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HomeMy WebLinkAbout04-1081LANDIS DYER COMPLAINT / DISK 69 LANDIS, INC., VS. W. R. OYER, INC., Plaintiff ) Defendant ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004 -- / UP( CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 LANDIS, INC., VS. W. R. OYER, INC., Plaintiff ) Defendant ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004 - 16.01 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT AND NOW comes the Plaintiff, Landis, Inc., by and through its counsel, Michael L. Bangs, Esquire, and in support thereof files the following Complaint: 1. Plaintiff, Landis, Inc., is a Pennsylvania corporation with its principal office located at Woodcraft Drive, Post Office Box 196, Mt. Holly Springs, Cumberland County, Pennsylvania (hereinafter "Landis"). 2. Defendant, W. R. Oyer, Inc., is a Pennsylvania corporation with its principal office located at 207 Homewood Avenue, Waynesboro, Franklin County, Pennsylvania (hereinafter "Oyer"). 3. Landis is in the business of, among other things, providing structural steel, structural steel erection, steel fabrication, engineering and other related projects. 4. On or about October 1,1 2002, at the request of Oyer, Landis submitted a proposal to Oyer for certain structural steel and erection to be performed on the Cummins Diesel Engines East Shore Associate Building (hereinafter "Project"). Attached hereto and marked as Exhibit A is a true and correct copy of the proposal. 5. Oyer accepted the proposal of Landis and Landis commenced work on the Project in accordance with the terms of the proposal. 6. All of the materials supplied by Landis and work performed by Landis were in accordance with the proposal and were completed in a good and workmanlike fashion. 7. During the course of the Project, and while Landis was on site, Oyer requested that Landis perform additional work on the Project that was not contemplated by the original proposal. 8. The additional work included, but was not limited to, supplying and installation of X- bracing on the Project. 9. Oyer requested that Landis perform the work while Landis was on site and promised to pay Landis for the work performed. 10. Landis designed and supplied the X-bracing on the Project on a time and material basis and Oyer agreed to pay for that work on a time and material basis. COUNTI BREACH OF CONTRACT 11. Paragraphs 1 through 10 are incorporated herein by reference as if more fully set forth. 12. Upon completion of the extra work performed by Landis on the Project, Landis submitted an invoice to Oyer for that work which included the design, supply and installation of the X-bracing on the Project. Attached hereto and marked as Exhibit B is a true and correct copy of the invoice. 13. The amount of the invoice for the extra work was $11,650.00. 14. Oyer paid a portion of the invoice in the amount of $1,404.29 leaving a balance of $10,245.71. 2 15. Despite repeated demands, Oyer has failed or refused to pay for the additional work performed by Landis on the Project as requested by Oyer. 16. In addition to Oyer's failure to pay the invoice for the additional work in full, Oyer improperly deducted $25.00 from another invoice for no explained reason. 17. Oyer's failure to pay all of the invoices in a timely fashion and in accordance with its terms is a breach of the agreement between Landis and Oyer. 18. Landis has been damaged in the amount of $10,270.71 as a result of the breach of the agreement by Oyer. 19. Landis demands damages against Oyer as a result of the breach in the amount of $10,270.71. WHEREFORE, Landis demands judgment against Oyer in the amount of $10,270.71 plus interest plus costs of suit. COUNT II UNJUST ENRICHMENT 20. Paragraphs 1 through 19 are incorporated herein by reference as if more fully set forth. 21. The prices charged for the work performed by Landis and the materials supplied are just and reasonable and are the prices which the agents, servants and employees of Oyer, acting within the scope of their employment, orally promised to pay for those services and materials. 22. Oyer has failed or refused to pay for the services and materials received by Oyer despite repeated demands by Landis. 23. Oyer has been unjustly enriched at Landis' expense by its failure to pay for the services and materials it has received in the amount of $10,270.71 plus interest as a result of Oyer's acceptance of the services and materials supplied by Landis and used by Oyer on the Project. WHEREFORE, Landis demands judgment against Oyer in the amount of $10,270.71 plus interest plus costs of suit. Respectfully submitted, ??? 7 MICH ELL. BANGS Attorney for Plaintiff 429 South 18th Street Camp Hill, PA 17011 (717) 730-7310 Supreme Court ID #41263 4 LANDIS, INC / W R OVER, INC. COMPLAINT / DISK 68 VERIFICATION STEVEN J. CAPUANO, being duly sworn according to law, deposes and says that he is the President of Landis, Inc., a Pennsylvania corporation, and that as such officer, he is authorized to make this Verification on its behalf and that the facts set forth in the foregoing Complaint are true and correct to the best of his knowledge, information and belief, and further understands that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. LANDIS, BY: STESGL CAPUANO, President EXHIBIT A 6 „40V-13-2003 1429 'U LAND IS INC Additions and Renovations to Cummins Diesel Engines East Shore Associate Building 1hrrisburg, PA October 11, 2002 LB-1860-02 717 486 4104 P.02 Landis, Inc. proposes to complete the following Scope of Work per Robert T. Eckels Architect drawings A.1•, A.2, A.5, A.6, and A.7 dated October 1, 2002. Our lump sum price for the following work is (tax included) -- S .00 i SCOPE OF WORK BY LANDIS. INC. A. Structural Steel Supplied and Erected 1. 9.2 tons of structural steel columns (Prime paint std shop prime) 2. 28 joist girders (Prime paint) 3. 125 pcs short span steel joist (Prime paint) 4. 196 squares of 1 ''/_" 22 ga. type "B" roof deck painted 5. Anchor bolts (No paint / Delivered only) 6. 104 pes of L3 x 3 x''/+ outriggers (Prime paint) EXCLUSIONS BY LANDIS, INC. 1. Metal siding or wall girts Thank you for thg opportunity to quote. Sincerely, Landis, In By: President 3l? r, - ?M/V WOODCRAFT DRIVE / P.O. BOX 186 / MT. HOLLY SPRINGS, PA 17065 .wn -.gyn. . rAv YID, nec A4AA I , ann qnc 'I f.O'f (04'o- Proposal For: EXHIBIT B PA 17065-0196 none (717) 486-7533 Fax (717) 486-4104 W:R .bYER+& SDNS ' PO BOX 216 WAYNESBORO, PA 17268 \ PO # / 1 C INVOICE # 10401 DATE: 12/19/02 TERMS NET 30 DAYS PRICE TAX AMOUNT Job #k 6192X03 December 11, 2002 h y? i Form 13712 To reorCe".-' On gvb.n..... a t.nnn.coo.oeeo csn.. r_..... ...... .. TAX 579.95 INVOICE TOTAL 10,245.71 ?/,1?7 BALANCE DUE '/1/010,245.71 ? ? 2J G LANDIS, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. NO. 2004 - 1081 CIVIL TERM W. R. OYER, INC., CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY OF SAID COURT: Kindly enter my appearance on behalf of Defendant, W. R. Oyer, Inc. with regard to the above-captioned action. Respectfully submitted, CALDWELL tic KEARNS By Dated: (`t1hQn 3?Z?? Harrisburg, PA 17110 CERTIFICATE OF SERVICE AND NOW, this 3'0 day of J???, 2004, I hereby certify that I have served a copy of the within document on the following; by depositing a true and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: Michael L. Bans, Esquire 429 South 1.8 Street Camp Hill, PA 17011 CALDWELL & KEARNS By: O? 04-223 ,G L' T T : 'l CO CA SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2004-01081 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LANDIS INC VS W R OYER 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: W R OYER INC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of FRANKLIN County, Pennsylvania, to serve the within COMPLAINT & NOTICE On March 31st , 2004 , this office was in receipt of the attached return from FRANKLIN Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Franklin Cc 61.58 .00 98.58 03/31/2004 MICHAEL BANGS Sworn and subscribed to before me this day of d btu A. D. Prothonotaf So answers s3" R. homas Kline Sheriff of Cumberland County In The Court of Common Pleas of Cumberland County, Pennsylvania Landis Inc vs. W.R. Oyer Inc. SERVE: sane Now, March 16, 2004 No. 04-1081 civil , I, SHERIFF OF CUMBERLAND COUNT', PA, do hereby deputize the Sheriff of Franklin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, / /0/fC/f ,?2-y 202-5?', at `V." `-O o'clock /4 M. served the within ki/Pi? `/- upon /V ?c /fsoy jy YE.P </'?P<?/oE;rr? at I / 9 9 3 ?iPosz o ST Pca, 15,04 -2 la, G?,gy,?.?sGZ arc r f% ?7z 6B by handing to Th`? 45`1,145't ? of Tye 4e-1, UYE.t" pis i.U C, a copy of the original and made known to /1// G?S? v 661 ? Y -t57-1'6 the contents thereof. So answers I Sheriff of fgq v (? i County, PA &1t,c A - ?gq( U A `. V COSTS Sworn a ulcribe e re SERVICE $ me this day of 20 MILEAGE AFFIDAVIT Notarial Scal I g, Richard D. McCarty, Notary Public i Chambersburg Bow, l7tanklin County My Commission Expires lam. 29, 2007 ""? LANDIS, INC. Plaintiff vs. W. R. OYER, INC., Defendant TO: Landis, Inc. c/o Michael L. Bangs, Esquire 429 South 18s' Street Camp Hill, PA 17011 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004-1081 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED YOU ARE HEREBY NOTIFIED, that the New Matter set forth herein contains averments against you to which you are required to respond within twenty (20) days after service thereof. Failure by you to do so may constitute an admission. CALDWELL & KEARNS Dated: (A 2,,o By: At orn? I.D. No.0159 363 orth Front Street Harrisburg, PA 17110 (717) 232-7661 Attorneys for Defendant LANDIS, INC. Plaintiff vs. W. R. OYER, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004-1081 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT'S ANSWER WITH NEW MATTER AND NOW COMES the Defendant, W. R. Oyer, Inc., by and through his counsel, Caldwell & Kearns, and files in response to Plaintiff's Complaint, the following Answer with New Matter, stating in support thereof as follows: ANSWER Admitted. 2. Admitted. Admitted. 4. Admitted in part and denied in part. It is admitted that in October, at the request of Oyer, Landis submitted a proposal for said work to be performed as identified, and which proposal was attached as Exhibit "A" to Plaintiffs Complaint. However, with regard to the date of submission of said proposal, same is denied, as at present, Defendant Oyer is, after reasonable investigation, without knowledge or information sufficient to form a belief as to the truth of that portion of the averment, and proof thereof is demanded at the time of trial, if relevant. 5. Denied. It is specifically and categorically denied that Defendant Oyer accepted said proposal and, to the contrary, the parties agreed, by faxed memorandum from Plaintiff to Oyer of November 7, 2002, that Plaintiff Landis would perform the work for Defendant Oyer for the sum of $47,150.00. A true; and correct copy of said revised proposal is attached hereto, marked Exhibit "A", and made a part hereof by reference thereto, noting that such references the payment history of Defendant Oyer subsequent to acceptance of this counterproposal by Oyer. Accordingly, said counterproposal of November 7, 2002 was the price upon which the parties agreed for work for the Project. 6. Admitted. 7. Denied. It is specifically and categorically denied that any authorized agent, servant or employee of Oyer requested Landis to perform additional work, and proof to the contrary is specifically demanded at the time of trial, if relevant. 8. Denied and denied as stated. It is denied that Landis performed any additional work authorized or requested by Oyer on the Project. It is denied, as stated, that such supply and installation of X-bracing on the Project was additional work and/or authorized additional work, but was work performed by Plaintiff Landis at its own choice and discretion in the completion of the proposed work, without request or promise of additional payment whatsoever. 9. Denied. As stated above, in response to paragraph no. 8, it is specifically and categorically denied that Defendant Oyer requested that Landis perform any additional work, and it is likewise and accordingly specifically and categorically denied that Defendant Oyer promised to pay for any additional work performed, to include such as identified in paragraph no. 8 of Plaintiffs Complaint. Defendant Oyer was not told any additional work was required to be performed and/or was being performed. 10. Denied. It is specifically and categorically denied that Defendant Oyer agreed to pay any compensation to Plaintiff Landis other than as specified in the accepted proposal, whether it be on a time and material basis, or otherwise, and proof to the contrary is specifically demanded at the time of trial, if relevant. It is furthermore specifically denied that Defendant Oyer agreed to pay Landis on a time and material basis for the work identified in paragraph no. 8 of Plaintiff s Complaint. COUNTI BREACH OF CONTRACT 11. Defendant's responses to paragraphs 1 through 10 are incorporated herein by reference as if more fully set forth. 12. Admitted in part and denied in part. It is denied that Landis performed any additional work and/or any authorized additional work on the Project, and proof to the contrary is demanded at the time of trial, if relevant. It is admitted, however, that Plaintiff Landis did submit an invoice to Oyer on or about December 19, 2002, as set forth on Exhibit "B" to Plaintiffs Complaint, which invoice completely fails to state it was for any "additional work" whatsoever. 13. The invoice speaks for itself, and no further response or answer is required or appropriate, although it is denied that Defendant Oyer ever agreed to pay on any basis Plaintiff Landis for any additional work, to include the additional work alleged in paragraph no. 8 of Plaintiffs Complaint. 14. Denied as stated. Defendant Oyer paid the said invoice in full assuming such to be a partial invoice for the contract work. On or about January 21, 2003, Defendant Oyer did receive from Landis an invoice for said Project setting forth the correct contract amount of $47,150.00, referencing the total completed amount and the balance to be completed. In response to said invoice, Defendant Oyer paid the sum of $25,000.00, and had previously paid a sum, leaving a net balance due of $11,904.29. A true and correct copy of said invoice of Plaintiff Landis of January 21, 2003 is attached hereto as Exhibit "B" and made a part hereof by reference thereto. Thereafter, Plaintiff Landis, by invoice of March 20, 2003, set forth a further itemization of the balance due of $11,650.00, which Defendant Oyer paid on or about March 24, 2003, noting the amount of the actual balance due was $11,904.29. A true and correct copy of the Landis invoice of March 20, 2003 is attached hereto, marked Exhibit "C", and made a part hereof by reference thereto. All other averments of paragraph no. 14 are denied. 15. Admitted in part. It is admitted that Plaintiff ]Landis made demand for payment for the additional work, and Defendant Oyer responded that it had not authorized the performance or payment of any additional work whatsoever, nor was aware of any additional work performed. 16. Denied. Defendant Oyer properly and timely paid all sums due to Plaintiff Landis as hereinbefore stated, and proof to the contrary is demanded at the time of trial, if relevant. 17. Denied. Defendant Oyer has paid all proper invoices in a timely fashion and in accordance with its agreement with Landis, and accordingly has not breached any agreement between the parties. Alternatively, the averments of paragraph no. 17 set forth a conclusion of law to which no further response is required or appropriate. 18. Denied. The averments of paragraph no. 18 :set forth a conclusion of law and/or fact to which no further response is required or appropriate. 19. Denied. The averments of paragraph no. 19 set forth a conclusion of law and/or fact to which no further response is required or appropriate. WHEREFORE, Defendant W. R. Oyer, Inc. respectfully requests this Honorable Court enter judgment in its favor and against Plaintiff Landis, Inc., plus interest and costs of suit, and such other relief as this Honorable Court deems proper and just. COUNT II UNJUST ENRICHMENT 20. Defendant's responses to paragraphs 1 through 19 are incorporated herein by referenced as if more fully set forth. 21. Denied. With regard to that portion of paragraph no. 21 alleging the prices charged for work were just and reasonable, Defendant Oyer after reasonable investigation is without knowledge or information sufficient to form a belief as to the truth of the averments, and same are denied and proof thereof is demanded at the time of trial, if relevant. With regard to the averment concerning alleged promise of payment by agents, servants or employees of Oyer, said averment is specifically and categorically denied, and proof thereof is demanded at the time of trial, if relevant. 22. Defendant incorporates, by reference thereto, its response to paragraph no. 15. 23. Denied. The averments of paragraph no. 23 set forth a conclusion of law and/or fact to which no further response is required or appropriate. In the event and to the extent any or all of the averments do not set forth a conclusion of law, it is denied that any work by Plaintiff Landis, as identified, improved or created any betterment whatsoever to the Project or to the benefit of Defendant Oyer, and proof thereof is demanded at the time of trial, if relevant. WHEREFORE, Defendant W. R. Oyer, Inc. respec4fully requests this Honorable Court enter judgment in its favor and against Plaintiff Landis, Inc., plus interest and costs of suit, and such other relief as this Honorable Court deems proper and just. NEW MATTER In further response to Plaintiff Landis' Complaint, Defendant Oyer submits the following new matter, to wit: 24. At no relevant time did any authorized agent, servant or employee of Defendant Oyer ever authorize Plaintiff Landis to perform any additional work as specified, as otherwise. 25. At no relevant time did any authorized agent, servant or employee of Defendant Oyer ever pay Plaintiff Landis for any alleged additional work, as specified or otherwise, on any basis. 26. There exists no written agreement between the parties for any alleged additional work. The averments for additional work, therefore, furthermore violate the statute of frauds. 27. Defendant Oyer submitted a check noting final payment in the amount of $11,904.29, which check Plaintiff Landis accepted without reservation, condition or other agreement with Defendant Oyer. 28. None of the work performed by Plaintiff Landis, as identified, improved or created any betterment whatsoever to the Project or to the benefit of Defendant Oyer, WHEREFORE, Defendant W. R. Oyer, Inc. respectfully requests this Honorable Court enter judgment in its favor and against Plaintiff Landis, Inc., plus interest and costs of suit, and such other relief as this Honorable Court deems proper and just. Respectfully submitted, & KEARNS By: Clipplinger, Esquire I.D. N?. 07159 Dated: 1?;; ??' 1? vl_;: U 04-223/7224 3631 North Front'Sfreet Harrisburg, PA 17110 (717) 232-7661 Attorneys for Defendant VERIFICATION I, Nickson W. Oyer, President of W. R. Oyer, Inc., who,, having authority to execute this Verification on its behalf, verify that the statements and averments contained in the foregoing Answer with New Matter are true and correct upon my personal knowledge, information and belief. I understand that false averments herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. W. R. OYER, INC. By: Dated: / . , 4HF 41"-.1 6 fay iG? DA EE- j1 /- 1.1 7 try t?yv - FAX#_ COMPANY NAW: U er ATTEi.'rm MeAt- FRAM: ,G• MS MKCLUDDIG COVER) FAX AffiSSAGF LANDiS,`IMC. Post Office Box 196 Mt. Holly Springs, PA 17065.0196 Phone (717) 486.7533 Fax (70) 486.41"' W R Oyer PQ Box 215 iAiBy„sS v,:., D. 1726.A Description invoi^jo Number_ 10432 Date. jmnusry 21, 00 yob n.. __-.'-- Amb 1 "?'°-..---ob -- FINIIS-_+rrr ?.? . Net 30 Bay%-- - - - ' --04fflWs-DW.W ---- 61 Quantity ---- Price Tax 1 Change Order #1 -Contract -- - Total Completed to Date I Balance to be Completed 1 Total Amount Due and Payable 47,150.00 (35,500.00) (11,650.00) 35,500.00 Sub-Toiei $35,500,00 State Tax 0.00% on 0.00 0.00 Total $35,500.00 A014 z `'? LANDIC, INC. Post Office Box 196 Mt. Holly Springs PA 17065-0196 Phone (717) 486.7533 Fax (7171 486.4104 W.R. OYER & SONS PO BOX 216 WAYNESBORO, PA 17268 PO # j Job # 6192X01 ?I Supply and Install Siding at Cummins CONTRACT BALANCE OF QUOTED AMOUNT Original quote $47,150.00 January 21, 2003 $35,500.00 Balance due $11,650.00 TERMS 1.00 11,650.00 N 11,650.00 INVOICE TOTAL 1 INVOICE # 10556 ?l DATE: 03/20/03 11,650.00 BALANCE DUE ii, 650.00 CERTIFICATE OF SERVICE AND NOW, this - day of ' M. 2004, I hereby certify that I have served a copy of the within document on the following; by facsimile and by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: Michael L. Bangs, Esquire 429 South 18`h Street Camp Hill, PA 17011 CALDWELL & KEARNS B • \ J a r? •a, n j r ? r w r ? GJ CY Francis R. Ferri EN 0177 SCI Camp Hill P.O. Box 200 Camp Hill, PA 17001-0200 April 26, 2004 Honorable Edgar B. Bayley, Judge Court Of Common Pleas Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 OY f091 RE: Ferri v. Brother International Corp., Civil No: A4-&G.QZ Honorable Judge Bayley: Enclosed please two copies of the Plaintiff's Reply and Brief in Support, in opposition to the Defendant's Motion To Dismiss via A Motion To Demurrer. Trusting the enclosed pleading is in accordance with the Rules Of Civil Procedure, your Plaintiff awaits the Court's Opinion. Respectfully, Francis R. er 4, L?- IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, CIVIL DIVISION, COMMONWEALTH OF PENNSYLVANIA FRANCIS R. FERRI, Plaintiff, -VS- CIVIL NO: 04-1092 BROTHER INTERNATIONAL CORPORATION, Edgar B. Bayley, Judge Defendant. ORDER AND NOW, TO WIT, this ` day of , 2004, upon consideration of the Defendant's Motion To Demurrer, and the Plaintiff's opposition there to, it is hereby ORDERED and DECREED that Defendant's Motion To Demurrer is denied. The Plaintiff may proceed with the claims set forth in the complaint. BY THE COURT: Edgar B. Bayley, Judge IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY. CIVIL DIVISION, COMMONWEALTH OF PENNSYLVANIA FRANCIS R. FERRI, Plaintiff, -VS- CIVIL NO: 04-1092 Edgar B. Bayley, Judge BROTHER INTERNATIONAL CORP., Defendant. PLAINTIFF'S REPLY AND BRIEF IN OPPOSITION TO: DEFENDANT'S MOTION TO DISMISS !DEMURRER COMES NOW: the Plaintiff who respectfully files the following Reply and Brief in opposition to the Defendant's Motion To Dismiss the Complaint by Demurrer, pursuant to 42 Pa. Rule of Civil Procedure, Rule 1017(a) and (b)(4), and submits that: BACKGROUND 1) Count One in this cause alleges that Defendant violated provisions of the Uniform Commercial Code by selling Plaintiff a defective typewriter, losing the typewriter when returned for repairs, and after five months of denying these torts, Defendant admitted to same, and provided Plaintiff with another defective typewriter. 2) Count Two alleges the loss of the typewriter caused the Plaintiff serious mental and physical anguish, and irrepairable losses in advancing his interests in ongoing actions in the State and Federal Courts to set aside his convictions. 3) Defendant moves to Demurrer contending Count One "fails to plead any facts to establish any purported violation" of the Uniform Commercial Code, and that no "'implied warranty for - 1 - a particular purpose" was breached by the Defendant. Def. Br. P. 2. 4) Next, Defendant contends Count Two has the "same deficiencies as the First Cause of Action." It "does not identify any specific tort committed by :Brother International Corporation." Br. Def, p. 3. BASIS TO REJECT A DEMURRER TO THE FIRST' CAUSE OF ACTION 5) Despite Defendant's quality representation by a Philadelphia Law Firm, the Motion to Demurrer is long on nit- picking, but short of facts and legalese in support thereto. Under a Demurrer aegis, the motion is self destructive. Three principles of law are applicable here. They give reason to reject the Motion to Demurrer. 6) One, assuming the compliant was "in-artfully pleaded ... the allegations of a pro se compliant are held to less stringent standards than applied to pleadings filed by an attorney" Bell v. Horn, 762 A.2d 776, 778 (Pa. 2000), accord Ferri v. Ackerman, 394 A.2d 553, 555 fn 2 (Pa. 1977), Com. v. Russell, 383 A.2d 866, 868 fn 4 (Pa. 1980), Com, ex rel Saunders v. Creamer, 345 A.2d 702, 706 fn 5 (Pa. 1975); Reider v. Com. Br. of Corrections, 502 A.2d 272, 273 (Cmwlth. 1985). Obviously, the rule is etched in stone. We discount the nit-picking. 7) Two, "preliminary objections in the nature of a demurrer are deemed to admit all well pleaded facts and inferences reasonably deduced there from but not conclusions of law" Bell v. Horn, 762 A.2d 776, 778 (Cmwlth. 2000)(Citing Reider, supra), Gall v. Allegheny County Health Dept., 555 A.2d 786, 788 (Pa. 1989). - 2 - 8) Thus, Plaintiff's allegations in the First Cause of Action that, six months after purchase the "typewriter mal-functioned" and was returned to Defendant's "Customer Service Department" who after five months of denials "acknowledged it had lost or misplaced the typewriter" and replaced the original typewriter with a "second defective product" are now admitted. Also See Exhibits 1, 2, 3, and 5 of the Complaint. 9) Plaintiff contends those admitted facts (and others cited below) give sufficient rise to establish a cause of action upon which relief may be granted under the provisions of the Uniform Commercial Code. For example §1106, mandates that "The remedies provided by this title shall be liberally administered to the end that the aggrieved party may be put in as good position as if the other party had fully performed" its obligations. Add to that mandate, §1103, permits recovery when the "merchant" commits "fraud, misrepresentation, duress, [or] mistake" in performing its sales and guarantee obligations. §2201 bars "frauds" by way of contract. 10) §2208, provides for redress "When the contract for sale involves repeated occasions for performance by either party." This moots the Demurrer allegations, that Plaintiff failed to plead "he relied upon Brother's 'skill or judgment' that the typewriter would perform tasks specifically contemplated by Plaintiff." (Def. Br. p. 2, bottom paragraph.) By logical definition the performance of a typewriter is "a machine for typing in characters similar to those produced by printer's type by means of a keyboard operated types striking through an inked ribbon," to perform time and time again. Websters - 3 - Dict. 1999 Ed. 11) The Conclusion is, when the Defendant made it a part and parcel of the sales contract that "'Your Brother machine was designed to provide many years of reliable service" (Exhibit 4 Complaint) that was a fraud and misrepresentation under §1103, and breached "the repeated performance" of the contractual portion of §2208. It also breached the "Express warranties" of §2313, and the "Implied warranty" under §2314, and the "Implied warranty; fitness for a particular purpose" under §2315.11 12) This brings into play, the Third principal of law. Any "doubts as to whether demurrer should be sustained, should be resolved in favor of overruling demurrer." Jackson v. Garland, 622 A.2d 969, 970 (Super 1994); Santiago v. Pa. Nat. Mut. Cas. Ins. Co., 613 A.2d 1235, 1238 (Super 1992); Somers v. Somers, 613 A.2d 1211, 1212 (Super 1992); Rutherfoord v, Presbyterian-University Hospital, 612 A.2d 500, 502 (Super 1992). That too is etched in stone. 13) As the facts make clear, the admissions thereto, and the application of the Uniform Commercial Code to those facts and admissions, Plaintiff believes, and so urges this Honorable Court, to reject the Defendant's Motion.To Demurrer on the First Cause of Action. BASIS TO REJECT A DEMURRER ON THE SECOND CAUSE OF ACTION 14) The allegations in the First Cause of Action were 1 When Defendant contends several Statutes cited in the complaint are inapplicable, or Defendant violated none of them, he/she made frivolous pleadings. See Def. Br. p. 1, paragraph 2, and p. 2 paragraphs 1 and 2. - 4 - incorporated into the Second Cause of Action, which adds additional damages due to the loss of use of the typewriter. If Demurrer is sustained on the First Cause of Action, the additional damages claims in the Second Cause of Action are moot. 15) Plaintiff believes a ruling on the merits of the First Cause of Action should be made before litigating the merits of the Second Cause of Action. If Demurrer is rejected on Count One, by proxy the Second Cause of Action is a viable claim for relief. 16) Assuming this Honorable Court chooses to determine whether the Second Cause of Action should to Demurred, Plaintiff submits that: 17) It is now admitted the Defendant sold the Plaintiff a defective product. That factor alone warrants monetary damages. Next, the Defendant consumed five months, October 24, 2003, until March 15, 2004, before acknowledging: (a) it lost Plaintiff's original typewriter returned for repairs; (b) replaced it with another defective typewriter; and (c) agreed to replace the Second defective typewriter on March 15, 2004, (See attached Exhibit 8). 18) Thus, the question turns to whether the Second Cause of Action states a proper claim for damages. §1106, of the Uniform Commercial Code states that: "The remedies provided by this title shall be liberally administrated to the end that the aggrieved party may be put in as good position as if the other party had fully performed" its obligations "as specifically provided in this title or by other rule of law" - 5 - The other rule of law would include damages sought under a claim of assumpit or trespass.? 19) The damages cited in the Second Cause of Action contend that: (a) The loss of my typewriter has caused me "much legal grief and mental problems" See Exhibit 6 paragraph 5; (b) The typewriter loss over a five month period "would be harmful to his position in several legal actions then in progress" to set aside his criminal convictions; (c) Those torts warrant a conservative damage award of "$300 per day" when Plaintiff was without a typewriter due to Defendant's torts. 20) Since damages are a question for the jury, if this action proceeds to that point, Plaintiff submits the damages he seeks are in compliance with §1106 of the Uniform Commercial Code. There is no ambiguity there, and Defendant's Demurrer to that Cause should be denied. WHEREFORE: Plaintiff respectfully moves this Honorable Court to deny the Defendant's Motion To Dismiss by Demurrer, and issue an Order that Plaintiff may pursue his claims for relief. Respectfully submitted, Francis R. Ferri EN 0177 SCI Cramp Hill P.O. Box 200 Camp Hill, PA. 17001- 2/ Defendant makes much ado over the fact that Plaintiff did not submit a "verification" form with the complaint. To the contrary, the allegations in the Complaint were sworn and attested to before a Notary Public. The better counterpart to a verification form. - 6 - V E R I F I C A T I O N Francis R. Ferri, the plaintiff in this action proceeding in pro se fashion, hereby states that the facts set forth in the foregoing motion are true to the best of his information, Knowledge, and belief. This Verification is made §ubject to the penalties subscribed under is Pa. C.S.A., Section 4904, relating to unsworn falsification to authorities. Francis R. Ferri ?uw.I 7777 NORTH BROTHER BOULEVARD, BARTLETT, TN 38133 TEL 901.-379-1000 BROTHER INTERNATIONAL CORPORATION March 15, 2004 Rick Ferri #EN0177 SCI Camp Hill P. O. Box 200 Camp Hill, PA. 17001 Dear Mr. Ferri: This is in response to your recent letter to Brother International Corporation. We apologize for any inconvenience you may have experienced.. Unfortunately, we are unable to replace the Refurbish ML:500 with an EM630. Enclosed is an air bill at the expense of Brother to return the Refurbish ML500 for an exchange of the same unit. Our Quality Control Department will inspect your unit before shipping. Again we apologize for inconvenience. If you need any further assistance, please contact us in writing at the address listed above or call our Customer Service Department at 901- 379-1010 or fax 901-379-1210. Thank you, 'JaYAA Betty Taylor Brother International Corporation Customer Service Department BT/tm EXHIBIT BRIDGEWATER. N1 - SCHAUMBURG. IL • IRVINL, CA • ANDOVER, MA • 13UCNOS AIRES, ARGENTINA • SAO PAULO. BRAZIL • SANTIAGO, CHILE .ARTLE III TN • MIAMISBURG, ON MONTRFAL, CANADA • MEXICO CITY MEXICO www.brother.com IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, CIVIL DIVISION, COMMONWEALTH OF PENNSYLVANIA FRANCIS R. FERRI, Plaintiff, -VS- CIVIL NO: 04-1092 Edgar B. Bayley, Judge BROTHER INTERNATIONAL CORP., Defendant. CERTIFICATE OF SERVICE; Please take notice that the Plaintiff, Francis R. Ferri hereby certifies that on this -L-6 day of April, 2004, he forwarded, via First Class Mail, a true and correct copy of the foregoing motion to: Michael P. Maguire, Esquire Donnelly & Associates, P.C. Suite 101 100 West Elm Street Conshohocken, PA. 19428 j L / JJ?J F?cis R. erri EN 0177 SCI Cadip Hill P.O. Box 200 Camp Hill, Pa 17001 cn ?.,, t.. q C ?- .t- -n _ -? y ? I L+. r- w n ? iv - ., ry -C G r : J . . i "C 00 ?00 Curtis R. Long Prothonotary office of the Vrotbonotarp Cumberianb Countp .. Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor 6Z - /0j; ' CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 5TH DAY OF NOVEMBER 2007 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, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573