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HomeMy WebLinkAbout08-2751P?, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. 354 Alexander Spring Road, Suite 4 Carlisle, PA 17013 Plaintiff VS. MAPLETREE DEVELOPMENT, LLC 3000 Antrem Way, Suite 219 Mount Laurel, NJ 08054 and GEORGE M. DEIMER, 3000 Antrem Way, Suite 219 Mount Laurel, New Jersey, 08054 Defendants No. C ,ol-T O Gh/rl4er,-L NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defense or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 Telephone (717) 249-3166 PECHT & ASSOCIATES. PC By: Herbert P. Henderson, II, Esquire Attorney for Plaintiff 55 West High Street Elizabethtown, PA 17022 Telephone: (717) 367-2800 Attorney I.D. #56304 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. 354 Alexander Spring Road, Suite 4 Carlisle, PA 17013 Plaintiff VS. MAPLETREE DEVELOPMENT, LLC 3000 Antrem Way, Suite 219 Mount Laurel, NJ 08054 and GEORGE M. DEIMER, 3000 Antrem Way, Suite 219 Mount Laurel, New Jersey, 08054 Defendants No. 6r-,)15-7 C Ni l fcfvt COMPLAINT 1. The Plaintiff, Dawood Associates, Inc., (hereinafter "Dawood"), is a Pennsylvania business corporation, duly incorporated under the laws of this Commonwealth, with a principal place of business at 354 Alexander Spring Road, Suite 4, Carlisle, Pennsylvania, Cumberland County 17013. 2. Defendant Mapletree Development, LLC, is believed to be a State of New Jersey Limited Liability Company, which maintains a principle place of business at 3000 Antrem Way, Suite 219, Mount Laurel, New Jersey, 08054. 3. Defendant George M. Deimer, (hereinafter "Deimer"), is an adult individual with a last known mailing address of 3000 Antrem Way, Suite 219, Mount Laurel, New Jersey, 08054. 4. At all times relevant herein, the Plaintiff, Dawood, is a licensed engineering firm which engages in the business of civil engineering, land and site development, planning, surveying in connection with the development of real estate for both commercial and residential subdivisions and construction. 5. At all times relevant herein, the Defendants are, or were, real estate developers. OPERATIVE FACTS 6. Paragraphs 1 through 5 are incorporated herein by reference as set forth at length. 7. In mid to late 2006, Deimer requested Dawood provide professional services for a land development plan for a certain parcel of real estate located at the intersection of South Spring Garden Street and Ashland Avenue in the borough of Carlisle, Cumberland County, Pennsylvania. 8. At all times relevant hereto, Deimer held himself out to be the equitable owner of and principal individual involved in the ownership of the land and development of the subject real estate parcel, i.e. the property located at the intersection of South Spring Garden Street and Ashland Avenue in Carlisle, Cumberland County, Pennsylvania. 9. Deimer indicated to Dawood's representative in charge of the Carlisle office, Pamela Fisher, that the work was to be performed for him and his company, Philadelphia Holding Company, for a development to be known as "Maple Tree Development". Plaintiff began work on the project and actually billed what it believed to be Deimer's Fictitious Name entity, Maple Tree Developers. 10. In February 2007, based upon subsequent conversations with Deimer, Dawood prepared a proposal and standard contract outlining services agreed upon with Deimer, for signature by which Deimer indicated was his new entity, Maple Tree Development, LLC. 11. At some point in time subsequent to the preparation of the initial proposal and contract, Deimer advised Dawood that he had form a Limited Liability Company, i.e., Maple Tree Development, LLC, and that the contract should be placed in the name of Maple Tree Development, LLC. 12. At all times relevant hereto, Deimer led Dawood to believe that he would be responsible for any and all fees or costs associated with the engineering and land development services to be provided and that Maple Tree Development, LLC and that Maple Tree Development, LLC was merely a company which he organized for the land development plan which Dawood was hired to prepare. COUNTI DAWOOD VS. MAPLE TREE DEVELOPMENT LLC BREACH OF CONTRACT 13. Paragraphs 1 though 12 are incorporated herein by reference as though set forth at length. 14. Defendant Maple Tree did, on February 20, 2007, enter into a written contract for professional services with Dawood. A true and correct copy of the contract is attached hereto, incorporated herein by reference and attached hereto as Exhibit "A". 15. Pursuant to the terms of the contract, Dawood was contractually obligated to provide land development, site development, engineering services for Maple Tree on a parcel of real estate situate at the intersection of South Spring Garden Street and Ashland Avenue in Carlisle, Cumberland County, Pennsylvania. 16. Dawood did perform the necessary work required of it in a satisfactory and professional manner and in accordance with standards promulgated by and accepted by industry for engineering, land development planning, site development and surveying. 17. Dawood has issued Maple Tree a series of statements for the professional services provided both directly and through its principal, George Deimer. A true and correct copies of the most recent statement issued is attached hereto, incorporated herein by reference as set forth at length and marked as Exhibit "B" 18. To date, despite Dawood's demands for payment, Maple Tree has failed and otherwise refused to pay the total outstanding amount due. 19. Dawood believes, and therefore avers, that Maple Tree's failure to pay for all professional services when billed is a material breach of the parties' written contract. 20. Dawood believes, and therefore avers, that Maple Tree's failure to pay is a material breach of the parties' contract. 21. Dawood believes, and therefore avers, as a result of a result of Maple Tree's breach, Plaintiff has suffered damages in the amount of $27,205.38. 22. Pursuant to paragraph 8.2 of the parties' contract, Dawood is permitted to charge 1 %s% interest every 30 days for each invoice that is not paid within 60 days. 23. Section 8.2 of the parties' written contract further sets forth that, in the event a lawsuit is filed to enforce payment for the contract, that Dawood is entitled to seek attorney fees and costs incurred by Dawood. (See section 8 of the parties' written contract, the same of which is attached as Exhibit "A") 24. Dawood has enlisted the services of the undersigned counsel to prosecute this matter and has agreed to pay attorney fees in the approximate amount of $5,700.00 plus costs. WHEREFORE, Plaintiff, Dawood Associates, Inc. demands judgment in its favor and against Maple Tree Development, LLC in an amount in excess of $35,000.00. COUNT H DAWOOD ASSOCIATES, INC. VS. GEORGE DEIMER Unjust Enrichment 25. Paragraphs 1 through 24 are incorporated herein by reference as set forth at length. 26. At all times relevant hereto, Deimer held himself out as the beneficial, record owner of the subject real estate. 27. At all times relevant hereto, George Deimer held himself out as the owner of Maple Tree Development, LLC. 28. Plaintiff conferred benefits on Defendant. 29. The benefits conferred were non-gratuitous. 30. There was an appreciation of those benefits by Defendant. 31. Acceptance and retention of not only these benefits, is inequitable and without payment of value. 32. As a result of Defendant's failure to pay Plaintiff, Defendant has been unjustly enriched in the amount of $ 27,205.38. WHEREFORE, Plaintiff, Dawood Associates, Inc. demands judgment in its favor and against George Deimer in an amount not in excess of $35,000.00. Respectfully Submitted, PECHT & By. all y Herbert P. Henderson, H, Esquire Attorney I.D. # 56304 55 West High Street Elizabethtown, PA 17022 (717) 367-2800 VERIFICATION HERBERT P. HENDERSON, II, ESQUIRE, being duly affirmed according to law deposes that he is the attorney for the Plaintiff, Dawood Associates, Inc., in the within matter; that said Plaintiff cannot make the Verification to this Complaint because a Verification cannot be obtained at present, that he has made diligent inquiry of the Plaintiff and upon the information received believes the facts set forth to be true. Herbert P. Henderson, II 7. DA 4' O CARLISLE REGIONAL OFFIG .. . 'ENGINEERS PLANNERS SURVEYOS,5 Pe Wu y 20, 2W7 Attn: P 3a M Tres D*svkvm LLC 17 Thomas's Way mnftn gd QONOW-fps, Inc, apps a the qty to scat the fgila vwV proposait for Laid m8r4 Wvicst, It is our UndwWMInd'mg that #0 PrOJW involva the con*u+ction of a rrabmd-use eve arduk cx=rnt y hcW 126 stvx*ed f aid appuirna * 10,220 f+ of office space. Dawood has in d d4tvekp rrt pr"ft in cenft Penns*wdg #nd our SUff of over 100 effggoyea pmvkdes the resowv* to c npkft the a nmsrs e r iy, in an eft mwww. Our std' of Pv9qWwsd ErVkxws, !_andomps A rd w% and Su vsyan providers s*Nftarit to is W axperWw and experience for We praject. tlse folkvAng rclosed documents: o Proposal and Scapa of Services o A!A Sliling Method SudW Wwkftet o St> tftrd Contract Terms mid Condtiona For YOUr cmv+emi 009, we are Prou* twn (2) copiers of tads hftrmabw. if our t am is SO ate. Oswia sign and return one (1) copy c?f this ie to our orifieg. We took forward to. WOdft 'w YOU bn aria knWrt4nt pr*a ddr:x354 Aloxandar S"Q FtO*O - S71t4,4 Cargo+i, PA 17015-7464 the 717.748;9696 fi, 717.24C90" ,n44: WWW,DAW0 ulA380ctat*S C0M s Cwf le Active uft Commu t Utple firms aevolowneat LL Sow Sprang Garden Shvet t Ashland Aver Borough of Carlisle, Cum r and County, PA ft- - d for. MAO Tr" t O atUit LLC 17 That"s Way l rOn NJ OM3 Febmary 2007 CARLISLE REGIONAL OF'FICt SCOPE Of SERVICE 1.1 Bowdwy/Topographtcal! Sl! rv Maple Tr Dovsopmn LLC will provide Dawood vvittt a b*ft search for e.prc ty. Dawood will acquke all o4w n ary deed and pal nforrna r? from the Curtnber rd County Cout0mu , incluift ix t limited to, aN adjoining properties. The wry surer vAl kxkale the property lines and ttw lard! : within those boundai°ie s, as well as easernarIs OwkWed in the tide search, any boundary oo d Rd s arxft eri menu. unpretty c orrws MR b sO and indite on the ground, The toper v4 be obtained by W survey. A PA One Call will be pr rtem-a t to vwIfy ivc altbns and types of u nde urrd ut on and avcijacerrt to the as- Rht and in"ft <f stot'm Ww fadRies and 00W underground WNW wW be loom by our surveys crew and shcrwrt on the boundaryltc rap plan. The boundary and top y survey will prepared in a fomW r rnarvw that can be used during the elab of ft* Land D eloprmW Plan, with ' an accuracyr that masts or exceeds the re caber wft as :et f6M In the Borough of lathe Subs aion and Land Development Ord ae. An Ex" CorKittion tart vwfl be p ereai showing the locations of the foltoerirg. the prape Ws legal bwvWfes, exit topography, roads, *tvevrays, po*, rises-of-ymy for malt knm*di r eft to" prn ty, arhf locsticna of ut s on or nwned r adsoent to the pity which -are ray visible on the surface or Ider fed *om the best available inforrnWo n. 1.2 aflands A vv. rid kwestootion delkwsOon wr'9 be Catrried out, in which site in"Sfipp and mare revie44 vAR be used to detwmine if wetlands We present on the project site. A No Findings rues will be "ued In the absence of wetlarxdw In the evert thart ands are predsant, e junedictonal deterrrlr arl witl be required to obtain, COA=Mce from t#ie " Corps of Cr?ineera vn tlv surveyed boundaries. 1.3 Traffic Impact SWy The Code of the Bomu , or Carlisle requires submft of a traffic study at the time of rryr plan sumtcw Wis. v mom than 12A clwallktQ units, Mons than 30,000 sqr ne feet of total floor ,area of Ica sperw or:wW use or corm that genw*es afar thin 155 I par day. Vie vW1 prover a t w rnpoict -aludy for this profit, The std of ft "y h been diascru ad wt#t and aid caw by ttie Borough Enghw If there am any in the scope of the UL*, tw eat cost may be *=nR *. CARLISLE REGIONAL 0FFrcl 1.4 Groundwater ht fi ttion Teefirm e As Pert of the Nf' S Pig It requirements, swami rnarmagwrWxt' faciNies are rrequkad to Inch a Dorn cation of structural anwor non-strudurai best _management practice (E s). These +lPs s #td be defined to maximize gmciemWater irtf#ttral n, in the form of trendies, sie, basins, ste. The" S Oft the WWASges of rseOWOV the ground ter, *A increas bawAlow to stmam systems } Wh8n a #mese systems, SOUTn the Irifrihftn rate can be vmy irnpmeise bwjKM r sou it Mratio ri is a com q*x Pry with rMny ver4biels. The app! abon W N DFs perms su n calc uletlorw and measurer. The infilt atic n ram can be acquired vA* accuracy through on-site ini atitan beOng. The wM be 4arried out and the mwb u*W for the design of the M***d` groom iii are m. The tests will be permed by a trained with SEO cwrWK*W)n. I to twelve (12) tests are lnduded in this lea. The coot of prervidir?g a WWma alndrrar operator rs not irlt d in fts prc i. i I Goo hniCal A deal ineer will evaluate su , txorxfif ow pvvvi* kftmatjon for the demon of the fount itlon. Fowrmt*Ion borbgs will be provided for this: p , as Wmys: Ck" of trees, Dr"V sr td it ction Serves for eight (8) parings tota&V 1 SO W"W fig and Lab Testing. A report of the findings will be provided, .6 Pdory d c re#cam This ftludss time pPepe?ratiorm of a PrefiWnwy Laird DevajopmW plan cad auppWMM inn ma that r 9ft ttme aPP1101" feqt9Mrwft Of the Borough of Carksis Subdivision aid Land Developmem Ckdi wIce. These Plans ir4, > layout, PrOfts for *eft, Sftw and WOW, g'Id ; and rOgcdred landscap . A Sewap Faci bee planning EWTVCan Mager v44 be ftrvvewrd+ed. In ft Pr mYnr PEan design Pte. Phasing for final plan *ukxnjssj0" wig be a id s, in order to fkW*e FmW Flan etabaret and sub niswom prom ry PWM wl# bey Oewk PW to a lsv of dew Ptable for con n purposes, V&*:h will further OP*de the FlnW P%n prat . ,fir approval! Of ft Prl hmmsry PISM by the BOMWh CwJwd& ac?litivrtall mvls*m may be mq d to $8dstY rommerlts from DEP or the Conservation District CARLISLE REGIONAL OFFICI - -- ------- ---- 1 r7 E [FIDES This inc e+s the prepar ?n of Erasion and Sedhwtt Pnffutln Cordroi PWu and Report and a Wmit app fton for bmis n op*wW by the Curnbaft W Cow* Cvr> rrra*m This preen is tad in dest d H10 Quaff Cold r ftlwy (HQ CWF) of th6 Ustod SprbV Rwi *vft rshai, wid #wofbm wl# rem an lndiiv!iduat Pam* for $b mwater di'ech e. This Pnckiclas Ow vompieticm of apptieafions and suppWnental irtfw fbr appkAtion for an todMduid Nt S Permit, BacwAe of the High Qty DesOu n, and ttw consequwt mW for on ftwffWduW Parr*1 demon of Stwa?waw fwAhlbes and lEro? and Ssdmez*tipn Mon Cori meadu aril kwoWe a varletyr of Stomcwrer Wft that improve water qua ft. T? Ptrmit AppftsOw r iriaa #w submiseion of Past-f roof on Stormvvabr Wrogomwt' f%n t maAmbo r Win, prunes the in*Wky of stnum chi and per" ft quy of the r WV wahn The rasqtAt ue for this Permit are in a*Mw to ffum' requW by the Swough of C IlWe. 4` CARLISLE REGIONAL OFFrcr P"PEE) BURET 2.1 Co Bnfion 2.1.1 Demon Servkw Pre-M t tV - Two Am8r Kk rtt trxovm* t i , Wetlands tOurtdWrf"1°OP09why aura $ IZ .00 lrawfon Try 1 owo-00 Gei rt?rrrcai 910.p Traffic SWIM $ 9.5w.00 land 0gw4 pr w* ~ S KOW00 i iorr and Sediment P0411 41M Control PbrS $17,500.00 ftdWd?tarl t+?DE8 IMP ffnit lira dw N The Ong Servic" are ur#nr stem at this ttrtte and tt om am not included in lump sum fee. If add s wvfces are regjO d far the compW u? of ft prrjoc k an addandwn wW be fond to ft Owrw for aWwrbabon p+ r to the cmvnencwe nt of work. A. Filing, &ubm"ion, and wit Feae are rxg inckided. 1 rt neat 1br such . is an paw, ttte diartt will be nodUd of the r eopte #mount& a. Off-Me eaem mt and rigN of way n otist ne are not ludod. C. Gam, mod Lion or r e to MY Plans or data ~ W* MWW*d by a reguta y agency wf such r4evisfon3 are not due to r mpgance with aplAcabla z:h*g, slaExli on or devai inulatiom aura riot Ind d: CARLISLE R€OfONAt OFFSGk SCHEDULE .1 ftwovo of Cariiefe Subm# W Dates Planning 84mugh q *"ftw DOWN" cOlt)mitwQq caumm ftbMINIOn for Pret ratry Pine 20 dep prior to 0 Thursday V4 Thursday PC A 6'30 p(t 7:00 pm bn*sim for F W Pia 10 days prkw to 0 Thcus y VO Thursdq PC A t$ a:30 pm 7:00 pm i? :;: N6?' DAWOOD ASSOCIATES, INC. ST ARD C*NTRACT TERMS AND COMMONS AND - DAWOOD ASSOCIAT56, INC. (0Emg e0 eVe" to prWde those pre sslMW seNi to Map4e Tree Deva Wpirierd, LLC CC#ant"j, as agreed to in the Scope of Sarv on as 90 fears in the accepted letter proposal da %d FabnjMy 20, 2007, MAW" s0vices may be Oftformet! if requ"W, sub)W to an agreed upon revision in t! $cW of Sar0m and attlt*r1z*d fee. 2. 2QjaRW The parties hems 'rave entered into a cor4raa ct. The aCo Day rnenty iraathe Pmposel and ftse Standard Contrao Terme X611 lditit w91 lch site iewWasted Into the tel. The Proposal and Ord Cm*ad Terms arsf Ccinditions, W w. char, foe m'hewer' between the parties (the "Cant icn, _ El'idiE'aewsar e"prtcauWn,ta avoid aaa or it pffy to aawmt~ structures or unities in the pros m*on of ift work. Cheat sWom to amts Nh*w of known or suspected underground features which chi ~ Ow wvim to be pmvidad. The Client agrees to hold the EiVinew harmless for any damagos to subtasra'ansan tffi* lines and for sttuctures *filch we not called to then Enginews amt on and correafly sshmn-ort any plans fu raished by Olient. - It is understood that drawing(s) Mndered t rWw the C riftev will be pmpaared in accordance with ft agreed scale ard wil pertain to 'tsar ac ct propefty. Use of the drawings, informstion or data contained twain for car purpoiw is at the soles rtslc and responsibility of the ate, without lia bflity or Iqpj e re to Eri c or to Engiresses Wapwxlent proN nal associates or c onsu&vft and user staafl indemnify and hold ham-fta Eogirr and Enginser's independontpr €onal and consultants from an stems, da ria -o", lasses and e)q)ensess indt tg attomiWs lion Vining Ott of or ruing from such reuse. The Client agrees ftuo all documentation, including but no lirriked to drawings and otter work to Eng hew tmVshes to ttxa Client or Chant's a Wts, for **Jch the EngvHwdow no teeft a compensation under#t #errrts of the C:or itraact, I remain the Engineers property and stale be returned to Enginear upon did and shah not bas used for any purpose whaftoevw. S7'NW& Q CARE SWAM perforrned by the t~ngpeer under to Age will b condu;W in as mariner ocr'r; tnt with that level of calm and skill orrflra ay exwosed by ?astasori" rmomberrs of 0* s profession practicing unow similar circ+ ?raterlow in the saarle-or siirilar laaati#y. TH A10 OTHER WARRAMPE, EXPRESS OR MDLfED, INCLt 1G, WITHOUT l.WMAVON, WARRANTIES OF mERCHANTAB/L17Y QR FmESS` FOR PAR77CsULAR PURPOSE, MADE BY ENGWEER W NE CONTRACT OR IN ANY REPOFtTS, OPMC,M% a ROI RDOCUMENTS FURNMiEDB'YfiNG ER U1d; t R THE C©NTA40T, OR OTHERME 8. ONSMATIONAM Ifrewired underd*scope of services, the Engineer will provide personnel to observe and report on the spwft a of phases of omftcdot in accordance with ft agreed Scope of See ee~ If observational services are r uined, the Engineer's set Aces do not include supervision or d tlon of ttte actual work of any cx actor, c ontrsc:Ws employe", agents, or subcon . Client agrees to naWy the contractor accordingly.' rdingly. The oordraebor shall also be informed by Client that new the pretce of EtVirueeer-'s fieeld. repro artiv m or the observation by the Engineer t =m the eorttracW for ducts or orr lions in confiradoes work. 8;1 It is understood that the cow will be.40104y and W* re onaible far Wofl conditions on the Ob site, induding sa" of a# pw%orvW " p dtAV the +nn of the wo k, and Omm requirements will apply t0ntiMXKMly and not be *nl d to normal worldng hours. Arty mmftw g of the contractors pertorrrmuo owAxsad by aVlroeft per rat 1s not intended to ink refviaw of the adequacy of that conbw,- 1's safety mea gums iM on or rearthey Oonstviction site. The Engineer shall not be held retsporobe for any contractar'a failure to observe or corn;* with the Os . tonal Sr and NeWth Act of 1970, and r+egufauona or Marls promt W these under, or any state. m0ty or mur pal law or regulation of s irrpod or intent. nctics. In Ow avent of 1 ' n, the Eng r shah be pal for services perkm?ed to the tr wmirwho t date pros reasonable terminaWn ism. 8 Engineer will submit Moicas to COW monthly and a final invoice upon completion of servf s. Payment is due upon pr ation of each invoicei"is paw dew thirty (at) days from the invoice date. Client agrdes to prey *service charms oft and one-hag (1 %) percent per m+ h (18'96 per annum) or fraction thereof on past due pa yrr ernis under the Oontract. if any irtvoioe remains unpaid for a period In excess of sixty (60) days, they Irngirteer reserves the right to pursue all appropriate rights and ra dies avalt" to it at law or equity or by any other provir ons hereof, and shall in add*on hVM ilk tigN to any or all of the folk g s ific remedies: (a) declare tfte Contract terminated, (b) cease any or all services agreed upon under fly, CorlttaEt (c) retain all drawings, information, daft or other documentation without demand the return of any documentation in to pommion of Client; and (d) instWe suit for the amounts own k a additionat costs asset forth in Section 82 hwoof. 8.1 +ment to the-Engf by the Client isa m tlal consid n of the Cordract. There rs the Engineer has a right to s fd services far non-p rnant The Ereinear shalt not be lid, nor in any way be responsible for damages, delays or,in ed coft-that may occur as a result of, the Engineers suspension of eervices. The Client smell hold tw mess, indemnify, and defend the Ertgirearfor claims that arise due to any "pension. 8,2 In the everd a ban or suit is Mod to enforce payment urxW the Contract, the Enginw is or tied to seta ftom. the Client and tint argon to pay all cotaftom artd aetomoy's fees mourra d by €nginw in addition to rhea pr is amours awned plus accrued service c hwg,es_ 81 The covenants and o*atiorrs of inser hereunder am and Mepa,4wttft m one another. Ca nt's obligations to pay invoices and oftr amounts payable hereunder, and to arm its oNip ations hereunder, shall be fully enforceable and slue not be impahesd or excused, n<>brifttarding any breach by Engineer hereunder. No, Invoices or other amounts payer hereunder shall be subject to reduction, delay, offset, withht llrV or other defuse, Neither the Client nor the Engineer may delegate, asses, or sublet, or transfer his dufts or lr t in this Contract wit# xA ft written, consul of the other party, w t to ft aderd tt any assignment, subk tt ng or traroger is mandated by law or the effect of this limitation may be reafted by law. UMOss apbc#cBNy stated to ft ccrnlrsry in any wr9ttw consent to an assignment, no assignment will release or discharge the a ssWwfrrsn any duty or respons ty under this Contract. tie Nng c ontairte l in this pamWaph shalt prover t ErVinw korn employing sigh independent professional asso0stos and consultants as Engineer may tam appropdMe to assist in the performance of seryices hereunder. ^ t; ` in the eve o that client ir"Wtes sub agSst the Eng tote of any alleged failure to peritum, or any alleged ermr, 4M48i0ry, or nsgfigence, and if such suit to withdrawn or divnisseti, or if Judgment is rendered for the Etgk r, Client agrees to reimburse ttre ErQmw or pay any and all costs and all other sxperms of defense, including v4tout ljrrritation Engineer's attorney's fe , immediatety fhllo tg witheWmet or d*mIsssj of ft case or irnrnediatety upon "ment being rendered on behalf of ft Engin . 'l . 4QM T_O N - The persons eel chic Conboot varwit the they hwm ft sui3wlty to sign as, or on behalf of the Cr`rent. or the party for whose benefit the Engineer's sesrvi ss are rendered. If such poisons do not have such authority, thW sgeo that thety are personally rm bta for all brai s of this Contract and that any action against then for br"ch of such warranty, EngineWs aWmeVs fee shall be included in any judgme1nf rendered. 11 Iffir 1 Y _ in the esvertt #ud any provision herein shall be deemed Invalid or utre Wot+ able ft other provisions hereof`9mll remain in fultforce and a 5xt, and binding upon ft pattless hemgo, 13• 1i'tt BB A,N"! , LABILn V g4gOMM - Client agrees and understands tlud he Engineer shall not be held responeiible for any error or omissions on tfte part of the corer, ckWing, but not be limited to, the coMa€;tor's failure tip adhere to the plans and s f cations, ropfdless of wheartherthe? Engineer is patformnq observational sew. This provision shalt be included in the connect between thta Crront and tt}e contractor for this project. 13.1 C-Urd agues at Clienfs sole cost and expense to indernrtify, defend and hold harmless the Engineer, its subsidiaries, affiliates, officers, aMta?, and consume or such others who may h" assisd the Engineer in the rendering of Its services in connection wM tt'te Contract frem and against all ctrl, demands, llabili#es, costs and expenses, includ'ang without Urn ion arttorrxey's fees and other cost or expenses incident to any claim, demand, suit, action, suffeW, austOW or raquimd to be paid by the Engineer as a result of any clatims, a nds or k*W proceedings which may be matted by any panty ottw than by the Cent or that in any way rues to any act or error, ornission, negligence, carelessness or bench of duty, omtraetual or oltwwisce on part of the Enginm in connection with lair Contract. IENMEMCF& Client agreea that Enpir*w has authority to utilize Client's name, as a client in )dons of the Project work or servic performed as raf?ences to *#w €tieant. 3 MINLY !f the services perkmed Ertgimw are ", the Client's excites reff*dy shefl be fbr ft &Vineer to re-parb m such serv is to the eaderit ne ary to correct the fault therein uwithotA c*rge to the Client. ROLL M LAW Thts Agnowt nt shoM be governed by flennsy sia low. t Mar lc 07 04s3ap P P IN. G SSG lep-slay FAX MNSOMAL TO: OATV: lw?s, htc. lilt isftsWoLm page of the West wt sW*a by Pism at tit kww ff you new onny#h v else C P. i Mar' 12 07 04t34 P .,p C OSE 72P-0120 P.2 t YOU hwe AnY q _ ._ , IOV tab Vii, OMS chi Wt h9 to cod; i ?. F?she?r Lx ?, 6? t FROM . , FAX NO. :7172498068 Mar. 26 2008 01:57PM P2 Statement 3/5/2008 Project # 106528.C George Diemer Project Name: Maple Tree - A 165 unit apartment complex S. Spring Garden - Carlisle PA Date Original Invoice Information Invoice Amount Balance Due 02/28/2007 03/31/2007 INV #07-02-18. Orig. Amount $19,519.75. INV #07-03-22- Orig. Amount $14,485.63. 12,719.75 14,485.63 92,719,75 27,205.38 To 1 Amount Due $27,205.38 Please forward your payment to Dawood Associates, Inc. in the enclosed envelope, Thank you 1 Finance Charges CURRENT 31-60 DAYS PAST DUE 61-90 DAYS PAST DUE OVER 90 DAYS PAST DUE Amount Due 0.00 0.00 0.00 0.00 27,205.38 $27,205.38 t-y r-.> _:} r..y t K..y 'Y7 Iv ? ` ' -{ ? ? `!? i-- ? ? ?.,; ? ; ?:? ~'t_' d ?+ ? _ ?? s ? ? ^,f :?a ?N` ?? -?'" n IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC vs. MAPLETREE DEVELOPMENT, LLC and GEORGE M. DEIMER Defendant Plaintiff No. 08-2751 CERTIFICATE OF SERVICE I hereby certify that I have on this day served a copy of the Complaint upon the person(s) and in the manner indicated below, which service satisfies the requirement of Pa. R.C. P. 440: Service by first-class U.S. Mail addressed to: Rocco M. Nigro, Esquire The Providence Legal Center 1100 North Providence Road, Suite 108 Media, PA 19063 Date: 1 j15/D,3 By: Esquire Elizabethtown, PA 17022 Attorney ID#56304 Herbert P. Henderson, Attorney for Plaintiff 55 West High Street car r> m m ? Fn OTC a Cw.: N c-n r ti IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. Plaintiff No. 2008-2751 VS. MAPLETREE DEVELOPMENT, LLC and GEORGE M. DEIMER, Defendant PRAECIPE FOR ENTRY OF JUDGMENT TO THE PROTHONOTARY: Please enter judgment in favor of the Plaintiff, Dawood Associates, Inc., and against the Defendant, Mapletree Development, LLC and George M. Deimer, in the above-captioned matter for failure to file an answer to Plaintiff's Complaint within twenty (20) days after service thereof and assess Plaintiff's damages as follows: Amount claimed by Plaintiff: $27,205.38 Costs/Fees $ 5,700.00 Total $32,905.38 Pursuant to PA R.C.P. Section 237.1 Notice was given to Defendant on July 21, 2008. PECHT & ASSOCIATES, PC Dated: tR?? By: Herbert P. Henderson, II, Esquire Attorney for Plaintiff 55 West High Street Elizabethtown, PA 17022 (717) 367-2800 Attorney ID No. 56304 4 v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. Plaintiff No. 08-2751 VS. MAPLETREE DEVELOPMENT, LLC and GEORGE M. DEIMER Defendant To: George M. Deimer Mapletree Development, LLC c% Rocco M. Nigro, Esquire The Providence Legal Center 1100 North Providence Road, Suite 108 Media, PA 19063 Date: July 21, 2008 EMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHEE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 PECHT & ASSOCIATES, PC?_. By: Herbert P. Henderson, II, Esquire Attorney for Plaintiff 55 West High Street Elizabethtown, PA 17022 (717) 367-2800 Attorney ID No. 56304 +? PECHT & ASSOCIATES, PC 55 West High Street Elizabethtown, PA 17022-2018 Wayne M. Pecht Member of California Bar CPA/LLM in Taxation Rob Bleecher Herbert P. Henderson, II Rocco M. Nigro, Esquire The Providence Legal Center 1100 North Providence Road, Suite 108 Media, PA 19063 Telephone: 717-367-2800 Fax: 717-367-9400 e-mail: henderson@pechtlaw.com July 21, 2008 RE: Dawood Associates, Inc. vs. Mapletree Development, LLC and George M. Deimer No. 08-2751 Dear Mr. Nigro: Enclosed herewith is an Important Notice in reference to the above captioned. As you can see, you have ten (10) days to respond to same. Very truly yours, HPH:mlg Enclosure Cc: Paul Whipple Wayne M. Pecht, Esq. Herbert P. Henderson, II Mechanicsburg Off fie 1205 Manor Drive, Suit 200 Mechanicsburg, PA 17055 717- 691-9810 office 717-691-2070 facsimile Q Iv C C? AW) ~ V-i ` L= rs cry -n -a t?? GARY A. KRIMSTOCK, ESQUIRE JOSHUA B. HORVITZ, ESQUIRE e-mail: jzkrimstock@finemanlawfirm.com jhorvitz@finemanlawfirm.com Attorney I.D. Nos. PA 17594 & 94325 FINEMAN KREKSTEIN & HARRIS, P.C. Mellon Bank Center 1735 Market Street, Suite 600 Philadelphia, PA 19103-7513 (v) 215-893-9300; (f) 215-893-8719 DAWOOD ASSOCIATES, INC., Plaintiff V. MAPLETREE DEVELOPMENT, LLC, and GEORGE M. DIEMER, Defendants Attorneys for Defendants COURT OF COMMON PLEAS COUNTY OF CUMBERLAND CIVIL ACTION - LAW NO. 08-2751 DEFENDANTS% MAPLETREE DEVELOPMENT, LLC, AND GEORGE M. DIEMER, PETITION TO STRIKE AND/OR OPEN DEFAULT JUDGMENT Defendants/petitioners, Mapletree Development, LLC and George M. Diemer (together "Defendants") by and through their attorneys, Fineman Krekstein and Harris, P.C., hereby submit this Petition to Strike and/or Open Default Judgment and aver the following: 1. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff, Dawood Associates, Inc. ("Plaintiff' or "Dawood"), commenced this action against Defendants by Complaint dated on or about April 29, 2008 for damages resulting from the alleged breach of a contract for engineering and land development services. (A true and correct copy of Plaintiff's Complaint is attached hereto as Exhibit "A"). 2. On July 21, 2008, Plaintiff allegedly sent a notice pursuant to Pa. R.C.P. 237. 1, a so-called "ten-day letter," to Defendants, care of Rocco M. Nigro Esquire. (A true and correct copy of Plaintiff's ten-day letter is attached hereto as Exhibit "B") (00177707;vi ) 3. On September 17, 2008, Plaintiff filed a Certificate of Service, stating that service was accomplished on September 15, 2008 via first class U.S. Mail. (A true and correct copy of Plaintiff's Certificate of Service is attached hereto as Exhibit "C"). 4. On September 29, 2008, Plaintiff filed a Praecipe for Entry of Default Judgment, and a Default Judgment was entered against Defendants. (A true and correct copy of Plaintiff's Praecipe for Entry of Default Judgment is attached hereto as Exhibit "D") 5. According the Complaint, both Defendants have an address of 3000 Antrem Way, Suite 219, Mount Laurel, New Jersey 08054. (See Exhibit "A" at p. 1). 6. Defendants' actual business address is "3000 Atrium Way," not "3000 Antrem Way." 7. Upon information and belief, there is no "Antrem Way" in Mount Laurel, New Jersey. 8. As discussed in more detail below, the Default Judgment entered in this case must be stricken. According to the Court record, Defendants were not served until just fourteen days prior to the Default Judgment being entered. Furthermore, Defendants were not properly served, and were not given twenty days to respond to the Complaint. The ten-day letter was sent two months prior to the improper service, when it must actually be mailed twenty days or more after service. 9. Even if the Default Judgment in this matter is not stricken, this Honorable Court should exercise its discretion to open the Default. This Petition is timely filed, a reasonable excuse exists, and Defendants have a highly meritorious defense to this action. {00177707;v1} 2 10. Defendants' proposed Answer with New Matter alleges numerous highly meritorious defenses, including twenty affirmative defenses. (A true and correct copy of Defendants' proposed Answer with New Matter is attached hereto as Exhibit "E"). 11. Therefore, Defendants respectfully request that this Court strike the Default Judgment entered against them in this matter, or in the alternative, open the Default Judgment. II. LEGAL ARGUMENT A. The Default Judgment Must Be Stricken a. Standard for Striking a Default Judgment 12. A petition to strike a default judgment and a petition to open a default judgment are distinct requests for relief. 13. A petition to strike a default judgment will be granted where a fatal defect or irregularity occurs that is clear on the face of the record. Stauffer v. Hevener, 2005 PA Super 287, 881 A.2d 868, 870 (Pa. Super. 2005). 14. A petition to strike a judgment is a common law proceeding which operates as a demurrer to the record. Cintas Corp. v. Lee's Cleaning S_erys., 700 A.2d 915, 917 (Pa. 1997). 15. A petition to strike a judgment may be granted only for a fatal defect or irregularity appearing on the face of the record. Id., citing Resolution Trust Corp. v. Copley Qu- Wayne Associates, 683 A.2d 269, 273 (1996). 16. An order of the court striking a judgment annuls the original judgment and the parties are left as if no judgment had been entered. Cintas Corp., 700 A.2d at 917; Resolution Trust Corp., 683 A.2d at 273 17. When deciding if there are fatal defects on the face of the record for the purposes of a petition to strike a judgment, a court may only look at what was in the record when the t00177707;vl 1 3 judgment was entered. Cintas Corp., 700 A.2d at 917; Resolution Trust Corp., 683 A.2d at 273; Linett v. Linett, 254 A.2d 7 (1969). 18. The record supporting the Default Judgment against Defendants in this matter is fatally defective because: (a) service was improper; (b) Defendants were not afforded twenty days following service to respond the Complaint; and, (c) the ten-day notice was sent prior to service being made. Therefore, the Default Judgment must be stricken. b. The Default Judgment Must Be Stricken Because Service Was Improper 19. Where the party seeking to strike and/or open a judgment asserts that service was improper, a court must address this issue first before considering any other factors. United States Dept of Housing and Urban Dev. v. Dickerson, 358 Pa. Super. 23, 516 A.2d 749 (1986); Mischenko v. Gowton, 307 Pa. Super. 426,453 A.2d 658 (1982). 20. If valid service has not been made, then the judgment should be stricken or opened because the court has no jurisdiction over the defendant and is without power to enter a judgment against him or her. Ids. 21. Service of process is a mechanism by which a court obtains jurisdiction of a defendant, and therefore, the rules concerning service of process must be strictly followed. Sharp v. Valley Forge Medical Ctr. and Heart Hosp., Inc., 221 A.2d 185 (1966). 22. Thus, improper service is not merely a procedural defect that can be ignored when a defendant subsequently learns of the action against him or her. Frycklund v. Way, 599 A.2d 1332 (1991). 23. Pa. R.C.P. No. 400 provides that service of original process within the Commonwealth shall be effectuated, "only by the sheriff'. Pa. R.C.P. No. 400. (00177707;v I ) 4 24. For service of original process within the Commonwealth, the Complaint must be served within thirty (30) days of its filing. 25. Pa. R.C.P. No. 404 provides that service of original process outside the Commonwealth must be accomplished within ninety (90) days of its filing, and must be served (a) via hand delivery, (b) via certified mail, return receipt requested (and must not be returned unclaimed); (c) in the manner provided by the laws of the jurisdiction where service is made; (d) in the manner provided by treaty, or (e) as directed by the foreign authority in response to a letter rogatory. Pa. R.C.P. No. 404. 26. In this case, according to the Complaint, both Defendants are New Jersey citizens. (See Exhibit "A" at p. 1). 27. Rule 405(b) requires that the return of service set forth the date, time, place and manner of service, the identity of the person served and any other facts necessary for the court to determine whether proper service has been made. Pa. R.C.P. No. 405(b). 28. According to the record, on September 17, 2008, Plaintiff filed a Certificate of Service, stating that service was accomplished on September 15, 2008 via first class U.S. Mail. (See Exhibit "C"). 29. Neither Pa. R.C.P. No. 400 (service within the Commonwealth) nor Pa. R.C.P. No. 404 (service outside the Commonwealth) authorizes service of original process via first class U.S. Mail. 30. Service was therefore improper, and therefore the Default Judgment should be stricken. 31. Service was improper for several more reasons as well. (00177707;vi) 5 32. According to the Certificate of Service, the Complaint was sent via regular mail to the Defendants at the office of Rocco M. Nigro, Esquire, in Media, Pennsylvania. Mr. Nigro is Defendants' attorney in other matters, though he is not retained in this matter. 33. On the date of the purported service, more than thirty (30) days had passed since the filing of the Complaint. The Complaint was not reissued/reinstated prior to its mailing. (See Exhibit "A"). Service of the Complaint was therefore a nullity, as the Complaint had expired and was not reissued prior to its mailing. 34. Thus, even assuming arguendo that Mr. Nigro agreed to accept service via mail, the Complaint was not issued reissued/reinstated prior to its mailing. Service of the expired Complaint was improper under the rules. See Pa. R.C.P. No. 401. 35. Furthermore, no explanation is given why the Complaint was not served on Defendants at their addresses as provided in the Complaint. (See Exhibit "C"). 36. However, ever! if service of the Complaint was attempted on Defendants at their addresses as provided in the Complaint, service would not have been proper. According the Complaint, both Defendants have an address of 3000 Antrem Way, Suite 219, Mount Laurel, New Jersey 08054. (See Exhibit "A" at p. 1). Defendants' actual business address is "3000 Atrium Way," not "3000 Antrem Way." Upon information and belief, there is no "Antrem Way" in Mount Laurel, New Jersey. Therefore, clearly, service was not effectuated on Defendants at their proper business address. 37. If valid service has not been made, then the judgment should be stricken or opened because the court has no jurisdiction over the defendant and is without power to enter a judgment against him or her. United States Dep't of Housing & Urban Dev. v. Dickerson, 358 (00177707;v> ) 6 Pa. Super. 23, 516 A.2d 749 (1986); Mischenko v. Gowton, 307 Pa. Super. 426,453 A.2d 658 (1982). 38. Because the face of the record indicates that service was clearly improper, the Default Judgment entered against Defendants in this matter should be stricken or opened. C. The Default Judgment Must Be Stricken Because Defendants Were Not Afforded Twenty Days Following Service to Respond the Complaint 39. A petition to strike a judgment may be granted for a fatal defect or irregularity appearing on the face of the record. Cintas Corp. v. Lee's Cleaning ervs., 700 A.2d 915, 917 (Pa. 1997); Resolution Trust Corp. v. Copley Qu-Wayne Associates, 683 A.2d 269, 273 (1996). 40. According to the record, on September 17, 2008, Plaintiff filed a Certificate of Service, stating that service was accomplished on September 15, 2008 via first class U.S. Mail. (See Exhibit "C") 41. On September 29, 2008, Plaintiff filed a Praecipe for Entry of Default Judgment, and a Default Judgment was entered against Defendants. (See Exhibit "D"). 42. Thus, according to the Court record, Defendants were not served until just fourteen (14) days prior to the Default Judgment being entered. 43. The Rules provide that, "every pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading." See Pa. R.C.P. No. 1026 ("Time for Filing. Notice to Plead"). 44. At the time the Default Judgment was entered, Defendants still had six (6) more days to file an Answer or otherwise plead. (00177707;vl) 7 45. Defendants actually had sixteen (16) more days to file an Answer, because Plaintiff must send a ten-day letter after the 20 days had expired, ten wait ten days prior to requesting entry of a Default. See Pa. R.C.P. No. 237.1. 46. According to the Court record, Defendants were not afford even the twenty (20) days to respond to the Complaint. Moreover, Plaintiff failed to send a ten-day letter following the expiration of the 20 days. These are both fatal defects which require the Court to strike the default judgment. d. The Default Judgment Must Be Stricken Because The Ten-Day Notice Was Sent Prior to Service Being Made 47. Pa. R.C.P. No. 237.1 requires Plaintiff to send a so-called "ten-day letter" after the expiration of twenty (20) day response period. See Pa. R.C.P. No. 237.1. 48. Plaintiffs actually sent their "ten-day letter" on July 15, 2008, which is two months prior to service. See Exhibit "B". 49. For this reason in and of itself, the Default Judgment must be stricken. B. Standard for Opening a Default Judgment 50. A petition to open a judgment is addressed to the equitable powers of the court and is a matter of judicial discretion. Schultz v. Erie Ins. Exchange, 505 Pa. 90 (Pa., 1984). A court will only exercise this discretion when (1) the petition has been promptly filed; (2) a meritorious defense can be shown; and (3) the failure to appear can be excused. Id. 51. Default judgments are not favored at law or in equity and a standard of liberality, not strictness, should be applied in deciding a petition to open a default judgment because equitable principles favor allowing parties to defend causes on the merits. Ad. Credit & Fin., Inc. v. Giuliana, 829 A.2d 340, 343 (Pa. Super. 2003); Kennedy v. Black, 424 A.2d 1250, 1252 (Pa. 1981). {00177707;vl 1 8 52. "The purpose of allowing defaults to be taken is to prevent a dilatory defendant from impeding the plaintiff in establishing his claim; it is not intended as a means for a plaintiff to quickly obtain judgment without the difficulties of litigation." Attix v. Lehman, 925 A.2d 864, 867 (Pa. Super. Ct. 2007) (citations omitted). 53. A court must ascertain whether there are present any equitable considerations in the factual posture of the case which require that it grant to a party against whom the judgment has been entered an opportunity to have his `day in court' and to have the cause decided upon the merits; in so doing, it acts as a court of conscience. Jung v. St. Paul's Parish, 560 A.2d 1356, 1360 (Pa. 1989). 54. In this case, the Petition to Open is being filed thirty-one (31) days after the entry of default, and only several days after learning of the entry of default. Moreover, Defendants have a reasonable excuse and a highly meritorious defense. 55. The Default Judgment entered against Defendants should therefore be opened to allow this case to proceed on its merits. a. The Default Judgment Must Be Opened Because The Petition to Open and/or Strike the Complaint Has Been Promptly Filed 56. The within Petition to Strike and/or Open Default Judgment has been promptly filed. 57. A default judgment will be opened if the defendant establishes that the petition to open the default judgment was promptly filed. Schultz v. Erie Ins. Exchange, 477 A.2d 471, 471-72 (1984). 58. Timeliness is measured from the date that notice was received of the entry of the default judgment. Ruczynski v. Jesray Constr. Corp., 457 Pa. 510, 512 (Pa. 1974); Pappas v. {00177707;v 11 9 Stefan, 451 Pa. 354, 304 A.2d 143 (1973); Kramer v. City of Philadelphia, 229 A.2d 875 (1967); Texas & B.H. Fish Club v. Bonnell Corp., 130 A.2d 508 (1957). 59. The Petition has been filed only thirty-one (31) days after the entry of default, and only several days after learning of the entry of default. 60. A plethora of cases in Pennsylvania have opened default judgments where petitions to open were filed far later than in the instant case. 61. According the Complaint, both Defendants have an address of 3000 Antrem Way, Suite 219, Mount Laurel, New Jersey 08054. (See Exhibit "A" at p. 1). 62. Defendants' actual business address is "3000 Atrium Way," not "3000 Antrem Way.,, 63. Upon information and belief, there is no "Antrem Way" in Mount Laurel, New Jersey. 64. Therefore, because their address was incorrectly listed by Plaintiff, Defendants were not served notice the entry of Default Judgment by the Court. 65. However, upon learning of the Default, Defendants acted swiftly and filed the within Petition several days of learning of the Default. 66. According to the Court record, as of the date of this filing, no further action has been taken by Plaintiff. 67. No prejudice would occur from the opening of this Default. 68. The Petition to Open was promptly filed. b. The Default Judgment Must Be Opened Because a Reasonable Excuse Exists 69. There are several reasonable excuses for the delay. {00177707;vl 1 10 70. First, and most importantly, according to the Court record, at the time the Default Judgment was entered, Defendants still had six (6) more days to file an Answer or otherwise plead. 71. Defendants cannot be required to plead before the Court dockets reflect that a pleading is due. 72. Moreover, because Plaintiff incorrectly identified the Defendants' addresses, the Court never sent notice of the Default Judgment to Defendants. 73. Upon learning of the Default, however, Defendants acted swiftly and filed the within Petition several days of learning of the Default. C. The Default Judgment Must Be Opened Because Defendants Have a Meritorious Defense 74. There is a low threshold for establishing a meritorious defense. A defendant will establish a meritorious defense if it alleges any defense that if proven at trial would provide relief. Stauffer v. Hevener, 881 A.2d 868, 871 (Pa. Super. 2005). (emphasis added). 75. A meritorious defense is one that is sufficient to justify relief if proven. Provident Credit Corporation v. Young, 300 Pa. Super. 117, 446 A.2d 257 (1982). 76. To assert a meritorious defense, a defendant should attach a proposed Answer or Preliminary Objections to any Petition to Open Default Judgment. Pa. R.C.P. 237.3; Penn-Delco School District v. Bell Atlantic-PA, Inc., 1999 PA Super 317, 745 A.2d 14, 17 (Pa. Super. 1999). 77. A meritorious defense may be located in the attached proposed pleading or in the petition to open. Castings Condominium Assn, Inc. v. Klein, 444 Pa. Super. 68, 74, 663 A.2d 220, 224 (1995). 78. The merits of a defense have bearing on the question of whether a petition to open was promptly enough filed. Allegheny Hydro No. 1 v. American Line Builders, 722 A.2d 189, {00177707;vi 1 11 191-192 (Pa. Super. 1998), citing Provident Credit Corp. v. Young, 446 A.2d 257, 264 (Pa. 1982). 79. The more plainly meritorious the defense, the more heavily the equities will incline in the petitioner's favor, which is to say, the more appropriate it may be to excuse some delay.\1 Ids. 80. In this case, as discussed hereinafter, the defense proffered by Defendants is very meritorious. Thus, if for whatever reason the court finds the promptness of this Petition to be lacking, the requirements to open are still met because of the merits of the defense. 81. Defendants' proposed Answer with New Matter alleges numerous highly meritorious defenses, including twenty affirmative defenses. (See Exhibit "E"). 82. Plaintiff filed this action for damages resulting from the alleged breach of a services contract. (See Exhibit "A"). 83. Plaintiffs' Complaint alleges that it contracted with Defendant Mapletree, yet Plaintiff sued Diemer alleging that he is the principal of Mapletree. See Exhibit "A" at 19-11. 84. Defendants' first meritorious defense is that Plaintiff's Complaint does not meet the requirements for piercing the corporate veil. (See Exhibit "E" at 142). 85. Dawood did not enter into a written contract with Diemer. (See Exhibit "E" at I 51). Dawood could have requested or negotiated for Diemer to enter into a written contract with them individually, but did not. (See Exhibit "E" at 152). 86. In Pennsylvania, there is a strong presumption against piercing the corporate veil. Lumax Industries, Inc. v. Aultman, 669 A.2d 893, 895 (Pa. 1995). ` / The Court in Allegheny Hydro No. 1 further stated: "where some showing has been made with regard to each part of the test, a court should not hinder itself and examine each part as though it were a water-tight compartment, to be evaluated in isolation from other aspects of the case. Instead, the court should consider each part in light of all the circumstances and equities of the case. Only in that way can a chancellor act as a court of conscience." Id. at 192. { 00177707; v 11 12 87. "Piercing the corporate veil is an exception, and courts should start from the general rule that the corporate entity should be upheld unless specific, unusual circumstances call for [such] an exception." JK Roller Architects, LLC v. Tower Investments, Inc., 2003 WL 1848101, * 1(2003) (Jones) (quoting First Realvest, Inc. v. Avery Builders, Inc., 410 Pa. Super. 572, 600 A.2d 601, 604 (Pa. Super. 1991). 88. Under Pennsylvania law, the following factors are to be considered in determining whether to pierce the corporate veil: 1) undercapitalization; 2) failure to adhere to corporate formalities; 3) substantial intermingling of corporate and personal affairs; and 4) use of the corporate form to perpetuate a fraud. Id. (quoting Lumax Indus. v. Aultman, 543 Pa. 38, 669 A.2d 893 (Pa. 1995). 89. Plaintiff's Complaint does not even allege the four above factors. (See Exhibit "A„ 90. Plaintiff is seeking to hold the Diemer individually and personally liable for over a corporation's alleged debt. 91. Plaintiff must overcome a large burden to prove its allegations and pierce the corporate veil. Well-settled law provides that a claim to pierce the corporate veil is legally insufficient if it fails to identify facts necessary to overcome this burden. Given the strong presumption against piercing the corporate veil, these defenses are clearly meritorious. 92. It would be highly inequitable for Plaintiffs to be granted a windfall by way of a default judgment against a party it had no privity with, and who should not be sued individually in this litigation. 93. Moreover, Defendants has a meritorious defense because Dawood breached the purported contract. (See Exhibit "E" at 146-50). {00177707;vl ) 13 94. Dawood's breaches were numerous. First, Dawood breached the purported contract by concealing and/or failing to notify Defendants that its employees, servants or agents were not licensed, and were not qualified to testify before the municipality and regulatory bodies. 95. Further, Dawood breached the purported contract because its employees, servants or agents were not licensed, and were not qualified to testify before the municipality and regulatory bodies. 96. Dawood also breached the purported contract by not performing the necessary work required of it in a satisfactory and workmanlike manner. 97. In addition, Dawood breached the purported contract by performing the work not in accordance with standards promulgated by and accepted by industry for engineering, land development planning, site planning and surveying. 98. Defendants also have a meritorious defense because Mapletree incurred costs associated with replacing Dawood and correcting its unsatisfactory work. 99. Defendants are entitled to a set-off for all costs incurred or associated with replacing Dawood and correcting its work. 100. Defendants also have pleaded numerous affirmative defenses in their proposed New Matter, including that Plaintiffs' Complaint violates that statute of frauds. (See Exhibit «E„? 101. Defendants' defenses are highly meritorious, and therefore their Petition to Open should be grated so that this matter may be decided on its merits. III. CONCLUSION 102. Defendants' Petition to Strike Default Judgment should be granted because the record supporting the Default Judgment against Defendants in this matter is fatally defective, {oo 1 77707;v 11 14 because: (a) service was improper; (b) Defendants were not afforded twenty days following service to respond the Complaint; and, (c) the ten-day notice was sent prior to service being made. Moreover, Defendants' Petition to Strike Default Judgment should be granted because it was promptly filed, a reasonable excuse exists, and they have numerous highly meritorious defenses. Therefore, Defendants respectfully request that the Court grant an Order striking and/or opening the default judgments entered against them. By Dated: October 30, 2008 FINEMAN KREJ?' HARRIS, P.C. A. IMST_, ESQUIRE (PA 17594) A &JJORVITZ, ESQUIRE (PA 94325) Mellon Bank Center 1735 Market Street, Suite 600 Philadelphia, PA 19103-7513 (v) 215-893-9300; (f) 215-893-8719 e-mail: gkrimstock@finemanlawfirm.com jhorvitz @ finemanlawfirm.com Attorneys for Defendants (00177707;vi) 15 CERTIFICATE OF SERVICE I, JOSHUA B. HORVITZ, ESQUIRE, hereby certify that on this date I served a true and correct copy of the foregoing electronically, or by first class mail, postage prepaid, or telecopy on the following: Herbert P. Henderson, II, Esquire Pecht & Associates, P.C. 55 West High Street Elizabethtown, PA 17022 (v) 717-367-2800 Attorneys for Plaintiff J¢SHVA B. HORVITZ, ESQUIRE Dated: October 30, 2008 --- t00177707;v 11 16 P" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. 354 Alexander Spring Road, Suite 4 Carlisle, PA 17013 Plaintiff VS. MAPLETREE DEVELOPMENT, LLC 3000 Antrem Way, Suite 219 Mount Laurel, NJ 08054 and GEORGE M. DEIMER, 3000 Antrem Way, Suite 219 Mount Laurel, New Jersey, 08054 Defendants No. Ct,lj? NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defense or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 Telephone (717) 249-3166 PECHT j&,ASSOCIATES, PC By: ert P. Henderson, II, Esquire Attorney for Plaintiff 55 West High Street Elizabethtown, PA 17022 Telephone: (717) 367-2800 Attorney I.D. #56304 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. 354 Alexander Spring Road, Suite 4 Carlisle, PA 17013 Plaintiff VS. No. 08'- 7S? CNII fe`(4 MAPLETREE DEVELOPMENT, LLC 3000 Antrem Way, Suite 219 Mount Laurel, NJ 08054 and GEORGE M. DEIMER, 3000 Antrem Way, Suite 219 Mount Laurel, New Jersey, 08054 Defendants COMPLAINT 1. The Plaintiff, Dawood Associates, Inc., (hereinafter "Dawood"), is a Pennsylvania business corporation, duly incorporated under the laws of this Commonwealth, with a principal place of business at 354 Alexander Spring Road, Suite 4, Carlisle, Pennsylvania, Cumberland County 17013. 2. Defendant Mapletree Development, LLC, is believed to be a State of New Jersey Limited Liability Company, which maintains a principle place of business at 3000 Antrem Way, Suite 219, Mount Laurel, New Jersey, 08054. 3. Defendant George M. Deimer, (hereinafter "Deimer"), is an adult individual with a last known mailing address of 3000 Antrem Way, Suite 219, Mount Laurel, New Jersey, 08054. 4. At all times relevant herein, the Plaintiff, Dawood, is a licensed engineering firm which engages in the business of civil engineering, land and site development, planning, surveying in connection with the development of real estate for both commercial and residential subdivisions and construction. 5. At all times relevant herein, the Defendants are, or were, real estate developers. OPERATIVE FACTS 6. Paragraphs 1 through 5 are incorporated herein by reference as set forth at length. 7. In mid to late 2006, Deimer requested Dawood provide professional services for a land development plan for a certain parcel of real estate located at the intersection of South Spring Garden Street and Ashland Avenue in the borough of Carlisle, Cumberland County, Pennsylvania. 8. At all times relevant hereto, Deimer held himself out to be the equitable owner of and principal individual involved in the ownership of the land and development of the subject real estate parcel, i.e. the property located at the intersection of South Spring Garden Street and Ashland Avenue in Carlisle, Cumberland County, Pennsylvania. 9. Deimer indicated to Dawood's representative in charge of the Carlisle office, Pamela Fisher, that the work was to be performed for him and his company, Philadelphia Holding Company, for a development to be known as "Maple Tree Development". Plaintiff began work on the project and actually billed what it believed to be Deimer's Fictitious Name entity, Maple Tree Developers. 10. In February 2007, based upon subsequent conversations with Deimer, Dawood prepared a proposal and standard contract outlining services agreed upon with Deimer, for signature by which Deimer indicated was his new entity, Maple Tree Development, LLC. 11. At some point in time subsequent to the preparation of the initial proposal and contract, Deimer advised Dawood that he had form a Limited Liability Company, i.e., Maple Tree Development, LLC, and that the contract should be placed in the name of Maple Tree Development, LLC. 12. At all times relevant hereto, Deimer led Dawood to believe that he would be responsible for any and all fees or costs associated with the engineering and land development services to be provided and that Maple Tree Development, LLC and that Maple Tree Development, LLC was merely a company which he organized for the land development plan which Dawood was hired to prepare. COUNTI DAWOOD VS. MAPLE TREE DEVELOPMENT. LLC BREACH OF CONTRACT 13. Paragraphs 1 though 12 are incorporated herein by reference as though set forth at length. 14. Defendant Maple Tree did, on February 20, 2007, enter into a written contract for professional services with Dawood. A true and correct copy of the contract is attached hereto, incorporated herein by reference and attached hereto as Exhibit "A". 15. Pursuant to the terms of the contract, Dawood was contractually obligated to provide land development, site development, engineering services for Maple Tree on a parcel of real estate situate at the intersection of South Spring Garden Street and Ashland Avenue in Carlisle, Cumberland County, Pennsylvania. 16. Dawood did perform the necessary work required of it in a satisfactory and professional manner and in accordance with standards promulgated by and accepted by industry for engineering, land development planning, site development and surveying. 17. Dawood has issued Maple Tree a series of statements for the professional services provided both directly and through its principal, George Deimer. A true and correct copies of the most recent statement issued is attached hereto, incorporated herein by reference as set forth at length and marked as Exhibit "B,> 18. To date, despite Dawood's demands for payment, Maple Tree has failed and otherwise refused to pay the total outstanding amount due. 19. Dawood believes, and therefore avers, that Maple Tree's failure to pay for all professional services when billed is a material breach of the parties' written contract. 20. Dawood believes, and therefore avers, that Maple Tree's failure to pay is a material breach of the parties' contract. 21. Dawood believes, and therefore avers, as a result of a result of Maple Tree's breach, Plaintiff has suffered damages in the amount of $27,205.38. 22. Pursuant to paragraph 8.2 of the parties' contract, Dawood is permitted to charge 1'/z% interest every 30 days for each invoice that is not paid within 60 days. 23. Section 8.2 of the parties' written contract further sets forth that, in the event a lawsuit is filed to enforce payment for the contract, that Dawood is entitled to seek attorney fees and costs incurred by Dawood. (See section 8 of the parties' written contract, the same of which is attached as Exhibit "A") 24. Dawood has enlisted the services of the undersigned counsel to prosecute this matter and has agreed to pay attorney fees in the approximate amount of $5,700.00 plus costs. WHEREFORE, Plaintiff, Dawood Associates, Inc. demands judgment in its favor and against Maple Tree Development, LLC in an amount in excess of $35,000.00. COUNT II DAWOOD ASSOCIATES. INC. VS. GEORGE DEIMER Unjust Enrichment 25. Paragraphs 1 through 24 are incorporated herein by reference as set forth at length. 26. At all times relevant hereto, Deimer held himself out as the beneficial, record owner of the subject real estate. 27. At all times relevant hereto, George Deimer held himself out as the owner of Maple Tree Development, LLC. 28. Plaintiff conferred benefits on Defendant. 29. The benefits conferred were non-gratuitous. 30. There was an appreciation of those benefits by Defendant. 31. Acceptance and retention of not only these benefits, is inequitable and without payment of value. 32. As a result of Defendant's failure to pay Plaintiff, Defendant has been unjustly enriched in the amount of $ 27,205.38. WHEREFORE, Plaintiff, Dawood Associates, Inc. demands judgment in its favor and against George Deimer in an amount not in excess of $35,000.00. Respectfully Submitted, PECHT & By: 211 y Herbert P. Henderson, II, Esquire Attorney I.D. # 56304 55 West High Street Elizabethtown, PA 17022 (717) 367-2800 VERIFICATION HERBERT P. HENDERSON, II, ESQUIRE, being duly affirmed according to law deposes that he is the attorney for the Plaintiff, Dawood Associates, Inc., in the within matter, that said Plaintiff cannot make the Verification to this Complaint because a Verification cannot be obtained at present, that he has made diligent inquiry of the Plaintiff and upon the information received believes the facts set forth to be true. Herbert P. Henderson, II ?X lei b? } {? DAWOOD associates, C. CARLISLE REGION -F IC RGI EERS 'P4AMp4:E?$ .?i.RYFYORB Febft?'- Attn P Ma tom[ LLC 1 Rya: ? ????w a?tndA?N k0c. Pt*A ft 14"Wic Deaf Mr. ,cow; ECtC. of May t+Q Room, $M P W" for ? . fJa?glli?Ift feet Ot DswoW? 00013.0 tub?+ k - Pennatvsp?ia:¢ our j*dT4( ` AMOPK tlt?t-46 tip a ?nmer A , in an e ter #aW,'E .A+tteas and far v art: ten on.. if oar term bl? :?. to o •.r. ux n :it, Y 9 DAWOOD agroelateS, inc. f = } ftNx?tti4P$ PLANNERS SUR Y'llva-A. CARLISLE i1E470MAL OFF1:C MD SCOPE 0f:*eKVfM ?+?ad for.. r' ecKf !R + td Tt ?'y 0.; _! wip blo thea'?i: the 13oRh d? l ?i?e?t on steels to tttii e t v on ttj+? bk we ?; +?; ... fllito* f :3 1. -O?Mak . tai 7ya}? Ame.ow 1ari /d??+?n Aft 07 Moo"* ftw (4) mep ',-"74401 ?, .?: 12 Addft i too. MM! in k np *fd= wig. ?; _? a ti set, ?. ap.n?s?eviD? #Eyr+f to'n at T. ..+ W41W to s S. 7 4 a with ?thb t aarv4?e? do npt its a+c?ft :trl? ; imp onIl s or s - kv gm ae irsd urra?ectEhe 4f ""theft, the ErtghWvW art the sptaoiti?"# con??cuc fist A0c n or dir i4t4 d? , . vYodc cif mnY ?, 4 welo et??lt?"??r ?icrrri?t layr > ? ??a ? Pak" by ork. f6r' oaf' wait # "Wonsiblo pft o' thi :wodc, + wtN >1at? rat be tai fiats Ad of 1070. KW +?r ., , arany ral lawor' OOMMUMN Stie Ccxytrae 4PAw*."wimd by eltiw paint w t poid r' , tfie fa,?tlr `tar swwm p,WO*ww tits iii d#?: ? ter?h,atbr? • sut i# t mon" and fla t In OW of each Wnti ! ! :, r#11 1f y :d lk", Mika dift. C tt tir?ricecMerQar tcxmru+cF i? ?a6 sixty ( + 00*8 x. If IWTWWM+ ur?p?id fors -oaft rrfihe+hkp?rrlr#NIOPI)f Wto . it szt cdr by mw OOW 06W?? and siW in - h tltl to any or sfi e 2 . . (a) d?tarer #tys;??erFrtir?d; (b? OW 4r. agreed uporx tiaFe(tlri d'o.dwrrbrr itifrn:.af Client( ' a: set forth fi' (3 tt.?r' t1 gamedA* a P*y r IsaroCcctvact. . LL: - , Th9 .0. -1.1?; a perk wnourb Pay" b"WOW mr-dw A4. and aN . r. of . a di ADID ar?d a# o ° , of dsPe, A . 1irs1 or dam. tii ?? i V Q]j i[[ I 9 I M h x R Nor 1 2 07 Q4: p -p x...C 658 740--9198 FAX T*ANWR"AL p1p?111b M!lllF?'`??i1?Nf??X! 1lf?Ed ??1?'IQ d? P. } ?h,bf t ? FROM + FAX NO. :7172458088 Mar. 26 2008 01: 57M P2 Statement 3/5/2008 Project # 106528.C George Diemer Project Name: Maple Tree - A 165 unit apartment complex S_ Sorina Garden - Carlisle PA Date Original Invoice Information Invoice Amount Balance Due 02/28/2007 03/31/2007 INV #07-02-18. Orig. Amount $19,519.75. INV#07-03-22.Orig. Amount $14,485.83. 12,719.75 14,485.63 92,719.75 27,205.38 T +I Amount Due $27205.38 Please forward your payment to Dawood Associates, Inc. in the enclosed envelope. Thank you I Finance Charges CURRENT 31.60 DAYS PAST DUE 61-90 DAYS PAST DUE OVER 90 DAYS PAST DUE Amount Due 0,00 0-00 0.00 0.00 27,205.38 $27,205.38 v c ? . LIJ c-? U I j it IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. Plaintiff No. 08-2751 vs. MAPLETREE DEVELOPMENT, LLC and GEORGE M. DEIMER Defendant To: George M. Deimer Mapletree Development, LLC c/o Rocco M. Nigro, Esquire The Providence Legal Center 1100 North Providence Road, Suite 108 Media, PA 19063 Date: July 21, 2008 IldFORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAK OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITH( YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A L AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO F CAN GET LEGAL HELP. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 PECHT & AS B)r 's ACTION REQUIRED ?ROM THE DATE OF UT A HEARING AND YOU SHOULD TAKE ?WYER OR CANNOT ND OUT WHEE YOU PC Herbert P. Henderson, H, Esquire Attorney for Plaintiff 55 West High Street Elizabethtown, PA 17022 (717) 367-2800 Attorney ID No. 56304 PECHT & ASSOCIATES, PC 55 West High Street Elizabethtown, PA 17022-2018 Wayne M. Pecht Member of California Bar CPA/LLM in Taxation Rob Bleecher Herbert P. Henderson, II Rocco M. Nigro, Esquire The Providence Legal Center 1100 North Providence Road, Suite 108 Media, PA 19063 e-mail: July 21, 2008 Telephone: 717-3 6 7-280 0 JJ' Fax: 717-367-9400 henderson@pechtlaw.com i RE: Dawood Associates, Inc. vs. Mapletree Development, LLC and George No. 08-2751 I Dear Mr. Nigro: Enclosed herewith is an Important Notice in reference to the above cap?ioned. have ten (10) days to respond to same. Very truly yours, HPH:mIg Enclosure Cc: Paul Whipple Wayne M. Pecht, Esq. Herbert P. Henderson, II M. Deimer As you can see, you Mechanicsburg Office 1205 Manor Drive, Suit 200 Mechanicsburg, PA 17055 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. Plaintiff vs. MAPLETREE DEVELOPMENT, LLC and GEORGE M. DEIMER Defendant No. 08-2751 CERTIFICATE OF SERVICE I hereby certify that I have on this day served a copy of the Complaint upon the person(s) and in the manner indicated below, which service satisfies the requirement of Pa. R.C. P. 440: Service by first-class U.S. Mail addressed to: Rocco M. Nigro, Esquire The Providence Legal Center 1100 North Providence Road, Suite 108 Media, PA 19063 Date:'"l (1 017 By: Herbert P. Henderson, 11, 1 Attorney for Plaintiff 55 West High Street Elizabethtown, PA 17022 Attorney ID#56304 cv W t_ CID 0 cv i I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC.. Plaintiff No. 2008-2751 VS. cy ? O C/) -- i MAPLETREE DEVELOPMENT, LLC and -- ` -??, 7 21 GEORGE M. DEIMER, . _ .. r, a Defendant w _ - PRAECIPE FOR ENTRY ON JUDGMENT + + TO THE PROTHONOTARY: Please enter judgment in favor of the Plaintiff, Dawood Associates, inc., and against the Defendant, Mapletree Development, LLC and George M. Deimer, in the ab 've-captioned matter for failure to file an answer to Plaintiff's Complaint within twenty (20) days?after service thereof and assess Plaintiff's damages as follows: i Amount claimed by Plaintiff: $27,205.38 Costs/Fees $ 5,700.00 Total $32,905.38 Pursuant to PA R.C.P. Section 237.1 Notice was given to Defendant on July 21, 2008. PECHT & ASSOCIATES, PC Dated: B- y: Herbert P. Henderson, II, Esquire Attorney for Plai?tiff 55 West High Sheet Elizabethtown, PA 17022 (717) 367-2800 Attorney ID No. ;56304 i i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. : Plaintiff vs. No. 08-2751 MAPLETREE DEVELOPMENT, LLC and GEORGE M. DEIMER Defendant To: George M. Deimer Mapletree Development, LLC c/o Rocco M. Nigro, Esquire The Providence Legal Center 1100 North Providence Road, Suite 108 Media, PA 19063 Date: July 21, 2008 EVIPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAK OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITH( YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A L AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO F CAN GET LEGAL HELP. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 PECHT & ASSOCIN By: Herbert P. Hend Attorney for Pla 55 West High Si Elizabethtown,1 (717) 367-2800 Attorney ID No. 8 ACTION REQUIRED FROM THE DATE OF )UT A HEARING AND YOU SHOULD TAKE AWYER OR CANNOT END OUT WHEE YOU S, PC .rson, II, Esquire stiff eet 4 17022 56304 PECHT & ASSOCIATES, PC 55 West High Street Elizabethtown, PA 17022-2018 Wayne M. Pecht Member of California Bar CPA/LLM in Taxation Rob Bleecher Herbert P. Henderson, 11 Rocco M. Nigro, Esquire The Providence Legal Center 1100 North Providence Road, Suite 108 Media, PA 19063 e-mail: July 21, 2008 RE: Dawood Associates, Inc. vs. Mapletree Development, LLC No. 08-2751 Dear Mr. Nigro: Telephone: 717-367-2800 Fax: 717-367-9400 henderson@pechtlaw.com i and George I Enclosed herewith is an Important Notice in reference to the above capl have ten (10) days to respond to same. Very truly yours, HPH:mlg Enclosure Cc: Paul Whipple Wayne M. Pecht, Esq. Herbert P. Henderson, II M. Deimer As you can see, you Mechanicsburg Office 1205 Manor Drive, Suit 200 Mechanicsburg, PA 17055 ti LLJ t-- O N LL.1 Cn m C= M a 7 U ?J A 1 T ..9 0 TO Plaintiff: GARY A. KRIMSTOCK, ESQUIRE JOSHUA B. HORVITZ, ESQUIRE e-mail: gkrimstock@finemanlawfirm.com jhorvitz @ finemanlawfirm.com Attorney I.D. Nos. PA 17594 & 94325 FINEMAN KREKSTEIN & HARRIS, P.C. Mellon Bank Center 1735 Market Street, Suite 600 Philadelphia, PA 19103-7513 (v) 215-893-9300; (f) 215-893-8719 DAWOOD ASSOCIATES, INC., Plaintiff V. MAPLETREE DEVELOPMENT, LLC, and GEORGE M. DIEMER, Defendants YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM THE DATE OF SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. /s/ Joshua B. Horvitz JOSHUA B. HORVITZ, ESQUIRE Attorneys for Defendants Mapletree Development, LLC, and George M. Diemer Attorneys for Defendants COURT OF COMMON PLEAS COUNTY OF CUMBERLAND CIVIL ACTION - LAW NO. 08-2751 DEFENDANTS', MAPLETREE DEVELOPMENT, LLC AND GEORGE M. DIEMER, ANSWER WITH NEW MATTER TO PLAINTIFF'S Defendants Mapletree Development, LLC and George M. Diemer, by and through their attorneys, Fineman Krekstein & Harris, P.C., hereby respond to Plaintiff's Complaint by filing the instant Answer with New Matter, and aver the following: Defendants, Mapletree Development, LLC and George M. Diemer (together "Defendants"), are without sufficient information knowledge and belief to form an opinion as to the truth of these allegations. Therefore, they are denied. Strict proof is demanded at the time of trial, if at all times relevant. (00177912;x1) 2. It is admitted that Defendant, Mapletree Development, LLC ("Mapletree") is a State of New Jersey Limited Liability Company. The remainder of this paragraph is denied. Strict proof is demanded at the time of trial, if at all times relevant. By way of further response, Mapletree has a business address at 3000 Atrium Way, Suite 219, Mount Laurel, New Jersey 08054. 3. It is admitted that Defendant, George M. Diemer ("Diemer") is an adult individual. The remainder of this paragraph is denied. Strict proof is demanded at the time of trial, if at all times relevant. By way of further response, Diemer has a mailing address at 3000 Atrium Way, Suite 219, Mount Laurel, New Jersey 08054. 4. Defendants are without sufficient information knowledge and belief to form an opinion as to the truth of these allegations. Therefore, they are denied. Strict proof is demanded at the time of trial, if at all times relevant. 5. To the extent the averments contained in this paragraph are conclusions of law, no response is required. With regard to the remaining factual allegations contained in this paragraph, Defendants are without sufficient information knowledge and belief to form an opinion as to the truth of those allegations. Therefore, they are denied. Strict proof is demanded at the time of trial, if at all times relevant. OPERATIVE FACTS 6. Defendants incorporate each of the preceding paragraphs as if set forth at length herein. 7. To the extent the averments contained in this paragraph are conclusions of law, no response is required. With regard to the remaining factual allegations contained in this paragraph, Defendants are without sufficient information knowledge and belief to form an (00177912;vl) 2 opinion as to the truth of those allegations. Therefore, they are denied. Strict proof is demanded at the time of trial, if at all times relevant. To the extent the averments contained in this paragraph are conclusions of law, no response is required. With regard to the remaining factual allegations contained in this paragraph, Defendants are without sufficient information knowledge and belief to form an opinion as to the truth of those allegations. Therefore, they are denied. Strict proof is demanded at the time of trial, if at all times relevant. 9. It is admitted that Plaintiff billed Mapletree. It is specifically denied that Plaintiff were retained to do any work for Diemer individually. To the extent the remaining averments contained in this paragraph are conclusions of law, no response is required. With regard to the remaining factual allegations contained in this paragraph, Defendants are without sufficient information knowledge and belief to form an opinion as to the truth of those allegations. Therefore, they are denied. Strict proof is demanded at the time of trial, if at all times relevant. 10. To the extent the averments contained in this paragraph are conclusions of law, no response is required. With regard to the remaining factual allegations contained in this paragraph, Defendants are without sufficient information knowledge and belief to form an opinion as to the truth of those allegations. Therefore, they are denied. Strict proof is demanded at the time of trial, if at all times relevant. 11. Denied. It is specifically denied that Plaintiff and Diemer had any contractual relationship whatsoever. To the extent the remaining averments contained in this paragraph are conclusions of law, no response is required. With regard to the remaining factual allegations contained in this paragraph, Defendants are without sufficient information knowledge and belief (00177912;v1) 3 to form an opinion as to the truth of those allegations. Therefore, they are denied. Strict proof is demanded at the time of trial, if at all times relevant. 12. The purported contract is a document which speaks for itself and therefore no response is required. To the extent the remaining averments contained in this paragraph are conclusions of law, no response is required. With regard to the remaining factual allegations contained in this paragraph, Defendants are without sufficient information knowledge and belief to form an opinion as to the truth of those allegations. Therefore, they are denied. Strict proof is demanded at the time of trial, if at all times relevant. COUNT I 13. Defendants incorporate each of the preceding paragraphs as if set forth at length herein. 14. The purported contract is a document which speaks for itself and therefore no response is required. To the extent the remaining averments contained in this paragraph are conclusions of law, no response is required. With regard to the remaining factual allegations contained in this paragraph, Defendants are without sufficient information knowledge and belief to form an opinion as to the truth of those allegations. Therefore, they are denied. Strict proof is demanded at the time of trial, if at all times relevant. 15. The purported contract is a document which speaks for itself and therefore no response is required. To the extent the remaining averments contained in this paragraph are conclusions of law, no response is required. With regard to the remaining factual allegations contained in this paragraph, Defendants are without sufficient information knowledge and belief to form an opinion as to the truth of those allegations. Therefore, they are denied. Strict proof is demanded at the time of trial, if at all times relevant. (00177912;v1) 4 16. Denied. It is specifically denied that Dawood performed the necessary work required. It is further denied that Dawoood performed the necessary work required of it in a satisfactory and workmanlike manner. It is even further denied that Dawoood performed work in accordance with standards promulgated by and accepted by industry for engineering, land development planning, site planning and surveying. By way of further response, any work Dawood performed was unsatisfactory, not is a workmanlike manner, and not in accordance with standards promulgated by and accepted by industry for engineering, land development planning, site planning and surveying. Strict proof is demanded at the time of trial, if at all times relevant. 17. This paragraph references a document which speaks for itself and therefore no response is required. To the extent the remaining averments contained in this paragraph are conclusions of law, no response is required. With regard to the remaining factual allegations contained in this paragraph, Defendants are without sufficient information knowledge and belief to form an opinion as to the truth of those allegations. Therefore, they are denied. Strict proof is demanded at the time of trial, if at all times relevant. 18. It is specifically denied that Mapletree owes Plaintiff any money, or that it has refused to pay the total outstanding amount due. By way of further response, Mapletree is entitled to a set-off for all costs incurred or associated with replacing Dawood and correcting its work. To the extent the remaining averments contained in this paragraph are conclusions of law, no response is required. With regard to the remaining factual allegations contained in this paragraph, Defendants are without sufficient information knowledge and belief to form an opinion as to the truth of those allegations. Therefore, they are denied. Strict proof is demanded at the time of trial, if at all times relevant. {00177912;vl1 5 19. It is specifically denied that Mapletree breached the contract. The purported contract is a document which speaks for itself and therefore no further response is required. Dawood breached the purported contract by not performing the necessary work required of it in a satisfactory and workmanlike manner. By way of even further response, Dawood breached the purported contract by performing the work not in accordance with standards promulgated by and accepted by industry for engineering, land development planning, site planning and surveying. Strict proof is demanded at the time of trial, if at all times relevant. In addition, Dawood breached the purported contract because its employees, servants or agents were not licensed, and were not qualified to testify before the municipality and regulatory bodies. 20. See paragraph 19. 21. See paragraph 19. By way of further response, it is specifically denied that Plaintiff has suffered any damages. By way of even further response, Mapletree is entitled to a set-off for all costs incurred or associated with replacing Dawood and correcting its work. To the extent the remaining averments contained in this paragraph are conclusions of law, no response is required. With regard to the remaining factual allegations contained in this paragraph, Defendants are without sufficient information knowledge and belief to form an opinion as to the truth of those allegations. Therefore, they are denied. Strict proof is demanded at the time of trial, if at all times relevant. 22. This paragraph references a document which speaks for itself and therefore no response is required. 23. This paragraph references a document which speaks for itself and therefore no response is required. (00177912;v1) 6 24. To the extent the averments contained in this paragraph are conclusions of law, no response is required. With regard to the remaining factual allegations contained in this paragraph, Defendants are without sufficient information knowledge and belief to form an opinion as to the truth of those allegations. Therefore, they are denied. Strict proof is demanded at the time of trial, if at all times relevant. WHEREFORE, Defendant, Mapletree Development, LLC, respectfully request that this Honorable Court enter judgment in favor of Defendants and against Plaintiff on Count I of Plaintiff's Complaint, plus costs, interest, attorney's fees and such other relief that the Court deems proper. COUNT II 25. Defendants incorporate each of the preceding paragraphs as if set forth at length herein. 26. To the extent the averments contained in this paragraph are conclusions of law, no response is required. With regard to the remaining factual allegations contained in this paragraph, Defendants are without sufficient information knowledge and belief to form an opinion as to the truth of those allegations. Therefore, they are denied. Strict proof is demanded at the time of trial, if at all times relevant. 27. To the extent the averments contained in this paragraph are conclusions of law, no response is required. With regard to the remaining factual allegations contained in this paragraph, Defendants are without sufficient information knowledge and belief to form an opinion as to the truth of those allegations. Therefore, they are denied. Strict proof is demanded at the time of trial, if at all times relevant. {00177912;v1} 7 28. It is specifically denied that Plaintiff conferred any benefit on Diemer. Strict proof is demanded at the time of trial, if at all times relevant. 29. It is specifically denied that Plaintiff conferred any benefit on Diemer. Strict proof is demanded at the time of trial, if at all times relevant. 30. It is specifically denied that there was an appreciation of the purported benefits by Diemer. Strict proof is demanded at the time of trial, if at all times relevant. 31. To the extent the averments contained in this paragraph are conclusions of law, no response is required. With regard to the remaining factual allegations contained in this paragraph, Defendants are without sufficient information knowledge and belief to form an opinion as to the truth of those allegations. Therefore, they are denied. Strict proof is demanded at the time of trial, if at all times relevant. 32. It is specifically denied that Diemer has been unjustly enriched. It is further denied that Diemer owed Plaintiff anything or that Diemer failed to pay anything owed. To the extent the remaining averments contained in this paragraph are conclusions of law, no response is required. With regard to the remaining factual allegations contained in this paragraph, Defendants are without sufficient information knowledge and belief to form an opinion as to the truth of those allegations. Therefore, they are denied. Strict proof is demanded at the time of trial, if at all times relevant. WHEREFORE, Defendant, George M. Diemer, respectfully request that this Honorable Court enter judgment in favor of Defendants and against Plaintiff on Count II of Plaintiff's Complaint, plus costs, interest, attorney's fees and such other relief that the Court deems proper. NEW MATTER 33. Plaintiff's Complaint should fail due to the defense of accord and satisfaction. {00177912;vi 1 8 34. Plaintiff's Complaint should fail due to the defense of consent. 35. Plaintiff's Complaint should fail due to the doctrine of estoppel. 36. Plaintiff's Complaint is barred by the statute of frauds. 37. Plaintiff's Complaint is barred by the statute of limitations. 38. Plaintiff's Complaint is barred by res judicata. 39. Plaintiff's Complaint should fail due to the principles of justification. 40. Plaintiff's Complaint is barred by the doctrine of unclean hands. 41. Plaintiff's Complaint is barred by the doctrines of license and privilege. 42. Plaintiff's Complaint does not meet the requirements for piercing the corporate veil. 43. Plaintiff's Complaint fails to state a claim upon which relief may be granted. 44, Defendants' actions were always legal and appropriate. 45. Plaintiff's Complaint is barred in whole or in part by the equitable doctrine of waiver. 46. Mapletree is entitled to a set-off for all costs incurred or associated with replacing Dawood and correcting its work. 47. Dawood breached the purported contract by not performing the necessary work required of it in a satisfactory and workmanlike manner. 48. Dawood breached the purported contract by performing the work not in accordance with standards promulgated by and accepted by industry for engineering, land development planning, site planning and surveying. (00177912;v1) 9 49. Dawood breached the purported contract because its employees, servants or agents were not licensed, and were not qualified to testify before the municipality and regulatory bodies. 50. Dawood breached the purported contract by concealing and/or failing to notify Defendants that its employees, servants or agents were not licensed, and were not qualified to testify before the municipality and regulatory bodies. 51. Dawood did not enter into a written contract with Diemer. 52. Dawood could have requested or negotiated for Diemer to enter into a written contract with them individually, but did not. FINEMAN KREKSTEIN & HARRIS, P.C. By GARY A. KRIMSTOCK, ESQUIRE (PA 17594) JOSHUA B. HORVITZ, ESQURIE (PA 94325) Attorneys for Defendants Dated: (00177912;v 1 ) 10 VERIFICATION I, Joshua B. Horvitz, Esquire, attorney for Defendants, Mapletree Development, LLC, and George M. Diemer, in the foregoing matter, hereby verify that I was unable to procure the verification of Defendants prior to this filing due to the immediate necessity of filing the Petition to Open Default Judgment and the fact that Defendants are out-of-state, and that the statements made in the foregoing are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. JOSHUA B. HORVITZ, ESQUIRE Dated: (00177912;vI ) 11 ?. _? ?, - ,- ? - -? r--, : ? ,? f?. GARY A. KRIMSTOCK, ESQUIRE JOSHUA B. HORVITZ, ESQUIRE e-mail: g_krimstock@finemanlawfirm.com jhorvitz @ finemanl awfirm.com Attorney I.D. Nos. PA 17594 & 94325 FINEMAN KREKSTEIN & HARRIS, P.C. Mellon Bank Center 1735 Market Street, Suite 600 Philadelphia, PA 19103-7513 (v) 215-893-9300; (f) 215-893-8719 Attorneys for Defendants DAWOOD ASSOCIATES, INC., Plaintiff V. MAPLETREE DEVELOPMENT, LLC, and GEORGE M. DIEMER, Defendants COURT OF COMMON PLEAS COUNTY OF CUMBERLAND CIVIL ACTION - LAW NO. 08-2751 DEFENDANTS', MAPLETREE DEVELOPMENT, LLC, AND GEORGE M. DIEMER, AMENDMENT TO PETITION TO STRIKE AND/OR OPEN DEFAULT JUDGMENT Defendants/petitioners, Mapletree Development, LLC and George M. Diemer (together "Defendants") by and through their attorneys, Fineman Krekstein and Harris, P.C., hereby submit this Amendment to their Petition to Strike and/or Open Default Judgment and aver the following: A Judge has not ruled upon any other issue in the same or related matter. 2. The concurrence of opposing counsel was not sought, because local rule 208.3(a)(9) does, "not apply to ... petitions to open or strike judgments." {00178601;vi} FINEMAN , P.C. By GARY STO , ESQUIRE (PA 17594) JOS A B. H Z, ESQUIRE (PA 94325) Mel n Bank Center Dated: November 4, 2008 1735 Market Street, Suite 600 Philadelphia, PA 19103-7513 (v) 215-893-9300; (f) 215-893-8719 e-mail: gkrimstock@finemanlawfirm.com jhorvitz@finemanlawfirm.com Attorneys for Defendants {oo178601;v1} 2 CERTIFICATE OF SERVICE I, JOSHUA B. HORVITZ, ESQUIRE, hereby certify that on this date I served a true and correct copy of the foregoing electronically, or by first class mail, postage prepaid, or telecopy on the following: Herbert P. Henderson, II, Esquire Pecht & Associates, P.C. 55 West High Street Elizabethtown, PA 17022 (v) 717-367-2800 Attorneys for Plaintiff A 4(. HORVITZ, ESQUIRE Dated: November 4, 2008 {00178601;v1} DAWOOD ASSOCIATES, INC Plaintiff vs. MAPLETREE DEVELOPMENT, LLC, and GEORGE M. DIEMER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-2751 CIVIL IN RE: DEFENDANTS' MOTION TO STRIKE AND/OR OPEN DEFAULT JUDGMENT RULE TO SHOW CAUSE AND NOW, this /O day of November, 2008, upon consideration of the foregoing petition, it is hereby ordered and decreed as follows: 1. A rule is issued upon the plaintiff to show cause why the petitioner is not entitled to the relief requested; 2. the respondent shall file an answer to the petition within twenty (20) days of service; 3. the petition shall be decided under Pa. R.C.P. No. 206.7; 4. depositions shall be completed within forty-five (45) days of this date; 5. argument shall be held on Friday, January 16, 2009, at 1:30 p.m. in Courtroom Number 4 of the Cumberland County Courthouse, Carlisle, PA; and 6. notice of the entry of this order shall be provided to all parties by the petitioner. BY THE COURT, 5 0 0 ?n O 4Zl- . v sJ 01 Reid u' b A6' _.; 1 `14 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. Plaintiff vs. MAPLETREE DEVELOPMENT, LLC and GEORGE M. DEIMER Defendant No. 08-2751 AMENDED CERTIFICATE OF SERVICE I hereby certify that I did, on May 8, 2008, serve a copy of the Complaint upon the person(s) and in the manner indicated below, which service satisfies the requirement of Pa. R.C. P. 440: Service by Certified Mail, Return Receipt Requested as per the attached correspondence and receipt: Rocco M. Nigro, Esquire The Providence Legal Center 1100 North Providence Road, Suite 108 Media, PA 19063 Date: t( I I- I o-K' By: Herbert P. Henderson, II, Esquire Attorney for Plaintiff 55 West High Street Elizabethtown, PA 17022 Attorney ID#56304 4- PECHT & ASSOCIATES, PC 55 West High Street Elizabethtown, PA 17022-2018 Wayne M. Pecht Member of California Bar CPA/LLM in Taxation Rob Bleecher Herbert P. Henderson, II Rocco M. Nigro, Esquire The Providence Legal Center 1100 North Providence Road, Suite 108 Media, PA 19063 Telephone: 717-367-2800 Fax: 717-367-9400 e-mail: hhenderson@pechtlaw.com May 2, 2008 RE: Dawood Associates, Inc. vs. Mapletree Development, LLC and George M. Deimer No. 08-2751 Dear Mr. Nigro: Enclosed please find a time-stamped copy of the Complaint we filed with Cumberland County Prothonotary in the above referenced matter. Very truly yours, HPH:mlg Enclosure Cc: Pam Fisher Bony Dawood Paul Whipple Herbert P. Henderson, II V Mechanicsburg Office 1205 Manor Drive, Suit 200 Mechanicsburg, PA 17055 717- 691-9810 office 717.841-21)7n f ,.-r..,.7,. M I'aetmerk M O Return Recent Fee (Endorsement Required) Here O Restrkked Delivery Fee O (Endorsement Required) .A u1 Total Postage & Fees rte Ivmt TO ° or PO Box N ! tlofmmplete fterr>s 1, 2, and 3. Also complete A, Nsmym 4 if Restricted Delhrery Is desired. T3?UOV X 4"_1 0 Agartt ! P*d your name and address on the reverse O Adtlftew so that we can return the card to you. ¦ A Rich this card to the back of the mailplece, ame) C. Date of D*4wy %hWIV N = or on the front if space permits. rVT 1. Article Addressed to: D. Is dWhwy a - I - If YES, enter dellvery address bellow: 0 No )M ?tlU titlt,(jt_L C P. Ser Aw Iwo Meg Expirm null R DVidt S. lUg ??e. 11t?0 1j • I o insured o' n t<Q t1 l d 1? A_ ' qDjO 2, 4. Restricted Delhrery? (f 0 Yea 2. Article NuffAw 7007 2560 0003 1792 9011 Oh-sw from se??fai mw - PS Form 3811, FAA mry 2W Dal+eaAlc Reprrt f otlpl 10259641111401- 15W • ONS - Track & Confirm Search Resuha Label/Receipt Number. 7007 2560 0003 1792 9011 Status: Delivered Your item was delivered at 11:46 am on May 08, 2008 in MEDIA, PA 19063. A proof of delivery record may be available through your local Post Office for a fee. Additional information for this item is stored in files offline -------------- fM?h?e Dtfs1. i°Reltatn [ip tluP c i?i?pnts > Page 1 of 1 Tmk & Coffiff t Enter Label/Receipt Number. Site Map Contact Us Forms Gov't Services Jobs Privacy Policy Terms of Use National & Premier Accounts Copyright©1999-2007 USPS. All Rights Reserved. No FEAR Act EEO Data FOIA a, r-? ? ??.. ?? r"' GARY A. KRIMSTOCK, ESQUIRE JOSHUA B. HORVITZ, ESQUIRE e-mail: gkrimstock@finemanlawfinn.com j horvitza?,finemanlawfirm. com Attorney I.D. Nos. PA 17594 & 94325 FINEMAN KREKSTEIN & HARRIS, P.C. Mellon Bank Center 1735 Market Street, Suite 600 Philadelphia, PA 19103-7513 (v) 215-893-9300; (f) 215-893-8719 DAWOOD ASSOCIATES, INC., Plaintiff V. MAPLETREE DEVELOPMENT, LLC, and GEORGE M. DIEMER, Defendants Attorneys for Defendants COURT OF COMMON PLEAS COUNTY OF CUMBERLAND CIVIL ACTION - LAW NO. 08-2751 AFFIDAVIT OF SERVICE OF RULE TO SHOW CAUSE IN RE: DEFENDANTS' MOTION TO STRIKE AND/OR OPEN DEFAULT JUDGMENT JOSHUA B. HORVITZ, ESQUIRE, one of the attorneys for Defendants/Petitioners Mapletree Development, LLC and George M. Diemer (collectively "Defendants"), hereby certifies that on November 18, 2008, he served a copy of the November 10, 2008, Rule to Show Cause In Re: Defendants' Motion to Strike and/or Open Default Judgment (a copy of which is attached hereto as Exhibit A), by first class mail, and telecopy on the following: Herbert P. Henderson, II, Esquire Pecht & Associates, P.C. 55 West High Street Elizabethtown, PA 17022 (v) 717-367-2800; (f) 717-367-9400 Attorneys for Plaintiff FINEMAN KREKSTEIN & Y P.C. VITZ, UIRE (PA 94325) Dated: Attorneys 100181273;v1} CERTIFICATE OF SERVICE I, JOSHUA B. HORVITZ, ESQUIRE, hereby certify that on this date I served a true and correct copy of the foregoing electronically, or by first class mail, postage prepaid, or telecopy on the following: Herbert P. Henderson, II, Esquire Pecht & Associates, P.C. 55 West High Street Elizabethtown, PA 17022 (v) 717-367-2800; (f) 717-367-9400 Attorneys for Plaintiff , :. ,.- Dated: November 18 2008 (JSH1A B. I7bRVITZ, ESQUIRE {00181273;v1} 2 EXHIBIT A DAWOOD ASSOCIATES, INC. IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 08-2751 CIVIL MAPLETREE DEVELOPMENT, LLC, and GEORGE M. DIEMER, Defendants IN RE: DEFENDANTS' MOTION TO STRIKE AND/OR OPEN DEFAULT JUDGMENT RULE TO SHOW CAUSE AND NOW, this ?b ?day of November, 2008, upon consideration of the foregoing petition, it is hereby ordered and decreed as follows: 1. A rule is issued upon the plaintiff to show cause why the petitioner is not entitled to the relief requested; 2. the respondent shall file an answer to the petition within twenty (20) days of service; 3. the petition shall be decided under Pa. R.C.P. No. 206.7; 4. depositions shall be completed within forty-five (45) days of this date; 5. argument shall be held on Friday, January 16, 2009, at 1:30 p.m. in Courtroom Number 4 of the Cumberland County Courthouse, Carlisle, PA; and 6. notice of the entry of this order shall be provided to all parties by the petitioner. BY THE COURT, Kevin f°Ur f?€ I Testimony vwhereol, I here ants 9t my hafff A the sj of said Court at" Carrie, PrMhon?uyi ? 7 h3 rlo IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. Plaintiff No. 2008-2751 VS. MAPLETREE DEVELOPMENT, LLC and GEORGE M. DEIMER, Defendant ANSWER OF DAWOOD ASSOCIATES. INC. TO DEFENDANT'S PETITION TO STRIKE AND/OR OPEN DEFAULT JUDGMENT 1. Admitted. 2. Denied. It is specifically denied that Plaintiffs "allegedly" sent a Notice. To the contrary, a Notice was sent. A true and correct copy of the Notice is attached hereto, incorporated herein by reference as though set forth at length and marked as Exhibit "A» 3. Admitted in part, denied in part. While is admitted that the Certificate of Service was filed on September 17, 2008, a true and correct review of the records which Mr. Diemer's prior counsel, Attorney Rocco Nigro, received, would indicate that the Complaint was served on May 8, 2008. Defendant is trying to "split hairs" and avoid the fact that his prior counsel took actions which Defendant ignored. A true and correct copy of the Amended Certificate of Service which correct any misunderstanding as to the date of service, is attached hereto, incorporated herein by reference as though set forth at length and marked as Exhibit "B". 4. Admitted. 5. Admitted in part, denied in part. It is admitted that the address is 3000 Antrem Way, Suite 219, Mount Laurel, New Jersey. It is denied, however, that Defendant did not receive any documentation as all documentation sent from Plaintiff's counsel's office was received in as much as it was never returned for an incorrect address. Again, Plaintiff believes, and therefore avers, that Defendant is trying to avoid a legal obligation and trying to distract the responsibility for his attorney's failure to respond. Strict proof otherwise is demanded at the time of trial. 6. Admitted in part, denied in part. It is admitted that the address is 3000 Antrem Way, Suite 219, Mount Laurel, New Jersey. It is denied, however, that Defendant did not receive any documentation as all documentation sent from Plaintiff's counsel's office was received in as much as it was never returned for an incorrect address. Again, Plaintiff believes, and therefore avers, that Defendant is trying to avoid a legal obligation and trying to distract the responsibility for his attorney's failure to respond. Strict proof otherwise is demanded at the time of trial. 7. After reasonable investigation, Defendant is unable to determine whether or not the allegation is true or false. Strict proof otherwise is demanded at the time hearing. 8. No answer required in as much as the allegation sets forth a conclusion of law. To the extent an answer may be required, the same is denied that the 10 Day Notice was sent two months prior to the improper service. The allegation is absolutely false and meant to do nothing more than distort the true facts of the case, i.e. that Defendant's counsel agreed to accept service, actually accepted service by Certified Mail, and, thereafter, a breakdown in communication between prior defense counsel and his client, apparently occurred. Strict proof otherwise is demanded at the time of trial. 9. No answer required in as much as the allegation sets forth a conclusion of law. To the extent a response may be required, it is specifically denied that Defendant has such a "highly meritorious defense to this action" and that it should be allowed to be raised at a later date. To the contrary, Defendant knew of this action for quite some time through he prior counsel, Rocco M. Nigro. If such a defense was so "highly meritorious", it would have been filed at that time rather than wait until a Default Judgment had been entered. Strict proof otherwise is demanded at the time of trial. 10. No answer required in as much as the allegation sets forth a conclusion of law. To the extent a response may be required, Plaintiff questions why the "numerous highly meritorious defenses, including twenty affirmative defenses" were not entered on time. Strict proof otherwise is demanded at the time of trial. 11. The allegation in paragraph 11 states "Therefore" instead of a typical "Wherefore" clause, thus no answer is required. 12. No answer required in as much as the allegation sets forth a conclusion of law. 13. Admitted only to the extent that the case law referenced speaks for itself. 14. Admitted only to the extent that the case law referenced speaks for itself. 15. Admitted only to the extent that the case law referenced speaks for itself. 16. Admitted only to the extent that the case law referenced speaks for itself. 17. Admitted in part, denied in part. It is admitted only to the extent that the case law referenced speaks for itself, however, the Court is permitted to look at the totality of the circumstances together with any pleadings which may be filed which correct or otherwise clarify the record. Strict proof otherwise is demanded at the time of trial. 18. Denied. Strict proof otherwise demanded at the time of trial. 19. Admitted only to the extent the case law referenced speaks for itself. 20. Admitted only to the extent the case law referenced speaks for itself. 21. Admitted to the extent the case law referenced speaks for itself. 22. Admitted to the extent the case law referenced speaks for itself. 23. No answer required in as much as the allegation sets forth a conclusion of law. To the extent an answer may be required, the same is admitted only to the extent that the Rule and case law speaks for itself. 24. It is admitted that the original process must be served within thirty (30) days of the fling of a Complaint; however, the Complaint was served upon an Attomey of record for an out of state Defendant, which out of state Defendant's attorney agreed to accept service. Service was made by certified mail, return receipt which service is an acceptable service upon an out of state Defendant. Defendant, in paragraph 4 above, acknowledges that its address is in New Jersey. Defendant should not be able to advise its counsel to accept service, and then have that attorney then refuse to sign an Acknowledgement of Service, (which Acknowledgement of Service Plaintiff submits was not required in order to effectuate service.) Strict proof otherwise is demanded at the time of trial. 25. Admitted to the extent, however, that the case law speaks for itself. By way of explanation, service was made on an attorney which is an agent for Defendant by certified mail. A true and correct copy of the Amended Certificate of Service is attached hereto, incorporated herein as though set forth at length and marked as Exhibit "A". 26. Admitted. 27. Admitted to the extent that the Rule of Civil Procedure speaks for itself. 28. Denied. To the contrary, the Certificate of Service was signed on September 15, 2008 and filed on September 17, 2008. Service of the Complaint was made May 8, 2008. Strict proof otherwise is demanded at the time of trial. 29. Admitted, however, service was made by certified mail, return receipt, and was received by Defendant's counsel. Strict proof otherwise is demanded at the time of trial. 30. No answer required in as much as the allegations sets forth a conclusion of law. To the extent an answer may be required, it is specifically denied that service was improper. 31. Denied in as much as the "several more reasons" are not listed and therefore Plaintiff cannot respond. 32. Admitted in part, denied in part. While the Certificate of Service may set forth it was sent by regular mail, this was an error in as much as the Amended Certificate of Service states that the Complaint was served by Certified Receipt Mail. Attorney Nigro indicated he would accept service of the complaint prior to being served by certified mail and Defendant should not be able to hide behind his attorney's representations to avoid prosecution of a case. Correspondence, the same of which is attached, clearly indicates that Attorney Nigro represented Defendant in this matter and the allegations set forth in the Petition to Set Aside Judgment to the contrary are false, erroneous and in violation of 18 Pa. R.C.P 4104 regarding false statements to authorities. 33. Denied. Strict proof otherwise is demanded at the time of trial. 34. Denied. For reasons set forth previously. Strict proof otherwise is demanded at the time of trial. 35. Denied. To the contrary, Attorney Nigro said he wished for the service to be made upon him and not upon his clients. Strict proof otherwise is demanded at the time of trial. 36. No answer required in as much as the allegations set forth a conclusion of law. To the extent an answer is required, the same is denied and strict proof is demanded at the time of trial. 37. No answer required in as much as the allegations set forth a conclusion of law. To the extent an answer is required, the allegation is mute only to the extent that case law speaks for itself. 38. Denied. It is specifically denied that service was clearly improper. To the contrary, Defendant is an out of state Defendant and the Rules of Civil Procedure allow for service of a Complaint on an out of state Defendant by Certified Mail, Return Receipt. Furthermore, Defendant's counsel, Rocco M. Nigro, Esquire, agreed to accept service and for this reason the Complaint was served upon him by Certified Mail at his offices which were in Pennsylvania. Plaintiff submits that Attorney Nigro was, in fact, an agent, employee, workman, servant or the like authorized to accept service of the Complaint by virtue of his utterance. Plaintiff further believes, and therefore avers, that it is underhanded, deceitful and otherwise dishonest tactic by Defendants and its prior counsel to indicate they were willing to accept service thereafter ignore Plaintiff in an obvious attempt to avoid payment of a legal obligation. Plaintiff believes, and further avers, that it defends one's senses and is contrary to justice to allow an individual to have his attorney agree to accept service of the Complaint and thereafter, hire another attorney claiming that prior attorney did not, in fact, have the authority to accept service. Strict proof otherwise is demanded at the time of trial. 39. Admitted only to the extent that the case law speaks for itself. 40. Admitted in part, denied in part. It is admitted that a Certificate of Service was filed with the Prothonotary; however, an Amended Certificate of Service has been filed, seen as Exhibit "B", which corrected an erroneous date listed on that Certificate of Service. As set forth in the Amended Certificate of Service, the Complaint was served upon Defendant's prior counsel, Rocco M. Nigro, Esquire, on May 8, 2008 by Certified Mail. 41. Admitted. 42. Denied. Please see attached Amended Certificate of Service, the same of which his attached hereto, incorporated herein by referenced and marked as Exhibit "B". 43. Admitted to the extent the Rules of Civil Procedure speak for itself. 44. Denied. To the contrary, the Certificate of Service is dated September 15, 2008. As set forth on the Amended Certificate of Service, Exhibit "D", the Complaint was actually served on Defendant's attorney, Rocco M. Nigro on May 8, 2008. 45. Denied. For reasons set forth above. 46. Denied. For reasons set forth above. 47. Admitted to the extent the Rules of Civil Procedure speak for itself. 48. Admitted only to the extent that the "Ten-Day Letter" was sent on July 15, 2008. It is specifically denied however, that this was two months prior to service for reasons set forth above. 49. Denied. 50. Admitted only to the extent the case law cited speaks for itself. 51. Admitted only to the extent the case law cited speaks for itself. 52. Admitted only to the extent the case law cited speaks for itself. 53. Admitted only to the extent the case law cited speaks for itself. 54. Admitted. It is admitted that it appears as though the Petition to Open was filed 31 days after the Entry of a Default. It is specifically denied, however, that it was filed only "several days after learning of the entry of default". To the contrary, Defendant's Pennsylvania prior counsel, Rocco M. Nigro, received copies of any and all documents filed with the Court and presumably received Notice well in advance of the "several days". 55. No answer required in as much as the allegation sets forth a conclusion of law. To the extent and answer is required, it is specifically denied that the judgment should be reopened because Defendant allegedly has a meritorious defense. 56. Denied. It is specifically denied that the Petition to Strike and/or Open Default Judgment was promptly filed. To the contrary, Plaintiff believes, and therefore avers, that 31 days is not a prompt filing and that the same should have been accomplished within a maximum 30 days. Strict proof otherwise is demanded at the time of trial. 57. Admitted to the extent the case law cited speaks for itself. 58. Admitted to the extent the case law cited speaks for itself. 59. Admitted. It is admitted that it appears as though the Petition to Open was filed 31 days the Entry of a Default. It is specifically denied, however, that it was only "several days after learning of the entry of default". To the contrary, Defendant's prior counsel, Rocco M. Nigro, received copies of any and all documents filed with the Court. Plaintiff should not be prejudiced by Defendant's prior counsel not forwarding documentation to his client. 60. Admitted to the extent that each of the "plethora of cases" referred to speaks for itself. 61. Admitted. 62. After reasonable investigation Plaintiff is unable to determine whether the veracity of the averment. Plaintiff submits, however, that documents were sent to Defendant's then announced attorney and any documents sent to Defendant's attorney were not returned as undeliverable. 63. After reasonable investigation Plaintiff is unable to determine whether the veracity of the averment. Plaintiff submits, however, that documents were sent to Defendant's attorney and any documents sent to Defendant were not returned as undeliverable. 64. Denied. It is specifically denied that Defendants were not served with notice of the entry of Default Judgment by the Court. To the contrary, Defendant previously (within this pleading) acknowledged service. 65. Denied. It is denied that Defendant acted "swiftly" after learning of the default. To the contrary, it took Defendant at least 31 days after his prior counsel was notified of the default. Strict proof otherwise is demanded at the time of trial. 66. Admitted to the extent the Court Record speaks for itself. 67. Denied. It is specifically denied that no prejudice would occur from the opening of the Default. To the contrary, Defendant has not raised a meritorious defense. Plaintiff believes, and therefore avers, that he has absolutely no defense and that as a real estate developer that he is merely experiencing financial difficulties and merely wants to avoid having to pay an otherwise valid obligation. 68. Denied. It is specifically denied that the Petition to Open was promptly filed. To the contrary, Plaintiff believes, and therefore avers, that 31 days is not a prompt filing and that the same should have been accomplished within a maximum 30 days. Strict proof otherwise is demanded at the time of trial. 69. Denied. It is specifically denied that there are several reasonable reasons for the delay. 70. Denied. Defendants did not have six more days to file an answer for the reasons set forth above. The Complaint was served on Defendant's counsel on May 8, 2008 as evidence by the Amended Certificate of Service and return receipt. The Important "10 Day" Notice was sent on July 15, 2008. The Notice of Entry of Judgment was filed on September 29, 2008. Thus Defendant did not have six more days to file an Answer. Strict proof otherwise is demanded at the time of trial. 71. Admitted if in fact the averment was correctly stated. 72. Admitted in part, denied in part. Plaintiff submits that the address listed on the Complaint was a typographical error and that any documents sent to Defendant's attorney, Rocco Nigro, and to Defendant were never returned as undeliverable. To the contrary, Defendant submits, in this pleading, that it did in fact admit receiving notice of the Entry of Judgment. 73. Denied. It is denied that Defendant "acted swiftly" for reason set forth previously. 74. Admitted to the extent the case law cited speaks for itself. 75. Admitted to the extent the case law cited speaks for itself. 76. Admitted to the extent the case law cited speaks for itself. 77. Admitted to the extent the case law cited speaks for itself. 78. Admitted to the extent the case law cited speaks for itself. 79. Admitted to the extent the case law cited speaks for itself. 80. Denied. It is specifically denied that the defense claimed is meritorious. By way of explanation, Defendant's defense is that he paid somebody else the monies which are owed Plaintiff and that third party was to pay Plaintiff. The third party, Barry Chapnick, Esquire, has advised Plaintiff that he, in fact, paid Defendant additional money to pay Plaintiff. This is not a meritorious defense it is a concocted defense in order to avoid the entry of a judgment and is barred by the Statute of Frauds, a contract to pay the debt of another. Plaintiff submits that if Defendant has such a meritorious defense it would have been raised in the nature of a responsive pleading prior to July 15, 2008. 81. Admitted only to the extent that Defendant has attached an Answer to Complaint with New Matter. 82. Admitted. 83. Admitted with the understanding that Defendant Diemer, himself, personally handled matters with Plaintiff individually. 84. Admitted only to the extent that Defendant has attached a pleading entitled "Answer and New Matter" to its Petition to Strike and/or Open Judgment. 85. Denied. It is specifically denied that Plaintiff never ever entered into a contract with Diemer. Strict proof otherwise is demanded at the time of trial. 86. Admitted to the extent the case law cited speaks for itself. 87. Admitted to the extent the case law cited speaks for itself. 88. Admitted to the extent the case law cited speaks for itself. 89. No answer required in as much as the allegation contains a conclusion of law. 90. Denied. It is specifically denied that Plaintiff is attempting to hold Diemer individually responsible for the debt of a corporation. (In fact a corporation has not ever been sued, it is a limited liability company.) To the contrary, Diemer, negotiated the contract for the work for himself and always held himself out as the beneficial owner of the property for which the land development services were provided. Strict proof otherwise is demanded at the time of trial. 91. Defendant is attempting to submit a defense to the case rather than any facts in support of its Petition to Open and therefore, the same is generally denied. 92. Defendant is attempting to submit a defense to the case rather than any facts in support of its Petition to Open and therefore, the same is generally denied. 93. Defendant is attempting to submit a defense to the case rather than any facts in support of its Petition to Open and therefore, the same is generally denied. 94. Defendant is attempting to submit a defense to the case rather than any facts in support of its Petition to Open and therefore, the same is generally denied. 95. Defendant is attempting to submit a defense to the case rather than any facts in support of its Petition to Open and therefore, the same is generally denied. 96. Defendant is attempting to submit a defense to the case rather than any facts in support of its Petition to Open and therefore, the same is generally denied. 97. Defendant is attempting to submit a defense to the case rather than any facts in support of its Petition to Open and therefore, the same is generally denied. 98. Defendant is attempting to submit a defense to the case rather than any facts in support of its Petition to Open and therefore, the same is generally denied. 99. Defendant is attempting to submit a defense to the case rather than any facts in support of its Petition to Open and therefore, the same is generally denied. 100. Defendant is attempting to submit a defense to the case rather than any facts in support of its Petition to Open and therefore, the same is generally denied. 101. Defendant is attempting to submit a defense to the case rather than any facts in support of its Petition to Open and therefore, the same is generally denied. 102. Denied. It is denied that Defendant's Petition to Strike Default Judgment should be granted because Plaintiff did properly serve Defendant's attorney, Defendant was afforded well in excess of twenty days of service to file a response and the ten day notice was sent well in advance of the judgment being entered. It is further denied that the judgment should be reopened simply because the Defendant believes it has "numerous highly meritorious defenses". PECHT & ASSOCIATES, PC Dated: By: Wbert P. Henderson, II,%4 Attorney for Plaintiff 55 West High Street Elizabethtown, PA 17022 (717) 367-2800 Attorney ID No. 56304 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC Plaintiff No. 2008-2751 Vs. MAPLETREE DEVELOPMENT, LLC and GEORGE M. DEIMER, Defendant CERTIFICATE OF SERVICE I, HERBERT P. HENDERSON, II, ESQUIRE, hereby certify that on this date I served a true and correct copy of the foregoing electronically, or by first class mail, postage prepaid, or telecopy on the following: Joshua B. Horvitz, Esquire Mellon Bank Center 1735 Market Street, Suite 600 Philadelphia, PA 19103-7513 Herbert P. Henderson, II, Esquire DATED: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. Plaintiff No. 08-2751 VS. MAPLETREE DEVELOPMENT, LLC and GEORGE M. DERAER Defendant To: George M. Deimer Mapletree Development, LLC c/o Rocco M. Nigro, Esquire The Providence Legal Center 1100 North Providence Road, Suite 108 Media, PA 19063 Date: July 21, 2008 HAPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHEE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 PECHT & ASSOCIATES, PC By: Herbert P. Henderson, IL Esquire Attorney for Plaintiff 55 West High Street Elizabethtown, PA 17022 (717)367-2800 Attorney ID No. 56304 PECHT & ASSOCIATES, PC 55 West High Street Elizabethtown, PA 17022-2018 Wayne M. Pecht Member of California Bar CPA/LLM in Taxation Rob Bleecher Herbert P. Henderson, II Rocco M. Nigro, Esquire The Providence Legal Center 1100 North Providence Road, Suite 108 Media, PA 19063 Telephone: 717-367-2800 Fax: 717-367-9400 e-mail: hhenderson®pechtlaw.com July 21, 2008 RE: Dawood Associates, Inc. vs. Mapletree Development, LLC and George M. Deimer No. 08-2751 Dear Mr. Nigro: Enclosed herewith is an Important Notice in reference to the above captioned. As you can see, you have ten (10) days to respond to same. Very truly yours, HPH:mlg Enclosure Cc: Paul Whipple Wayne M. Pecht, Esq. Herbert P. Henderson, II Mechanicsburg Offer 1205 Manor Drirw Cii;f 9nn IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. Plaintiff No. 08-2751 vs. MAPLETREE DEVELOPMENT, LLC and GEORGE M. DEIMER `r= u F r o Defendant ,. rn - r ia? AMENDED CERTIFICATE OF SERVICE W I hereby certify that I did, on May 8, 2008, serve a copy of the Complaint upon the person(s) and in the manner indicated below, which service satisfies the requirement of Pa. R.C. P. 440: Service by Certified Mail, Return Receipt Requested as per the attached correspondence and receipt: Rocco M. Nigro, Esquire The Providence Legal Center 1100 North Providence Road, Suite 108 Media, PA 19063 Date: t % 11' 1 0 ?- By: Herbert P. Henderson, II, Esquire Attorney for Plaintiff 55 West High Street Elizabethtown, PA 17022 Attorney ID#56304 I7r I J f PECHT & ASSOCIATES, PC 55 West High Street Elizabethtown, PA 17022-2018 Wayne M. Pecht Member of California Bar CPA/LLM in Taxation Telephone: 717-367-2800 Fax: 717-367-9400 e-mail: hhenderson@pechtlaw.com Rob Bleecher Herbert P. Henderson, H Rocco M. Nigro, Esquire The Providence Legal Center 1100 North Providence Road, Suite 108 Media, PA 19063 May 2, 2008 RE: Dawood Associates, Inc. vs. Mapletree Development, LLC and George M. Deimer No. 08-2751 Dear Mr. Nigro: Enclosed please find a time-stamped copy of the Complaint we filed with Cumberland County Prothonotary in the above referenced matter. Very truly yours, HPH:mlg Enclosure Cc: Pam Fisher Bony Dawood Paul Whipple Herbert P. Henderson, II Mechanicsburg Q ff kg C3 Ir Rr Ir N r-R m Certified Fee OZ (a 5 rn Receipt Fee PosenrA M (RRequw" etuHem C3 «?? r0 Ln TOW POVAW 6 Fess r- I a$" to p ------ p. or PO sYsie'ZIP«s 9 ? it?btns 1, 2, and 3. Also oomplete A. 4 If Restricted Delivery is desired. X ? Agin U Pint your narne and address on the reverse ? MUM so that we can *um the card to you. g ) C. Data of i•1poh this card to the back of the mailpiece, q* on the fm m If space permits. r ` 4 film., 1. ArWe Addressed to: D. Is do" address cl taAi l .e am If YES, enter do Wery address below. ? No M 0,6nom. service Type &Aftr I)g 4 64C 13 Registered -gHWft l t?D 1J •Vi d / ? ir?d nd ? C.O.D. / ?/tp ?S 4. Restricted [)ANrery? (Extras E3 Yes PA- Z Adide Nugab§r 7007 2560 0003 1792 9011 ''kam set??S` _..?.._. ;;m _11, fet hoy OW 4 Dormm* Fatum f ?? I/ USPS - Track & Confirm Search Results Label/Receipt Number. 7007 2560 00031792 9011 Status: Delivered Your item was delivered at 11:46 am on May 08, 2008 in MEDIA, PA 19063. A proof of delivery record may be available through your local Post Office for a fee. Page 1 of 1 Tr;ok & C[tfirm Enter Label/Receipt Number. _:) Additional information for this item is stored in files offline. Raetorie 0iltn? >0 s ltttArru elr t/SP$. xlfAnre x/faere ff sate. Map CgnW Vs Fgrrns Gott Services Jobs Privacy PQNCY Terms of _use Nationaf.&_Preirwer Agmm% tit td, N:i? ?4a ' tc-1 c. Copyright@ 1999-2007 USPS. All Rights Reserved. No FEAR Act EEO Data FOIA ® c °,•: ! a; c DAWOOD ASSOCIATES, INC Plaintiff VS. MAPLETREE DEVELOPMENT, LLC, and GEORGE M. DIEMER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-2751 CIVIL IN RE: DEFENDANTS' MOTION TO STRIKE AND/OR OPEN DEFAULT JUDGMENT ORDER AND NOW, this z 1 ' day of January, 2009, argument on the defendants' motion to strike and/or open default judgment set for January 16, 2009, is continued to Thursday, March 12, 2009, at 1:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. V erbert P. Henderson, II, Esquire For the Plaintiff , ry A. Krimstock, Esquire shua B. Horvitz, Esquire 2or the Defendants :rim v BY THE COURT, cv N DAWOOD ASSOCIATES, INC. IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 08-2751 CIVIL MAPLETREE DEVELOPMENT, LLC, and GEORGE M. DIEMER, Defendants : IN RE: DEFENDANTS' MOTION TO STRIKE AND/OR OPEN DEFAULT JUDGMENT ORDER AND NOW, this z°- day of March, 2009, it appearing that service in this case is defective, the motion of the defendants to strike judgment is GRANTED and said judgment is STRICKEN. BY THE COURT, erbert P. Henderson, II, Esquire /shua Plaintiff B. Horvitz, Esquire For the Defendants ti :rlm ? cc? w _.: CL- '- C3}0- cli J L,. C) CY` C=D C`V V