZ, Defendants V. ADAM L. STOTSKY, JR., t/d/b/a A.L. FENCE COMPANY, Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW NO. 04-0628 CIVIL TERM VERIFICATION The undersigned, ADAM L. STOTSKY, JR., hereby verifies and states that: 1. He is the Owner of A. L. Fence Company. 2. The facts and allegations set forth in the foregoing Answer to Complaint Against Third Party as an additional defendant with New Matter are known to him. 3. The facts and allegations set forth in the foregoing Answer to Complaint Against Third Party as an additional defendant with New Matter are true and correct to the best of his knowledge, information and belief. 4. He is aware that false statements herein are made subject to the Penalties 18 Pa C.S.A. §4904 relating to unsworn falsification to authorities. Respectfully submitted, Dated: LA Il o? ran,. 4. Adam L. Stotsky, Jr.'' t/d/b/a A. L. Fence Company ALAN GOBAT and AMY GOBAT, Plaintiffs V. CLAYTON BONAWITZ and BRANDIE BONAWITZ, Defendants v. ADAM L. STOTSKY, JR., t/d/b/a A.L. FENCE COMPANY, Additional Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-0628 CIVIL TERM CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the Answer to Complaint Against Third Part as an additional defendant with New Matter was served by depositing same in the United States Mail at the Carlisle, Pennsylvania post office, postage prepaid for first class delivery addressed to the following: Michael O'Conner, Esquire KILLIAN & GEPHART 218 Pine Street Harrisburg, PA 17108 Paul Bradford Orr, Esquire 50 East High Street Carlisle, PA 17013 Dated: `7 '% 2-r?s HUMER & DANIEL William S. Daniels, Esquire One West High Street, Suite 205 Carlisle, PA 17013 (717) 243-3831 PA Supreme Court ID# 27735 ?y %ti? ?31'i r?? ??;5 't' 1 ;? ?s L ?fi C:-. ALAN GOBAT and AMY GOBAT, Plaintiffs V. CLAYTON BONAWITZ and BRANDIE BONAWITZ, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-0628 CIVIL - LAW M2004 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: Micahel J. O'Connor, Esquire counsel for the plaintiff/dekwAakin the above action ?rzatkmo, respectfully represents that: The above-captioned action (auaciimm) is (wj) at issue. 2. The claim of the plaintiff in the action is $ apnrox . 8, 0 00.. 00 . The counterclaim of the defendant in the action is The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: William S_ nani pI s F Esqu i r and Paul Bradford Orr. Esauire. WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, 1-e -Td K _ Michael J. O'Connor, Esq. #76127 Killian & Gephart, LLP ORDER OF COURT PO Box 886 Harrisburg, PA 17108-0886 AND NOW, foregoing petition, Esq., and actions) as prayed for. 200 5 , inconsideration of the Esq., Esq., are appointed arbitrators in the above captioned action (or By the Court, P.J. ?. ? ?? /? ? ?.. . 1^ J y V?,?j ""? ?, > t S.: ALAN GOBAT and AMY GOBAT, Plaintiffs V. CLAYTON BONAWITZ and BRANDIE BONAWITZ, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-0628 CIVIL - LAW IOC2004 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: Micahel J. O'Connor respectfully represents that: 1 r counsel for the plaintiff/d MR in the above action *orzaticmo, 1 • The above-captioned action (Xv acliftw) is (WI) at issue. 2. The claim of the plaintiff in the action is $-4pn.rQX op The counterclaim of the defendant in the action is The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: William c n F.crtni re ,..a ..__ _ WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully subm tt C_ Michael J. O'Connor, Esq. #76127 Killian & Gephart, LLP ORDER OF COURT PO Box 886 AND NOW Harrisburg, PA 17108-0886 foregoing petition, f 21111 i, in consideration of the , Esq., and Esq., actions) as yed for. Esq•, are appointed arbitrators in the above captio ed action (or By the Cou P.J. r O U Ly , ?J 1 a ? T ( .. i. [CC ? 1, ?. •iii T a? _ N C : ALAN GOBAT and AMY GOBAT V. CLAYTON BONAWITZ and BRANDIE BONAWITZ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW NO. 04-0628 CIVIL TERM IN RE: ARBITRATION PANEL ORDER OF COURT AND NOW, June 24, 2005, the appointment of John F. Duggan, Esquire, as arbitrator in the above matter is vacated, and Michael Bangs, Esquire, is appointed in his stead. By the Court, Geo e . P.J. /avid W. DeLuce, Esquire 301 Market Street Lemoyne, PA 17043 ,dohn F. Duggan, Esquire C.,-)a Select Medical Corporation 4716 Old Gettysburg Road / 00PIC!1? Mechanicsburg, PA 17055 „ rrtichael Bangs, Esquire 429 South 18th Street Camp Hill, PA 17011 Court Administrator 01 :8 1.14 12 NAP sual AbVi&vO i Jbd WHl J0 301??Di-OMIJ ALAN GOBAT and AMY GOBAT V. CLAYTON BONAWITZ and BRANDIE BONAWITZ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-0628 CIVIL TERM IN RE: ARBITRATION PANEL ORDER OF COURT AND NOW, July 8, 2005, the appointment of William Douglas, Esquire, as arbitrator in the above matter is vacated, and Lisa Coyne, Esquire, is appointed in his stead. By the Court, A%/-? Geo e V. Hoer, P.J. Xvid W. DeLuce, Esquire 301 Market Street Lemoyne, PA 17043 ,Zisa Coyne, Esquire 3901 Market Street Camp Hill, PA 17011-4227 Court Administrator 4 b`\ ,lam :'A Hip JiAI?SP,+"? 7d mno s 1.01 WV e- inr soon AUvsotio iL j `4 d 3 do 30HO-- 3113 ALAN GOBAT and AMY GOBAT, Plaintiffs v. CLAYTON BONAWITZ and ) BRANDY BONAWITZ, ) Defendants v. In The Court of Common Pleas of Cumberland County, Pennsylvania No.ALJ! ADAM L. STOTSKY, JR. t/d/b/a A.L. FENCE CoMpANy, OATH Additional Defendant Tie do solemnly swear (or affirm) that we will support, the Constitution of the United States and the onstitutio9. wealth and that we will discharge the dutie of our dfiica d- ey and defend this Common- } fidelity. We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay are awarded, they shall be separately stated.) 'k circa , ' /, /SO Dd k17 applicable.) Date of Hearing- A ZZ 0. Date of Award: Z Z Now, the Fr- day of award was entered upon the parties or their attornevs. Arbitrators' compensation to be paid upon appeal: $ Z. (7. " ------ --- ga.ven oy mail to the __?-? P- thonotary By: Denutv ?j- L«vl? 0,A-M& Coyll L tc 1-4b-z4-, C, 47 -y Cl 'n NOTICE OF APPEAL FROM AWARD OF BOARD OF ARBITRATORS ALAN GOBAT and AMY GOBAT, Plaintiffs V. THE COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 04-0628 CLAYTON and BRANDIE BONAWITZ, Defendants, ADAM L. STOTSKY, JR. t/d/b/a/ A.L. FENCE COMPANY, Additional Defendant. TO THE PROTHONOTARY: Notice is given that the Plaintiffs, Alan Gobat and Amy Gobat, appeal from the award of the board of arbitrators entered in this case on August 22, 2005. A jury trial is demanded X .(Check if a jury trial is demanded. Otherwise jury trial is waived.) I hereby certify that the compensation of the arbitrators has been paid. Dated: October 6, 2005 Attorney for Appellant Michael J. O'Connor, Esquire Attorney ID # 76127 Killian & Gephart, LLP 218 Pine Street P.O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 Attorneys for Plaintiffs/Appellants, Alan and Amy Gobat N ? C c_s C-: Cif eR ? ycc ?? CJ .E' .LAN GOBAT and AMY GOB.. In The Court Co=on Pleas of Plaintiffs ) V. ) Cumberland County, Pennsvlvania CLAYTON BONAWITZ and No. ?, a? 2 g BRANDY BONAWITZ, ) Defendants ) V. 1 ADAM L. STOTSKY, JR. t/d/b/a A.L. FENCE COMPANY, CAM Additional Defendant We do solemnly swear (or affirm) that we will support, the Constitution of the United States and the onstitutio wealth and that we will discharge the dutie of our off,P TRUE COPS' FROM RECORD L We, the undersigned arbitrators, having (or affirmed), make the following award: t, and defend s Comnon- ?delity. been duly appointed and sworn (Note: If damages for delay are awarded, they shall be separately stated.) _ 0/, /so, ad applicable.) Date of Hearing: Z Z Q j Date of Award: Z/(?5 _ Now, award was parties or Arb •' t NOTICE OF the 16-? day of entered upon the d cket and their attornevs. Arbitrators` compensation to be paid upon appeal: $ 210. W at _.M., the above notice thereof given by mail to the D^ thonotarv 37: enuty 08361509222005 Cumb--land County Prothonotary's-Office Page 1 PYS510 Civil Case Print 2004-00628 GOBAT ALAN ET AL (vs) BONAWITZ CLAYTON ET AL Reference No..: Filed........: 2/13/2004 Case Type.....: COMPLAINT Time.........: 8:24 Judgment...... 00 Execution Date 0/00/0000 Judge Assigned: BAYLEY EDGAR B Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: *********************************************** ********************************* General Index Attorney Info GOBAT ALAN PLAINTIFF O'CONNOR MICHAEL J 292 LIBERTY DRIVE SHIPPENSBURG PA 17257 GOBAT AMY PLAINTIFF O'CONNOR MICHAEL J 292 LIBERTY DRIVE SHIPPENSBURG PA 17257 BONAWITZ CLAYTON DEFENDANT ORR PAUL BRADFORD 1466 WOODS ROAD LOT #35 SHIRPPENSBURG PA 17257 BONAWITZ BRANDIE DEFENDANT ORR PAUL BRADFORD 1466 WOODS ROAD LOT #35 SHIRPPENSBURG PA 17257 STOTSKY ADAM L JR DEFENDANT Y A L FENCE COMPANY DEFENDANT Y Judgment Index Amount Date Desc BONAWITZ CLAYTON 1,150.00 9/08/2005 AWARD OF ARBITRATORS BONAWITZ BRANDIE 1,150.00 9/08/2005 AWARD OF ARBITRATORS STOTSKY D / FENCE COMPANY 1,150.00 2005 AWARD OF 9/08 ARBITRATORS *********************************************** ********************************* * Date Entries *********************************************** ********************** *********** - - - - - - - - - - - - - FIRST EN TRY - - - - - - - - - - - - - - 2/13/2004 COMPLAINT ----------------------------------- 3/31/2004 SHERIFF'S FILE RETURNED FILED. ---------------------- ---------- Case Type: COMPLAINT & NOTICE Ret i i BONAWITZ CLAYTON Type.: Out of County gant.: L t LOT #35 ss.. 1 466 WOODS ROA Ad r SERVED 3/05/04 : d e SHIPPENSBURG, 17257 PA C t m FRANKLIN oun y : Ret Date.: 03 31/2004 Costs....: $9 .44 Pd By: KILLIAN & GEPHART 03/31/2004 ----------------------------------- 3/31/2004 SHERIFF'S FILE RETURNED FILED. --- ------------ ---------- Case Type: COMPLAINT & NOTICE Ret Litigant.: BONAWITZ BRANDIE Type.: Out of County Address..: 1466 WOODS ROAD LOT #35 SERVED 3/05/04 Cty/St/Zp: SHIPPENSBURG, PA 17257 County Nm: FRANKLIN Ret Date.: 03/31/2004 Costs....: $16.00 Pd By: KILLIAN & GEPHART 03/31/2004 ----------------------------------- 4/02/2004 MOTION FOR JOINDER OF THIRD PARTY - ---------------------- PAUL BRADFORD ORR ESQ ---------- - ATTY FOR DEFT ----------------------------------- 4/13/2004 ORDER OF COURT - DATED 4/12/04 - IN ---------------------- RE MOTION FOR JOINDER ---------- OF THIRD PARTY A RULE IS HEREBY ISSUED UPON PLFFS TO SHOW CAUSE WH Y THE RELIEF REQUESTED SHOULD NOT BE GRAN TED - RULE RETURNALBE WITHIN 20 DAYS OF SERVICE - BY THE COURT J WELSEY OLER JR J COPIES --------------------------------------------------------- MAILED ---------- 08361509222005 Cuml-rland County Prothonotary'F Office Page 2 PYS510 Civil Case Print 2004-00628 GOBAT ALAN ET AL (vs) BONAWITZ CLAYTON ET AL Reference No..: Filed........: 2/13/2004 Case Type.....: COMPLAINT Time.........: 8:24 Judgment.,.... 00 Execution Date 0/00/0000 Judge Assigned: BAYLEY EDGAR B Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: 4/29/2004 PLAINTIFFS' ANSWER TO DEFTS' MOTION FOR JOINDER OF THIRD PARTY - BY MICHAEL J O'CONNOR ESQ FOR PLFF -- --------- ---------- --------------------- 5/03/2004 ANSWER TO MOTION FOR JOINDER OF THIRD PARTY - BY WILLIAM S DANIELS ESQ --- --------- -------- -------------------------- 5/06/2004 ANSWER TO COMPLAINT - BY PAUL BRADFORD ORR ESQ FOR DEFTS --------------------------------- ---------- ------- 1/06/2005 PRAECIPE FOR LISTING CASE FOR ARGUMENT BY MICHAEL J O'CONNOR ESQ DEFENDANTS' MOTION FOR JOINDER OF THIRD PARTY ------------------------------------------------------------------- 2/04/2005 ORDER OF COURT - DATED 2/4/05 - IN RE MOTION OF DEFENDANTS FOR JOINDER OF THIRD PARTY THE MOTION OF THE DEFENDANTS FOR JOINDER OF A THIRD IS GRANTED - BY EDGAR B BAYELY J - COPIES MAILED 2/4/05 ----- --------- ----------- ----------- 3/09/2005 CO-DEFENDANT BONAWITZ THIRD PARTY COMPLAINT - BY PAUL BRADFORD ORR ESQ FOR DEFT -------------------------- ------------------------------ 4/12/2005 ANSWER TO COMPLAINT AGAINST THIRD PARTY AS ADDITIONAL DEFT WITH NEW MATTER - BY WILLIAM S DANIELS ESQ - ------- -------- ---------- 5/17/2005 PETITION FOR APPOINTMENT OF ARBITRATORS - MICHAEL J O'CONNOR ESQ --------------------- ---------- ------ 6/01/2005 ORDER OF COURT 5/31/05 APPOINTMENT OF ARBITRATORS BY THE COURT GEORGE E HOFFER P JUDGE ARBITRATORS ARE DAVID DELUCE ESQ - WILLIAM DOUGLAS ESQ - JOHN F DUGGAN ESQ NOTICE MAILED 6/02 05 6/24/2005 ORDER OF COURT - DATED 6/24/05 - THE APPOINTMENT OF JOHN F DUGGAN ESQ AS ARBITRATOR IN THE ABOVE MATTER IS VACATED AND MICHAEL BANGS ESQ IS APPOINTMENT IN HIS STEAD - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED ------------------------------------------------------------------- 7/08/2005 ORDER OF COURT - DATED 7/8/05 - THE APPOINTMENT OF WILLIAM DOUGLAS ESQ AS ARBITRATOR IN THE ABOVE MATTER IS VACATED AND LISA COYNE ESQ IS APPOINTED IN HIS STEAD - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED ------------------------------------------------------------------- 9/08/2005 AWARD OF ARBITRATORS - JUDGMENT FOR PLAINTIFFS IN THE AMOUNT OF $1,150.00 AGAINST THE DEFENDANTS PLUS COSTS JUDGMENT FOR DEFENDANTS IN THE AMOUNT OF 1,150.00 AGAINST THE ADDITIONAL DEFENDANT ON THE JOINDER COMP MT PLUS COSTS COPIES MAILED - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Beg Bal Py*mts/Adj End Bal ******************************** ******** ****** ******************************* COMPLAINT 35.00 35.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 APPT OF ARBITRA 15.00 15.00 .00 -------------- 70.50 ---------- --- 70.50 --------- .00 ******************************************************************************** * End of Case Information ******************************************************************************** PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted In duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: a for JURY trial at the next term of civil court. ? for trial without it jury. CAPTION OF CASE (entire caption must be stated in full) (check one) ? Civil Action - Law Alan Gobat and Amy Gobat ® Appeal fiom arbitration (other) (Plaintiff) VS. Clayton and Brandie Bonawtiz, (defendants) Adam L. Stotsky, Jr. t/dlbf/en?ant) A.L. Fence Company, (+D?c Additional Defendant. The trial list will be called on 8 / 2 2 / 0 6 and Trials commence on 9/18/06 Pretrisls will be held on 8 / 3 0 / 0 6 (Briefs are due S days before pretriah No. 04-0628 Term Indicate the attorney who will try case for the parry who files this praecipe: Michael J. O'Connor, Esquire, Attorney ID #76127 Killian p Cenha,rt, TTP, 718 Dina- 52r-rPai-, PO Rnx AA6_ Harrisburg, PA 17108-0886 Indicate trial counsel for other parties if known: William c Daniels Esquire anA Paul Bradford. Orr_ Esquire This case is ready for trial. Signed: M `, Print Name: Michael J. O'Connor, Esquire Date: fdj Attomeyfor:Alan and Amy Gobat ALAN GOBAT and AMY GOBAT, Plaintiffs v CLAYTON and BRANDIE BONAWITZ, Defendants v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ADAM L. STOTSKY, JR., t/d/b/a A.L. FENCE COMPANY: Additional Defendants : 04-628 CIVIL TERM IN RE: CASE STRICKEN FROM LIST ORDER OF COURT AND NOW, this 22nd day of August, 2006, upon consideration of the call of the civil trial list in the above-captioned case, and the case having not been called for trial at this time, it is stricken from this trial list. ichael J. O'Connor, Esquire 218 Pine Street P.O. Box 886 Harrisburg, PA 17101-1350 For Plaintiffs /aul B. Orr, Esquire 50 East High Street Carlisle, PA 17013 For Defendants illiam S. Daniels, Esquire Farmers Trust Building Suite 205 One West High Street Carlisle, PA 17013 For Additional Defendants Court Administrator e A, mae By the Court, VAN' tASNN-ld SO :C :48 U SAV 9004 A8V!ON '1Ot;d 3HI d0 (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ® for JURY trial at the next term of civil court. ? for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) Alan Gobat and Amy Gobat (check one) ? Civil Action - Law ® Appeal from arbitration (other) (Plaintiff) Va. Clayton and Brandie Bonawitz, (Defendants) Adam L. Stotsky, Jr. t/d/b/a A.L. Fence Company, (Defendant} Vs (Ad itional Defendant). The trial list wi[lbe called ou 1 n / 1 o / o 6 and Trials commence on 1 1/ 6/ n F Pretrials will be held on i n / 19 4 0 6 (Briefs am due S days before pretrials No. 04)-0628 Term Indicate the attorney who will try case for the party who files this praecipe: Michael J. O'Connor, Esquire, Attorney ID #76127 Killian S r p h t r LTD, 112 niPs-rt:r-eet,-29 Rem 886 Harrisburg, PA 17108-0886 Indicate trial counsel for other parties if known: This case is ready for trial. Signed: /f I /J/ti PrintNamc: Michael J. O' Cnnnor. Esquire Date: i Attomeyfor:Alan R Amy rnhat• c-> ?_ ? o `,t -r;.' ,,, N ? " xT nor G E -?f?? it ?' --ri ? ` " I T? ? Gn ? DOUGLAS OFFICE 27 W. HIGH ST. POB 261 CARLISLE PA 17013 TELEPHONE 717-243-1790 WILLIAM P. DOUGLAS, ESQ. Supreme Court I.D.# 37926 ALAN GOBAT AND AMY GOBAT In the Court of Common Pleas of Cumberland County, Penna. Vs. VS. CLAYTON AND BRANDIE No. 04-0628 BONAWITZ, Defendants, and ADAM L. STOTSKY, JR., T / D / B / A A.L. FENCE COMPANY, Civil Action Law Additional Defendants Jury Trial Demanded : : .................................... . .................. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : ............................................ . ....................... . ..................................................... . . . . . . . . . ................. Praecipe To Enter Appearance TO THE PROTHONOTARY OF SAID COURT: Please enter my appearnace on behalf of the additional defendant Adam L. Stotsky, Jr., t / d / b / a A. L. Fence Company. Date: September 26, 2006 , " William P. I Attorney for defendant a v-? rt rTl r? CO ? ? _ ALAN GOBAT and AMY GOBAT, Plaintiffs v. CLAYTON BONAWITZ and BRANDIE BONAWITZ Defendants and ADAM L. STOTSKY, JR. t/d/b/a A.L. FENCE COMPANY, Additional Defendant. IN THE COURT OF COMMON CUMBERLAND COUNTY, PE- NO. 04-0628 CIVIL ACTION - LAW JURY TRIAL DEMANDED ORIGINAL STIPULATION TO LIMITATION OF MONETARY RECOVERY PURSUANT TO RULE 1311.1 TO: Clayton Bonawitz and Brandie Bonawitz Alan Gobat and Amy Gobat, Plaintiffs, stipulate to $15,000.00 as the maximum amount of damages recoverable upon the trial of the appeal from the award of arbitrators in the above captioned action. ALAN GOBAT and AMY GOBAT By their Attorneys KILLIAN & GEPHART, LLP By: % t" Michael J. O'Connor, Esquire Attorney ID No. 76127 218 Pine Street PO Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 moconnornkilliangephart. com Dated: October 13, 2006 L CERTIFICATE OF SERVICE On this 13th day of October, 2006, I hereby certify that I served the foregoing document on the following by depositing a true and correct copy in the United States Mail, postage prepaid, addressed to: Paul Bradford Orr, Esquire 50 East High Street Carlisle, PA 17013 Attorney for Defendants Clayton and Brandie Bonawitz William S. Daniels, Esquire Farmers' Trust Building One West High Street, Suite 205 Carlisle, PA 17013 Attorney for Additional Defendants Adam L. Stotsky, Jr. t/d/b/a A.L. Fence Company Michael J. O'Connor, Esquire Attorney I.D. #76127 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 r ALAN GOBAT and AMY GOBAT, Plaintiffs V. CLAYTON BONAWITZ and BRANDIE BONAWITZ Defendants and ADAM L. STOTSKY, JR. t/d/b/a A.L. FENCE COMPANY, Additional Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 04-0628 CIVIL ACTION - LAW JURY TRIAL DEMANDED STIPULATION TO LIMITATION OF MONETARY RECOVERY PURSUANT TO RULE 1311.1 TO: Clayton Bonawitz and Brandie Bonawitz Alan Gobat and Amy Gobat, Plaintiffs, stipulate to $15,000.00 as the maximum amount of damages recoverable upon the trial of the appeal from the award of arbitrators in the above captioned action. ALAN GOBAT and AMY GOBAT By their Attorneys KILLIAN & GEPHART, LLP By: !f L-- Dated: October 13, 2006 Michael J. O'Connor, Esquire Attorney ID No. 76127 218 Pine Street PO Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 moconnornkilliangephart. com r CERTIFICATE OF SERVICE On this 13th day of October, 2006, I hereby certify that I served the foregoing document on the following by depositing a true and correct copy in the United States Mail, postage prepaid, addressed to: Paul Bradford Orr, Esquire 50 East High Street Carlisle, PA 17013 Attorney for Defendants Clayton and Brandie Bonawitz William S. Daniels, Esquire Farmers' Trust Building One West High Street, Suite 205 Carlisle, PA 17013 Attorney for Additional Defendants Adam L. Stotsky, Jr. t/d/b/a A.L. Fence Company !!K6L Michael J. O'Connor, Esquire Attorney I.D. #76127 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 C-j 77 c i Ca3 - ALAN GOBAT and AMY GOBAT, : IN THE COURT OF COMMi ORIGINAL Plaintiffs : CUMBERLAND COUNTY, V. CLAYTON BONAWITZ and BRANDIE BONAWITZ Defendants and ADAM L. STOTSKY, JR. t/d/b/a A.L. FENCE COMPANY, Additional Defendant. : NO. 04-0628 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE OF INTENT TO OFFER DOCUMENTARY EVIDENCE PURSUANT TO RULE 1311.1 TO: Clayton Bonawitz and Brandie Bonawitz Alan Gobat and Amy Gobat, Plaintiffs, intends to offer the documents attached hereto at the trial of the appeal from the award of arbitrators, in the manner provided by Rule of Civil Procedure 1311.1. The following documents are attached: 1. Estimate of Repair prepared by Ryder Fencing dated 10/20/03. 2. Estimate of Repair prepared by Nealy/Rine Enterprises dated 7/18/05. 3. Estimate of Repair by Lowe's Companies, Inc. dated 7/22/05. ALAN GOBAT and AMY GOBAT By their Attorneys KILLIAN & GEPHART, LLP BY 411W? Michael J. 'Connor, Esquire Attorney ID No. 76127 218 Pine Street PO Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 moconnor(a)killianaaephart.com Dated: October 13, 2006 ?y ??? r` 10/20/2063 65:57 17172676427 ALAN GOBAT SON PAGE 12 'ROPOSAL .1?i . DATE IOPOSAL SUBMITTED TO: WORK TO BE PERFORMED AT i i4t y VIMPwqw to 11iiM0 t?* *atedbI$ d 10"ihe N&W A *q; IN ,. ...:: 1. ,, l 1, . ,. .' , • ::,. , ownp. ion of tot 1..;. 1 .Ur i'r o s i ?'.;{ ?p•,;li;}x„ r>yit }., ?. is r; 1. d V t ce, _ CG QeA e S - r ?. JX494 O 01 - 8 wA C5 Aa O o 7-es Ill material Is guaranteed to be as specified, and the above work to be performed.in accordance with the drawings and specifi- atlgq? $ubmltted r above wo k and co ed in a substantial workmanlike manner for the sum of Dollars ($ Logo- 1 6th payments to be made as follows. vfbN CoMpleriON SO- Respectfully submitted ?e r Fe)q Gi V my alteration or deviation from above spec"kations involving extra costs ill be executed only upon wrinen order, and wIN become an extra charge Per rer and above the estimate. All agreements contingent upon strikes. ac- dema, or delays beyond our oontrol Note -This proposal may be withdrawn by us If not accepted within days. 9 4i'I'' end cunt are Tab=14' ON:' aY?i a hereby accepted. You are autt4t4r?zed to tt?wt9Rlc } 1 l?tMiil tSdD .rri 60uta " 6ve ' aft S nOwe hate Signature IN- NC W A 381850 ADE a? PROPOSAL nnE usa 10/20/2003 06:57 17172670427 ALAN GOBAT SON PAGE 13 'ROPOSAL a? MR, r• ? rr J Vt? /"3 DATE 'ROPOSAL SUBMITTED TO: WORK TO BE PERFORMED AT ril tQ. (+1'*N9 t?baMidals V"d 0'-w "the; bar a elc BBtC f 11?6I'cortrifetil3tl I' o I N•.... N '.. .... ... 'till T ± AL - : i k- - ,If material Is guaranteed to be as specified, and the above work to be performed in accordance with the drawings and specifi- ations submitted for above work and completed In a substantial workmanlike manner for the sum of Dollars ($ ) rith payments to be made as foUows. Respectfully submitted Felvc. ty sheratlon or devlallon from above specifications Involving extra costs It be executed only upon written order, and will beoome an extra charge Per or and above the eetlmate. All agreements contingent upon strikes, ac- *ft, or delays beyond our conhol. Note--This proposal may be withdrawn by us if not accepted within days. ate h-b- NC 3e,s-ao " *4 USA PROPOSAL r ? i ? N co z m` E O U N c 0 C L ?J 7 J 1 1 H i l l V E v V\ Q? ^ vi j Cf) O Q "a Q V ?t co 0-0 Q O p w z U CD L 'U a> N Q c O (1) 2) M .c U m U L. N U) 0 0 0 ti fl YlFrd'I ? `" SSZR130A LOWE'S COMPANIES, INC. PAGE: 1 CBP 0706 PROJECT ESTIMATE FNCE BRD 5/8"X6,,x6' DE CONTACT: GOBAT, AMY SALESMAN: DANIEL SEBALD CUST #: 33308 196 SALESMAN #: 18171 PROJECT NUMBER: 69234 DATE ESTIMATED: 07/22/05 QTY ITEM # ITEM DESCRIPTION VEND PART # PRICE 780 202922 FNCE BRD 5/8"X6"X6' DE PT ACQ 1,162.20 40 201596 4X4X8 ACQ .40 TOP CHOICE TREATED 404080401 238.80 120 46905 2X4X8 ACQ TOP CHOICE TREATED 204080201 392.40 1 155787 LABOR REMOVAL OF FENCE 4,223.88 3 39961 J/H GATE KIT SBLK 243-89 243-899 36.54 DETAIL FEE CREDIT 30.00- TOTAL FOR ITEMS 0.00 FREIGHT CHARGES 0.00 DELIVERY CHARGES 0.00 TAX AMOUNT 0.00 TOTAL ESTIMATE $6,023.82 THIS ESTI MATE IS VALID UNTIL MANAGER SIGNATURE DATE THIS ESTIMATE IS NOT VALID WITHOUT MANAGER"S SIGNATURE. THIS IS AN ESTIMATE ONLY. DELIVERY OF ALL MATERIALS CONTAINED IN THIS ESTIMATE ARE SUBJECT TO AVAILABILITY FROM THE MANUFACTURER OR SUPPLIER. QUANTITY, EXTENSION, OR ADDITION ERRORS SUBJECT TO CORRECTION. CREDIT TERMS SUBJECT TO APPROVAL BY LOWES CREDIT DEPARTMENT. LOWES IS A SUPPLIER OF MATERIALS ONLY. LOWES DOES NOT ENGAGE IN THE PRACTICE OF ENGINEERING, ARCHITECTURE, OR GENERAL CONTRACTING. LOWES DOES NOT ASSUME ANY RESPONSIBILITY FOR DESIGN, ENGINEERING, OR CONSTRUCTION; FOR THE SELECTION OR CHOICE OF MATERIALS FOR A GENERAL OR SPECIFIC USE; FOR QUANTITIES OR SIZING OF MATERIALS; FOR THE USE OR INSTALLATION OF MATERIALS, OR FOR COMPLIANCE WITH ANY BUILDING CODE OR STANDARD OF WORKMANSHIP. t CERTIFICATE OF SERVICE On this 13th day of October, 2006, I hereby certify that I served the foregoing document on the following by depositing a true and correct copy in the United States Mail, postage prepaid, addressed to: Paul Bradford Orr, Esquire 50 East High Street Carlisle, PA 17013 Attorney for Defendants Clayton and Brandie Bonawitz William S. Daniels, Esquire Farmers' Trust Building One West High Street, Suite 205 Carlisle, PA 17013 Attorney for Additional Defendants Adam L. Stotsky, Jr. t/d/b/a A.L. Fence Company _ '1 Michael J. O'C nnor, Esquire Attorney I.D. #76127 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 - -, c 7l t ri ?_= Cs-7 - G FILED-OFFICE OF THE P OTr T,)1 0 ALAN GOBAT and AMY GOBAT, : INTHE COURT OF MMON PLEAS Plaintiffs : CUMBERLAND CO WTP#i9Npr'L3yAyIA vs. CLAYTON AND BRANDIE BONA WITZ, Defendants vs. ADAM L. STOTSKY, JR., t/d/b/a A. L. FENCE COMPANY, Additional Defendant CIVIL ACTION - LA jam,; ?? NO. 04-628 CIVIL IN RE: PRETRIAL CONFERENCE Present at a pretrial conference held October 19, 2006, were Michael J. O'Connor, Esquire, attorney for the plaintiffs, Paul Orr, Esquire, attorney for the defendants, and William P. Douglas, Esquire, attorney for the additional defendant. After discussion of the case, counsel agreed that the matter would proceed nonjury. The undersigned has agreed to keep this case so that another pretrial conference is not necessary. This matter should be assigned to the undersigned for the purpose of conducting a nonjury trial. October 19, 2006 Michael J. O'Connor, Esquire For the Plaintiffs Paul Orr, Esquire For the Defendants William P. Douglas, Esquire For the Additional Defendant Court Administrator ALAN GOBAT and AMY GOBAT, : IN THE COURT OF COMMON PLEAS OF Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 04-628 CIVIL CLAYTON AND BRANDIE BONAWITZ, Defendants VS. ADAM L. STOTSKY, JR., t/d/b/a A. L. FENCE COMPANY, Additional Defendant IN RE: NONJURY TRIAL ORDER AND NOW, this 30 ? day of March, 2007, nonjury trial in the above-captioned matter is set for Thursday, July 19, 2007, at 9:30 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Hess, J. l J. O'Connor, Esquire ae ?__c Fthe Plaintiffs ?1 Orr, Esquire For the Defendants J /Iliam P. Douglas, Esquire For the Additional Defendant Court Administrator : rlm ! S • I I,4, 0C ?J'V" N 0,411 ?: a {LAG F ALAN GOBAT and AMY GOBAT, : IN THE COURT OF COMMON PLEAS OF Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 04-628 CIVIL CLAYTON AND BRANDIE BONAWITZ, Defendants VS. ADAM L. STOTSKY, JR., t/d/b/a A. L. FENCE COMPANY, Additional Defendant IN RE: NONJURY TRIAL VERDICT AND NOW, this Z i " day of August, 2007, the court finds in favor of the plaintiffs and against the defendants in the amount of $500.00 (which may be satisfied by the payment of sums held in escrow). The court finds in favor of the defendants and against the additional defendant in the amount of $500.00. BY THE COURT, A/ichael J. O'Connor, Esquire For the Plaintiffs ,Y`aul Orr, Esquire For the Defendants J ,4illiam P. Douglas, Esquire For the Additional Defendant Court Administrator imo ZS :Z Wd I Z ON LOOZ AbVIONC .Odd :3Hl A© 901::HO (131H ALAN GOBAT and AMY GOBAT, : IN THE COURT OF COMMON PLEAS OF Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 04-628 CIVIL CLAYTON AND BRANDIE BONAWITZ, Defendants VS. ADAM L. STOTSKY, JR., t/d/b/a A. L. FENCE COMPANY, Additional Defendant IN RE: NONJURY TRIAL MEMORANDUM AND VERDICT After lengthy consideration of the testimony adduced at our recent nonjury trial, and after reviewing the pleadings, we reach a verdict and in that regard provide a brief word of explanation. In this case, the Gobats agreed to purchase a dwelling home located at 292 Liberty Drive, Shippensburg, Pennsylvania, from the defendants, Clayton and Brandie Bonawitz. Prior to the settlement, the plaintiffs noticed that a portion of the fence around the backyard of the property was leaning. At the time of settlement, the parties entered into an escrow agreement setting aside the sum of $500.00 from the settlement proceeds for the purpose of repairing a "leaning fence post at rear yard." The escrow agreement went on to provide that in the event that $500.00 was not sufficient, the Bonawitzes will "on demand deposit the additional amount necessary." The sole count in the complaint, one for breach of contract, alleges that the defendants violated the escrow agreement "by refusing to deposit additional moneys into the escrow account to cover the cost of repairs of the fence." Comp., para. 10. The complaint concludes with an allegation that, because of this breach of the contract, "the aforesaid fence is currently in disrepair and needs to NO. 04-628 CIVIL be replaced by a new fence. Nowhere in the course of this litigation, however, have the plaintiffs established a prior demand for the "costs of repair" of the fence. Instead, the plaintiffs have submitted estimates from contractors who have declined to make repairs and, instead, have submitted bids for the total replacement of the fence. The parties advance a number of legal theories which they would have the court apply to this case. Their arguments, in some cases, are the legal equivalent of trying to fit square pegs into round holes. The plaintiffs, for example, cite the well-established principle that where there has been a defective performance of a contract, the measure of damages is the cost of correcting the defects by another contractor and, where repair is not possible, the correct measure of damages is the cost of replacement. Citing Fetzer v. Vishneski, 582 A.2d 23 (Pa.Super. 1990). In this case, however, the contract between the Gobats and Bonawitz was not for the construction of a fence. Had it been, the cost of replacing the defective fence may well have been the proper measure of damages. The contract, though, was for the repair of the existing fence, something which the plaintiffs now contend was not possible. However, where parties make a contract and the performance of the contract becomes impossible, the remedy is rescission of the contract. See In re Bosick, 759 A.2d 417 (Pa.Cmwlth. 2000). Here, the plaintiffs have not sought to rescind the real estate sale, but rather seek to replace the fence. We note also that merely because various contractors have refused to submit a cost of repair does not mean that repair is impossible. The contractors have simply indicated that they would rather install a new fence than repair the existing one. Despite the absence of direct testimony, we are satisfied that the cost of repair would be at least $500.00. No one has come forward with a figure, however, indicating that it would be any more than that. Accordingly, we will direct judgment in favor of the Gobats and against Bonawitz for the amount of the escrow of 2 NO. 04-628 CIVIL $500.00. Under the joinder theories advanced by Bonawitz, Stotsky cannot be liable to Bonawitz in an amount greater than Bonawitz is liable to Gobat. By the same token, it is clear that repair was necessitated to the fence by its earlier improper installation; specifically, there was not nearly enough concrete applied to the post holes to support the fence. 1 VERDICT AND NOW, this 210" day of August, 2007, the court finds in favor of the plaintiffs and against the defendants in the amount of $500.00 (which may be satisfied by the payment of sums held in escrow). The court finds in favor of the defendants and against the additional defendant in the amount of $500.00. BY THE COURT, Michael J. O'Connor, Esquire For the Plaintiffs Paul Orr, Esquire For the Defendants William P. Douglas, Esquire For the Additional Defendant Court Administrator 1 In a pleading filed by Stotsky, he indicates that as late as July of 2003 he offered to perform repairs on the fence and provide an inspection in exchange for a joint release among the parties. If such an offer was made, we were never told why it was not accepted. 3