Loading...
HomeMy WebLinkAbout08-3612 LV CEILING & PARTITION CO., Plaintiff V. WESTHAFER CONSTRUCTION, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. U k 3 G 1 a ?? 1 c NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentaan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otrqa reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 LV CEILING & PARTITION CO., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION C-w? - WESTHAFER CONSTRUCTION, INC., : NO. 3 &12 Defendant COMPLAINT AND NOW comes LV Ceiling & Partition Co., by and through its attorneys, and files this Complaint, averring as follows: 1. Plaintiff is LV Ceiling & Partition Co. ("LV Ceiling"), a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with offices located at 1941 Horseshoe Pike, Annville, Pennsylvania. 2. Defendant is Westhafer Construction, Inc. ("Westhafer"), a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with offices located at 120 West Allen Street, Mechanicsburg, Pennsylvania. 3. In early April, 2007, LV Ceiling, through Kirk Shertzer, a salesperson and estimator, and Westhafer, through Steve Westhafer, President, agreed during a telephone conversation that LV Ceiling would furnish and install metal studs, drywall, and acoustical ceilings for Westhafer in order to convert an Eckerd Drug office into a Rite Aid office at the Valley Green Mall located in or near Etters, York County, Pennsylvania, in return for which Westhafer agreed to pay LV Ceiling the lump sum of $42,987.00. 4. LV Ceiling completed the work pursuant to the parties' understanding on May 1, 2007. As of the completion of the work, LV Ceiling had satisfied all conditions precedent and had otherwise performed all obligations on its part to be performed. In addition, Westhafer never notified LV Ceiling of any "deficiency item" with respect to LV Ceiling's work, as that phrase is used in the Contractor and Subcontractor Payment Act, 73 Pa.Stat.Ann. §501 et seq. , and instead, all of LV Ceiling's work was accepted and, upon information and belief, Westhafer was paid in full for such labor and materials by the owner. 5. On May 16, 2007, LV Ceiling mailed an invoice to Westhafer in the full amount of $42,987.00, for the labor and materials furnished. A true and correct copy of the aforesaid invoice is hereto attached marked as Exhibit A. 6. Despite numerous demands, Westhafer has failed to pay any part of the invoice to date, leaving a principal balance due and owing of $42,987.00. 1. COUNT ONE-BREACH OF CONTRACT 7. The averments of Paragraphs 1 through 6 of this Complaint are hereby adopted by reference and incorporated herein. 8. The amount demanded does not exceed the maximum requiring submission to compulsory arbitration. WHEREFORE, LV Ceiling demands judgment in its favor and against Westhafer, in the principal amount of $42,987.00, plus prejudgment interest from June 15, 2007, plus costs of suit. II. COUNT TWO-ACCOUNT STATED 9. The averments of Paragraphs 1 through 8 of this Complaint are hereby adopted by reference and incorporated herein. 10. In response to the invoice submitted to it by LV Ceiling, Westhafer never contested the validity of the debt or the amount thereof. Instead, in a telephone conversation which 2 occurred on July 18, 2007, Steve Westhafer, President of Westhafer, assured Sharon DiFava, Corporate Secretary of LV Ceiling, that Westhafer would pay LV Ceiling's bill in full. 11. Despite the assurance provided by Westhafer, it has nonetheless failed to pay. 12. Moreover, LV Ceiling also sent numerous statements, past-due notices, and correspondence to Westhafer, all of which referenced the project, the debt, and the amount. Westhafer, in response to all of the foregoing, never disputed the debt or the amount thereof. 13. Westhafer has simply failed to pay a debt which it has never disputed. WHEREFORE, LV Ceiling demands judgment in its favor and against Westhafer, in the principal amount of $42,987.00, plus prejudgment interest from June 15, 2007, plus costs of suit. III. COUNT THREE-QUANTUM MERUIT/UNJUST ENRICHMENT 14. The averments of Paragraphs 1 through 13 of this Complaint are hereby adopted by reference and incorporated herein. 15. The fair and reasonable value of the labor and materials provided by LV Ceiling to Westhafer, which has benefited Westhafer by permitting it to complete its own obligations on the project to the owner, is $42,987.00. WHEREFORE, LV Ceiling demands judgment in its favor and against Westhafer, in the principal amount of $42,987.00, plus prejudgment interest from June 15, 2007, plus costs of suit. 3 IV. COUNT FOUR-SUIT TO COLLECT PAYMENT DUE UNDER CASPA 16. The averments of Paragraphs 1 through 15 of this Complaint are hereby adopted by reference and incorporated herein. 17. Section 507(c) of CASPA, 73 Pa.Stat.Ann. §507(c) (Pardon's Supp. 2008), provides that payment to subcontractors is due within 14 days after receipt of payment from the owner, which receipt of payment is presumed pursuant to Section 507(b) of CASPA if the contractor does not disclose the dates payment is due from the owner. In the current case, Westhafer did not disclosed such payment due dates and, therefore, it is presumed under CASPA that Westhafer was paid for LV Ceiling's work. Alternatively, in fact, Westhafer has been paid by the owner for LV Ceiling's work. 18. Contrary to its duties under Section 507(c) of CASPA, Westhafer has not paid LV Ceiling. 4 WHEREFORE, LV Ceiling demands judgment in its favor and against Westhafer, in the principal amount of $42,987.00; plus prejudgment interest at the rate of 1% per month, from June 15, 2007, pursuant to Section 507(d) of CASPA; plus penalties at the rate of I% per month, from June 15, 2007, pursuant to Section 512(a) of CASPA; plus attorneys' fees and expenses, pursuant to Section 512(b) of CASPA. Dated: 61-7/07 Of Counsel Beckley & Madden 212 North Third Street P.O. Box 11998 Harrisburg, PA 17108 (717) 233-7691 Respectfully submitted, J G. Milakovic lX,,J Thomas S. Beckley Attorneys for Plaintiff ? - ?0 ? ?"" Try' UC:3f ?eCke &ddQ211 ??Pr- q FAQ{ NO. 71172331-2740 VERMCATION 1, Sharon K. Dil, a.va, hereby verify that I am an adult individual; that i am authorized to make this verification in behalf of LV Ceiling & Partition Co., the Plaintiff in the foregoily Complaint; and that the facts set forth therehi are true to the best of my knowledge, in.fomiation, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unworn falsification to authorities. Dated; (?? '-L' ?' --t I V'- aron K. DiFava, Corpor a Se etFUy P, Q3/38 ???' b'? ? L. V. CEILING & PARTITION CO. 1941 HORSESHOE PIKE ANNVILLE, PENNSYLVANIA 17003 PHONE (717) 867-4461 B I WESTHAFER CONSTRUCTION INC L 120 WEST ALLEN STREET L MECHANICSBURG PA 17055 T O INVOICE NO* 10970 PAGE 1 J 2407KDS O RITE AID OFFICES B VALLEY GREEN MALL N O ?rv?a?? ''3'34 *i^, '?x•?g.°?zac`t'° ..?...'?? :a;c"..?'fa SrF `?P"'.'?,,.?. UNIT !4! Pft t ' sd ti a? S -t x }s 42, 987. e ,m E .cri,t'{??'rlts? f r~^f '.r h ? 3 C? ?r x'`^ r r ,f, ar M .7 ? " f ? ? ^ 4?v' ?F' ^? h ?i u T ?.w c tr ., by L. V. CEILING & PARTITION CO. ?1R?h-? a Y i ? ? .? c ry -ra ? SHERIFF'S RETURN - REGULAR CASE NO: 2008-03612 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LV CEILING & PARTITION CO VS WESTHAFER CONSTRUCTION INC SHAWN HARRISON Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon WWQTWAP7R MNSTRUCTION INC the DEFENDANT , at 0009:18 HOURS, on the 23rd day of June , 2008 at 120 WEST ALLEN STREET MECHANICSBURG, PA 17055 by handing to STEVEN WESTHAVER OWNER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 Service 10.00 Affidavit 00 Surcharge 10.00 R. Thomas Kline Postage ay" •42 7/03/61' `38.42 06/23/2008 BECKLEY & MAD Sworn and Subscibed to By: before me this day Deputy Sheriff of A.D. ,, 0 LV CEIILNG & PARTITION CO., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION WESTHAFER CONSTRUCTION, DOCKET NUMBER 08-3612 INC., Defendant PLAINTIFF'S MOTION TO ENTER JUDGMNET AGAINST DEFENDANT PURSUANT TO PA.R.C.P. No. 1037 AND NOW comes the Plaintiff, LV Ceiling & Partition Co. ("LV Ceiling"), who, by and through its attorneys, John G. Milakovic, Esquire, Thomas S. Beckley, Esquire, and Beckley & Madden, of Counsel, files this Motion to Enter Judgment Against Defendant Pursuant to Pennsylvania Rule of Civil Procedure 1037, and, in support thereof, avers as follows: 1. On June 17, 2008, LV Ceiling filed a Complaint against Defendant, Westhafer Construction, Inc. ("Westhafer"). 2. In its Complaint, LV Ceiling averred that it furnished and installed metal studs, drywall and acoustical ceilings for Westhafer relating to a project at the Valley Green Mall. In return, Westhafer agreed to pay to LV Ceiling the principal sum of $42,987.00. 3. Rather than defend against LV Ceiling's Complaint, on September 3, 2008, Westhafer executed a written Judgment Note in favor of LV Ceiling in the principal amount of $42,987.00. Payments were to be made over time as set forth in the Judgment Note. A true and correct copy of the Judgment Note is incorporated herein, made a part hereof, and attached hereto as Exhibit A. 4. Pursuant to the terms of the Judgment Note, Westhafer was to make an initial payment to LV Ceiling in the amount of $3,500.00, on or before August 29, 2008. 5. On September 2, 2008, Westhafer mailed a check to LV Ceiling in the amount of $3,500.00 (the initial payment). A true and correct copy of Westhafer's check is attached hereto as Exhibit B. 6. On or about September 16, 2008, Westhafer's check was returned to LV Ceiling for "insufficient funds." A true and correct copy of the notice LV Ceiling received from its bank stating that Westhafer's check was returned is attached hereto as Exhibit C. 7. In the event Westhafer defaults, the Judgment Note provides as follows: And further, should Debtor default in any payment set forth herein, Debtor does hereby authorize and empower any attorney of any court of record in Pennsylvania or elsewhere immediately to appear for and enter judgment against it, either in the action captioned as LV Ceiling & Partition Co. v. Westhafer Construction, Inc., No. 08-353612 Civil Term (Cumberland County), and/or in a new action for the entry of a confessed judgment, or in both, for the above principal sum less any payments made, with or without declaration, with Two Percent per Month (20/o/month) Interest and Penalties on the aforesaid sum, from June 15, 2007, with costs of suit, release of errors, without stay of execution, and with Fifteen Percent (15%) of the principal sum listed above added as reasonable attorneys' fees. And further, Debtor hereby waives and releases all relief from any and all appraisements, stays of exemptions under the laws of any state now in force or to be passed. 2 Exhibit A, hereto. 8. Pennsylvania Rule of Civil Procedure 1037(c) provides as follows: "[i]n all cases, the court on motion of a party, may enter an appropriate judgment against a party upon default of admission." 9. The Judgment Note expressly authorizes the Court to enter judgment against Westhafer due to Westhafer's failure to abide by its terms. 10. As set forth in the Judgment Note, Westhafer has authorized LV Ceiling to appear before the Court and have judgment entered against Westhafer in the following amount: Principal Amount: Interest and Penalties (from 6/15/07): Attorneys' Fees: (15%) Costs: Total: $42,987.00 $12,896.10' $ 6,448.05 $ 116.92 $62,448.07 11. Given that Westhafer has failed to abide by the Judgment Note, and has authorized the Court to enter judgment against it, the Court should enter judgment against Westhafer in the amount of $62,448.07. ' In addition to the Judgment Note, penalties are authorized under the Contractor and Subcontractor Payment Act. 73 P.S. § 501 et seq. 3 WHEREFORE, Plaintiff, LV Ceiling & Partition Co., hereby requests the Court to enter judgment in its favor and against the Defendant, Westhafer Construction, Inc., in the principal amount of $62,448.07. DATED: September 16, 2008 Respectfully submitted Of Counsel BECKLEY & MADDEN 212 North Third Street Post Office Box 11998 Harrisburg, PA 17108-1998 (717) 233-7691 4GMilak?ovic, Esquire Thomas S. Beckley, Esquire Attorneys for Plaintiff LV Ceiling & Partition Co. 4 SEP-18-2008 TU 0256 PM Beckley & Hidden FAN NO. 7172333744 P. 07 1, Sbaron K. DiFava, hereby verify that I am an adult individual; ftt I ant authorized to matte this verification on behalf of LV Ceiling do Partition Co.; that I have mead the foregoing document. and that the facts set forth in the foregoing document are mw to the best of my knowledge, or information and belief. I understand that falu statements herein are made subject to the penalties of 18 Pa.C.S. $ 4904 relating to imsworn fidsification to authorities. LV Ceiling dt Partition Co. Sharon 1C. Di.Fava, 5 JUDGMENT NOTE $42,987.00 2008 For value received, and intending to be legally bound, WESTHAFER CONSTRUCTION, INC. ("Debtor" hereafter), promises to pay to LV CEILING & PARTITION CO., the principal sum of Forty-Two Thousand Nine Hundred Eighty-Seven Dollars ($42,987.00), as follows: 1. The sum of $3,500.00 on or before August 29, 2008; 2. The sum of $9,487.00 on or before September 30, 2008; 3. The remaining principal balance of $30,000.00, payable in 20 equal installments of $1,500.00, beginning on October 1, 2008, and payable thereafter on the first of each month until the balance is paid in full; and 4. Time is of the essence, without defalcation. And further, should Debtor default in any payment set forth herein, Debtor does hereby authorize and empower any attorney of any court of record in Pennsylvania or elsewhere immediately to appear for and enter judgment against it, either in the action captioned as LV Ceiling & Partition Co. v. Westhafer Construction, Inc., No. 08-3612 Civil Term (Cumberland County), and/or in a new action for the entry of a confessed judgment, or in both, for the above principal sum less any payments made, with or without declaration, with Two Percent per Month (2%/month) Interest and Penalties on the aforesaid sum, from June 15, 2007, with costs of suit, release of errors, without stay of execution, and with Fifteen Percent (15%) of the principal sum listed above added as reasonable attorneys' fees. And further, Debtor hereby waives and releases all relief from any and all appraisements, stays or exemptions under the laws of any state now in force or hereafter to be passed. IN WITNESS WHEREOF, intending to be legally bound, Debtor has caused this Judgment Note to be executed on the day and year above written. WESTHAFER CONSTRUCTION, INC. Byrn Name and Title Attest: Name and Title WESTHAFER CONSTRUCTION, INC 120 WEST ALLEN ST MECHANICSBURG, PA 17055 PH # 717-697-6305 TO THE Z L)I E ` /',V? ORDE OF ? f r l/? DOLLARS a.u. Camp Hid. PA 17011 Igh-mwityw FOR „p II¦45445911' 1:03 13 18?B?I: 2 20 3000 30 3110 454459 60-1878/313 Q BRANCH 3 DATE ` ? n e? ADVICE FOR UNPAID DEPOSITED ITEMS OF ICE/BRANCH: 408/408 ACCT. NO. ACCOUNT TYPE: DEMAND DEPOSITS THE FOLLOWING ITEMS HAVEzBEEN RETURNED. WE ARE CHARGING YOUR ACCOUNT FOR ITEMS RETURNED # ITEMS: UNPAID AS LISTED HEREIN. THE HANDLING FEE OF $10.00 AMOUNT: ITEM WILL BE INCLUDED IN YOUR NEXTACCT ANALYSIS FEE: TOTAL : Reason: NSF LV CEILING •& PARTITION COMPANY INC FULTON BANK 1941 HORSESHOE PIKE 1695 STATE STREET ANNVILLE PA 17003-$832 EAST PETERSBURG PA o sirgo o ru Th 1? I N LEGAL COPY of 1*4 w? ou can us• It the 0 , u9o rillnil aiie0 M 9 9 O ?` RETURN RCASON•X REFER TO IMAGE 0 or O q0 C 0 C3 m 0 W v a W r W row O c3 Nd 0 so ba n J T CDQ?' Cx?O?J0 O re Page 1 of 1 09/15/2008 1 $3,500.00 $0.00 $3,500.00 .4 17520 1i4fe0 mum of • 3,00,.,.' CASA IL 4oa ii sitY'PIC ??o?gaaiai• #? 4i:0 3 3 i8 ?8 ?v: a? 2 20 3000 30 3r 100000 3 50000.1' e W a W v a 1 d d ? o° oNa f+Q1'd W'vr ?i?00vie ?S? a4o tr°+ r a t ??. W i W a w, ooO.Aaj? O 1% In? • ? NtfitN ' ? 1/fw +rd wrra.w.w? t?lear•rIb i11 CERTIFICATE OF SERVICE I, Thomas S. Beckley, Esquire, hereby certify that on this day a true and correct copy of the foregoing document was served upon the person and in the manner indicated below: SERVICE BY FIRST CLASS MAIL Michael L. Bangs, Esquire Bangs Law Office 429 South 18`x' Street Camp Hill, PA 17011 Westhafer Construction, Inc. 120 West Allen Street Mechanicsburg, PA 17055 DATED: September 17, 2008 Thomas S. Beckley, Esquire ra rTl 35 __j "I'D 3 rn co 0 LV CEIILNG & PARTITION CO., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION WESTHAFER CONSTRUCTION, DOCKET NUMBER 08-3612 INC., Defendant PLAINTIFF'S AMENDMENT TO ITS MOTION TO ENTER JUDGMENT AGAINST DEFENDANT PURSUANT TO PA.R.C.P. No. 1037 AND NOW comes the Plaintiff, LV Ceiling & Partition Co. ("LV Ceiling"), who, by and through its attorneys, John G. Milakovic, Esquire, Thomas S. Beckley, Esquire, and Beckley & Madden, of Counsel, files this Amendment to its Motion to Enter Judgment Against Defendant Pursuant to Pennsylvania Rule of Civil Procedure 1037, and, in support thereof, avers as follows: 1. On June 17, 2008, LV Ceiling filed a Complaint against Defendant, Westhafer Construction, Inc. ("Westhafer"). 2. In its Complaint, LV Ceiling averred that it furnished and installed metal studs, drywall and acoustical ceilings for Westhafer relating to a project at the Valley Green Mall. In return, Westhafer agreed to pay to LV Ceiling the principal sum of $42,987.00. 3. Rather than defend against LV Ceiling's Complaint, on September 3, 2008, Westhafer executed a written Judgment Note in favor of LV Ceiling in the principal amount of $42,987.00. Payments were to be made over time as set forth in the Judgment Note. A true and correct copy of the Judgment Note is incorporated herein, made a part hereof, and attached hereto as Exhibit A. 4. Pursuant to the terms of the Judgment Note, Westhafer was to make an initial payment to LV Ceiling in the amount of $3,500.00, on or before August 29, 2008. 5. On September 2, 2008, Westhafer mailed a check to LV Ceiling in the amount of $3,500.00 (the initial payment). A true and correct copy of Westhafer's check is attached hereto as Exhibit B. 6. On or about September 16, 2008, Westhafer's check was returned to LV Ceiling for "insufficient funds." A true and correct copy of the notice LV Ceiling received from its bank stating that Westhafer's check was returned is attached hereto as Exhibit C. 7. In the event Westhafer defaults, the Judgment Note provides as follows: And further, should Debtor default in any payment set forth herein, Debtor does hereby authorize and empower any attorney of any court of record in Pennsylvania or elsewhere immediately to appear for and enter judgment against it, either in the action captioned as LV Ceiling & Partition Co. v. Westhafer Construction, Inc., No. 08-353612 Civil Term (Cumberland County), and/or in a new action for the entry of a confessed judgment, or in both, for the above principal sum less any payments made, with or without declaration, with Two Percent per Month (2%/month) Interest and Penalties on the aforesaid sum, from June 15, 2007, with costs of suit, release of errors, without stay of execution, and with Fifteen Percent (15%) of the principal sum listed above added as reasonable attorneys' fees. And further, Debtor hereby waives and releases all relief from any and all appraisements, stays of exemptions under the laws of any state now in force or to be passed. 2 Exhibit A, hereto. 8. Pennsylvania Rule of Civil Procedure 1037(c) provides as follows: "[i]n all cases, the court on motion of a party, may enter an appropriate judgment against a party upon default of admission." 9. The Judgment Note expressly authorizes the Court to enter judgment against Westhafer due to Westhafer's failure to abide by its terms. 10. As set forth in the Judgment Note, Westhafer has authorized LV Ceiling to appear before the Court and have judgment entered against Westhafer in the following amount: Principal Amount: Interest and Penalties (from 6/15/07): Attorneys' Fees: (15%) Costs: Total: $42,987.00 $12,896.10' $ 6,448.05 $ 116.92 $62,448.07 11. Given that Westhafer has failed to abide by the Judgment Note, and has authorized the Court to enter judgment against it, the Court should enter judgment against Westhafer in the amount of $62,448.07. 12. A judge has not been involved in this case. ' In addition to the Judgment Note, penalties are authorized under the Contractor and Subcontractor Payment Act. 73 P.S. § 501 et seq. 3 13. On September 16, 2008, counsel for LV Ceiling emailed counsel for Westhafer stating that Westhafer's check had bounced, and that LV Ceiling was going to request that a judgment be entered against Westhafer. Counsel for Westhafer did not respond to the email. WHEREFORE, Plaintiff, LV Ceiling & Partition Co., hereby requests the Court to enter judgment in its favor and against the Defendant, Westhafer Construction, Inc., in the principal amount of $62,448.07. DATED: September 23, 2008 Of Counsel BECKLEY & MADDEN 212 North Third Street Post Office Box 11998 Harrisburg, PA 17108-1998 (717) 233-7691 Respectfully submitted 4 L'--? J G. Milakovic, Esquire Thomas S. Beckley, Esquire Attorneys for Plaintiff LV Ceiling & Partition Co. 4 SEP-16-2006 TUE 02;56 PM r k1er & Madden FAX N0. ,7''2333740 p 14 1 ! oTlnk, I, Shawn K. Wave, hereby verify that I ace an adult individual; that I am. authorized to make tbis verification on bohalf of LV Ceiling & Partition Co.; that I havo read the foregoing documout, and tbat the filets set forth in the foregoing document are true to the best of my knowledge, or information and belief. I understucd that false statements herein are made subject to the penalties of 19 Pa.C.S. § 4904 relating to uusvmm fsleification to authorities. LV Ceiling & Partition Co. P. 07 _- ByKQCJ!L?L Sbaron K. DiFava, 5 JUDGMENT NOTE $42,987.00 )2008 For value received, and intending to be legally bound, WESTHAFER CONSTRUCTION, INC. ("Debtor" hereafter), promises to pay to LV CEILING & PARTITION CO., the principal sum of Forty-Two Thousand Nine Hundred Eighty-Seven Dollars ($42,987.00), as follows: 1. The sum of $3,500.00 on or before August 29, 2008; 2. The sum of $9,487.00 on or before September 30, 2008; 3. The remaining principal balance of $30,000.00, payable in 20 equal installments of $1,500.00, beginning on October 1, 2008, and payable thereafter on the first of each month until the balance is paid in full; and 4. Time is of the essence, without defalcation. And further, should Debtor default in any payment set forth herein, Debtor does hereby authorize and empower any attorney of any court of record in Pennsylvania or elsewhere immediately to appear for and enter judgment against it, either in the action captioned as LV Ceiling & Partition Co. v. Westhafer Construction, Inc., No. 08-3612 Civil Term (Cumberland County), and/or in a new action for the entry of a confessed judgment, or in both, for the above principal sum less any payments made, with or without declaration, with Two Percent per Month (2%/month) Interest and Penalties on the aforesaid sum, from June 15, 2007, with costs of suit, release of errors, without stay of execution, and with Fifteen Percent (15%) of the principal sum listed above added as reasonable attorneys' fees. And further, Debtor hereby waives and releases. all relief from any and all appraisements, stays or exemptions under the laws of any state now in force or hereafter to be passed. IN WITNESS WHEREOF, intending to be legally bound, Debtor has caused this Judgment Note to be executed on the day and year above written. WESTHAFER CONSTRUCTION, INC. Byp? Name and Title e-7r Attest: Name and Title ' r t F H ? ? ?„ ? 323 00 o 0 7ugj C.) z rm 0 M 0 0 0 rm 0 ti ti o- cc a M a rm D ui J J Sri z O V? 0 D z 0 a ec~a cu V Wy 40 nQ < O7 X Pt; W3 n o ?a LL Q ? W 2 aOg ir O 1 ADVICE FOR UNPAID DE;T"YP.MDE=MAND OSITED ITEM Page 1 of 1 dww?wwm ACCT. NO OFFICE/BRANCH: ? ACCOUNT DEPOSITS 09/15/2008 THE FOLLOWING ITEMS HAVE"B£EN RETURNED. WE ARE CHARGING YOUR ACCOUNT FOR ITEMS RETURNED # ITEMS: 1 UNPAID AS LISTED HEREIN. THE HANDLING FEE OF $10.00 AMOUNT: $3,500.00 ITEM WILL BE INCLUDED IN YOUR NEXTACCT ANALYSIS . FEE: $0.00 TOTAL: $3,500.00 Reason: NSF LV CEILING •& PARTITION COMPANY INC 1941 HORSESHOE PIKE ANNVILLE PA 17003--8832 *0310000400 so 01115/BDOG a ?31MG8T4?? ru This I g N kEVL COPY o f f f your s ou wo l d mi o a wey y use theorfyfasl oheek. O Ir b O ? RETURN REASON-X REFER TO IMAGE p IT el' .+4 C2 .e 0 0 pq m 0 W v O W M+ W d Oti so 6+ A J -%w03 0 pit !`4? ---- ?g ?'4fti4i9r i0i1i1ifilY'P?C O?OifaOp,ioir . 3'iDQ00r 440 3 & 3 &8 ?8 ?e: V e W W CI W s , %j , ..lv: %wwpw . . FULTON BANK 1695 STATE STREET EAST PETERSBURG PA 17520 464M rarw. 'a IL me 2 20 3000 30 31' v'0000 3 500009' P 0 'w -A A. a + ? ? a a a et s W W + O ? W O + + Ma. p o Ilia ro rMrarw+a? MiMOOdM fr T w JOeOW ' PH, ?M+?mfsJr p ?1n? ffymm ar ?'r-.i -. ti 17 O Is a • lifw..?w.tawsanrdY?tM1eAY•ffllfisNlM d CERTIFICATE OF SERVICE I, Thomas S. Beckley, Esquire, hereby certify that on this day a true and correct copy of the foregoing document was served upon the person and in the manner indicated below: SERVICE BY FIRST CLASS MAIL Michael L. Bangs, Esquire Bangs Law Office 429 South 18t' Street Camp Hill, PA 17011 Westhafer Construction, Inc. 120 West Allen Street Mechanicsburg, PA 17055 G'1/DATED: September 23, 2008 y t r/ Thomas S. Beckley, Esquire {"? ? ?...- ?'i','.7 ` F ?? ] ? ?°.? ,?yq F f R ?^ t 1 rr?M .y pe ? ? ?Y _. Y? .. .... :?'? , 4`i ,,.,.. s t F.i '• } .? LV CEILING & PARTITION CO., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL ACTION - LAW NO. 08-3612 CIVIL WESTHAFER CONSTRUCTION, INC., : Defendant IN RE: PLAINTIFF'S MOTION TO ENTER JUDGMENT ORDER AND NOW, this ys day of October, 2008, upon consideration of the foregoing petition, it is hereby ordered and decreed as follows: 1. A rule is issued upon the defendant 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; 5. argument shall be held on Thursday, November 6, 2008, at 2:00 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, John Milakovic, Esquire Thomas S. Beckley, Esquire For the Plaintiff Westhafer Construction, Inc. k V, -4 ? ?'? r, c? ?? ?'f, "F ',`? ???. ? Y 1 .; i , ?t ? C d.- ; ? ? i 1^ . ?`? ?? ? C...i LV CEIILNG & PARTITION CO., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. WESTHAFER CONSTRUCTION, INC., Defendant CIVIL ACTION DOCKET NUMBER 08-3612 ORDER AND NOW, this 4 4 day of N'ov4.. , 2008, after consideration of Plaintiff LV Ceiling & Partition Co.'s Motion to Enter Judgment Against Defendant Pursuant to Pennsylvania Rule of Civil Procedure 1037, it is hereby ORDERED that said motion is GRANTED. Judgment is hereby entered in favor of Plaintiff, LV Ceiling & Partition Co., and against Defendant, Westhafer Construction, Inc., in the principal amount of $59,279.72. Interest and penalties shall continue to accrue until the judgment is satisfied. Z4 dz,.- , J. 6`? ? D ? ? ?? 3 ?# c? SAY' ?n -- ?. i. ?? ? ?? (W ` m .: ,` -? ? .,,,c .?