The URL can be used to link to this page

Home My WebLink About08-3565IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. Plaintiff No O g _ U S ?l u L vs. CHESAPEAKE READY MIX, INC. Defendant NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defense or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 Telephone (717) 249-3166 PECHT & ASSOCIATES, PC By: Herbert P. Henderson, 11, 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. Plaintiff No. D F- 3-51" C..I ?`.?.- vs. CHESAPEAKE READY MIX, INC. Defendant 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 2020 Good Hope Road, Enola, Pennsylvania, Cumberland County 17025. 2. Defendant herein is Chesapeake Ready Mix, Inc., (hereinafter "Chesapeake"), is believed to be a Pennsylvania business corporation with a last known principal place of business located at 400 Girrard Avenue, York, Pennsylvania 17403. OPERATIVE FACTS 3. Paragraphs 1 and 2 are incorporated herein by reference as set forth at length. 4. The Plaintiff, Dawood, is a licensed engineering firm which engages in the business of civil engineering, land development and planning, and surveying in connection with the development of real estate for both commercial and residential subdivisions and construction. 5. The Defendant, Chesapeake, is a concrete company. 6. On or about August 2005, William H. Davis, a duly authorized agent of Chesapeake, did enter into and otherwise contract with Dawood to assist Chesapeake in various preliminary and final land development plans in connection with the development of a concrete batch plant. 7. Dawood did perform the necessary work required of it in a satisfactory and professional manner in accordance with standards promulgated by and accepted by standards of the industry for engineering, land development planning and surveying. True and correct copies of the consolidated invoices incorporating all invoices provided are attached hereto, made a part hereof, incorporated herein by reference and marked collectively as Exhibit "A". 8. The amount outstanding, due and owing for the work for services provided Chesapeake for the job is $19,182.45 which amount is due and owing and currently past due, which amount includes all past due invoices and interest. 9. To date, despite Dawood's numerous demands for payment, Chesapeake has failed and otherwise refused to pay the total outstanding amount totaling $19,182.45. COUNTI (Breach of Contract) 10. Paragraphs 1 through 9 are incorporated herein as if set forth at length. 11. Plaintiff believes, and therefore avers, that Chesapeake entered into a contract with Dawood whereby Dawood agreed to perform various survey, engineering and land development planning services in connection with Chesapeake's development of a concrete batch plant. 12. Plaintiff believes and therefore avers, that failure to pay all invoices when submitted in a timely basis is a material breach of the parties' contract. 13. Plaintiff believes, and therefore avers, that Chesapeake has breached its contract with Dawood in that Chesapeake has failed and refused to pay the outstanding contract amount of $19,182.45. 14. As a result of the breach Plaintiff has suffered damages in the amount of $19,182.45. WHEREFORE, Plaintiff, Dawood Associates, Inc. respectfully requests that this Honorable Court enter judgment in its favor and against Defendant Chesapeake Ready Mix, Inc., in the amount of $19,182.45 plus costs and reasonable attorney fees, and such other relief as this Court deems just and appropriate, which amount is within the arbitration limits of this county. COUNT II (Unjust Enrichment) (Pleaded in the Alternative) 15. Paragraphs 1 through 14 are incorporated herein by reference as set forth at length. 16. By failing to pay the contract amount for work performed by the Plaintiff, the Defendant has been unjustly enriched in the amount of $19,182.45. WHEREFORE, Plaintiff, Dawood Associates, Inc. respectfully requests that this Honorable Court enter judgment in its favor and against Defendant Chesapeake Ready Mix, Inc., in the amount of $19,182.45 plus costs and reasonable attorney fees, and such other relief as this Court deems just and appropriate, which amount is within the arbitration limits of this county. Respectfully Submitted, PECHT & ASSOCIATES, PC By: Herbert P. Henderson, 11, Esquire Attorney I.D. # 56304 55 West High Street Elizabethtown, PA 17022 (717) 367-2800 VERFICATION The undersigned, Paul B. Whipple, Jr., hereby verifies and states that: 1. He is the Chief Financial Officer of Dawood Associates, Inc.; 2. He is authorized to make this Verification on behalf of Dawood; 3. The factual statements set forth in the foregoing document are true and correct to the best of his knowledge, information and belief; 4. He is aware that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Dated: T'4 ^ F q w(Ir Paul B. Whippl , . ?? f DAWOOD associates, inc. ENGINEERS PLANNERS SURVEYORS Statement 4/30/2007 Project # 005071.C0 Chesapeake Ready Mix, Inc 400 Girrard Avenue PO Box 1307 York PA 17403 HARRISBURG REGIONAL OFFIC Should you have any questions on the unpaid s that appear on this statement, or if you need to yment arrangements, please call Ron Stephens., at 717-728-8911 Project Name: Chesapeake Ready Mix - Batch Plant Due Date Dawood Invoice No. Amount Balance 10/27/2005 04/30/2007 INV #952. Orig. Amount $16,245.00. INV #FC 777. Orig. Amount $2,937.45. Finance Charge 16,245.00 2,937.45 16,245.00 19,182.45 The invoice(s) shown on this statement are sArinusly definquent. If payment, in full, is NOT received within 10 days, from the date of this statement, we will be turning this account over to our attorney for collection. You will be responsible for the payment of invoices, finance charges and our attorney fees. Please Note: All invoices you have received for this project have indicated our intent to collect interest on past due balances. Finance Charge 1 - 30 DAYS PAST 31-60 DAYS PAST 61-90 DAYS PAST OVER 90 DAYS Amount Due DUE DUE DUE PAST DUE 2,937.45 0.00 0.00 0.00 16,245.00 $19,182,45 addr: 2020 Good Hope Road Enola, PA 17025-1237 ph: 717.728.8911 fax: 717.728.8914 web: www.DawoodAssociates.com /V C) rIj ° CAD ? ? 3 ] ?J p, -t O-Z IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. Plaintiff VS. CHESAPEAKE READY MIX, INC. Defendant PRAECIPE TO THE PROTHONOTARY: No. 08-3565 Please reinstate the Complaint in the above referenced matter. Respectfully Submitted, By: VITerbert P. Henderson, II, Esquire 55 West High Street Elizabethtown, PA 17022 (717) 367-2800 ID#56304 ? w C 9 Z2 ?J { r% ?1 1?+ 0.rt.. r ,. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. NO. 08-3565 - Civil Term Plaintiff V. CHESAPEAKE READY MIX, INC. ENTRY OF APPEARANCE Please enter the appearance of Marc W. Witzig, Esquire and the law firm of Cunningham & Chernicoff, P.C. in the above-designated matter on behalf of Defendant Chesapeake Ready Mix, Inc. CUNNINGHAM & CHERNICOFF, P.C. By: Marc W. Witzig, Esquire Pa. Atty. Ident. No. 29929 Kelly M. Knight, Esquire Pa. Atty. Ident. No. 87365 2320 North Second Street P. O. Box 60457 Harrisburg, PA 17106-0457 Attorneys for Defendant, Chesapeake Ready Mix, Inc. Date: August 26, 2008 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. Plaintiff V. CHESAPEAKE READY MIX, INC. NO. 08-3565 - Civil Term CERTIFICATE OF SERVICE I, Stacy A. Sollenberger, secretary with the law firm of Cunningham & Chernicoff, P.C., hereby certify that on the 266 day of August, 2008, a true and correct copy of the Entry of Appearance was served by depositing same in the first-class U.S. Mail, postage prepaid, addressed to: Herbert P. Henderson, II, Esquire Pecht & Associates, P.C. 55 West High Street Elizabethtown, PA 17022 (Attorneys for Plaintiff CUNNINGHAM & CHERNICOFF, P.C. /,/) _2m;?x By: Stacy A. Soll berger P. O. Box 60457 Harrisburg, PA 17106-0457 -TI - TI n -71 -n Fi7 ?1 Marc W. Witzig, Esquire Penna. Atty. Ident. No. 29929 Kelly M. Knight, Esquire Penna. Atty. Ident. No. 87365 Cunningham & Chernicoff, P.C. 2320 North Second Street Harrisburg, PA 17110 Telephone: (717) 238-6570 Attorneys for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. Plaintiff V. CHESAPEAKE READY MIX, INC. NO. 08-3565 - Civil Term TO: Plaintiff, Dawood Associates, Inc. c/o Herbert P. Henderson, II, Esquire Pecht & Associates, P.C. 55 West High Street Elizabethtown, PA 17022 YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Preliminary Objections to Plaintiff's Complaint within twenty (20) days from the date of service hereof or judgment may be entered against you. Attorney f r Defendant, Chesapeake Rea y ' , c. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. Plaintiff V. CHESAPEAKE READY MIX, INC. NO. 08-3565 - Civil Term PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT NOW COMES Defendant, Chesapeake Ready Mix, Inc. ("Defendant" or "Chesapeake"), by and through its attorneys, Cunningham & Chernicoff, P.C., and states its Preliminary Objections to the Complaint of the Plaintiff, Dawood Associates, Inc. ("Plaintiff' or "Dawood"). Objection No.1 Count I: Insufficient Specificity Pa.R.Civ.P.1028(a)(3) 1. On August 15, 2008, the York County Sheriff, acting at the behest of, and as deputy for, the Cumberland County Sheriff, served a copy of the Complaint on Defendant. 2. Count I sounds in breach of contract, and incorporates Paragraphs 1 through 10, inclusive, of the Complaint as though therein again set forth at length. 3. Count I does not allege that any writing between Plaintiff and Defendant memorializes and/or contains an alleged contract between the parties. Instead, Count I alleges an oral contract. 2 4. In Paragraph 3 of the Complaint Plaintiff alleges that "on or about August, 2005, William H. Davis, a duly authorized agent of Chesapeake, did enter into or otherwise contract with Dawood to assist Chesapeake in various preliminary and final development plans in connection with the development of a concrete batch plant." The same allegation essentially is repeated in Paragraph 11 of the Complaint. 5. The Complaint does not identify the date on which the alleged oral contract was made between Plaintiff and Defendant. 6. The Complaint does not identify the officer or other authorized representative of Plaintiff who reached contract terms with William H. Davis in the latter's capacity as "duly authorized agent of Chesapeake". 7. The Complaint does not identify the terms and conditions of the alleged oral contract, including but not limited to scope of services, conditions precedent, rates of compensation and/or other remuneration, terms of payment, any time elements, and/or other components of the alleged oral contract. 8. Count I alleges that Chesapeake "breached its contract with Dawood" in that Chesapeake allegedly failed and refused to pay a certain "outstanding contract amount". 9. Plaintiff's allegations regarding the alleged oral contract between Plaintiff and Defendant are insufficiently specific to permit the preparation of a meaningful response to the Complaint. 10. The allegations contained in the Complaint do not contain averments of fact of sufficient specificity as to permit Defendant Chesapeake to adequately respond and as required by Pa.R.Civ.P. 1019(a), and, accordingly, Count I of the Complaint should be dismissed with prejudice. 3 Objection No. 2 Count I: Failure to Confirm to Law or Rule of Court Pa.R.C.P.1028(a)(2) 11. Rule 1019(i) of the Pennsylvania Rules of Civil Procedure mandates that when any claim "is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof'. 12. Paragraph 7 of the Complaint alleges that there had been "invoices provided" by Plaintiff to Chesapeake as concerns alleged work done by Plaintiff for Defendant. 13. None of the assorted "invoices" referenced in Paragraph 7 of the Complaint are attached to the Complaint. 14. Paragraph 8 of the Complaint references "past due invoices". 15. There is not attached to the Complaint any "past due invoices" as alleged in Paragraph 8 of the Complaint. 16. Because Plaintiff has based its claim contained in Count I upon a writing -- and specifically, in the form of "invoices" referenced in the Complaint -- the Complaint fails to conform to law and/or relevant rule of court, and accordingly, Count I of the Complaint should be dismissed with prejudice. Objection No. 3 Count I and H: Legal Insufficiency of Pleading Pa.R.C.P.1028(a)(4) 17. The Complaint contains alternate theories of recovery in favor of Plaintiff and against Defendant: Count I, based upon alleged breach of contract, and Count II, based upon alleged unjust enrichment. 4 18. Count H incorporates by reference all preceding paragraphs (1 through 14, inclusive) of the Complaint, including but not limited to those set forth in Count I. 19. Each of Count I and Count H utilizes Exhibit "A" which purports to recite and/or to impose a finance charge in the amount of $2,937.45, against Defendant. 20. Plaintiff has not alleged any facts supporting imposition of pre judgment interest upon, and collection of such from, the Defendant. 21. Plaintiff has not attached to the Complaint any writing between the parties that would serve as the basis for imposition of pre judgment interest upon, and collection of pre judgment interest from, Defendant. WHEREFORE, Defendant, Chesapeake Ready Mix, Inc., hereby respectfully requests that this Honorable Court enter an Order dismissing Counts I and H of Plaintiff's Complaint, or, in the alternative, order Plaintiff to file a more specific Amended Complaint with all writings upon which any claim is based within twenty (20) days after the date of entry of such Order, and further award to Defendant, Chesapeake Ready Mix, Inc., any and all such additional relief as is just and proper. Date: September 3, 2008 F:\Home\TLF\PRELABJ\chesapeake-dawood.wpd Respectfully submitted, CUNNINGHAM & CHERNICOFF, P.C. By. A A. Marc '#. Witzig, Esquire Attorney Ident. No. 29929 Kelly M. Knight, Esquire Attorney Ident. No. 87365 2320 North Second Street Harrisburg, PA 17110 (717) 238-6570 Attorneys for Defendant, Chesapeake Ready Mix, LLC 5 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DAWOOD ASSOCIATES, INC. Plaintiff V. NO. 08-3565 - Civil Term CHESAPEAKE READY MIX, INC. CERTIFICATE OF SERVICE I, Marc W. Witzig, attorney with the law firm of Cunningham & Chernicoff, P.C., hereby certify that on the 3' day of September, 2008, a true and correct copy of the PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT was served via first class U.S. Mail, postage prepaid, to: Herbert P. Henderson, 11, Esquire Pecht & Associates, P.C. 55 West High Street Elizabethtown, PA 17022 (Attorneys for Plaintif, ) Marc W. W tzig 2320 North Second Street Harrisburg, PA 17110 :_ ?a ? _ ?;,, ?? ry., f?? =T ?? -?: r ?" :_ --? ? d.. -, ?7+.? 1 ? , . - -? _? t,^t ?? .,.? SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-03565 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DAWOOD ASSOCIATES INC VS CHESAPEAKE READY MIX INC R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: CHESAPEAKE READY MIX INC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of YORK County, Pennsylvania, to serve the within COMPLAINT & NOTICE On September 8th , 2008 this office was in receipt of the attached return from YORK Sheriff's Costs: So answ Docketing 18.00 Out of County 9.00 Surcharge 10.00 R. T Kline Dep York County 34.12 S rif of Cumberland County Postage 1.52 72.64 ? g? 09/08/2008 PECHT & PECHT Sworn and subscribe to before me this day of , A. D. PENNY PRESS OF YORK, INC. Ph (717) 843-4078 Fax (717) 848-1360 COUNTY OF YORK OFFICE OF THE SHERIFF SERVI (717) 771-9601 45 N. GEORGE ST., YORK, PA 17401 SHERIFF SERVICE NiSTRUCT ONS PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASE TYPE ONLY L.E 1 THRU 12 DO NOT DETACH ANY COPES 1 PLAINTIFFISI Dawood Associates Inc 2 COURT NUMBER 08-3565 civil 3. DEFENDANT/S/ Chesapeake Ready Mix Inc 4. TYPE OF WRIT OR COMPLAINT NOTICE, Notice and Complaint SERVE 5 AMEape a OF IN IVIDUAReadL, COMPAMix yNY. COIncRPORATION, ETC TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD es 6. ADDRESS (STREET OR RFO WITH BOX NUMBER, APT NO. CITY, BORO. TWP. STATE AND ZIP CODE) AT 400 Girrard Avenue York, PA 17403 7. INDICATE SERVICE 0 PERSONAL 0 PERSON IN CHARGE DEPUTIZE O ERT MAI O 1ST CLASS MAIL O POSTED 0 OTHER NOW August 20 -8 I, SHERIFF OF COUNTY, PA, do hereby deputize the sheriff of York COUNTY to execute thi a return thereof according to law. This deputization being made at the request and risk of the plaintiff., SHERIFF Off U 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVtI]MUT OF CO. Cumberland Please mail return of service to Cumberland County Sheriff. Thank you. ADV FEE PAID BY ATTY. NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before sheriffs sale thereof 9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATURE HERBERT P . HENDERSON 10, TIEU@QNE NUMBER 11 DATE FILED 55 WEST HIGH ST., ELIZABETHTOWN, PA 17022 717-367-2800 7-31-08 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be matted). CUMBERLAND CO SHERIFF FOR USE OF 13. 1 acknowledge receipt of the writ -. DATE RECEIVED 15. Expiration/Hearing Date or complaint as indicated above. MJ MCGILL YCSO 5-08 8-30-08 16. HOW SERVED PERSONAL ( ) RESIDENCE ( ) POSTED( ) POErj j SHERIFF'S OFFICE ( ) OTHER SEE REMARKS BELOW 17. O 1 hereby ce" and return a NO FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.) 18. TITLE OF 1 ID SERVED ! ST ADDRESS HFRE IF NOT SHOWN ABOVE (Relationship to Defendant) 19. Date of Service 20 Time of Service lit b 1. ATTEMPTS Date Time Iles Int. Date Time Miles Int. Date Time Miles Int. Date rrne Miles Int. Date Time Miles Int. Date Time Miles Int. Ix-C3 III3 tc? 22 WAS SERVED AT 435 EAST LOCUST STREET, DALLASTOWN, PA 17313 23. Advance Costs 24. ?ervice Costs 25. N/F 2(6. Mileage $100 `0O Il, 27 hostage 28. Sub Total 29. Pound 30. Nott&ary/? 31. Surchg. . _DO 32. Tot. Costs 33 Costs Due Refund Check No. • L01 34. Fonftn County Costs 35. Advance Costs 36 Service Costs 37. Notary Cert. 38. Mileage/PostagelNot Found 39. Total Costs 40. Costs Due or Refund 41. AFFIRMED and subscribed to bet a me this to ?' w?srserca pA 4 42. day of AUG-. • ; 44- Signature of 4' 20UB 11a. De. Sheriff f h j y 46. Signature of York 47. DATE County Sheriff 3LIC RICHARD PAE 52 B R S R F V i_f fdT? 8-27-0 48. Signature of Foreign 49 DATE i r r s-tic v. r i- .: 3? ! r r David D. Buell Prothonotary KirkS. Sohonage, ESQ Solicitor &nee X Simpson 15T Deputy Prothonotary Irene E. 94orrow 2„d Deputy Prothonotary office of the 1tothonotary Cumberland County, (Pennsylvania 083SL,24S CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 25TH DAY OF OCTOBER, 2011, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE -THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P 230.2 BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square • Suite 100 • Carlisle, P,4 17013 • (717 240-6195 • Fax (717 240-6573