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HomeMy WebLinkAbout08-4491Stephen E. Farina Prothonotary OFFICE OF ,,ROTHONO TAIZ , Front & Market Streets Harrisburg, PA 17101 (717) 780-6520 Curtis R Long, Prothonotary Cumberland County Court House Hanover & High Streets Carlisle, Pa 17013 July 8, 2008 IN RE: Donald wood d/b/a Woody's Vs About Time Snow Removal Dauphin County Dkt No 2007CV 10211 DJ Cumberland County Dkt No. 0 g , V411 / C )-,t1 Dear Sir/ Madam: By Order of July 1, 2008 by Hon Bruce F. Bratton Judge The above matter has been transferred to the Court of Common Pleas of Cumberland County. I am, accordingly, sending originals of all the papers herewtith. I Will appreciate the return of the attached receipt address to the Attention: of Ms. Lisandra Garcia. Very truly, yours, Stephen Farina Prothonotary County of Dauphin Date: 7/8/2008 Dauphin County I O, 0 ?:?; fuw yy ?l Time: 03:13 PM Complete Case History User: LGARCIA Page 1 of 3 Case: 2007-CV-10211-DJ Woodys, etal. vs. About Time Snow Removal Filed: 10/2/2007 Subtype: District Justice Appeals Physical File: Y Appealed: N Comment: Status History Pending 10/2/2007 Transferred 7/8/2008 Judge History Date Judge Reason for Removal 10/2/2007 No Judge, Current Payments Receipt Date Type Amount Benstead & mabon 142205 10/2/2007 Civil Filing 117.00 Total 117.00 Plaintiff Name: Woodys SSN: Address: DOB: Sex: Phone: Home: Work: Employer: Send notices: Y Litigant Type: Comment: Attorneys Shook, Bryan W (Primary attorney) Send Notices Plaintiff Name: Wood, Donald M SSN: Address: DOB: Sex: Phone: Home: Work: Employer: Send notices: Y Litigant Type: Comment: Defendant Name: About Time Snow Removal SSN: Address: DOB: Sex: Phone: Home: Work: Employer: Send notices: Y Litigant Type: Comment: Attorneys Gresh, Sean M (Primary attorney) Send Notices Date: 7/8/2008 Dauphin County Time: 03:13 PM Complete Case History Page 2 of 3 Case: 2007-CV-10211-DJ Woodys, etal. vs. About Time Snow Removal Register of Actions 10/2/2007 New Civil Case Filed This Date. No Judge, Filing: Appeal - District Justice Paid by: No Judge, Benstead & mabon Receipt number: 0142205 Dated: 10/2/2007 Amount: $117.00 (Check) Defendant: About Time Snow Removal No Judge, Attorney of Record: Sean M Gresh Notice of Appeal from District Justice No Judge, Judgment and Praecipe to Issue Rule on Plaintiff to file Complaint filed. 10/19/2007 Proof of Service of Notice Of Appeal and No Judge, Rule to file Complaint, filed 11/27/2007 Complaint filed. No Judge, Plaintiff: Woodys Attorney of Record: No Judge, Bryan W Shook 1/28/2008 Defendant's Preliminary Objections to No Judge, Plaintiffs Complaint, filed. 2/11/2008 Amended Complaint filed. No Judge, 4/10/2008 Defendant's Answer to Plaintiffs Amended No Judge, Complaint, filed. 5/6/2008 Plaintiff's Reply to Defendant's New Matter No Judge, and Counterclaim, Plaintiffs New Matter to Defendant's Counterclaim and Plaintiffs Counterclaim to Defendant's Counterclaim, filed. 6/6/2008 Defendant, About Time Snow Removal's No Judge, response to plaintiff's new matter to defendant's counterclaim, filed 6/30/2008 Joint Stipulation to Transfer Venue, filed No Judge, 7/1/2008 Upon consideration of the Joint Stipulation Bratton, Bruce F to Transfer Venue, filed in the above captioned cases, it is hereby ORDERED that jurisdication with respect of the above captioned cases is hereby RELINQUISHED and venue is transferred to Cumberland County, Pennsylvania. FURTHER, the Prothonotary of Dauphin County, is hereby directed to immediately forward the above captioned mattes' to the Prothonotary of Cumberland County, without delay. See ORDER filed. Copies Dist By Court 7/2/08. 7/8/2008 The above action transferred to the Court No Judge, of Common Pleas of Cumberland County. ****NO MORE ENTRIES CASE No Judge, TRANSFERRED**** TO THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY User: LGARCIA Date: 7/8/2008 Dauphin County Time: 03:13 PM Complete Case History Page 3 of (3 Case: 2007-CV-10211-DJ J U L V 8 Lido Woodys, etal. vs. About Time Snow Removal I hereby certify that the foregoing is a true and correct copy of t ginal filed. h / le C? User: LGARCIA i DONALD WOOD, d/b/a WOODY'S : IN THE COURT OF COMMON PLEAS OF Plaintiff : DAUPHIN COUNTY, PENNSYLVANIA V. ABOUT TIME SNOW REMOVAL, Defendant CIVIL ACTION -LAW No: 2007-CV-9906-DJ DONALD WOOD, d/b/a WOODY'S Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant : IN THE COURT OF COMMON PLEAS OF : DAUPHIN COUNTY, PENNSYLVANIA CIVIL ACTION -LAW No: 2007-CV-10211-DJ ORDER AND NOW this the / 0 day of d 2008, upon consideration of the Joint Stipulation to Transfer Venue, filed in the above captioned cases, it is hereby ORDERED that jurisdiction with respect to the above captioned cases is hereby RELINQUISHED and venue is transferred to Cumberland County, Pennsylvania. FURTHER, the Prothonotary of Dauphin County, is hereby directed to immediately forward the above captioned matters' files to the Prothonotary of Cumberland County, without delay. J. _ _JUL 0 8 2008 true and eFvrpo t .' :v r- he ariginal ?? p 33 r),- OFFICE PROTHONOTARY Bryan W. Shook. Esquire ?? 30 PM !3; y8 [D'# 203250 Zo JUN The Law Office of Darr ell C. Dethlefs 2132 Market Street , Camp Hill. Pennsylvania 17011 UAUPhIS LUUNT Telephone - (717) 975-9446 PENNA Fax - (717) 975-2309 IlShook ddckikw.nei Attorney for Plaintiff DONALD WOOD, d/b/a WOODY'S : IN THE COURT OF COMMON PLEAS OF Plaintiff : DAUPHIN COUNTY, PENNSYLVANIA V. : CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, No: 2007-CV-9906-DJ Defendant DONALD WOOD, d/b/a WOODY 'S IN THE COURT OF COMMON PLEAS OF Plaintiff : DAUPHIN COUNTY, PENNSYLVANIA V. CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, No: 2007-CV-10211-DJ Defendant JOINT STIPULATION TO TRANSFER VENUE AND NOW comes Plaintiff, Donald Wood, d/b/a Woody's and Defendant, About Time Snow Removal, who collectively request that this Honorable Court relinquish jurisdiction of above captioned cases and enter an appropriate Order transferring the two above captioned cases to Cumberland County, Pennsylvania and in support thereof avers: 1. At all times material hereto, Plaintiff's principal place of business was North Front Street, Enola, Cumberland County, Pennsylvania 17025 2. At all times material hereto, Defendant's principal place of business was 410 Brendwood Drive, Langhorne, Bucks County, Pennsylvania 19047. 3. Both of the above captioned maters arise out a contract entered into in Cumberland County, Pennsylvania. (A true and correct copy of th?s contract is attached to Plaintiff's Complaint, in both matters, and marked as ?xhibit "A"). 4. The aforementioned contract called for Plaintiff to provide snow removal services for Defendant, as an independent contractor, whenever Defendant contacted Plaintiff throughout the snow season. 5. The work performed under the contract was performed in Dauphin County, York County and Cumberland County, Pennsylvania. 6. Docket Number 2007-CV-9906-DJ was commenced before the Honorable Joseph S. Lindsey, Magisterial District Number 12-1-06 on May 2I9, 2007. 7. Docket Number 2007-CV-10211-DJ was commenced before the Honorable Michael J. Smith, Magisterial District Number 12-2-01 on May 29 2007. 8. Defendant timely appealed both judgments and Plaintiff timely filed the respective Complaints. 9. All pleadings are closed with respect to the above-captioned matters. 10. Of particular importance is the existence of a sister case now pending before in the Court of Common Pleas of Cumberland County, Pennsylvania at Docket Number 2008-103-Civil Term. 11. The matter currently pending in Cumberland County arises out of the same aforementioned contract and includes claims for work performed in both Cumberland County and York County, Pennsylvania. COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of DAUPHIN NOTICE OIL thMGED FRO MAGISTERIAL DISTRICT JUDGE JUDGMENT COMMON PLEAS No.',I/?l? ! t,? lVll ?? NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the Magisterial District Judge on the date and in the case referenced below. About Time Snow Removal 1 12-2-01 Michael Jt Smith ADDRESS OF APPELLANT CITY STATE ZIP CODE 45 Buck Road Huntingdon Valley PA 19006 DATE OF JUDGMENT am an 9-19-2007 Woody's/)?Donald K. Wood .AbQyt_Tipe S#ow Removal CV-0000247-07 This block will be signed ONLY when this notation is required under Pa. R.C.P.D.J. No. 10088. This Notice of Appeal, when received by the Magisterial District Judge, will operate as a SUPERSEDEAS to the judgment for possession in this case. Signature of Prothonotary or Deputy IT appellant was claimant (see P$. R.c.T.D.J. NO. 1001(6) in action f before a Magisterial District Judgej, A COMPLAINT MUST BE FILED within twenty (M days after filing the NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO PILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before Magisterial District Judge. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon Woody's/Donald M. Wood appellee(s), t01 file a complaint in this appeal ,j?X 7 `.' Name of appellee(s) (Common Pleas ????' J ??) within twenty (20) days after service of ru r sufferlent of judgment of non pros. SignafurII0 of app nt or attorney or agent RULE: To Woody's/Donald X. Wood appellee(s) 1 Name appe ee s (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty '11(20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the ma' ng. Date: Signature of P h notary or Deputy YOU MUST INCLUDE A COPY OF THE NOTICE OF J ? GMEN`?IRANSCRIPT FORM WITH THIS NOTICE ,':OF APPEAL. AOPC 312-05 w COMMONWEALTH OF PENNSYLVANIA rnl INTY OF. DAUPHIN Mag. Dist. No.: 12-2-01 MDJ Name: Hon. MICHAEL J. SMITH Address: 1281 S 28TH ST HARRISBURG, PA Telephone: (717 ) 558-1160 17111 ATTORNEY DEF PRIVATE : SEAN M. IQ ZON 124 EAST COURT ST. DOYLESTOWN, PA 18901 THIS IS TO NOTIFY YOU THAT: Judgment:- DEFAULT JOD®LEB'P PLTF NOTICE OF JUDfxMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS %ODYIS/DONALD M- HOOD NORTH FRONT ST. WEST FAIRVIEW, TPA 17025 L J VS. DEFENDANT: NAME and ADDRESS 5MOUT TIME SNCM REMOVAL ? 45 BUCt LOAD sunTiNGwON VALLEY, PA 19006 L J Docket No.: CV-00001247-07 Date Filed: 5/29/07 (Date of Judgment) 9/19/07 Judgment was entered for: (Name) WOODY' S/DONALD M. NO, 00 Judgment was entered against: (Name) ABOUT T33M SNOW REMOVAL 5 961 9 in the amount of $ ' Defendants are jointly and severally liable. Damages will be assessed on Date & Time This case dismissed without prejudice. Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 Portion of Judgment for physical damages arising out of residential lease $ Amount of Judgment $ 5, 824.48 Judgment Costs $ 137.47 Interest on Judgment $ .00 Attorney Fees $ .00 Total $ 5,961.95 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY F?IUNG A NOTICE OF APPEAL WITH THE PROTHONOTARYICLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISIO YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/CIVIL PROCEDURE FOR, COMMON- STERIL DI APPEAL. '?RICT JUDGES, IF THE EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR. MA AGISTERIAAL DIS, _°JtlBGMEIFf HOLDER-ELECTS-TO-ENTER THE JUDGMENT ECO URTHER PROCESS-MUST ._,. -_ .._.. COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGIS L 01 ICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JMENUAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBIWR PAID IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. 'V c-1) t. r*1-- 1 Date _1)n A A. I certify that this is a true and correct copy of the reZ; Date y. r _ r I, Magisterial District J4W proceedings containing the judgment..,- Magis> erial District Judge Poe My commission expires first Monday of January, 2012 SEAL 10010CT 19 PMT 1 5 0ACP1jjN t owls PENNA IMAGED PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN ; ss AFFIDAVIT: I hereby (swear) (affirm) that I served 2007CV10211DJ a copy of the Notice of Appeal, Common Pleas No. upon the Magisterial District Judge designated thereieiplon (date of service) 1 [1-9 , 20 07 ? I6g personal service ® by (certified) (registered) rn il, Wood 's/Donald M. Wood sender's receipt attached hereto, and upon the appellee, (name) , on 10-9120 07 ? by personal service® by (certified) (registered) mail, sender's receipt attached hereto. (SWORN) (,AFFIRMED) A D SUBSCRIBED BEFORE ME THIS eh DAY OF DZ, 2 0 Signature of official before whom affidavit was made Title of official My commission expires on NWE'ALTH OF PENNSYLVANIA Smith, Notary Public ECDoylestownl!1106, otarial Seal Bucks County ion Eyrjres Oct 2, 2008 Member, Pennsylvania Association Of Notaries Signature of aunt AOPC 312A - 05 ¦ Complete Items 1, 2, and 3. Also complete A. Sa! Item 4 If Restricted Delivery Is desired. ---_ / ? qg ¦ Print your name and addregs on the reverse _ - X so that we can return the card to you. ¦ Attach this card to the back of the mailplece B. Received ?, rated ) pate of veri , or on the front if space permits. 1. Article Addressed to: D. Is delivery address different from R 17 Yes If YES, enter delivery address below: ? No District Justice Michael J. Smith 1281 South 28th Street Harrisburg, PA 17111 3. Type Certifted Mall ? Egress Mail ? egistered ?' Return Receipt for Merchandise ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 2. Article sfer m ?mn from service kw 7005 2570 00013 4135 2252 PS Form 3811, February 2004 Domestic Return Receipt t s ? ¦ Complete Items 1, 2, and 3. Also complete Item 4 if Restricted Delivery Is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, - or on the front if space permits. "e .,;. O Agent te of Delivejy C. D B. fkqeIved bWN LOW Is delivery address different from Item 17 ? yes, D 1. Article Addressed to . if YES, enter delivery address below: ? No Woody's/Donald M. Wood _ North Front Street West Fairview, PA 17025 3. Type Certified Mall D Express Mall Registered Q, Return Receipt for Memhandlse ? insured mail ? C.O.D. 4. Restricted Delivery? P*a roe) ? Yes 2. ArticieNumber 7005 X390 ?0?3 7604 0895 (Transfer from service label) PS Form 3811, February 2004 Domestic Return Receipt 102595-02 M 111540 f ra Bryan W. Shook, Esquire IMAGED - ID # 203250 The Law Office of Darrell C. Dethlefs ''"' 2132 Market Street Camp Hill, Pennsylvania 17011 _ G7 Telephone - (717) 975-9446 0 Fax - (717) 975-2309 BSh+x>kr<z,;dcdlaw.net Attorney for Plaintiff i DONALD WOOD, d/b/a WOODY'S IN THE COURT OF COMMON PLEAS OF Plaintiff : DAUPHIN COUNTY, PENNSYLVANIA V. : CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, No: 2007-CV-10211-DJ Defendant NOTICE TO DEFEND 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 t r 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 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 OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR 7! LEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GOT LEGAL HELP: DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 717-232-7536 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en [as paginas signuientes, usted tiene " ienta (20) dias de plazo al partir de al fecha de la demanda y la notificacion. Usted dlebe presentar una apariencia escrita o en persona a por abogado y archivar en la corle en forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. Sea avisado que si usted no se fefiende, la corte tomara medidas y puede una Orden contra usted sin previo aviso o notificacion y por cualquier queja o akuvui quo es pedido en la peticion de demanda. Usted puedo parder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE?i SI NO TIENE ABOGADO O SI NO TIENE EL DIMERO SUFICIENTE DE PAGAR JAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEPONO A LA OFICINA CPYA DIRECCION SE EMCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSSGUTA ASISTENCIA LEGAL. DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 717-232-7536 II? r-7 O O Bryan W. Shook, Esquire ID #203250 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 BShooLe dcdl,akr.net Attorney for Plaintiff DONALD WOOD, d/b/a WOODY'S IN THE COURT OF COMMON PLEAS OF Plaintiff DAUPHIN COUNTY, PE*gSYLVANIA C V. CIVIL ACTION -LAW f ABOUT TIME SNOW REMOVAL, No: 2007-CV-10211-DJ Defendant COMPLAINT AND NOW, comes the Plaintiff, Donald Wood d/b/a Woody's, by and through his attorneys, THE LAW OFFICE OF DARRELL C. DETHLEFS, by, Bryan W. Shook, I Esquire, and makes the within Complaint against the Defendant, ;About Time Snow Removal, and, in support thereof, avers as follows: i 1. Plaintiff, Donald Wood d/b/a Woody's operates as a business with an office at North I Front Street, Enola, Cumberland County, Pennsylvania 17025 2. Defendant, About Time Snow Removal, operates as a business With an office located at 410 Brendwood Drive, Langhorne, Bucks County, Pennsylvania 19047. I'. I 3. On or about December 5, 2006 Plaintiff and Defendant entered into a contact in the form of a Service Provider Agreement for Snow Service (a copy of the original contract is attached hereto, made part hereof and marked as Exhibit "A") for snow removal service in and around Dauphin County. 4. Defendant, About Time Snow Removal, has a large number of aclt;ounts for which they have contracted for snow removal services. 5. These accounts are serviced primarily by About Time Snow Removal, brokering out the work to independent service providers. 6. At all times material hereto, Plaintiff, Don Wood d/b/a Woody's was one of the aforementioned independent service providers. h 7. Plaintiff believes, and, therefore, avers, that Defendant, About Time Snow Removal, had a contract or contracts with The Home Depot to provide snout removal services for store number 4113. (Copies of this contract is believed, by Pla"ntiff, to exist I however is not attached because Plaintiff is only aware of it, as a matter of course, and is not in possession of it). I 8. At all times material hereto, this case arises out of services performed at The Home Depot store number 4113, Derry Street, Swatara, Dauphin County, Pennsylvania during February and March, 2007. COUNT I - BREACH OF CONTRACT Donald Wood d/b/a Woody's v. About Time Snow RoMoval I 9. Plaintiff incorporates and makes part of this Count, paragraphs 1 through 8 of this Complaint as if fully set forth. L. 10. Plaintiff invoiced Defendant for the snow removal work performed) at The Home Depot store number 4113 on six separate invoices as set forth more fully below: (Copies of all invoices and related time and material sheets referehced below are attached hereto, made part hereof and marked as Exhibit "B") a. Invoice # 3018 dated 2/3/2007 = $183.00; b. Invoice # 3055 dated 2/16/2007 = $713.25 (the invoice teferred to as # 3055 is made up of invoices numbered 3051, 3053, 3044 & 3055 and collectively referred to as Invoice # 3055); c. Invoice # 3083 dated 2/21/2007 = $1,792.00; d. Invoice # 3103 dated 2/26/2007 = $410.40; e. Invoice # 3139 dated 3/8/2007 = $853.00 (the invoice r?ferred to as # 3139 is made up of invoices 3138 & 3139 and is collectively referred to as Invoice # 3139); f. Invoice # 3161 dated 3/17/2007 = $1,872.83 (the invoic? referred to as # I 3161 is made up of invoices 3159, 3160 & 3161 and is collectively referred to as Invoice # 3161). I 11. The total amount of the six invoices referenced above and billed to Defendant, About Time Snow Removal for The Home Depot Store # 4113 is $5,82428. 12. Payment of the aforementioned $5,824.28 has been demanded b? Plaintiff. 13. To date, no payment on the aforementioned $5,824.28 has been deceived by Plaintiff. 14. Consequently, by reason of the non-payment of the aforemention§d $5,824.28, Defendant has breached its contract with Plaintiff. 15. Plaintiff has been harmed and damaged by not receiving paymenti of the aforementioned $5,824.28 for snow removal work performed on behalf of Defendant at Plaintiff's time and expense with Plaintiffs manpower and equi WHEREFORE, Plaintiff demands judgment against Defendant, About Time Snow Removal, in the amount of $5,824.28 which represents actual damagos and expenses incurred by reason of Defendant's breach of contract with respect to the aforementioned snow removal service provider contract plus costs and attorney's fee ?pnd any other relief that this Honorable Court deems necessary and just. COUNT II - UNJUST ENRICHMENT 16. Plaintiff incorporates and makes part of this Count, paragraphs 1 through 15 of this Complaint as if fully set forth. 17. Plaintiff believes, and, therefore, avers, that the contract entered into on or about December 5, 2006 conveyed a benefit unto Defendant whereby Defendant realized the use of Plaintiffs snow removal services on as needed basis. 18. Plaintiff believes, and, therefore, avers, that Defendant appreciatejd the benefit. 19. Plaintiff believes, and, therefore, avers, that Defendant was unjustly enriched by receiving Plaintiffs snow removal services, without paying for them, as outlined more specifically in the preceding paragraphs. 20. Plaintiff believes, and, therefore, avers, that it would be unconscionable for Defendant to not be required to pay Plaintiff for Plaintiffs serviceol performed. WHEREFORE, Plaintiff demands judgment against Defendant, About Time Snow Removal, in the amount of $5,824.28 which represents actual damages and expenses incurred by reason of Defendant's breach of contract with respect to fhe aforementioned snow removal service provider contract plus costs and attorney's fee hand any other relief that this Honorable Court deems necessary and just. Dated: 1 1 _? 7- 0 Respectfully Submitted, 4LJ., qz 0 W Bryan W. Shook, Esquire Attorney Id. No.: 203250 2132 Market Street Camp Hill, PA 17011 (717) 975-9446 VERIFICATION I hereby verify that the statements of fact made in the forec documents are true and correct to the best of my knowledge, info belief. I understand that any false statements therein are subject penalties contained in 18 Pa C. S. Section 4904, relating to unsw to authorities. Date: 11-.2 ng ation and the criminal i falsification Donald Wood d/b/arWoody's Bryan W. Shook, Esquire ID # 203250 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717} 975-9446 Fax - (717) 975-2309 DONALD WOOD, d/b/a WOODY'S Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant for Plaintiff IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA CIVIL ACTION -LAW No: 2007-CV-9906-DJ CERTIFICATE OF SERVICE Pursuant to agreement of the parties counsel, Defendant's Counsel as agreed to accept service on behalf of Defendant, therefore, I hereby certify foregoing Complaint, was hereby served by depositing the same the United States Postal Service, First Class, postage prepaid, About Time Snow Removal c/o Sean M. Gr>.;sh, Esquire Benstead & Mabon, PC 124 East Court Street Doylestown, PA 18901 Dated: I I -a7 07 Respectfully Submitted, Bryan W."Shook, Esquire Attorney Id. No.: 203250 2132 Market Street Camp Hill, PA 17011 (717) 975-9446 a copy of the in the custody of as follows: Independent Service provider's Agreement, Page I of 3 A-ft I t I W_ SNOW REMOVAL 410 Brendwood Drive Langhorne, PA 19047 Service P TERM: This Agreement is made between FHG Companies, DBA About Time Snow, 410 Brem 1904.7 Scalled "ATS"j and P)II L. c-IR (Individual's Name) (Company Name) (called "service provider") for the ider Agreement for Snow Service Drive, Langhorne, PA 2006-2007 snow season. OBJECTIVE: ATS is in the business of providing snowplowing, ice control, and similar ervices. Over the years it has developed a large number of accounts throughout Langhorne, PA and the surrounding suburban area and is continuously adding additional accounts for these services. These accounts are serviced primarily by ATS brokering out the work to independent service providers who provide their own equipment and perform the actual work. The intent of this agreement is to establish a working relationship between ATS and service provider for this purpose. In order to establish and effectuate this relationship, the parties agree as follows: 1. SERVICE PROVIDER SERVICES. The service provider will be engaged by ATS a an independent and agrees to provide services for ATS's accounts as directed by ATS during the period stated above. The service provider has the following equipment which will be provided, along with a qualified operator, at all times when requested by ATS: 2. EQUIPMENT Year Make Model No., Transmission Size of Rate per Color/Description Blade/Bucket hour 3. PAYMENT. a. Snowlice Events. ATS will compensate the service provider the rates shown above for the service providers services and/or equipment. It is required that time sheets are to be turned in a the end of each event, no more than 24 hours after each event. If the timesheet is not received within 24 ours at the completion of each event, there will be a 5% penalty for the first day late and then a 1 % for every ay after that until the timesheet is received in the office. Each time sheet must be clear; complete and legi e; incomplete and illegible time sheets will be returned to the Service provider for correction and re-sub ittal. All time sheets must be reviewed and approved by a Manager of ATS to be considered complete. n all time sheets, exact times must be recorded in order to receive payment for services performed. Starting and ending times, breaks and down time will be randomly checked with store managers. Payment will be made within 45 days from receipt of the completed and approved time sheet. b. Paper work Submittal. Payment for the first event of the 2006-2007 will not be released until all required paperwork has been submitted to ATS. c. Property Damage. In the event there are any damages done by the service provider to the property of ATS's customers, or poor workmanship that has caused ATS to have to credit he customer's account, these damages will be paid for by the service provider and shall be deducted fro any amounts due the service provider. 4. TRAVEL TIME. Service provider will be paid for travel time between the various jobs that have been assigned to them. Agreed rate will begin at time service provider arrives on the 15} job site and will end t completion of the last job. No travel time will be paid from the last job site on the assigned route. ATS will not compensate for "break time" or "downtime". This does not apply to service providers driving equipment owned by ATS. 5. SERVICE PROVIDER'S EXPENSES. Service provider will provide all fuel for their equ ment. All maintenance will be at service provider's expense and their equipment is to be properly maintained to avoid breakdown during an urgent snow removal period. Service provider will not be paid when their equipment is broken own or inoperable. SERVICE PROVIDER AND INSURANCE. Service provider is engaged as an independent contractor and will not be considered an employee of ATS. Service provider will provide their own equipment s noted above, as weli as any other tools or supplies which they deem necessary in order to provide the services wh ch service provider is engaged to provide. The service provider must provide transportation for themselves and their a ployees. The service provider must have a telephone where they can be reached by ATS. The service provid r must provide any office or administrative services which they require apart from ATS property and without cost to TS. The service provider must Independent Service provider's Agreement" Page 2 of 3 provide their own Worker's Compensation insurance for them ar iG for their employees. The service provider ;oust provide auto liability insurance with recommended limits not less than $300,000. The service provider will provide ATS with appropriate current certificates of insurance- The service provider will be responsible for payments to their employees for their work and any withholding. If, for some reason, additional insurance premiums and/or taxes are levied against ATS because of the services provided by the service provider, then those costs will be paid to ATS by service provider. ATS has the right to withhold any such costs from the service provi of s compensation that results in any additional insurance premiums and/or tax levies against AT S. If toe compensation is not sufficieni enough to cover the costs, then the service provider shall repay ATS within 30 days from their receipt of notice thereof from ATS. If payment is not made, ATS may proceed to collect from the senJce provider by ieg l process am it s ch ; ase ; service provider shall also be responsible for ATS's reasonable costs and attorneys fees. in any event, failure to provide a certificate of insurance will result in 25% of amounts due to service provider being retained by ATS to cover additional insurance premiums that may be levied against the service provider by z it ir,ssrance wornpany in orner c adequately insure that apparent uninsured service provider. 7 his -etainage will be paid is _:,e service P-ovider witt l 30 days of receipt of a valid certificate of insurance, and %lii! be paid in the following acr=e; ! 5% or seta rage dlue to be paid within 30 days of receipt of actual "Certificate of insurance", 10% retains e to ire paid if Comprehensive General Liability coverage in the amount of $1130,000 is shogun on t.,e certificate. 7. SUPERVISION. Service provider will be responsible for he ivo k assigned to hip; and fe- ` e car uct cf 1hemse:ve? and their employees and will provide adequate supervision tc, them. They will assure th=t tneir work and the wori< their employees is provided in a good and workmanlike fashion and m accordance : ith t.?e s=an1?~is Pstabl=s'-4 ATS. Within these limits, service provider rnav perform the icn GS ?e±i see fit Wu :iii y^:rc"eijn_es of t„= _cop8 T w0_1 established. They agree to coordinate with A-S anc ,ha: A ? S has me right to verse the 'rtaa? a d a, work. However, ATS will have no obligation to pro,iide supervision or con rci l se-vice provides manner performing the work or of their employees. 8. STARTING TIME. Time is of the essence to ATS's customers. The service provider shall keep aware of weather conditions and when there is threatening weather, is required to contact their ATS Site Manager via phone or email to indicate that they are ready and available to be dispatched. in the event of the possibility of snowfalf the service provider agrees to keep ATS informed of whereabouts and availability if service prow der will not be a` their regu!a:ly designated phone number. The service provider and equipment shall be "rolling" wi hin 30 minutes of the time that ATS gives notice to the service provider. 9. MINIMUM USAGE. ATS will not estimate the pours c usage fcr the above equipment nor guarantee a ninimurn usage, due to the uncertainty of winter weather patterns. 10, NEW ACCOUNTS- It is understood that ATS has a large number of accounts for which it has done work over the past years and that it is continuously engaged in advertising and sales promotions in an ffor,, to acquire nevv accounts. Therefore, all accounts for which work is done are a=,unts o? ATS. S°rvsce provrd r ma,v so.ic" new aGALnfS fC ATS. Such new accounts will be accounts o` ATS ever thouyf; 'they were ?rocu e ' fc; ,=.TS by service provider. Service provider will receive a commission for all new accounts secured by hir,;, v4 ;cl c:-P;,- n :Aril' be egaa: tc h°'; of ATS's gross billings to that account for the first year. T ne ccrnm:ssion wail be paid „ eta i 15'": providing that ATS has been paid in full by the account. 11. NON-COMPETE. Because ATS has expended mainy yea;-s arc .a ge amounts vi rnce, an r G,, r the accounts which it has, and because Service provider .m? l b , claced in con act V it,: 2r, .I 0° fhc-?e accounts performing the services under this Agreement, service pro ioet agrees that, ae wfi; riC ::Gri:^vei? .v.. r?TS as employee, Sub-Service provider, service provider or in a^ ier capacity- by provid ng Y,,e services %,-hick Gra .:v subject of this Agreement for any of ATS's customers fe- a ?nr d of three '3} year the to rn,, 2tic;., `or an reason whatsoever of their engagement with ATS as an incepende ;t service provider , ar, ition, service proyicer vv!' not disclose to any other person, or use or, their own behalf, arty customer names other confidential information gained from ATS. The parties agree that in the event of service provider's violation of his agreement riot to compete. ATS will be entitled to both temporary and permanent injunctions and, at its option, ;i uidate damages in an amcun!- equal to the total gross amount which service provider earns from competing jobs during the three (3) year period after termination with ATS, plus ATS's costs of enforcing this Agreement including its Court costs and attorney fees. 12. BILLING AND ADVERTISING. ATS will be responsible for billing customers for the vork done by service provic hereunder and for collecting from those customers. It will continue its advertising a rd sales promotion activities order to obtain new accounts and maintain existing accounts. 13. TAXES. ATS will not be responsible for any withholding of income taxes, Social Security, or the like frorn amounts paid to service provider under this Agreement. it will not be providing Workers Compensation insurance for service provider. It will not provide any company benefits or any kind for service provider. ks o I+gation to Service provider will be solely those set forth in this Agreement. ATS will send For,,, 1085 :o servii:e :,rovia r a, -,e:: iasf a- -s. after the end of the calendar year. Independent Service provider's Agreement, °aae _ of 14. TERMINATION. It is the intention of the parties thrt this Acs-eemant. ar:d the ra'-t=on3Nn t•e'v een there. }rli'? r_.n-?tm, e until terminated by the parties- Service provider has ng,!-' tc ter ni ate the Agree men b t` ity (30 1 :_.ays ;te notice to ATS. However, when ATS obtains a;o -ff - the .=vc" - service provider accepts the work, he will not terminate the A °ement. except fo. czuu c. ;nil' iha' : r?,J e completed. ATS may terminate the Agreement immediately at ? V `imp for arv ca_ se v 15. CHARGING AGAINST COMPANY Service provider will got a Mme of:'-Ts Cr at' --p; *c _se a' S's :.edit. f the purpose of buying or charging fuel, parts, tires or anylhinc ease -,hat wou'd inur, tc `foe anything is charged to ATS without authorization. service provider car. expect AT", ;o foe "atever !egg! a0er 's necessary to seek reimbursement and will be responsible fr?r ail expenses incurred b , ATS. Also this would be 'au -Se for termination of this Agreement by ATS 16. DAMAGES. Service provider understands they will be fully responsible for any da . ages to the Property or ar y of ATS's customers which is done by service provider or any of their e:,mp'oyees. ATS , ,ay-wit^,ho d funds to repair s_-dh damage from any amounts owed by ATS to the service provider. If the amount oft .e damage exceeds any amoulr'. owed by ATS to the service provider at the time the amount o` tie damage is as e ai^ed; it en the service prouder shall pay over to ATS the difference within 39 days thereafter. if payment is not made, ATS may pursue ccilection by legal means and the Service provider shall then aiso be responsibie for AT S's costs a d alto ey fees- 17 . MISCELLANEOUS. This Agreement is made in the Cori:;io--:n ?_aii`1. of ?e?r?svivania nd ,v: :e ccr st- e~ accord ng to Pennsylvania Law. If any part of the Agreement be fo.?: t i 1;d. ;f 1, -o. validat the d=r ° =?e Agreement. The Agreement may be amended only iy a viffifinc sigr%er io:r pa =tSs 18. MODIFICATION. This Agreement shad not be :mmodif- _riess n ,.`; r _ 2 :G s:y; 5, 3 same manner as this Agreement is executed. 19. ENTIRE AGREEMENT. This Agreement contains 'rhe obligations, covenants, representations, statements or ws', :?Iic ,s e.imes transaction. 20. INTERPRETATION. This Agreement shall be 'ntv, p et,.1 to such factors as the party who prepared for caused the Nrepa 'n is ? si; ;enz or re a.iv :,aryain, ,ru power of the parties. 21. AUTHORITY TO BIND Each party signing tt is Agreeme ; r .es=s?ts G.in warrants to 7e er ra, i} t obey ti- the full legal power, authority and right to execute, deliver this Agreement and the party on whose behalf they are executing has the full legal power, authority to perform its obligations under this Agree, ent, and each party's performance hereunder and the transaction contemplated hereby have been duty authorized by all requisite actions on the part of such party, and no remaining action or third pa t, action is required to make his Agreement binding upon such party. 22. FACSIMILE. All parties will deem facsimile copies of this Agree; ,ermt acceptabie. he aa,es agree ;o foilovr up signed originals. By application of their signature below, the parties acknowledge that they have read VA Agreement, inderstand the Agreement, and have received a copy of it and agree to aoioe uV the terms and core 'it :; 5 herein. IN WITNESS WHEREOF, intending to be iegally pound he! If t? oartses nem. -a,rQ e -=ifs orcor, e7- as of the date first above written. SERVICE PROVIDER - FA- -Ir S - „0I T 7,7m Signature a J/ ) Print NaTa f 12- tab Date Bate {P_? G: For Office Use Only INCVT Y/N SUB INFO" SNOW REMOVAL *** Please complete all fields of information - TI COMPANY INFORMATION Com an Name 4/0ZA F5 Contact Name r t,,} Title .,,-• Street Address lv.- s ? city State/Zip PA i-7o2 s Company Phone/Ext 01-) -7 3 2 _ qo (d3 Company F x -7,-7) 73 z - ,L)e 3 Cell Phone s' ?12 _ 674 Referred By 1 Website Email SLTMPM RACTOR PERSONAL INFF ':. ' Z'ION Social Security or EIN # 2? r Lc72?+1 Insurance Co Name T, Ins. Polic # 3 ? 2 701 Sub Home Address city State/Zip...... Home Phone Priori Phon e Date of Birth Desired Pay / hour i Previous Plow Co Drivers License No. z - s'3 7 - 133 Issuin Stat {} Misc Info Dates Not Avail to work Truck & Equipment Type 1. 2. (note: skip only if listed on 3 Independent contractor's reement) A 4• g 5. # Years Experience Make Check Pa able To: C]?st I certify that my answers are true and complete to the best of my misleading information given may result in my release. ONTRACTOR TION SHEET I understand that false or C Signature Date: S u e Mail to About Time Snow Removal, 410 Brendwood Drive, Langhorne, PA 1904'7, Phone 215-757-8840 Or Fax to 215-757-0143 7 ? "nest for Taxpayer n "°' Ite C%We form to theft !deftifle2tior. Number and Certification requeaer. Do mar ca-artnlw, of #W- T"easury sow to to mss. -±21W serves 2 3=-= name. if d-&-ett from above o? S - 0 f a o i lndsvai LJ Ch,-cK app'oprme bo- : Sale proxeior C od01 P3i 1 h ? Oth Faempt fom beciao - m -----___ P wS er y c --- .`• 1 Address (number, ? street, and apt or suite no.) Requestef name and address (orAiorrW} IL w Ctty, stffie. and ZIP Lode ? jz, aocoi:r# nurrber?s) here (optional; ??___. - - -ar?sa?sa?bG aii2rl?t;,i3lc?il hYliJdYdl?c i E{ f6tl? ,(Q_" Tv. _ %ate 3 rv Prcv e c r::; iz>z :-riaic.`r the naive given on Line i to avoid social seeuft rMniber s yof?r u to tom;: y r:. ntor (S". However, fora resident _; .. i r" -nuctians on pa e 3 For th titi i - g _ o er en es, t is if j,,,-x„ c; r,,t -, _.,, e. number, see How to get a 17N on page 3, or e_ ° ac 2 ; .fin iar*fe sea 2rh cha * o ? ;n=ge d ;ar id ryes on whose rXSmberr ??Pe?r ideadie oeion nonbor 6:.. C'.: (rte;.. 0 1 I Z 4-7 j t eiaines C.7 peel--y' .certify -&,ot _ lt,.? '?rr?,,, .;r??.,,; ?; ii.s*"•?rm ? ; , f t;orr?t ca??aya; ii?nc:s?on number (or i am wading for a +wmk 2. a. r. a o suc ece i ,ackup wiG?netding because: (af 1 arr: exempt from backup wiftftkling, or (b)1 have e :ue ve : :: ;; -.:mot . am subjectt to bac;, tW wi:fOokfine as a resutt of a failure to report an intwm l{+f? !?!?Pr a' Jr to t?3dr'Jp and 3 arr a U .S. e?;A e 07- vAuc.ing a u.& resident alien;. CeffNc-, on as!-jctio;:s. "c:; mast cress cut itern ? ?QvE a you have been notified by the IRS that you are %vi`.hnoidmq because you have failed to report all interest fill dividends on your tax return. For real estW a tr. For mortgage mterpst paid, acquisition or abaruionment of secured property, cancelation of debt, contribi t arrangerY--zi (IRAi, anu generaaffyy, payrnerats Other than interest and dividends, you are rut required to sign ti omvide your car, ect TfN. (See the instntctions on page 4.) r to be issued 10 rm), and ut been natitied by the treterraal Or dividends, or (c) the IRS has o'renty subject to badaip actions, heart 2 does not apply. o to an ndividual reuremerat Certification, but you must sign Sigmdum of Here Purpose of Form A person Who is required to file an information retui r. with nbe RS, must obtain your :; erect taxpayer identification number NtCt re-, Oft- ' , Xa , income -,aid to ? 1 ;. ycr. =:ai --5 -3 tranG?r;x-it•'>" ?sr- - °ereSs y'u_ osid, acquisiti:)n or ; ?''°celiarier: nl .tEs1^.r cw an, a ?'zrcon Vour,O`ra(' tag i?a! tr, backup wit,.holding. e3 C? .=• l r? = i?il":`. "i., t)ackup wi ohoiding if yt3? are a t, S _ e; e npt payee. i`qc+??.. .?" r-q!k? *jE?•'L ire?; a forme o#w, - Form 141-9 to rzcruas Jc?=r "ii fv4 :.. _st use r. a ruq estar-.s Fes' -, i! i_ is suosta,-)`iP-Hv Similar tc tr:s Form W-9 . -cr =- z , Qi - r f cses you are conks!. ea a per-son, if you Hoc: • An individuai wno is a c?tizen or resident of the United States, e A partnership, ccrporation, company, or association created or organized in the United States or under the laws of the United States, or e Any estate (other than a foi Reaufations sections 301.770 informaiior:. Foreign person, if you are a Form W-9. Instead, use the A Publication 515, Withholding i and deign Entities)- Noriresiderit abeen who be co Generally, only a nonresident tears of a tax treaty to reduce certain types of income. How provision known as a "saving in t+e saving clause may perm continue for certain types of i has otherwise become a U.S. if you are a U.S. resident al exception contained in the sa claim an exemption from U.S. you must attach a statement 1 foilowing five items 1. The treaty country. Genes treaty under which you ciaime nonresident aliern. 2. The treaty article address 3. The article number (or loc contains the saving clause am rte. No_ t0Y3tx estate) or trust. See ) and 7(a) for addaional reign person, do not use mpnate Form W-8 (see Tax on Nonresident Aiie ns as a neaident alien. ien individual may use the or efiminate U.S. tax on ter, most tax treaties contain a lause Emotions specified t an exemption from tax to mme even after the recipient isident alien for tax purposes. n who is relying an an rig clause of a tax treaty to ax on chain types of income, Form W-9 VW spexifies the ly, this must be the same exemption tram tax as a the income. lion) in the tax treaty that its exceptions. Foma W-9 MW Zoos} v X 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 ._ Sri L6 Sri L n* m L6 ui n• t`. O N m 1- 0 d 1 6431 6vt 643. fA bet to (f} 6o I 4t U-) 0 co to O I- N co cA (o N OD Mt s- ui S V- o t) 00 ? N LA o LL Y x Y co Z x co cco c o <C Q Q c t o 0 Z Z o o 0 > L > ? c m N W L W Z N c o' (Z9 t~i LL U' _ O L A N •IBM L a M > > > 4. , a ,,.a o 0 0 CL ciw 0 ? r 3 3 cca N ? ? E E`o Q aO o oo a o 0 0 0 .0 , . . M CL 0- 0- CL 0- 2)S m ?t 0 W a 0 v N N p 3 +-+ '2 ° N a?i v p ?p ?p ?p O cis > ?Q ? 0 co CD OD OD cm tt7 ? e- R3 0 r U C Q 06 Q E N cn ? o N o U N ? ) CL _ m LO N c m 0 ° i L m - ?- . q` w mWL m L . O a.?[ ,V Z U o tL o W U , 4) t? oD O m O m O CCD ) Go 00 -0 e 0 -0 CF) T 1) e- w e- O r O r ~ ? W x CO Dec-08-06 11:04A THE McDONOUGH AGENCY 717 938 9514 XR7326 Company Name CERTIFICATE OF INSURANCE National Liability Fire Ins 30" Hanley Street • 0"? *Mwa*a 61131-3UO P_O1 This certdfKate of insurahcil is NOT an ummeaw polop and does not amend, eatertd or Mier dw awiffaqq!! i th t t N d f d h gt I by the polities laW heown. f otwr mg any r mmen an . term or con s ition o any contract or other document wit respect to whtcls ertain; the insurance forded b the pWKies described heren is sub n t A th t in ext ions nd certi icate may be issued or may iti f hi h di h y p o o e w s. a c oto o suc p aes w c may substantaNy livid coverage where reference is made to an Aggregate Leert, those limits are Company's entire pok7 period regardless of the number of isatuetb, cia+mants or accurre liability under the Policy for the Date 12/07/06 NAMf Of'tNSURED DONALD K WOOD VA WOODY' S P.O. ADDRESS RT11 FRONT STREET WEST FAIRVIEW PA 17025 POUCYMMBER KINDSOFIWAMANCE LIMITS EFFECTIVE EXPIRES COMMERCIAL GENERAL LIABILITY 0 Occurrence Form 0 Claims-Made Form Coverages Premrm-Operatgns ? ProdkoctsXcimplirtect Operations 0 Other (Specityl Ge+sera! Aggregate Lrmn S ProducK Co+nP rM+ons wggr gate Lim it S Pwworial S Advertising Infury I unit S Each Occurrence Limit S Fire Damage Limit (Any One fun) S . Medal f rpense Limit (Any One Person) S Aggregate LrmA on [firms E Mpetim S AUTOMOBILE L1AORITY Bodily lnWy Each Forson S 73TR1i708625 EachAgmident S 07/11 /2006-07/11/200 PropertyDamor Each Accident S Bodily lnstrryand Property DamageCombinedSingle Limit S 1, 000, 000 GARAGE VANLITY Roddy byury and Property Damage Auto Only Other than Auto Comt"ned5wigieLrnn i, S Aggregate Lrmlt S G4r,09A0epersinsyrance ? Legal Liabihty S ? D~ Excess S ? Direct Primary s EXCESS LIAMLITY ? Automobile ? Generalliabnhty Name of Primary Usurer: Primary Limits s Excess Lanrts S General Aggregate Limn S D Aggregate Limit inch/sweofCIwaIsEiipeMes 73TRS708625 Ol rUPI-. 35, 000 U114-35 000 i , 07/11/2006-07/11/200' sedffie rlon"BAltdrd ul d irsernatb tnhiolt mr be reakku g or sdldtNi ry in na ws. o°yo SA- 7.000 DgIX 1000 / 1000 .X#341560 • ••? ? of Any m4l"ial change in or caec*Wmn of lard this Certihcole n addt"wo ul such change or nnceNation. and COMB MYthursdees n0 ends to. but tt not ON tesporlslbdity by reason This Certificated to: FM COMPAb LLC T/A ABOUT FINE SNOW REMOVAL BRENDWOOD DRIVE LAN(mORNE PA 19047 sy Til Pttx?mtzsrrr to. notify the party to whom failure to do so 7 W1Mi(erll) Sam 4 q//3 Z,3 /c,,? Z/«1o-l ,Z, f Z 1'p ? J 3u-? 30e3 31&3 313` 3111 ax,03 "o- 25 -?t3- *175Z - ?410 C/6 ?2? ys 6 3 ,e3 -7 2- 5-e2( D WOODY'S 42mb Don Wood N. Front Street I o? + West Fairview, PA 17025 Office (717) 732-4083 Phone 1 7 7 Date 2 3 Jam 1- ., o u Name - Address State Zip City , , DATE DESCRIPTION PRICE 2 A o 7 l-L,, 6L f- 1113 62 G (?? yf3? ? Yit3 J,14r - q113 -1/13 7 q) 2.0 2-9 daea- at -?t2 a %2. a-. © - TOTAL (36 ??s mnn.,,•. THANK YOU REORDER FORM R2 1 Z {{ rIX _ Ir @ F?mZa s C) o a { rt 0 ^X y M T. u7 b 1 = ??tr?C,.n EL p O c m ?m `?czm?° A ?z>>C'w ? = o ? r ? P? A •a F , M g ;E - 4 . rn?.pv c G °,? srii I t, ?y0 T 0 c I G n m r C P V Z m 0) -4 ?-0 p- O?m mL zn7 C G o n r fT m g > *z ; v a T y m I Cl CLn i ? L T is 9 r s ? n N co D a ? { x F { I V 0 I C3 I C c ;fl ? n m a 0 D g g d W QI -n n T c m ? X71 f ? ? 0 i. ? I 4 l FI?O 10 O O O O O O C C m a m cKa o m` n m ie c m iM r N 0 0? K P tl! q P G i f t (0 i_ fA M W N •P IN P I A O O 6 O O O O O O O O O Z ? 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I c to ?r C3 1! = (0 CO 10z ?. 1 to I? !< 1m i 1 i ?- C. i -n I i t-n j m z c I ! 1 (O ? cf) m I D V E FZ4 D j > Ig m I tom; rr, Iy C ? 1 0 1z rn j rr * I lV I•? tJ }?v V T ! pig l;R x r- r ( j 1 0 O 0 J E j i t 1 ': ( I "xx" all that apply c) f4l C- CD r I:: -sue } Ir r C r- = _ C C; v tP ! ?% j 1 T 3 O ?' J r ?n C: =yam m t v O s. S z C z 3 4 j vci (v s. g j cn m i` G ' C) -n G A I I I i? i i i 1 ?I 10 n D Z CA i i ` i S I i 1 i f - ? I t _ S a?>ma c-, rn Dr?N ! DO -, N 1 } •s^T`.. T ITS' ('' --T 0. 0..' N C_} ` (! ?? v s c' j x j 4 C? m? v? C 1) i ' ?Ft i s in z - - `: h sT J G n ?r ID >.. 7 ' T nj ?i ' jw U 'sue j 1 CIO -? cn , _ Z z z j z z 1 t o c (n f rt I 1- ? C-_ CO cc ?z _70 y iZ i ! I? , < M. O J 15 n --- - -- - - - --- - i ±;F i } O D = j p Iv r O I - --I- - -- - - --- 4 }p?`1 l 3? it t? r ; -10 3 - ' --- -- - i ! ; m Cf) -: -'- =- - r- L ; i °xx" ail that apply r !r, f ' U fir.. r CD .7 ? L7 Z -{ ? 1 I 7 G -? m Z m fnz? i ZDUci I cn C7 G ?0 U om m rr'Dzti'j G a n ?:: QI >v r < m a fi m C -i z m O / s ill S a M J G :?z Z C n r i ? • O N Or- T v ? i 7 1 U O? n O n cz „ r J i -I .7 - VS I ,ry j i I-AN I' f ? f i t I? ?? ?I D k1i -._.._' 5: C I z C C. C, cS "i c { c _ D 1 l ?J- - . 77 i? 1? '? r f: \ Ir ?< ?w la co IL ,Z IZ i lz c Z t O i t- z I 1 y i i ! i 1:3 ? I1I 7 1 I -,?J ' ? l ? ? 1 I 1 I i i 1 T I '' 1 i l y 1 ! i i I Tfl co) 1 I I 0 't i I, 4 I Z l co r _ ;? I v l ? L !•r?y-:_J.?'yi- 'lee';-••? i l , < O O Gn CL j CG v J C •? V? 2 C a r ti co ? < C) < D 1 ?? 7 n7 (C X 3 N O M 4 O ? ? o 4 a i *I 1? I 3 i? 1 I ? I D r 7 iE l rw ,? ?I jc ° 7D lm j Iv * N i Im c I C I O r 0 ? m lr 11 xx" all that apply WOODY'S - o Don Wood ? N. Front Street ; West Fairview, PA 17025 Office (717) 732-4083 Date 2 ?? t I Phone 7E7 - e ` c) so Name Address City, State, Zip L ?-??r^ rte` 1 C"/ DATE DESCRIPTION PRICE 2 v7 1 `/Z I-W / I Z O ? ,? Nt? 7 -S ?"? ?n ih C7 U -Arm TOTAL d ° THANKYOU , REORDER FORM 4790' q113 - ?, O ! n ` y 1 1 ,,? ! C (-1) Z -! F, ^ n' ^ rn o i r zmIn ? i (D z 0 70 ^ ? CD D z I Qj c) i I i t F j ! I t t i l j ! I ` ` ` { . = j 0 1 Z I ! , I " C3 LD G 117 -7i x 0 ? n m -4 A a w I? h" L? < ?. , --' '`l -77 s I I ?• M< na ED j ' mm r o I-7 D a . D ! I 17. f.0 _ r > Fr. ?- Ti?? - 4 - tS ''Z !Z I? 1 2 _ -ID -i> Iq 1> I?j 1r !' J l L _ _ ?.:_ _1_ v j s I v a E G 1 ! z iQ CD ic, (D 19 Gil 14, 7' Z IZ ' i z (O - r CD n c , I > CJJ rn ! j ! ; i ! o 0 I? ?rr I - m O ?? i ' ; ! ; ; i 7 > I ?• ? ' I i m C. I ? 1` c f I ? I ? - r iC: .T :r} i? 1 E? .,- - _ .,A i ;? I ' O ID - -o = ?r :u I'l7 ? I D i Q r 0 I 10 m I I - -- ---- - - iD ail that aDDiv M n, t'b CD c Awft ID R _ ? `^n A n . ? yr ' 1 ? i• i T-I, 11.7 I 1 + 0 '1 ? 1 ..c rJl : i t ? jc ?a i • , 10 ------ i -0 i z X j ' - - - LLL??? _ _ _ ------- ^ • -- ---- - f, xx" 21 that a?•oi Don Wood N. Front Street West Fairview, PA 17025 l Office (717) 732-4083 Date G Z-6Xy 2 Phone Z? r 73 7 vrin . r' - t? Name Address !c7 I" City, State, Zip Jo Ll 7 DATE DESCRIPTION PRICE 2 2s` ?? 128 f l % - 137 5 t J 2-2- /-ln 37 38 7111"? i-". % Z Z C L,k. 2 ., ...? 1 q) 36 Al l 74/ O-- 1 I /LD 1-7 35- TOTAL '7 0 ? THANK YOU REORDER FORM 7901 3 L?/;ll qQ T w r r- ^J -7 ..J 3 ?1J _ I fr / /"• 5 f .-'.I F. n? 5 X - :mod gL ° o I"7 f i ;s ?z Cam' - a a - 77 - - = n - r. Tj s ? pt 1 cD iW ? tl ? G Y\ ? y 1 i ?• + 1 j Ir rr, ?i m < tm . i i i ; max" ail m.2T anonl, tF NJ d a -r < _ \ s ? W ? ? N ? J O ? ? i ? } l rl li I? { ?? ` (? i`1 Is ?? ?$ IN f W G ^1 w C "J tr] J SG ? ? v -- o r s s s j a. a y N 'O C S ?o V a n t y 'G I G d a? C ? W r I? G _ v 0 H A ? z ? d v " IT, 0 "d o .?•o p O Ps N 0. v? 00 o v F" e ` . t_ W OD d N N r 1 y r'f ° z w d ? 0 v? N ?. 06 N?rb rl W N (/? W 1_? a c 77 03 M,.n L5 - I. i Ui W - - I I, 7 n r ? ? s L ? ?` 1 ..Q IJ n -15 ry) j s _ ` ----- ----? - --_- - - - - .. IL_ ? I Ifni • Q9 - : y ^ C T v `n '0 ?J t I I Cl) 2' th it .2' r J 27 - T L l^ 5 la = n _ x i `i V• 1 S I ffi n V _ y - S O V r L. 1 G > 11i' j z - ? c 77 ti 1 3 X ,?3 _ i ? Mi. po R Ti ? J 1 ? 1 F o`• I J m 2- Cl i I ? 7 *? 1W "? C8 i ':, D :t Cl) _ ;.Z7 ?? r t I,? ? 1 ? that wDil. O i )-- O W J u 9 ? o r ` J ° r l . - z ` . r G L4 f 1 f cl? W j SJ - (r N 't N ? n w -1 S ? 4 `1 \ _ ? ) c W ) rl it ? f ? ? 4? 41, W z Cl% i r` 1 k t j W ` W G r? ?A ?% c P co b Is I I 1 ?S ?'? I? m a y N '10 Ir- I( 19 (A 1+ y r? 1 N L G Ali ? d ? w 0 °P 0 J o v? n w c N c Nay, a ? ? W N NO v 1 d a J 0 eb J V. ) J 4 !W 1--' o Cil N o? v? ?d O ?...o p O C N O v W W W O i a H V _ tE> LJ ? H 0 ? la w ` 1 n a y y d C > 1 0 N J 0 °b t? ?i O N 0 0. ova W N 9- 0 c K y w F-A • F" q 77 y -- 1 7 T G - LE ?c ? T 7 - 5 c_ W J ` p1 * ? fi ? s1 J G ? G p r TJ 0 W ? ? 1 1 Lea 0 -- G G: • 1 CD - -- _- .._. O 0.0 0- G_ 1 1 l y J C _ j= 1 J ? [J. 1? ? I V; v? I T ?z !1 CD z 0 M C L =? D z i?@ r i. 7-1 A O z ? I? I?! f? 1 i 1 ! V 1 1 G A IF , 1 t ! "vv" vii th;.t annly W s Qq v v l G N G 1l? C61 J ?` c a1 0 - ?z W?w _ f . G m U J x k V t. t ??t":; I_?I?ei F y4 `mil + M i i A f \ i -.J tL. i> i I '.X -fi :ncj isoo . (- _.?_..? t t tom: :.54 ??, ?J i cn T ? i'•?J .v' I BY THE COURT: that 2008, J. t1 J1 e'..? BENSTEAD & MABON, P.C. By: Sean M. Gresh, Esquire Attorney I.D. 490107 124 East Court Street Doylestown, PA 18901 (215) 345-9100 Attorney for Defendant COURT OF COMMON PLEAS-DAUPHIN COUNTY CIVIL ACTION-LAW DOANLD WOOD, d/b/a WOODY'S DOCKET NO.: 200')-CV-10211-DJ Plaintiff ABOUT TIME SNOW REMOVAL VS. ATTORNEY I.D. #90107 Defendant ORDER AND NOW, this day of it is hereby ORDERED and DECREED upon consideration of the forego Count II of Plaintiff's Complaint be dismissed with prejudice. 1 P A BENSTEAD & MASON, P.C. By: Sean M. Gresh, Esquire Attorney I.D. #90107 124 East Court Street Doylestown, PA 18901 (215) 345-9100 q f I HONOTARY Attorney for I 200 JAN 28 PM 3: 31 U AUPPENCOUNTY !MAGEC COURT OF COMMON PLEAS-DAUPHIN COUNTY CIVIL ACTION-LAW DOANLD WOOD, d/b/a WOODY'S DOCKET NO.: 200',-CV-10211-DJ Plaintiff vs. ATTORNEY I.D. #9p107 ABOUT TIME SNOW REMOVAL Defendant AND NOW, comes Defendant, About Time Snow Removal, by d through its attorney, Sean M. Gresh, Esquire, and with him the Law Offices of Bens lead and Mabon, P.C., who hereby preliminarily objects to the Complaint of Plaintiff Donald Wood, d/b/a Woody's, and support thereof avers, states and represents as follows: 1. On or about November 27, 2007 the Plaintiff filed a com laint against the Defendant. 2. The Plaintiff's Complaint includes a Count I -Breach of Contract. In this count Plaintiff alleges that Plaintiff and Defendant were both parties to expressed 1 contract for services 3. Plaintiff's Complaint also alleges a Count II-Unjust Enrichment. In this count Plaintiff alleges that again based upon the initial expressed contra t, and Plaintiff's alleged performance, that the Plaintiff has been unjustly enriched. nF.FF.NnANT'S FIRST PRELIMINARY OBJECTI N 2 t . ?,?„ -? s 4. The Defendant hereby incorporates by reference the prece ing paragraphs as if more fully set forth herein. 5. PARCP 1028 A2 states that a party may file preliminary jections to a complaint if there is a failure to confirm to law or rule of court... PARCP 1028 A2. 6. The law of Pennsylvania holds that unjust enrichment is a uasi- contractual doctrine based in equity. See, Wiernik v. P.H.H. U.S. Mort. Co m., 736 A2.d 616, 622 (Pa. Super. 1999), qppeal denied, 561 Pa. 700, 751 A.2d 193 (2(00). 7. Pennsylvania law further holds that "the, doctrine of unjust enrichment is inapplicable when the relationship between the parties is founded upon a written agreement or an expressed contract..." Wilson Area School Dist. V. Ske ton, 586 Pa. 513, 521, 895 A.2d 1250, 1254 (2006). 8. It is clear from the face of Plaintiff's Complaint that Count 11-Unjust Enrichment is based upon the alleged expressed and/or written contract between the parties, therefore, Count II fails to conform the law of the Commonwealth of Pennsylvania. WHEREFORE, the Defendant respectfully requests this Honorab e Court dismiss Count II of the Plaintiff's Complaint with prejudice. Respectfully Submitted, BY: SEAN GRESH, E S Q Attorney I.D. 490107 Attorney for Plaintiff, Al Removal 124 East Court Street Doylestown, PA 18901 Date: January 24, 2008 (215) 345-9100 7 rime Snow 3 ATTORNEY SUBSTITUTE VERIFICATION Sean M. Gresh, Esquire, Attorney for Defendant, About Time being duly sworn according to law, deposes and says that he is author Removal to take this affidavit on behalf of the Defendant and that the facts contained in thl foregoing pleading are true and correct to the best of his knowledge, information and belief. He further understands that false statements made herein are subject to tho penalties of 18 PA. C.S.A. Section 4904, relating to unsworn falsification to au Date: January 25, 2008 SEAN M. GRESH, ESQUIRE Attorney I.D. #90107 Attorney for Defendant, About' Removal Snow It w Bryan W. Shook. Esquire ID #203250 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill. Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 IMAGED WJ N p L J Attomev for Plaint iff DONALD WOOD, d/b/a WOODY'S Plaintiff IN THE COURT OF t DAUPHIN COUNTY, )N PLEAS OF YLVANIA V. ABOUT TIME SNOW REMOVAL, Defendant : CIVIL ACTION -LAW No: 2007-CV-1021 1-DJ NOTICE TO DEFEND You have been sued in Court. If you wish to defend against th e claims set forth in the following pages, you must take action within twenty (20) days a er 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 clai s set forth against you. You are warned that if you fail to do so, the case may proceed ithout you and a judgment may be entered against you by the Court without further no tice for any money claimed in the Complaint or for any claim or relief requested by the laintiff. You may lose money or property or other rights important toy y ou. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE IF YOU DO NOT HAVE OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR T LEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN G T LEGAL HELP: DAUPHIN COUNTY LAWYER REFERRAL SER 213 North Front Street Harrisburg, PA 17101 717-232-7536 NOTICIA Le han demandado a usted en la corte. Si usted qu ere defenderse de estas demandas expuestas en las paginas signuientes, usted tiene vienta (20) dias de plazo al partir de al fecha de la demanda y la notificacion. Usted ebe presentar una apariencia escrita o en persona a por abogado y archivar en la co a en forma escrita sus defensas o sus objectiones a las demandas en contra de su pe ona. Sea avisado que si usted no se fefende, la corte tomara medidas y puede una rden contra usted sin previo aviso o notificacion y por cualquier queja o akuvui qu es pedido en la peticion de demanda. Usted puedo parder dinero o sus propiedad s o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE SI NO TIENE ABOGADO O SI NO TIENE EL DIMERO SUFICIENTE DE PAGA TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEPONO A LA OFICINA C YA DIRECCION SE EMCUENTRA ESCRITA ABAJO PARA AVERIGUAR DON DE SE PUEDE CONSSGUTA ASISTENCIA LEGAL. DAUPHIN COUNTY LAWYER REFERRAL SERVh 213 North Front Street Harrisburg, PA 17101 717-232-7536 ' C= r•" +J Bryan W. Shook. Esquire ID #203250 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 BSWA a dcdia%N.net Attomev for Plaintiff DONALD WOOD, d/b/a WOODY'S Plaintiff v. ABOUT TIME SNOW REMOVAL, Defendant IN THE COURT OF C( DAUPHIN COUNTY, P CIVIL ACTION -LAW No: 2007-CV-10211-DJ )N PLEAS OF YLVANIA AMENDED COMPLAINT AND NOW, comes the Plaintiff, Donald Wood d/b/a Woody's, by and through his attorneys, THE LAW OFFICE OF DARRELL C. DETHLEFS, by Bryan W. Shook, Esquire, and makes the within Amended Complaint against the Defe dant, About Time Snow Removal, and, in support thereof, avers as follows: 1 Plaintiff, Donald Wood d/b/a Woody's operates as a business with an office at North Front Street, Enola, Cumberland County, Pennsylvania 17025 2 Defendant, About Time Snow Removal, operates as a business an office located at 410 Brendwood Drive, Langhorne, Bucks County, Pennsylvania 19047. 3. On or about December 5, 2006 Plaintiff and Defendant entered into a contact in the form of a Service Provider Agreement for Snow Service (a copy df the original contract is attached, marked as Exhibit "A" to Plaintiff's Compla service in and around Dauphin County. 4. Defendant, About Time Snow Removal, has a large number of they have contracted for snow removal services. 5. These accounts are serviced primarily by About Time Snow the work to independent service providers. 6. At all times material hereto, Plaintiff, Don Wood d/b/a Woody's aforementioned independent service providers. 7. Plaintiff believes, and, therefore, avers, that Defendant, About had a contract or contracts with The Home Depot to provide s for snow removal nts for which , brokering out one of the Snow Removal, removal services for store number 4113. (Copies of this contract is believed, by Plaintiff, to exist however is not attached because Plaintiff is only aware of it, as a natter of course, and is not in possession of it). 8. At all times material hereto, this case arises out of services performed at The Home Depot store number 4113, Derry Street, Swatara, Dauphin County, Pennsylvania during February and March, 2007. COUNT I - BREACH OF CONTRACT 9. Plaintiff incorporates and makes part of this Count, paragraphs 1 h 8 of this Complaint as if fully set forth. 10. Plaintiff invoiced Defendant for the snow removal work perfo Depot store number 4113 on six separate invoices as set forth (Copies of all invoices and related time and material sheets referf attached and marked as Exhibit "B" to Plaintiff's Complaint.) a. Invoice # 3018 dated 2/3/2007 = $183.00; b. Invoice # 3055 dated 2/16/2007 = $713.25 (the invoice 3055 is made up of invoices numbered 3051, 3053, collectively referred to as Invoice # 3055); c. Invoice # 3083 dated 2/21/2007 = $1,792.00; d. Invoice # 3103 dated 2/26/2007 = $410.40; e. Invoice # 3139 dated 3/8/2007 = $853.00 (the invoice r 3139 is made up of invoices 3138 & 3139 and is co Invoice # 3139); f. Invoice # 3161 dated 3/17/2007 = $1,872.83 (the i at The Home fully below: below are to as # & 3055 and to as # referred to as referred to as # 3161 is made up of invoices 3159, 3160 & 3161 and is collectively referred to as Invoice # 3161). 11. The total amount of the six invoices referenced above and billed t? Defendant, About Time Snow Removal for The Home Depot Store # 4113 is $5,824 12. Payment of the aforementioned $5,824.28 has been demanded b? Plaintiff. 13. To date, no payment on the aforementioned $5,824.28 has been Plaintiff. 14. Consequently, by reason of the non-payment of the aforemention by $5,824.28, Defendant has breached its contract with Plaintiff. 15. Plaintiff has been harmed and damaged by not receiving payme t of the aforementioned $5,824.28 for snow removal work performed on behalf of Defendant at Plaintiffs time and expense with Plaintiff's manpower and equi ment. WHEREFORE, Plaintiff demands judgment against Defendant, A out Time Snow Removal, in the amount of $5,824.28 which represents actual dama es and expenses incurred by reason of Defendant's breach of contract with respect to he aforementioned snow removal service provider contract plus costs and attorney's fee and any other relief that this Honorable Court deems necessary and just. Respectfully Submitted, Dated: a-/ I- or At Bryan V . Shook, Esquire Attorney Id. No.: 203250 2132 Market Street Camp Hill, PA 17011 (717) 975-9446 Bryan W. Shook, Esquire ID #203250 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 Attorney for Plaintiff DONALD WOOD, d/b/a WOODY'S Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant IN THE COURT OF C( DAUPHIN COUNTY, P CIVIL ACTION -LAW No: 2007-CV-9906-DJ )N PLEAS OF YLVANIA CERTIFICATE OF SERVICE Pursuant to agreement of the parties counsel, Defendant's accept service on behalf of Defendant, therefore, I hereby certify foregoing Amended Complaint, was hereby served by depositing custody of the United States Postal Service, First Class, postage pn follows: About Time Snow Removal c/o Sean M. Gresh, Esquire Benstead & Mabon, PC 124 East Court Street Doylestown, PA 18901 Dated: a-- II - ? Respectfully Submitted, Bryan W. Shook, Esquire Attorney Id. No.: 203250 2132 Market Street Camp Hill, PA 17011 (717) 975-9446 as agreed to a copy of the same within the , addressed as BENSTEAD & MABON, P.C. By: Sean M. Gresh, Esquire Attorney I.D. #90107 124 East Court Street Doylestown, PA 18901 (215) 345-9100 t' r, u t'4 U ri Atto 2008 APR 10 PM 2: 5 7 DAUPHiN COUN-i Y PENNA ELI MAG COURT OF COMMON PLEAS-DAUPHIN COUNT CIVIL ACTION-LAW DOANLD WOOD, d/b/a WOODY'S DOCKET NO.: 2007-CV-10211-DJ Plaintiff vs. ATTORNEY I.D. 90107 ABOUT TIME SNOW REMOVAL Defendant AND NOW, comes Defendant, About Time Snow Removal, by attorney Sean M. Gresh, Esquire, and with him the Law Offices of Ben, P.C., who respectfully states and avers as follows: 1. Admitted. 2. Admitted. 3. Admitted in part, Denied in part. It is admitted that there wa entered into on or about December 5, 2006, however, the remaining alle denied as they refer to a document that speaks for itself and to which no response is necessary. 4. Denied. The allegation set forth in this paragraph is a conclu which no response is necessary. Strict proof is demanded at the time of matter. r ? rney fdr Defendant through its . & Mabon, i contract are of law to on this 5. Admitted in that the Defendant does utilize subcontractors to Fulfill its contractual agreements. 6. Admitted in that Don Wood d/b/a Woody's was a Defendant to fulfill its contractual obligations. 7. Admitted. utilized by 8. Admitted in part, Denied in part. It is admitted that the allegations as they arise concerning this specific case due concern performance of services at a Home Depot store number 4113 in Swatara, Dauphin County Pennsylvania. It is denied, however, that the issues in this case arise solely from performance at that store. COUNT I-BREACH OF CONTRACT 9. Defendant incorporates by reference the Answer set forth in through 8 above as though set forth in length herein. 10. Admitted in part, Denied in part. It is admitted that Plaintiff Defendant for services rendered at Home Depot store number 4113. Ho further answer and denial, these allegations refer to documents that and to which no additional response is necessary. (a) Denied. This averment refers to a document that therefore no additional response is necessary. (b) Denied. This averment refers to a document that therefore no additional response is necessary. (c) Denied. This averment refers to a document that therefore no additional response is necessary. (d) Denied. This averment refers to a document that therefore no additional response is necessary. 1 invoice ever, by way of for themselves for itself and for itself and for itself and s for itself and (e) Denied. This averment refers to a document that sp?aks for itself and therefore no additional response is necessary. M Denied. This averment refers to a document that sp s for itself and therefore no additional response is necessary. 11. Denied. This averment refers to documents that speak for =selves and to which no additional response is necessary. 12. Admitted. 13. Denied. After reasonable investigation About Time Snow R rtaoined val is without sufficient information to form a belief as to the truth of the allegation co in this paragraph. Strict proof is demanded at the time of trial on this matter. 14. Denied. The allegation contained in this paragraph is a conclusion of law to which no response is necessary. Strict proof is demanded at the time of rial on this matter. 15. Denied. The allegation contained in this paragraph is a concl sion of law to which no response is necessary. Strict proof is demanded at the time of ial on this matter. WHEREFORE, the Defendant, About Time Snow Removal res this Honorable Court dismiss the Plaintiffs Amended Complaint, with NEW MATTER 16. Defendant's incorporates the preceding paragraphs as set herein. 17. Plaintiff s claims are barred in whole or in part by the ethical requests more fully of limitations. 18. Plaintiff's claims are barred in whole or in part by the doctri6e of the court in satisfaction. 19. Plaintiff's claims are barred in whole or in part by the doctri e of latches. 20. Plaintiff's claims are barred in whole or in part by the doctrie of collateral estoppel. 21. Plaintiff s claims are barred in whole or in part by the doctri4 of promissory estoppel. 22. Plaintiff's claims are barred in whole or in part by the failure of performance and/or consideration. WHEREFORE, the Defendant About Time Snow Removal respectfully requests this Honorable Court dismiss the Plaintiff's Amended Complaint, with prejudice. COUNTERCLAIM About Time Snow Removal vs. Donald Wood d/b/a Woe d 's COUNT I- BREACH OF CONTRACT 23. Plaintiff incorporates the preceding paragraphs as set forth m re fully herein. 24. Plaintiff and Defendant entered into a contract wherein a Do ald Wood d/b/a Woody's agreed to provide snow removal services to client's About Ti Snow Removal. A copy of this document is attached to Plaintiff's initial comp aint as Exhibit «A„ 25. This contract called for Plaintiff to provide snow removal services at Home Depot store number 4113 on Derry Street, Swatara, Dauphin County Pennsylvania during the winter of 2006/2007. On or about February 14, 007 a snow event occurred wherein Plaintiff was to provide said services at Home D pot number 4113 pursuant to its contract with Defendant. 26. It is believed and therefore averred that Plaintiff Donald WoO d/b/a Woody's did in fact attempt to render services at Home Depot number 4113 14, 2007 snow event. 27. Plaintiff failed to complete this task to its specifications and Depot number 4113. 28. Plaintiff's services rendered under this contract were insufficient by Home Depot as well as Defendant, About Time Snow causing Home Depot to call for an emergency excavation service from 29. Home Depot called upon Liberty Excavators to perform said services on February 15, 2007. 30. Home Depot's utilization of Liberty Excavators services was Plaintiff Donald Wood d/b/a Woody's failure to provide service in accoi contract with Defendant, About Time Snow Removal. 31. Home Depot then charged Defendant, About Time Snow Re Nine Thousand Thirteen Dollars ($9,013.00) in payment to Liberty Exc services rendered pursuant to About Time Snow Removal contract with number 4113. 32. Thus, as a result the Plaintiff's breach of contract with Defendant has suffered damages in the amount of Nine Thousand ($9,013.00). WHEREFORE, the Defendant, About Time Snow Removal dE against Plaintiff, Donald Wood, d/b/a Woody's in the amount of Nine Dollars ($9,013.00) which represents actual damages and expenses in( the February of Home incomplete and thus provider. a direct result of dance with its ioval the sum of vators for Tome Depot ant, the n Dollars s judgment ;and Thirteen by reason of Plaintiff's breach of contract in respect to the aforementioned snow provider contract plus costs and attorney's fees and any other relieved Court deems necessary and just. BY: Respectfully Submitted, BENS service s Honorable Sean M. Gresh, Esquire, E quire,' Date: April 4, 2008 Attorney for Defendant, A out Time Snow Removal Sean M. Gresh, Esquire, Attorney for Defendant, About being duly sworn according to law, deposes and says that he is autl affidavit on behalf of the Defendant and that the facts contained in pleading are true and correct to the best of his knowledge, informal further understands that false statements made herein are subject to PA. C.S.A. Section 4904, relating to unsworn falsification to author Snow Removal, rized to take this e foregoing on and belief. He tie penalties of 18 i ies. Date: April4, 2008 SEAN M. GRESH, E Attorney I.D. #90107 V, f? 2008 APR 1 0 pM 2; 27 IDAUPHIh C b `'N ; PEN .Y NA Robert D. Kodak, Esquire Supreme Court I.D. 18041 KODAK & IMBLUM, P.C. Post Office Box 11848 407 North Front Street Harrisburg, PA 17108-1848 717-238-7152 Fax: 717-238-7158 email: robert.kodak@verizon.net Attorney for Defendant ECCO GELATO, LLC. Plaintiff : IN THE COURT OF COMMON PLEAS : DAUPHIN COUNTY PENNSYLVANIA V. NO. -&V-0000426 aoc?BGI< PERKS `N BRIBES, INC. CIVIL ACTION - Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, this, the 10`h day of April, 2008, comes Defendant, Pe by and through its Attorney, Robert D. Kodak, Esquire, Kodak & Imblum, P preliminarily objects to Plaintiffs Complaint, as follows: Motion to Dismiss for Failure of Pleadin to Conform to Law and Rule of Court (Co[pr 1. Plaintiff, Ecco Gelato, LLC., is a Pennsylvania limited liabil LD5 0-3 `N Bribes, Inc., and respectfully company. S 2. The Complaint hereto was filed by one Charles DeBrunner, attached hereto and made a part hereof, is not an attorney-at law registered in the Commonwealth of Pennsylvania. 3. The case law is well established that a corporation may anyone other than a licensed attorney-at-law. WHEREFORE, under Pennsylvania Rules of Civil Procedure 1 respectfully requests that this Honorable Court dismiss Plaintiff's conform to law and Rules of Court. Respectfully submitted, KODAK per Exhibit "A" licensed to practice be represented by (a)(2), Defendant laint for failure to P.C. Robert D. Kodak 407 North Front Street Post Office Box # 11848 Harrisburg, PA 17108- 848 717.238.7152 Fax: 7 17.238.7158 Attorney I.D. No. 18041 Attorney for Defendant I-MISER\BONNa£JO\PO'S\WORK\3080045prks n bribes.wpd: I 0Apr08 2 v Disciplinary Board of the Supreme Court of Pennsylvania The Disciplinary Board PA Attorney Resets Search for: DeBrunner Search by: Last Name 0 records found JiD Last Suffix First Middle city Status Page 1 of I sylvatlla iscipline 02007-2008 The Disciplinary Board of the Supreme Court of Pennsy ani For questions or comments regarding the website, please contact us at comments(apadisciplinaryboard,org. http://www.padisciplinaryboard.orii/oa .? - Tt 7- attornev results_nhn7cc=T)e CERTIFICATE OF SERVICE I, Robert D. Kodak, Esquire, hereby certify that I have this date copy of the Defendant's Preliminary Objections to Plaintiff's Complaint in matter upon the below listed individual(s) by causing same to be deposited mail, first class postage prepaid at Harrisburg, Dauphin County, Pennsy follows: CHARLES DeBRUNNER 112 WALNUT STREET HARRISBURG PA 17101 Dated: Apri110.2008 KODAK & a true and correct above-captioned in the United States addressed as .C. Robert D. Kodak 407 North Front Street Post Office Box 11848 Harrisburg, PA 1710E (717) 238-7151 Attorney I.D. No. 1804 Attorney for Defendant 848 FAI SFR\BONNIEJO\PO'S\WORK\33080045prks n bribes.wpd:10Apr08 3 Bryan W. Shook, Esquire ID # 203250 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 IMAGaD r ge t r r:'... n,, 04 v,T ? E. A DONALD WOOD, d/b/a WOODY'S Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant IN THE COURT OF CO DAUPHIN COUNTY, P1 : CIVIL ACTION -LAW : No: 2007-CV-10211-DJ for Plaintiff PLEAS OF VANIA NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the ct following pages, you must take action within twenty (20) days after this Cor are served, by entering a written appearance personally or by attorney and fi the Court your defenses or objections to the claims set forth against you. Yol you fail to do so the case may proceed without you and a judgment may be e by the Court without further notice for any money claimed in the Complaint claim or relief requested by the Plaintiff. You may lose money or property of important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTE OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MA' SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE DAUPHIN COUNTY LAWYER REFERRAL SERI 213 North Front Street Harrisburg, PA 17101 (717) 232-7536 ims set forth in the plaint and Notice ng in writing with are warned that if itered against you ir for any other other rights "OU DO NOT BELOW. THIS LAWYER. 3E ABLE TO OFFER LEGAL NOTICE CONCERNING MEDIATION OF ACTIONS PENDING BEFORE THE COURT OF COMMONPLEAS OF DA UPHIN COUNTY The Judges of the Court of Common Pleas of Dauphin County believe that m ediation of lawsuits is a very important component of dispute resolution. Virtually all lawsuits ca n benefit in some manner from mediation. The Court has adopted Dauphin County Local Rule 1001 to encourage the W e of mediation. This early alert enables litigants to determine the best time during the life of thei lawsuit for a mediation session. The intent of this early alert is to help the parties act upo the requirement to consider good faith mediation at the optimal time. The Dauphin County Bar Association provides mediation services and can reached at (717) 232-7536. Free mediation sessions for pro bono cases referred by MidPenn egal Services are available through the DCBA. A VISO USTED HA SIDO DEMANDADOIA EN CORTE. Si usted desea defenderse a las demandas que se presentan mas adelante en las siguientes paginas, debe tomaraccion dent o de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radican o personalmente o por medio de un abogado una comparecencia escrita y radicando en la Cor 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 p ede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o c alquier otra 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 otr s derechos importantes para usted. USTED DEBE LLE VAR ESTE DOCUMENTO A SUABOGAD0 INMEDIA MENTE SI USTED NO TIENE UNABOGADO, LLAME 0 VAYA A LA SIG UIENTE OF CINA. ESTA OFICINA PUEDE PR0VEERLE INFORMACIONA CERCA DE COMO C NSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UNABOGADO, S POSIBLE QUE ESTA OFICINA LE PUEDA PR0VEER INFORMA- CION SOBRE AGENC S QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. DAUPHIN COUNTY LAWYER REFERRAL SER 213 North Front Street Harrisburg, PA 17101 (717) 232-7536 A VISO REFERENCES A LA MEDL4CIONDE LAS ACCIONES PEI LA CORTE DE SOPLICAS COMUNES DEL CONDADO Los jueces de la corte de suplicas comunes del condado de Dauphin creen q pleitos es un componente muy importante de la resolucion del conjlicto. Virg pleitos pueden beneficiar de cierta manera de la mediacion. La code ha adoptado la regla local de condado de Dauphin 1001 para anim mediacion. Esta alarma temprana permite a litigantes determiner la mejor c de su pleito para una sesion de la mediacion. El intento de esta alarma teml la mediacion de la Buena fe en el tiempo optimo. La asociacion de la barra del condado de Dauphin proporciona servicios di puede alcanzar en (717) 232-7536 La sesion Libre de la mediacion para los bono se refinio por MidPenn que los servicios juridicos estan disponibles ca An adequate supply offorms containing the bilingual notices required by the furnished by the Dauphin County Bar Association to the Office of the Prothc available for use by litigants and their attorneys. ANTES DAUPHIN la mediacion de lmente todos los el use de la ca durante la vida na es actuar sobre la mediacion y se avorables casos del i el DCBA. e Rules shall be rotary and shall be ZOi Y - Pi°I 2: 0 3 c .y 1_ivitff'?? Bryan W. Shook, Esquire ID # 203250 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 BShook(aidcdlaw net Attorney for Plaintiff DONALD WOOD, d/b/a WOODY'S IN THE COURT OF COM MON PLEAS OF Plaintiff DAUPHIN COUNTY, PEN NSYLVANIA V. CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, No: 2007-CV-10211-DJ Defendant To: About Time Snow Removal c/o Sean M. Gresh, Esquire Benstead & Mabon, P.C. 124 East Court Street Doylestown, PA 18901 You are hereby notified to file a written response to the enclosed New Matter & Counterclaim within twenty (20) days from service hereof or a judgme t may be entered against you. "-%, 1) Bryan W. Shook, Esquire L b,t ytLD I1A ? - 6 F, II"I 2: 04 V ?!-tl k k 3C v1j?j? J 1 Bryan W. Shook, Esquire ID # 203250 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone -(717)975-9446 Fax - (717) 975-2309 DONALD WOOD, d/b/a WOODY'S Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant IN THE COURT OF CO DAUPHIN COUNTY, PI CIVIL ACTION -LAW No: 2007-CV-10211-DJ for Plaintiff PLEAS OF VANIA 'IFF'S NEW MATTER TO DEFENE TIFF'S COUNTERCLAIM TO DEF LAI AND NOW, comes the Plaintiff, Donald Wood, d/b/a Woody's, ?y and through his attorneys, THE LAW OFFICE OF DARRELL C. DETHLEFS, by Brya6 W. Shook, Esquire, who answers Defendant's New Matter and Counterclaim, brings forth New Matter to Defendant's Counterclaim and by reason of issues raised a d facts averred in Defendant's Counterclaim, Plaintiff brings forth his Counterclaim to D fendant's Counterclaim as follows: 16. Paragraph 16 being a paragraph of incorporation does not require a response. 17. The averments in Paragraph 17 of Defendant's New Mattej conclusions of law to which no response is required determined that a response is required, the averments are . contain , if it is judicially Ily denied, with strict proof thereof demanded at the time of trial. By y of further argument, Defendant does not allege sufficient facts to support this allegation. 18. The averments in Paragraph 18 of Defendant's New Matte contain conclusions of law to which no response is required. However, if it is judicially determined that a response is required, the averments are specifically denied, with strict proof thereof demanded at the time of trial. By w?y of further argument, Defendant does not allege sufficient facts to support this allegation. 19. The averments in Paragraph 19 of Defendant's New Matte contain conclusions of law to which no response is required. Howe er, if it is judicially determined that a response is required, the averments are specifically denied, with strict proof thereof demanded at the time of trial. By argument, Defendant does not allege sufficient facts to s 20. The averments in Paragraph 20 of Defendant's New conclusions of law to which no response is required. How determined that a response is required, the averments are with strict proof thereof demanded at the time of trial. By v argument, Defendant does not allege sufficient facts to sul 21. The averments in Paragraph 21 of Defendant's New Matter conclusions of law to which no response is required. Howe, determined that a response is required, the averments are of further this allegation. contain , if it is judicially cifically denied, of further this allegation. in , if it is judicially cifically denied, with strict proof thereof demanded at the time of trial. By way of further argument, Defendant does not allege sufficient facts to support this allegation. 22. The averments in Paragraph 22 of Defendant's New Matte contain conclusions of law to which no response is required. How ver, if it is judicially determined that a response is required, the averments are pecifically denied, with strict proof thereof demanded at the time of trial. By argument, Defendant does not allege sufficient facts to WHEREFORE, Plaintiff, Donald Wood d/b/a Woody's, resl this Honorable Court dismiss Defendant's New Matter and enter j Count I - Breach of Contract 23. Paragraph 23 being a paragraph of incorporation does not response. 24. Denied. By way of clarification, on or about December 5, iy of further sort this allegation. illy requests that lent in his favor. RCLAIM ?quire a 06 Plaintiff and Defendant entered into a contact in the form of a Service P ovider Agreement for Snow Service (a copy of the original contract is attache and marked as Exhibit "A" to Plaintiff's Complaint) for snow removal servic in and around Dauphin & Cumberland Counties. Defendant, About Time $now Removal, has a large number of accounts for which they have contra4ted for snow removal services. These accounts are serviced primarily b About Time Snow Removal, brokering out the work to independent service providers. 25.Admitted in Part and Denied in Part. This allegation is deni d as stated. This allegation refers to a document that speaks for itself and to thich no additional response is necessary. If the court deems that a additional response is necessary, this allegation is denied and Plaintiff respectfully submits that the aforementioned contract was a service provider agreement to perform snow removal services, as requested, by Defen ant, About Time Snow Removal. By way of further argument, at no place i the aforementioned contact is there specific mention of snow r+moval services to be provided at Home Depot store number 4113, Derry Street, Dauphin County, Pennsylvania. It is admitted however, that on or about February 14, 2007 a snow and ice event occurred wherein Plaintiff was ontacted by Defendant to provide services at Home Depot 4113 pursu t to the aforementioned contact with Defendant. It is additionally argued that Invoice # 3018 dated 2/3/2007 covers services provided during a to the February 14, 2007 snow and ice event. Similarly, i 3103, 3139 (which is made up of invoices 3138 & 3139) made up of invoices 3159, 3160, 3161) cover services p period of time after February 14, 2007. (Copies of all are attached as Exhibit "B" to Plaintiff's Complaint.) 26.Admitted in Part and Denied in Part. It is admitted that Pla of time prior # 3083, 3161 (which is during a ntioned invoices did render services at Home Depot 4113 during the February 14, 200' snow and ice event. The fact that Plaintiff did render services at Home further evidenced by Exhibit B to Plaintiffs Complaint n showing work which was completed at 4113. Any refere pot 4113 is invoices to Plaintiff attempting to render services or any inference or reference Ithat the work was incomplete and/or insufficient is specifically denied with demanded at time of trial. 27. The averments in Paragraph 27 of Defendant's Cou conclusions of law to which no response is required determined that a response is required, the averments are proof thereof contain , if it is judicially denied, with strict proof thereof demanded at the time of trial. Additionally, there is no mention in the aforementioned contract that a condition for Plaintiff's services, provided, be the satisfactory pe as determined by the end-client; in this case, the Home Defendant. By way of further argument, Defendant does facts to support this allegation. 28. The averments in Paragraph 28 of Defendant's Cou conclusions of law to which no response is required determined that a response is required, the averments are denied, with strict proof thereof demanded at the time of trial. Additionally, there is no mention in the aforementioned contract that a condition precedent to payment for Plaintiffs services, provided, be the satisfactory perform ance of Plaintiff, as determined by the end-client; in this case, the Home Depot store 4113 or Defendant. By way of further argument, Defendant does not allege sufficient facts to support this allegation. Furthermore, after reasonable investigation, Plaintiff is without sufficient knowledge to property respondIto this allegation. 29. The averments in Paragraph 29 of Defendant's Counterclaim contain to payment nce of Plaintiff, store 4113 or allege sufficient contain , if it is judicially conclusions of law to which no response is required. However, if it is judicially determined that a response is required, the averments are with strict proof thereof demanded at the time of trial. By % argument, Defendant does not allege sufficient facts to Additionally, after reasonable investigation, Plaintiff is v knowledge to property respond to this allegation. 30.The averments in Paragraph 30 of Defendant's Cou denied, y of further this allegation. ut sufficient contain conclusions of law to which no response is required. How Ever, if it is judicially determined that a response is required, the averments are specifically denied, with strict proof thereof demanded at the time of trial. Addif ionally, there is no mention in the aforementioned contract that a condition pr cadent to payment for Plaintiff's services, provided, be the satisfactory performance of Plaintiff, as determined by the end-client; in this case, the Home Depot store 4113 or Defendant. By way of further argument, Defendant does not allege sufficient facts to support this allegation. Furthermore, after reasonable investigation, Plaintiff is without sufficient knowledge to property respond to this allegation. 31. The averments in Paragraph 31 of Defendant's Counterclaim contain conclusions of law to which no response is required. H determined that a response is required, the averments are with strict proof thereof demanded at the time of trial. By argument, Defendant does not allege sufficient facts to su Additionally, after reasonable investigation, Plaintiff is with knowledge to property respond to this allegation. Furtherr r, if it is judicially Dcifically denied, of further rt this allegation. sufficient Defendant has failed to attach or provide Plaintiff with a copy of the Defendant and Home Depot number 4113. 32. The averments in Paragraph 32 of Defendant's Countercl conclusions of law to which no response is required determined that a response is required, the averments are with strict proof thereof demanded at the time of trial. By between contain , if it is judicially ly denied, of further argument, Defendant does not allege sufficient facts to support this allegation. Additionally, after reasonable investigation, Plaintiff is without sufficient knowledge to property respond to this allegation. WHEREFORE, Plaintiff, Donald Wood d/b/a Woody's, respec ully requests that this Honorable Court dismiss Defendant's Counterclaim and enter judgment in his favor. 'S N 33. Plaintiff incorporates and makes part hereof the preceding fully set forth herein. 34. Defendant's Counterclaim is barred by doctrine of laches. 35. Defendant's Counterclaim is barred by the doctrine of res j4dicata. 36. Defendant's Counterclaim is barred by the doctrine of 37. Defendant's Counterclaim is barred by the doctrine of 38. Defendant's Counterclaim is barred in whole or in party by of limitations. 39. Defendant's Counterclaim is barred by Plaintiffs performar aforementioned contract entered into between Plaintiff and pel. sas if ethical statute pursuant to the ant. 40. Defendant's Counterclaim is barred by the Contractor and subcontractor Payment Act, 73 Pa. C.S. § 501, et seq., hereinafter the "C 41. Defendant is a "Contractor" as defined by the CSPA. 42. Plaintiff is a "Subcontractor" as defined by the CSPA. 43. The CSPA is applicable to the Snow Service contract enter Plaintiff and Defendant. 44. Plaintiff fully executed his duties pursuant to the contract. 45. Plaintiff is not in breach of the contract. 46. Plaintiff provided snow removal services pursuant to the 14, 2007 and on several other dates. 47. Pursuant to 73 Pa. C.S. § 504, performance by Plaintiff, in the provisions of the contract entitle Plaintiff to payment A." into between on February with the Defendant. 48. Plaintiff invoiced Defendant for work completed by Plaintiff as provided for under the contract. 49. The work completed by Plaintiff is more specifically detaile in Plaintiff s Complaint and evidence more specifically through the invo es attached to Plaintiff's Complaint as Exhibit "B." 50. To date Plaintiff has not been paid by Defendant for afore completed. 51. Defendant did not notify Plaintiff of any deficiency of Plainti seven calendar days after receipt of the notice of the defici to 73 Pa. C.S. § 511, therefore, Defendant is barred from v ed work work within item pursuant holding payment from Plaintiff and is further barred from asserting counterclaim for $5,580.00 for work allegedly completed by another compa Y. 52. Pursuant to the terms of the aforementioned contract, Defehdant is barred from their requested remedy. 53. Pursuant to the terms of the aforementioned contract, Defendant is barred from withholding payment based upon determinations of ggality and/or sufficiency of work performed. 54. There is no mention in the aforementioned contract that a dondition precedent to payment for Plaintiffs services, provided, be the satisfactory performance of Plaintiff, as determined by the end-client; in this case, th? Home Depot store 4113 or Defendant. 55. Defendant, as a going concern in the snow removal busine?s, knew or should have known that a significant snow and ice event, such as that which occurred on or about February 14, 2007 may have the effe?t of making snow and ice remediation attempts unsuccessful. 56. Defendant, as a going concern in the snow removal businos, knew or should have known that several major interstates such as 1-78 anq the Pennsylvania Turnpike were closed for all or a portion of February 14, 20p7 by reason of the inclement weather related to the snow and ice event thOt occurred on or about February 14, 2007. 57.A proclamation of disaster emergency was signed into effe t and issued by Edward G. Rendell, Governor of the Commonwealth of Pennsylvania relative to the snow and ice event of February 14, 2007 on or about February 15, 2007. WHEREFORE, Plaintiff, Donald Wood d/b/a Woody's, respe Ily requests that this Honorable Court enter judgment against Defendant, About Time now Removal, in the amount of $5,824.28 which represents actual damages and expe ses incurred by reason of Defendant's breach of contract with respect to the snow removal service provider contract plus costs and attorney's fee and a0y other relief that this Honorable Court deems necessary and just. NTIFF' DANT'S M 58. Plaintiff incorporates and makes part hereof the preceding fully set forth herein. 59. Plaintiff sets forth this instant Counterclaim by reason of facts alleged in Defendant's Counterclaim. 60. Pursuant to the facts alleged in Defendant's Counterclaim alleges this Counterclaim of Defendant's Counterclaim pur: and Subcontractor Payment Act, 73 Pa. C.S. § 501, et seq. "CSPA." 61. Defendant is a "Contractor" as defined by the CSPA. 62. Plaintiff is a "Subcontractor" as defined by the CSPA. 63. The CSPA is applicable to the Snow Service contract Plaintiff and Defendant. 64. Plaintiff fully executed his duties pursuant to the contract. as if raised and ntiff hereby nt Contractor , hereinafter the into between 65. Plaintiff is not in breach of the contract. 66. Plaintiff provided snow removal services pursuant to the co tract on February 14, 2007 and several other dates. 67. There is no mention in the aforementioned contract that a condition precedent to payment for Plaintiffs services, provided, be the satisfac ory performance of Plaintiff, as determined by the end-client; in this case, the Home Depot store 4113 or Defendant. 68. Pursuant to 73 Pa. C.S. § 504, performance by Plaintiff, in Occordance with the provisions of the contract entitle Plaintiff to payment fro the Defendant. 69. Plaintiff invoiced Defendant for work completed by Plaintiff as provided for under the contract. 70. The work completed by Plaintiff is more specifically detaile in Plaintiff's Complaint and evidence more specifically through the invoices attached to Plaintiffs Complaint as Exhibit "B." 71.To date Plaintiff has not been paid by Defendant for aforementioned work completed. 72. Plaintiff learned that Defendant's dissatisfaction with Plaintiffs work was the reason for nonpayment to Plaintiff by Defendant, constructively on April 10, 2008, the date upon which Defendant's Counterclaim was filed. 73. Defendant did not notify Plaintiff of any deficiency of Plaintiffs work within seven calendar days after receipt of the notice of the deficiency item pursuant to 73 Pa. C.S. § 511, therefore, Defendant is barred from ithholding payment from Plaintiff and is further barred from asserting counterclaim for $9,013.00 for work allegedly completed by another compa y. 74.As a result of Defendant's failure to comply with the CSPA, Plaintiff is entitled to recover the following quantifiable damages: a. Interest from April 1, 2007, the date established by tl je CSPA (14 calendar days after issuance of the final invoice at a rate of 1 % per month pursuant to 73 Pa. C.S. § 507(d). b. A penalty for failure to comply with the CSPA equal t 1% per month of the amount wrongfully withheld pursuant to 73 Pa. C .S. § 512(a). c. An award of attorney's fees, costs and expenses to Plaintiff as the prevailing party in this proceeding pursuant to 73 Pa C.S. § 512(b). WHEREFORE, Plaintiff, Donald Wood d/b/a Woody's, respec Ily requests that this Honorable Court enter judgment against Defendant, About Time now Removal, in the amount of $5,824.28 with a penalty of 1 % from April 1, 2007 per month pursuant to 73 Pa. C.S. § 507(d). A penalty for failure to comply with the CSPA equal to 1 % per month of the amount wrongfully withheld pursuant to 73 Pa. C.S. § 5 2(a) and an award of attorney's fees, costs and expenses to Plaintiff as the prevailing in this proceeding pursuant to 73 Pa. C.S. § 512(b). Date: ?- a 0OY Respectfully Submitted: Bryan V?VAhook, Esquire ID# 203250 2132 Market reet Camp Hill, Pe nsylvania Attorney for D*fendant 17011 VERIFICATION I, Donald Wood d/b/a Woody's, hereby verify that the statemen the foregoing documents are true and correct to the best of my know) and belief. I understand that any false statements therein are subject penalties contained in 18 Pa C. S. Section 4904, relating to unsworn authorities. Date: May 6 , 2008 Donald Wood d/b/a of fact made in ge, information the criminal sification to Bryan W. Shook, Esquire ID # 203250 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 DONALD WOOD, d/b/a WOODY'S Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant IN THE COURT OF CO DAUPHIN COUNTY, PI CIVIL ACTION -LAW No: 2007-CV-10211-DJ mey for Defendant PLEAS OF VANIA CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing pleading, was depositing the same within the custody of the United States Postal postage prepaid, addressed as follows: About Time Snow Removal c/o Sean M. Gresh, Esquire Benstead & Mabon, P.C. 124 East Court Street Doylestown, PA 18901 Dated: S b?°6-0-100Y7 Respectfully Submitted, Bryan W. Shook, Esquire Attorney Id. No.: 203250 2132 Market Street Camp Hill, PA 17011 (717) 975-9446 hereby served by , First Class, . T. • • BENSTEAD & MABON, P.C. By: Sean M. Gresh, Esquire Attorney I.D. #90107 124 East Court Street Doylestown, PA 18901 (215) 345-9100 IMAGED Attorney for Defendant COURT OF COMMON PLEAS-DAUPHIN COU CIVIL ACTION-LAW DOANLD WOOD, d/b/a WOODY'S DOCKET NO.: Plaintiff VS. ATTORNEY I.D. ABOUT TIME SNOW REMOVAL Defendant DEFENDANT, ABOUT TIME SNOW REMOVAL'S LAINTIFF'S NEW MATTER TO DEFENDANT'S C I 0 D -CV11-DT ©rn zc-> ?- aM< ???C ?orn. )107 -< Q AND NOW, comes Defendant's, About Time Snow Removal, b* and through their attorney Sean M. Gresh, Esquire and with him the Law Offices of ?enstead & Mabon, P.C. who respectfully states and avers as follows: 33. This paragraph is one of incorporation to which no response lis required. 34. Denied. The allegation set forth in this paragraph is a which no additional response is required. 35. Denied. The allegation set forth in this paragraph is a concl which no additional response is required. 36. Denied. The allegation set forth in this paragraph is a which no additional response is required. 37. Denied. The allegation set forth in this paragraph is a which no additional response is required. 38. Denied. The allegation set forth in this paragraph is a ion of law to of law to of law to ion of law to of law to rye; c. h Cm cx> 1 ru C7' N 40 . a which no additional response is required. 39. Denied. The allegation set forth in this paragraph is a which no additional response is required. 40. Denied. The allegation set forth in this paragraph is a which no additional response is required. 41. Denied. The allegation set forth in this paragraph is a conc which no additional response is required. 42. Denied. The allegation set forth in this paragraph is a which no additional response is required. 43. Denied. The allegation set forth in this paragraph is a which no additional response is required. 44. Denied. The allegation set forth in this paragraph is a conc which no additional response is required. 45. Denied. The allegation set forth in this paragraph is a which no additional response is required. of law to of law to of law to of law to of law to of law to of law to 46. Admitted in part, Denied in part. It is admitted that Plaintif did provide snow removal services. It is denied, however, these services were provi ed appropriately and in the manner set out under the contract. 47. Denied. The allegation set forth in this paragraph is a concl which no additional response is required. 48. Admitted in part, Denied in part. It is admitted that Plain Defendant for work allegedly completed. However, it is specifically work was completed and/or completed within the provisions of the o of law to did invoice that said 49. Admitted in part, Denied in part. It is admitted that Exhibit of Plaintiff's initial Complaint details Plaintiff alleged invoices under the contract. It i denied that those invoices constitute work appropriately completed under the contra 50. Denied. The allegation set forth in this paragraph is a conclu ion of law to which no additional response is required. 51. Denied. After reasonable investigation, the Defendant is without sufficient knowledge to ascertain the truth or veracity of this allegation. By way o further answer and denial, the contents of this paragraph represent a conclusion of law t which no additional response is required. 52. Denied. The allegation set forth in this paragraph is a which no additional response is required. 53. Denied. The allegation set forth in this paragraph is a concl which no additional response is required. 54. Denied. The allegations in this paragraph refer to a for itself and no additional response is required. 55. Denied. After reasonable investigation, the Defendant is wi knowledge to ascertain the truth or veracity of this statement. Strict pro the time of trial of this matter. 56. Denied. After reasonable investigation, the Defendant is knowledge to ascertain the truth or veracity of this statement. Strict the time of trial of this matter. 57. Admitted. WHEREFORE, the Defendant respectfully requests this of law to of law to t which speaks sufficient is demanded at sufficient ?f is demanded at ble Court dismiss the Plaintiff's New Matter, with prejudice. DEFENDANT'S RESPONSE TO PLAINTIFF'S COUNTED 58. Defendant incorporates and makes part hereof the preceding fully set forth herein. 59. Denied. After reasonable investigation, the Defendant is wit knowledge to ascertain the truth or veracity of this allegation. Strict prop the time of trial on this matter. 60. Denied. After reasonable investigation, the Defendant is wit knowledge to ascertain the truth or veracity of this allegation. Strict pro the time of trial on this matter. 61. Denied. The allegation set forth in this paragraph is a conch which no additional response is required. 62. Denied. The allegation set forth in this paragraph is a concl which no additional response is required. 63. Denied. The allegation set forth in this paragraph is a concl which no additional response is required. 64. Denied. The allegation set forth in this paragraph is a concl which no additional response is required. 65. Denied. The allegation set forth in this paragraph is a concl which no additional response is required. 66. Admitted in part, Denied in part. It is admitted that Plaintif Defendant for having provided snow removal services. It is denied, ho, services were rendered in a manner called for and agreed to under the c if ut sufficient is demanded at lout sufficient f is demanded at of law to of law to of law to of law to of law to invoiced the ever, that these 67. Denied. The allegation in this paragraph refer to a document which speaks for itself and to which no additional response is required. 68. Denied. The allegation set forth in this paragraph is a conclusion of law to which no additional response is required. 69. Admitted in part, Denied in part. It is admitted that the Plaintiff invoiced the Defendant for work allegedly completed. It is denied, however, this wor? was completed and/or completed in an appropriate manner under the 70. Admitted in part, Denied in part. It is admitted that Exhibit `?B" of Plaintiff's initial Complaint details Plaintiff alleged invoices under the contract. It ?s denied that those invoices constitute work appropriately completed under the 71. Denied. The allegation set forth in this paragraph is a which no additional response is required. 72. Denied. After reasonable investigation, the Defendant is wi knowledge to ascertain the truth or veracity of this allegation. Strict the time of trial on this matter. 73. Denied. After reasonable investigation, the Defendant is information to ascertain the truth or veracity of the allegations in this proof is demanded at the time of trial on this matter. By way of further )n of law to ut sufficient is demanded at gut sufficient raph. Strict swer and denial, the allegations raised in this paragraph represent a conclusion of law to which no additional response is required. 74. Denied. The allegations set forth in this paragraph are or law to which no additional response is required. WHEREFORE, the Defendant respectfully requests this Honorabl and dismiss Plaintiff's Counterclaim, with prejudice. Date: May 30, 2008 BY: Respectfully Submitted, Time Snow Court deny BENSTEAD & MABON, I .C. Sean M. Gresh, Esquire, Attorney for Defendant, Removal VERIFICATION I, STEPHEN SUMMER, verify that the statements made herein true and correct. I understand that false statements herein are made subject to the }penalties of 18 Pa. C.S.A. 4904 relating to unsworn falsification to authorities. DATE: G "3` 0 8 STEPHEN SUMMER CADocuments and Settings\lroche.ATSTocal Settings\Temporary Internet Files\Content.Outlook\6UTKITJ I \Verification.doc BENSTEAD & MABON, P.C. By: Sean M. Gresh, Esquire Attorney I.D. #90107 124 East Court Street Doylestown, PA 18901 (215) 345-9100 Attorney foi COURT OF COMMON PLEAS-DAUPHIN COUNTY CIVIL ACTION-LAW DOANLD WOOD, d/b/a WOODY'S DOCKET NO.: 20(7-CV-10211-DJ Plaintiff vs. ATTORNEY I.D. 400107 ABOUT TIME SNOW REMOVAL Defendant CERTIFICATE OF SERVICE AND NOW, this 4"' day of June, 2008, a true and correct copy Response to Plaintiff's New Matter to Defendant's Counterclaim, was Plaintiff's attorney, Bryan W. Shook, Esquire, via first class mail, as f Bryan W. Shook, Esquire 2132 Market Street Camp Hill, PA 17011 BY: Respectfully Submitted, BENSTEAD & MABON, Sean M. Gresh, Esquire, Attorney for Defendant, Removal Defendant's ved upon P.C. Time Snow ? s t V' :?t-3 .-e • Bryan W. Shook, Esquire ID #203250 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 Fax - (717) 975-2309 BShook(a dcdlaw.net Attorney for Plaintiff' Sean M. Gresh, Esquire ID # 90107 BENSTEAD & MABON, P.C. 124 East Court Street Doylestown, PA 18901 Telephone - (215) 345-9100 Fax - (215) 230-0771 SGresh aBucksLaw.com Attorney for Defendant DONALD WOOD, d/b/a WOODY'S : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW ABOUT TIME SNOW REMOVAL, No: 2008-103 Defendant DONALD WOOD, d/b/a WOODY'S : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, No: 2008-4491 Defendant DONALD WOOD, d/b/a WOODY'S : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, No: 2008-4492 Defendant JOINT PETITION FOR CONSOLIDATION l r' Pursuant to Pennsylvania Rule of Civil Procedure No. 213(a), Plaintiff, Donald Wood d/b/a Woody's, by and through his attorneys, The Law Offices of Darrell C. Dethlefs, by Bryan W. Shook, Esquire and Defendant, About Time Snow Removal, by and through their attorneys, Benstead & Mabon, P.C., by Sean Gresh, Esquire, jointly petition this Honorable Court to enter an Order permitting consolidation of the above-captioned actions for purposes of trial and in support avers as follows: 1. At all times material hereto, Plaintiff's principal place of business was North Front Street, Enola, Cumberland County, Pennsylvania 17025. 2. At all times material hereto, Defendant's principal place of business was 410 Brendwood Drive, Langhorne, Bucks County, Pennsylvania 19047. 3. All of the above captioned maters arise out a single contract entered into in Cumberland County, Pennsylvania. (A true and correct copy of this contract is attached to Plaintiffs Complaint, in both matters, and marked as Exhibit "A"). 4. The aforementioned contract called for Plaintiff to provide snow removal services for Defendant, as an independent contractor, whenever Defendant contacted Plaintiff throughout the snow season of 2006/2007. 5. The work performed under the contract was performed in Dauphin County, York County and Cumberland County, Pennsylvania. 6. Docket Number 2008-103 was commenced before the Honorable Thomas A. Placey, Magisterial District Number 09-3-04 on May 29, 2007. 7. Docket Number 2008-4491 was commenced before the Honorable Michael J. Smith, Magisterial District Number 12-2-01 on May 29, 2007 in Dauphin County, Pennsylvania. 8. Upon appeal of the Judgment in favor of Plaintiff, Donald Wood d/b/a Woody's, the case was assigned Docket Number 2007-CV-10211-DJ in the Court of Common Pleas of Dauphin County and was according transferred to this Honorable Court (2008-4491) pursuant to an Order of the Honorable Bruce Batton on July 1, 2008. 9. Docket Number 2008-4492 was commenced before the Honorable Joseph S. Lindsey, Magisterial District Number 12-1-06 on May 29, 2007 in Dauphin County, Pennsylvania. 10. Upon appeal of the Judgment in favor of Plaintiff, Donald Wood d/b/a Woody's, the case was assigned Docket Number 2007-CV-9906-DJ in the Court of Common Pleas of Dauphin County and was according transferred to this Honorable Court (2008-4492) pursuant to an Order of the Honorable Bruce Batton on July 1, 2008. 11. Defendant timely appealed all judgments and Plaintiff timely filed the respective Complaints. 12. All pleadings are closed with respect to the above-captioned matters. sA tQ c-s 13. bl causes of action arise from the same contract, consolidation is proper and appropriate. 14. Absent consolidation, the possibility exists for inconsistent verdicts. 15. The consolidation of these two actions will not prejudice the substantial rights of any of the parties. It will be in the best interest of the parties and the Court to consolidate and resolve all three causes of action at one trial, since all of the causes of action are premised on the same contract. 16. Copies of this petition have been served on all counsel and parties in both cases. 17. Although concurrence of Defendants is anticipated, Plaintiff's counsel was unable to specifically obtain concurrence of Defendants through Defendant's counsel, Sean M. Gresh, Esquire, by reason of Attorney Gresh being out of the office through August 3, 2008. WHEREFORE, Donald Wood d/b/a Woody's and About Time Snow Removal, jointly and respectfully request that this Honorable Court order consolidation of these cases for trial. Resp Ily(?Su9bmitted, Bryan 'VV. Shook, Esquire Attorney for Plaintiff Respectfu Submitted, Sean M. Gresh, Esquire( Attorney for Defendant OD f7 ? AUG 19 LuL.3? DONALD WOOD, d/b/a WOODY'S : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, Not 2008-103 Defendant DONALD WOOD, d/b/a WOODY'S : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, No: 2008-4491 Defendant DONALD WOOD, d/b/a WOODY'S : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, No: 2008-4492 Defendant AND NOW, on this the 4 d day of 2008, upon the Joint Petition of Donald Wood d/b/a Woody's and About Time Snow Removal, it is HEREBY ORDERED that the above captioned cases are CONSOLIDATED for the purposes of trial in this matter. C 'r J. 20Og Al Z Pry 1:3.5 tuw6r)O.n0. OU11? PPt DONALD WOOD, d/b/a WOODY'S : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. ABOUT TIME SNOW REMOVAL, Defendant CIVIL ACTION - LAW No: 2008-103 DONALD WOOD, d/b/a WOODY'S Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No: 2008-4491 ? DONALD WOOD, d/b/a WOODY'S IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, No: 2008-4492 Defendant AND NOW this, the day of , 200_, upon consideration of Plaintiff's Motion for Judgment on the Pleadings, Judgment is hereby entered, in favor of Plaintiff, Donald Wood d/b/a Woody's and against Defendant, About Time Snow Removal, in the amount of $11,556.55 (which is derived from $1,601.81 requested in Docket No. 2008-103, $5,824.28 requested in Docket No. 2008-4491 and $4,130.44 requested in Docket No. 2008-4492), plus interest from April 1, 2007, the date established by the CSPA (14 calendar days after issuance of the final invoice at a rate of 1 % per month pursuant to 73 Pa. C.S. § 507(d); plus a penalty for failure to comply ORDER with the CSPA equal to 1 % per month of the amount wrongfully withheld pursuant to 73 Pa. C.S. § 512(a); plus an award of attorney's fees, costs and expenses to Plaintiff as the prevailing party in this proceeding pursuant to 73 Pa. C.S. § 512(b). BY THE COURT: J. Bryan W. Shook. Esquire ID #203250 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill. Pennsvlvania 17011 elephone - (717) 975-9446 Pax - (717) 975-2309 I3tihook o (k:dL1\k.1)rt Attorney for Plaintiff DONALD WOOD, d/b/a WOODY'S Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : No: 2008-103 DONALD WOOD, d/b/a WOODY'S Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant DONALD WOOD, d/b/a WOODY'S Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW No: 2008-4491 IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No: 2008-4492 PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW comes the Plaintiff, Donald Wood, d/b/a Woody's, by and through his Attorneys, The Law Office of Darrell C. Dethlefs, by Bryan W. Shook, Esquire, who motions this Honorable Court pursuant to Pa. R.C.P. 1034 to enter Judgment on the Pleadings against Defendant, About Time Snow Removal, and in support thereof avers as follows: 1. At all times material hereto, Plaintiff's principal place of business was North Front Street, Enola, Cumberland County, Pennsylvania 17025. 2. At all times material hereto, Defendant's principal place of business was 410 Brendwood Drive, Langhorne, Bucks County, Pennsylvania 19047. 3. Pursuant to C.C.R.P. 208.3(a)(9) the concurrence of opposing counsel was not sought in this matter. 4. Docket Number 2008-103 was commenced before the Honorable Thomas A. Placey, Magisterial District Number 09-3-04 on May 29, 2007. 5. Upon appeal of the Judgment in favor of Plaintiff, Donald Wood d/b/a Woody's, the case was assigned Docket Number 2008-103 in the Court of Common Pleas of Cumberland County. 6. A Complaint in Docket Number 2008-103 was filed on March 4, 2008. 7. An Answer with New Matter and Counterclaim was filed by Defendant, in Docket Number 2008-103, on April 14, 2008. 8. An Answer to Defendant's New Matter and Counterclaim and New Matter and a Counterclaim to Defendant's Counterclaim was filed by Plaintiff, in Docket Number 2008-103, on or about May 6, 2008. 9. An Answer to Plaintiff's New Matter and Counterclaim to Defendant's Counterclaim was filed by Defendant on June 6, 2008. 10. Docket Number 2008-4491 was commenced before the Honorable Michael J. Smith, Magisterial District Number 12-2-01, on May 29, 2007 in Dauphin County, Pennsylvania. 11. Upon appeal of the Judgment in favor of Plaintiff, Donald Wood d/b/a Woody's, the case was assigned Docket Number 2007-CV-10211-DJ in the Court of Common Pleas of Dauphin County and was according transferred to this Honorable Court (Docket Number 2008-4491) pursuant to an Order of the Honorable Bruce Batton on July 1, 2008. 12.A Complaint in Docket Number 2008-4491 was filed on November 27, 2007. 13. An Amended Complaint in Docket Number 2008-4491 was filed on February 11, 2008. 14. An Answer with New Matter and Counterclaim was filed by Defendant, in Docket Number 2008-4491, on April 10, 2008. 15.An Answer to Defendant's New Matter and Counterclaim and New Matter and a Counterclaim to Defendant's Counterclaim was filed by Plaintiff, in Docket Number 2008-4491, on or about May 6, 2008. 16. An Answer to Plaintiff's New Matter and Counterclaim to Defendant's Counterclaim was filed by Defendant on June 6, 2008. 17. Docket Number 2008-4492 was commenced before the Honorable Joseph S. Lindsey, Magisterial District Number 12-1-06, on May 29, 2007 in Dauphin County, Pennsylvania. 18. Upon appeal of the Judgment in favor of Plaintiff, Donald Wood d/b/a Woody's, the case was assigned Docket Number 2007-CV-9906-DJ in the Court of Common Pleas of Dauphin County and was according transferred to this Honorable Court (2008-4492) pursuant to an Order of the Honorable Judge Bratton on July 1, 2008. 19.A Complaint in Docket Number 2008-4492 was filed on November 27, 2007. 20. An Amended Complaint in Docket Number 2008-4492 was filed on February 11, 2008. 21. An Answer with New Matter and Counterclaim was filed by Defendant, in Docket Number 2008-4492, on April 10, 2008. 22.An Answer to Defendant's New Matter and Counterclaim and New Matter and a Counterclaim to Defendant's Counterclaim was filed by Plaintiff, in Docket Number 2008-4492, on or about May 6, 2008. 23.An Answer to Plaintiff's New Matter and Counterclaim to Defendant's Counterclaim was filed by Defendant on June 6, 2008. 24. All pleadings are closed with respect to the above-captioned matters. 25.All of the captioned matters were consolidated pursuant to the Honorable Judge Oler's Order dated August 21, 2008. 26. All of the above captioned matters arise out a single contract entered into in Cumberland County, Pennsylvania. 27. The aforementioned contract called for Plaintiff to provide snow removal services for Defendant, as an independent contractor, whenever Defendant contacted Plaintiff throughout the snow season of 2006/2007. . 28. The work performed under the contract was performed in Dauphin County, York County and Cumberland County, Pennsylvania. 29. The pleadings on file and the documents attached thereto demonstrate that Defendant has no claim for defense or counterclaim. 30. Throughout Defendants various responses to Plaintiff's claims, Defendant has, on numerous occasions, failed to deny specifically or by necessary implication averments in Plaintiff's claims that required such a response in violation of Pa. R.C.P. 1029(b). 31.A general denial or demand for proof ... shall have the effect of an admission. Pa. R.C.P. 1029(b). 32. "The word 'denied' repeatedly has been held an insufficient responsive pleading, tantamount to an admission. See, e.g., County of Delaware v. Mingin, 38 Del. Co. 102 (1950); Ottaviani v. Kinkus, 26 Fayette 1 (1962); Lower Salford Township v. Colgan, 84 Montg. 51 (1963); Roman v. Alizauskas, 54 Luz. 169 (1964). See also Carafoil- Silverman Co. v. Elton, 47 Schuyl. 67 (1949); 2 Goodrich-Amram 2d § 1029(b):3." Bogley, Harting & Reese, Inc. v. Stuart, 11 Pa. D. & C.3d 303, 309). 33.A motion for judgment on the pleadings is similar to a demurrer and may be entered only where there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. Kosor v. Harleysville Mutual Insurance Company, 407 Pa. Super. 68, 71, 595 A.2d 128, 129 (1991). 34. If a complaint states a claim for relief, and the defendant's answer states a non- meritorious defense, - a. plaintiff may move for judgment on the pleadings. Newberry Township v. Stambaugh, 874 A.2d 734 (Pa Commw. 2005). See also Necho Coal Co. v. Denise Coal Co., 387 Pa. 567, 128 A.2d 771 (1957). 35. Plaintiff is alleging breach of contract and violations of the Contractor and Subcontractor Payment Act, 73 Pa. C.S. § 501, et seq. for nonpayment of invoices issued for work performed at the above referenced locations. 36. Defendant has admitted that there was a contract entered into on or about December 5, 2006. See Defendant's Answer to Plaintiff's Complaint (Docket # 2008-103, 2008-4491 & 2008-4492, % 3). 37. Defendant has admitted that they utilized subcontractors to fulfill their contractual agreements. See Defendant's Answer to Plaintiff's Complaint (Docket # 2008- 103, 2008-4491 & 2008-4492, ¶5). 38. Defendant has admitted that they had a contract or contracts with The Home Depot to provide snow removal services for store numbers: 4120, Mechanicsburg, Cumberland County, Pennsylvania; 4149, Carlisle, Cumberland County, Pennsylvania; 4138, Jonestown Road, Harrisburg, Dauphin County, Pennsylvania; 4113, Derry Street Swatara Township, Dauphin County, Pennsylvania and Delco Plaza, York, York County, Pennsylvania. See Defendant's Answer to Plaintiff's Complaint (Docket # 2008-103, 2008-4491 & 2008-4492, ¶7). 39. Defendant has admitted that Plaintiff, Donald Wood d/b/a Woody's, was a subcontractor utilized by Defendant to fulfill its contractual obligations. See Defendant's Answer to Plaintiff's Complaint (Docket # 2008-103, 2008-4491 & 2008-4492, ¶6). 40. Defendant has admitted that Plaintiff's claims arise out of services performed at The Home Depot store numbers 4113, 4120, 4138 and 4149 and the Delco Plaza in York, Pennsylvania.' See Defendant's Answer to Plaintiff's Complaint (Docket # 2008-103, 2008-4491 & 2008-4492, ¶8). 41. Defendant has admitted that Plaintiff has invoiced Defendant for services rendered. See Defendant's Answer to Plaintiff's Complaint (Docket # 2008-4491 & 2008-4492, 110). See also, Defendant's Answer to Plaintiff's New Matter to Defendant's Counterclaim (Docket # 2008-103 ¶51, 2008-4491 & 2008-4492, ¶48), Defendant's Answer to Plaintiffs Counterclaim to Defendant's Counterclaim (Docket # 2008-103 %¶69, 72, 2008-4491 & 2008-4492, ¶66). 42. Defendant has admitted that Plaintiff has demanded payment from Defendant. See Defendant's Answer to Plaintiff's Complaint (Docket # 2008-103 ¶14, 2008- 4491 & 2008-4492, ¶10). 43. Defendant has admitted that Plaintiff provided snow removal services on February 14, 2007 and on several other dates. See Defendant's Answer to Plaintiff's New Matter to Defendant's Counterclaim (Docket # 2008-103 ¶49, 2008-4491 & 2008-4492, ¶46). 44. Defendant has admitted that Plaintiff's invoices detail work performed by Plaintiff under the contract. See Defendant's Answer to Plaintiff's New Matter to Defendant's Counterclaim (Docket # 2008-103 ¶52, 2008-4491 & 2008-4492, 549). See also, Defendant's Answer to Plaintiffs Counterclaim to Defendant's Counterclaim at Docket # 2008-103 ¶73. It must be noted that Defendant's Answer to ¶8 at all three dockets states "it is denied, however, that the issues in this case arise solely from the performance of those stores.- Plaintiff is admittedly unsure what this statement means but assures this Honorable Court that Plaintiff only makes the claims for breach of contract and violations of the Contractor and Subcontractor Payment Act. 73 Pa. C.S. $ 501, et seq. for nonpayment of invoices issued for work performed at the above referenced locations. 45. Defendant has admitted that a proclamation of disaster emergency was signed into effect and issued by Edward G. Rendell, Governor of the Commonwealth of Pennsylvania relative to the snow and ice event of February 14, 2007 on or about February 15, 2007. See Defendant's Answer to Plaintiff's New Matter to Defendant's Counterclaim (Docket # 2008-103 ¶60, 2008-4491 & 2008-4492, ¶57). 46. Defendant has denied that which Defendant knows or should know to be true. 47. Defendant's response to Plaintiff's Complaints' ¶4, at all three dockets, which reads: "Defendant, About Time Snow Removal, has a large number of accounts for which they have contract for snow removal services" is as follows: "Denied. The allegations set forth in this paragraph is (sic) a conclusion of law to which no response is necessary. Strict proof is demanded at the time of trial on this matter." 48. It is obvious that Defendant knows or should know the number of accounts that they service, accordingly, Defendant's response should be treated as an admission. 49. Defendant's response to Plaintiff's Complaint ¶10 at Docket Number 2008-103, which reads: "Plaintiff invoiced Defendant for snow removal work performed at the aforementioned The Home Depot store numbers 4120 and 4149 and the Delco Plaza, York, York County, Pennsylvania on several invoices" is as follows: "Denied. The allegations in this paragraph refer to documents that speak for themselves and to which no additional response is necessary." 50. Defendant's response to Plaintiff's Complaint ¶10 at Docket Number 2008-103 directly conflicts with Defendant's admission at ¶51 of Defendant's Response to Plaintiff's New Matter to Defendant's Counterclaim and similarly with Defendant's Admission at ¶72 of Defendant's Response to Plaintiff's Counterclaim to Defendant's Counterclaim. 51. "Reliance on ... [Pa. R.C.P. 1029(c)] does not excuse a failure to admit or deny a factual allegation when it is clear that the pleader must know whether a particular allegation is true for false. See Cercone v. Cercone, 254 Pa. Super. 381, 386 A.2d 1 (1978)." Note at Pa. R.C.P. 1029(c). 52. Defendant's response to Plaintiff's Complaints' %15, at Docket Number 2008-103 and ¶13 at Docket Numbers 2008-4491 & 2008-4492, which reads: "To date, no payment on the aforementioned $1,601.83 has been received by Plaintiff' is as follows: "Denied. After reasonable investigation, About Time Snow Removal is without sufficient information to form a belief as to the truth of the allegation contained in this paragraph. Strict proof is demanded at the time of trial on this matter." 53. It is obvious that Defendant knows or should know whether Defendant has acted upon Plaintiff's demand for payment (see Plaintiff's Complaints' ¶14, at Docket Number 2008-103 and ¶12 at Docket Numbers 2008-4491 & 2008-4492), and paid Plaintiff, accordingly, Defendant's response should be treated as an admission. 54. Defendant's response to Plaintiff's New Matter to Defendant's Counterclaim ¶54, at Docket Number 2008-103 and ¶51 at Docket Numbers 2008-4491 & 2008- 4492, which reads: "Defendant did not notify Plaintiff of any deficiency of Plaintiff's work within seven calendar days after receipt of the notice of deficiency item pursuant to 73 Pa. C.S. § 511, therefore, Defendant is barred from withholding payment from Plaintiff and is further barred from asserting a counterclaim for $5,580.00 for work allegedly completed by another company" is as follows: "Denied. After reasonable investigation, Defendant is without sufficient information to form a belief as to the truth or veracity of this allegation. By way of further answer and denial, the contents of this paragraph represent a conclusion of law to which no additional response is required." 55. It is obvious that Defendant knows or should know whether and when they notified Plaintiff of the alleged deficiency in Plaintiff's performance under the contract, accordingly, Defendant's response should be treated as an admission that they did not notify Plaintiff of the alleged deficiency within seven calendar days as required pursuant to 73 Pa. C.S. § 511. 56. Defendant's response to Plaintiff's New Matter to Defendant's Counterclaim ¶58, at Docket Number 2008-103 and ¶55 at Docket Numbers 2008-4491 & 2008- 4492, which reads: "Defendant, as a going concern in the snow removal business, knew or should have known that a significant snow and ice event, such as that which occurred on or about February 14, 2007 may have the effect of making snow and ice remediation attempts unsuccessful" is as follows: "Denied. After reasonable investigation, Defendant is without sufficient information to form a belief as to the truth or veracity of this allegation. Strict proof is demanded at time of trial in this matter." 57. It is obvious that Defendant knows or should know that a significant snow and ice event, such as that which occurred on or about February 14, 2007 may have the effect of making snow and ice remediation attempts unsuccessful; accordingly, Defendant's response should be treated as an admission. By way of further argument, see Defendant's Response to Plaintiff's New Matter to Defendant's Counterclaim ¶60 at Docket Number 2008-103 and ¶57 at Docket Numbers 2008-4491 & 2008-4492 wherein Defendant admits that there was a disaster emergency signed into effect and issued by Governor Rendell relative to the snow and ice event of February 14, 2007 on or about February 15, 2007. 58. Defendant's response to Plaintiff's New Matter to Defendant's Counterclaim $59, at Docket Number 2008-103 and ¶56 at Docket Numbers 2008-4491 & 2008- 4492, which reads: "Defendant, as a going concern in the snow removal business, knew or should have known that several major interstates such as 1-78 and the Pennsylvania Turnpike were closed for all or a portion of February 14, 2007 by reason of the inclement weather related to the snow and ice event that occurred on or about February 14, 2007" is as follows: "Denied. After reasonable investigation, Defendant is without sufficient information to form a belief as to the truth or veracity of this allegation. Strict proof is demanded at time of trial in this matter." 59. It is obvious that Defendant knows or should know that several major interstates such as 1-78 and the Pennsylvania Turnpike were closed for all or a portion of February 14, 2007 by reason of the inclement weather related to the snow and ice event that occurred on or about February 14, 2007; accordingly, Defendant's response should be treated as an admission. By way of further argument, see Defendant's Response to Plaintiff's New Matter to Defendant's Counterclaim ¶60 at Docket Number 2008-103 and ¶57 at Docket Numbers 2008-4491 & 2008- 4492 wherein Defendant admits that there was a disaster emergency signed into effect and issued by Governor Rendell relative to the snow and ice event of February 14, 2007 on or about February 15, 2007. 60. Defendant's response to Plaintiff's Counterclaim to Defendant's Counterclaim ¶63, at Docket Number 2008-103 and ¶60 at Docket Numbers 2008-4491 & 2008-4492, which reads: "Pursuant to the facts alleged in Defendant's Counterclaim Plaintiff hereby alleges this Counterclaim of Defendant's Counterclaim pursuant to the Contractor and Subcontractor Payment Act, 73 Pa. C.S. § 501 et seq. hereinafter the 'CSPA."' is as follows: "Denied. After reasonable investigation, Defendant is without sufficient information to form a belief as to the truth or veracity of this allegation. Strict proof is demanded at time of trial in this matter." 61. It is obvious that Defendant knows or should know based upon a reading of Plaintiff's Counterclaim to Defendant's Counterclaim the reason and statutory basis for Plaintiffs Counterclaim, accordingly, Defendant's response should be treated as an admission. 62. Defendant's response to Plaintiff's Counterclaim to Defendant's Counterclaim ¶75, at Docket Number 2008-103 and ¶72 at Docket Numbers 2008-4491 & 2008-4492, which reads: "Plaintiff learned that Defendant's dissatisfaction with Plaintiff's work was the reason for nonpayment to Plaintiff by Defendant, constructively on April 14, 2007, the date upon which Defendant's Counterclaim was filed." is as follows: "Denied. After reasonable investigation, Defendant is without sufficient information to form a belief as to the truth or veracity of this allegation. Strict proof is demanded at time of trial in this matter." 63. It is obvious that Defendant knows or should know when it notified Plaintiff of its dissatisfaction with Plaintiff's work; accordingly, Defendant's response should be treated as an admission that Defendant did not notify Plaintiff of its dissatisfaction with Plaintiff's work until April 14, 2007, the date upon which Defendant's Counterclaim was filed. 64. Defendant's apparent defense and reason for nonpayment of Plaintiffs invoices is that Plaintiff failed to complete snow removal services during the aforementioned February 14, 2007 snow and ice event to the specifications and needs of the companies with which Defendant had contracted with to provide them with snow removal services. 65. In Defendant's Counterclaim to Plaintiff's Complaint at Docket Number 2008-103, Defendant alleges in ¶¶ 29 & 30 that Defendant failed to render services at Home Depot number 4120 during said snow and ice event on February 14, 2007 to the specifications and needs of the Home Depot store 4120. 66. Plaintiff is claiming a total of $1,601.83 is due and owing from Defendant for services rendered at Home Depot Store 4120 ($1,066.58), Home Depot Store 4149`($161.75) and Delco Plaza ($373.50) at Docket Number 2008-103. . 67. On or about February 14, 2007 a snow and ice event occurred wherein Plaintiff was contacted by Defendant to provide services at Home Depot 4120 pursuant to the aforementioned contact with Defendant. 68. Plaintiff further presents that Invoice # 3018 dated 2/3/2007 covers services provided during a period of time prior to the February 14, 2007 snow and ice event. Similarly, invoice # 3083 cover services provided during a period of time after February 14, 2007. (Copies of all aforementioned invoices are attached as Exhibit "B" to Plaintiff's Complaint.) 69. In Defendant's Counterclaim to Plaintiff's Complaint at Docket Number 2008- 4491, Defendant alleges in ¶T 26, 27 that Defendant failed to render services at Home Depot number 4113 during said snow and ice event on February 14, 2007 to the specifications and needs of the Home Depot store 4113. 70. On or about February 14, 2007 a snow and ice event occurred wherein Plaintiff was contacted by Defendant to provide services at Home Depot 4113 pursuant to the aforementioned contact with Defendant. 71. It is additionally argued that Invoice # 3018 dated 2/3/2007 covers services provided during a period of time prior to the February 14, 2007 snow and ice event. Similarly, invoices # 3083, 3103, 3139 (which is made up of invoices 3138 & 3139) and 3161 (which is made up of invoices 3159, 3160, 3161) cover services provided during a period of time after February 14, 2007. (Copies of all aforementioned invoices are attached as Exhibit "B" to Plaintiff's Complaint.) 72. In Defendant's Counterclaim to Plaintiff's Complaint at Docket Number 2008- 4492, Defendant alleges in T¶ 26, 27 that Defendant failed to render services at Home Depot number 4138 during said snow and ice event on February 14, 2007 to the specifications and needs of the Home Depot store 4138. 73. On or about February 14, 2007 a snow and ice event occurred wherein Plaintiff was contacted by Defendant to provide services at Home Depot 4138 pursuant to the aforementioned contact with Defendant. 74. It is additionally argued that Invoice # 3018 dated 2/3/2007 covers services provided during a period of time prior to the February 14, 2007 snow and ice event. Similarly, invoices # 3103, 3139 (which is made up of invoices 3138 & 3139) and 3161 (which is made up of invoices 3159, 3160, 3161) cover services provided during a period of time after February 14, 2007. (Copies of all aforementioned invoices are attached as Exhibit "B" to Plaintiff's Complaint.) 75. Pursuant to the contract between Plaintiff and Defendant, Plaintiff provided snow removal services for Defendant in Dauphin, York and Cumberland counties in Pennsylvania. 76. Additionally, there is no mention in the aforementioned contract that a condition precedent to payment for Plaintiff's services, provided, be the satisfactory performance of Plaintiff, as determined by the end-client; the Home Depot stores Delco Plaza, or Defendant. 77.At no place in the aforementioned contact are there any measures and/or provisions by which Defendant could legally withhold payment for services, actually rendered. 78. To date Plaintiff has not been paid by Defendant for aforementioned work completed. 79. Plaintiff learned that Defendant's dissatisfaction with Plaintiff's work was the reason for nonpayment to Plaintiff by Defendant, constructively on April 14, 2008, the date upon which Defendant's Counterclaim was filed. 80. Defendant did not notify Plaintiff of any deficiency of Plaintiffs work within seven calendar days after receipt of the notice of the deficiency item pursuant to 73 Pa. C.S. § 511, therefore, Defendant is barred from withholding payment from Plaintiff and is further barred from asserting their counterclaims for work allegedly completed by another company. 81.As a result of Defendant's breach of contract and failure to comply with the CSPA, Plaintiff is entitled to recover the following quantifiable damages: a. Interest from April 1, 2007, the date established by the CSPA (14 calendar days after issuance of the final invoice at a rate of 1 % per month pursuant to 73 Pa. C.S. § 507(d); b. A penalty for failure to comply with the CSPA equal to 1 % per month of the amount wrongfully withheld pursuant to 73 Pa. C.S. § 512(a); and c. An award of attorney's fees, costs and expenses to Plaintiff as the prevailing party in this proceeding pursuant to 73 Pa. C.S. § 512(b). 82. Based upon the pleadings and the documents attached thereto, judgment should be entered in favor of Plaintiff, Donald Wood d/b/a Woody's, and against Defendant, About Time Snow Removal for breach of contract and failure to comply with the CSPA. WHEREFORE, Plaintiff, Donald Wood d/b/a Woody's, respectfully requests that his Motion be granted and that Judgment be entered in his favor and against Defendant, About Time Snow Removal. Respectfully Submitted, Date: I-1a-a 00 ?6 Bryan Shook, Esquire I. D. # 203250 2132 Market Street Camp Hill, Pennsylvania 17011 DONALD WOOD, d/b/a WOODY'S Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW No: 2008-103 DONALD WOOD, d/b/a WOODY'S Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No: 2008-4491 DONALD WOOD, d/b/a WOODY'S Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No: 2008-4492 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing, Motion for Judgment on the Pleadings, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: About Time Snow Removal c/o Sean M. Gresh, Esquire Benstead & Mabon, P.C. 124 East Court Street Doylestown, PA 18901 Respectfully Submitted, Date: ?- l? - d10og Alv_t Bryan 0 Shook, Esquire ell rF .r C?. Alw" 11111. Bryan W. Shook. Esquire ID # 203250 The Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill. Pennsylvania 17011 Telephone - (717) 975-9446 Pax - (717) 975-2309 IlShook ri Attorney for Plaintiff DONALD WOOD, d/b/a WOODY'S : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, No: 2008-103 Defendant DONALD WOOD, d/b/a WOODY'S Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW : No: 2008-4491 DONALD WOOD, d/b/a WOODY'S IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW ABOUT TIME SNOW REMOVAL, No: 2008-4492 Defendant PRAECIPE FOR LISTING CASE FOR ARGUMENT To the Prothonotary of Cumberland County: Please list the within matter for the next available Argument Court. 1. State matter to be argued: Plaintiff, Donald Wood d/b/a Woody's, Motion for Judgment on the Pleadings 2. Identify counsel who will argue cases: a. for plaintiff- Bryan W. Shook, Esquire Law Office of Darrell C. Dethlefs 2132 Market Street Camp Hill, Pennsylvania 17011 b. for defendant: Sean M. Gresh, Esquire Benstead & Mabon, P.C. 124 East Court Street Doylestown, Pennsylvania 18901 3. 1 will notify all parties in writing within two days that this case has been listed for argument: Yes 4. Argument Court Date: December 3, 2008 Dated- J /-Q- a Do's Respectfully Submitted- Bryan & Shook, Esquire I . D. # 203250 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Plaintiff X-p wff BENSTEAD & MABON, P.C. By: Gregory F. Mitsch, Esquire Attorney I.D. #78381 124 East Court Street Doylestown, PA 18901 (215) 345-9100 Attorney for Defendant DONALD WOOD, d/b/a WOODY' S, Plaintiff VS. ABOUT TIME SNOW REMOVAL, Defendant DONALD WOOD, d/b/a WOODY'S, Plaintiff VS. ABOUT TIME SNOW REMOVAL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO.: 2008-103 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO.: 2008-4491 DONALD WOOD, d/b/a WOODY' S, Plaintiff vs. ABOUT TIME SNOW REMOVAL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.: 2008-4492 DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW, comes Defendant, About Time Snow Removal, by and through their counsel, Benstead & Mabon, P.C., and specifically Gregory F. Mitsch, Esquire, who hereby responds to Plaintiff's Motion for Judgment on the Pleadings as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted. By way of further answer, Plaintiff filed an Amended Complaint in response to Defendant's Preliminary Objections to Plaintiff's Complaint. 14. Admitted. 15. Admitted. By way of further answer, in Plaintiff's Counterclaim to Defendant's Counterclaim, Plaintiff first raises the alleged violations of the Contractor and Subcontractor Payment Act, 73 Pa.C.S. § 501, et seq. hereinafter "CSPA." 16. Admitted. 17. Admitted. 18. Admitted. 19. Admitted. By way of further answer, Plaintiff filed an Amended Complaint in response to Defendant's Preliminary Objections to Plaintiff's Complaint. 20. Admitted. 21. Admitted. 22. Admitted. By way of further answer, in Plaintiff's Counterclaim to Defendant's Counterclaim, Plaintiff first raises the alleged violations of the Contractor and Subcontractor Payment Act, 73 Pa.C.S. § 501, et seq. hereinafter "CSPA." 23. Admitted. 24. Admitted. 25. Admitted. 26. Admitted in part, Denied in Part. It is admitted that a contract was executed by Plaintiff where said contract was executed is unknown to Defendant. It is therefore denied. 27. Admitted. 28. Admitted in part, Denied in part. It is admitted that Plaintiff partially performed under the contract. It is denied that there was substantial performance in a workmanlike manner. 29. Denied. To the contrary, Defendant has viable defenses that Plaintiff breached the contract and failed to perform in a workmanlike manner. Defendant has filed counterclaims against Plaintiff due to the breach of contract by Plaintiff and the damages caused to Defendant. 30. Denied. It is denied that Defendant has failed to answer with the required specificity any allegation of Plaintiff. Defendant specifically answered any and all of Plaintiff's allegations which required a specific response. By way of further answer, Defendant's responses and counterclaims are necessarily specific to put Plaintiff on notice of the issues in this case. 31. Admitted that the language quoted exists is Pa.R.C.P. 1029(b). However, the following language also appears "Averments in a pleading to which a responsive pleading is required..." Pa.R.C.P. 1029(b) (emphasis added). 32. It is denied that Defendant simply used the word "Denied" in its responsive pleadings. By way of further answer, Plaintiff's reliance upon cases from other county courts is illustrative but not binding upon this Honorable Court. 33. Admitted. The language of Koser vs. Harleysville Mutual Insurance Company, 595 A.2d 128, 129 (1991) is admitted. By way of further answer, there are disputed facts inherent in this case including, but not limited to, whether Plaintiff performed under the contract; whether Defendant was harmed by Plaintiff's failure to perform under the contract; and whether the CSPA is applicable to the act of snow removal. By way of further answer a reading of the docket entries could lead to the conclusion that disputed facts exist, i.e. three Complaints, two sets of preliminary objections; two amended complaints; three answers, new matter and counterclaims; three counterclaims to counterclaim and response and new matter thereto. 34. Admitted in part, Denied in part. It is admitted that the language is quoted correctly. It is denied that Defendant failed to state a meritorious defense. To the contrary, Defendant with specificity articulated the defense based upon Plaintiff's failure to properly perform under the contract. 35. Admitted in part, Denied in part. It is admitted that Plaintiff has alleged breach of contract. By way of further answer and denial, Plaintiff only claimed a violation of the CSPA in a counterclaim to Defendant's counterclaim. It is denied that Defendant breached the agreement. It is denied that the Contractor Subcontractor Payment Act is applicable to snow removal and hence the parties hereto. 36. Admitted. 37. Admitted. 38. Admitted. 39. Admitted. 40. Admitted. By way of further answer, the answer given was prior to the consolidation of the three actions now before this Honorable Court. The answer was intended as notice of Defendant's claims of breach by Plaintiff at all locations where work was to be performed by Plaintiff. 41. Admitted in part, Denied in part. It was admitted that Plaintiff sent the invoices. It was specifically denied that the work referenced in the invoices was completed or completed within the terms of the contract. Defendant's answer to Plaintiff's New Matter to Defendant's Counterclaim, Docket No. 2008-4491 and Docket No. 2008-4492, Paragraph 48 and Defendant's Answer to Plaintiff's New Matter to Defendant's Counterclaim and Defendant's Answer to Plaintiff's Counterclaim to Defendant's Counterclaim, Docket No. 2008-4491 and 2008-4492, Paragraph 66). 42. Admitted. 43. Admitted in part, Denied in part. Defendant admitted some work was performed. Defendant specifically denied that the work completed was done appropriately and in the manner as contracted for. Defendant's Answer to Plaintiff's New Matter to Defendant's Counterclaim (Docket No. 2008-103, Paragraph 49, Docket No. 2008-4491 and Docket No. 2008-4492, Paragraph 46). 44. Admitted in part. Denied in part. It was admitted in the pleadings that the invoices detailed work allegedly performed by Plaintiff. The answers also deny that the invoices accurately reflect the work that was actually performed and further the answers deny that the work was performed appropriately under the contract. (Defendant's Answer to Plaintiff's New Matter to Defendant's Counterclaim, Docket No. 2008-103, Paragraph 52, Docket No. 2008- 4491 and Docket No. 2008-4492, Paragraph 49). See also Defendant's Answer to Plaintiff's Counterclaim to Defendant's Counterclaim at Docket No. 2008-103, Paragraph 73). 45. Admitted. 46. Denied. Defendant's responsive pleadings were made with the adequate specificity throughout the pleadings. 47. Admitted in part. Denied in part. It is admitted that the language is stated correctly. It is denied that the averment has any material bearing on the litigation or the instant motion. 48. Again, this averment and the response thereto has no bearing on this litigation nor the instant motion. 49. Admitted in part. Denied in part. It is admitted that said language is correct. However, it was admitted that the invoices were received and denied that the invoices accurately reflected the work performed. Defendant's Answer to Plaintiff's New Matter to Defendant's Counterclaim (Docket No. 2008-103, Paragraph 52, Docket No. 2008-4491 and Docket No. 2008-4492, Paragraph 49). See also Defendant's Answer to Plaintiff's Counterclaim to Defendant's Counterclaim at Docket No. 2008-103, Paragraph 73). 50. Admitted in part. Denied in part. It is admitted that said language is correct. However, it was admitted that the invoices were received and denied that the invoices accurately reflected the work performed. Defendant's Answer to Plaintiff's New Matter to Defendant's Counterclaim (Docket No. 2008-103, Paragraph 52, Docket No. 2008-4491 and Docket No. 2008-4492, Paragraph 49). See also Defendant's Answer to Plaintiff's Counterclaim to Defendant's Counterclaim at Docket No. 2008-103, Paragraph 73). 51. Admitted that the cited language is correct. It is denied that the Defendant has failed to admit or deny any material fact without specificity. 52. Admitted. It is admitted that in numerous responses, Defendant admitted the invoiced amount was demanded but not paid. It was further answered that Plaintiff breached the contract and failed to perform. Specifically, Defendant stated that the invoiced amount of $1,601.83 was received by Defendant but that the amount in question was denied because that work was not appropriately performed under the contract. Defendant's Response to Plaintiff's New Matter to Defendant's Counterclaim (Docket No. 2008-103, Paragraph 52). 53. Admitted. It is admitted that in numerous responses, Defendant admitted the invoiced amount was demanded but not paid. It was further answered that Plaintiff breached the contract and failed to perform. Specifically, Defendant stated that the invoiced amount of $1,601.83 was received by Defendant but that the amount in question was denied because that work was not appropriately performed under the contract. Defendant's Response to Plaintiff's New Matter to Defendant's Counterclaim (Docket No. 2008-103, Paragraph 52). 54. Admitted. 55. Denied. Plaintiff states that there should be an admission not of fact but of law, i.e. (1) that the parties hereto are subject to the CSPA; (2) that because of the applicability of the CSPA that notice requirements were in effect; (3) that the assumed applicability of the CSPA created the notice requirement which was breached by Defendant; and (4) that the lack of notice then legally barred Defendant from asserting a defense and counterclaim for breach of contract. Plaintiff's averment is the epitome of a conclusion of law to which no responsive pleading is required. 56. Admitted. 57. Denied. The Governor's proclamation of a State of Emergency relative to individuals stranded on Interstate 1-78 has no bearing upon the ability of Plaintiff to perform under the contract. Plaintiff's obligation under the contract was to remove ice and snow at the behest of Defendant. (See Plaintiff's Motion for Judgment on the Pleadings, Paragraph 27). If this matter is treated as an admission, is it not the Plaintiff who is admitting their breach of contract? Whether Plaintiff or Defendant breached the contract are issues of material fact which precludes the entry of a judgment on the pleadings. 58. Admitted. By way of further answer, Plaintiff is seeking to use the Governor's proclamation as an excuse for failure of performance. Plaintiff's attempt to excuse their lack of performance is another issue of material fact which exists precluding a judgment on the pleadings. 59. Admitted. By way of further answer, Plaintiff is seeking to use the Governor's proclamation as an excuse for failure of performance. Plaintiff's attempt to excuse their lack of performance is another issue of material fact which exists precluding a judgment on the pleadings. 60. Admitted. 61. Denied. The averment is a conclusion of law, citing previously pleaded allegations as a legal basis for applicability of a statutory claim (not previously pleaded by Plaintiff). Said averment requires no responsive pleadings. By way of further answer, Defendant denies the applicability of the CSPA to this action. 62. Admitted. 63. Denied. Plaintiff alleges that Defendant should "know" when Plaintiff became aware of Defendant's dissatisfaction with the alleged work performed. Defendant has no way of knowing the truth of an averment which is solely in the mind of Plaintiff. Plaintiff states Defendant "should know when Defendant notified Plaintiff of dissatisfaction with Plaintiffs work." However, that was not the averment at question. Said averment was about Plaintiff s state of mind, which after reasonable investigation, Defendant still cannot determine. 64. Denied. Defendant's defense is based upon Plaintiff's failure to perform under the contract which caused Defendant considerable damages in excess of Plaintiff s demand. 65. Admitted. 66. Admitted in part. Denied in part. It is admitted that Plaintiff is claiming the amounts. Defendant has specifically denied that said amounts are due and owing. Furthermore, this paragraph seems to be incomplete. Therefore, Defendant reserves the right to supplement its answer hereto. 67. Admitted. 68. Admitted in part. Denied in part. It is admitted that said invoices are attached to Plaintiff's complaint. It is denied that said invoices are valid and/or authenticated. The mere assertion and attachment of an unauthenticated document to a pleading does not make it fact. Plaintiffs must prove the facts behind the invoice hence judgment on the pleadings is inappropriate. 69. Admitted. 70. Admitted. 71. Admitted in part. Denied in part. It is admitted that said invoices are attached to Plaintiff's complaint. It is denied that said invoices are valid and/or authenticated. The mere assertion and attachment of an unauthenticated document to a pleading does not make it fact. Plaintiff must prove the facts behind the invoice, hence judgment on the pleadings is inappropriate. The fact that counsel had to explain the invoices in such a parenthetical fashion is more evidence that a genuine issue of fact exists which precludes a judgment on the pleadings. 72. Admitted in part. Denied in part. It is admitted that said invoices are attached to Plaintiff's complaint. It is denied that said invoices are valid and/or authenticated. The mere assertion and attachment of an unauthenticated document to a pleading does not make it fact. Plaintiff must prove the facts behind the invoice, hence judgment on the pleadings is inappropriate. The fact that counsel had to explain the invoices in such a parenthetical fashion is more evidence that a genuine issue of fact exists which precludes a judgment on the pleadings. 73. Admitted. 74. Admitted in part. Denied in part. It is admitted that said invoices are attached to Plaintiff's complaint. It is denied that said invoices are valid and/or authenticated. The mere assertion and attachment of an unauthenticated document to a pleading does not make it fact. Plaintiff must prove the facts behind the invoice, hence judgment on the pleadings is inappropriate. The fact that counsel had to explain the invoices in such a parenthetical fashion is more evidence that a genuine issue of fact exists which precludes a judgment on the pleadings. 75. Admitted in part. Denied in part. It is admitted that snow removal was attempted by Plaintiff. It was routinely denied that the Plaintiff performed pursuant to the contract. 76. Admitted. However, the law of contracts is clear that satisfactory performance and substantial completion of the contract is necessary. Plaintiff failed to satisfactorily perform the contracted service as pleaded by the Defendant. 77. Admitted. However, the law of contracts is clear that satisfactory performance and substantial completion of the contract is necessary. Plaintiff failed to satisfactorily perform the contracted service as pleaded by the Defendant. It is denied that Plaintiff substantially performed pursuant to the contract. 78. Admitted in part. Denied in part. It is admitted that Defendant has not paid Plaintiff. It is denied that Plaintiff is entitled to payment. 79. Denied. Defendant cannot reasonably answer when Plaintiff learned of Defendant's dissatisfaction. By way of further answer, Plaintiff should have been aware of Defendant's dissatisfaction when they were not paid. 80. Denied. Plaintiff assumes a legal conclusion that the parties hereto are subject to the CSPA. Plaintiff's further assumptions based upon the applicability of the CSPA are misguided and are a factual dispute which precludes the grant of judgments on the pleadings. 81. Denied. Defendant has neither breached the agreement nor violated the CSPA. Therefore, section A through C are not compensable because the parties are not subject to the CSPA. 82. Denied. Plaintiff s motion should be denied because issues of fact exist which preclude the entry of a judgment on the pleadings. WHEREFORE, Defendant, About Time Snow Removal, respectfully requests this Honorable Court deny Plaintiff's Motion for Judgment on the Pleadings. Respectfully Submitted, BENSTEAD & MABON, P.C. BY: tRLfGdAY F. MITSCH, ESQUIRE Attorney for Defendant Date: November 26, 2008 ?', _? .,? ?.. ,, _r,.. , er ; e r BENSTEAD & MABON, P.C. By: Gregory F. Mitsch, Esquire Attorney I.D. 478381 124 East Court Street Doylestown, PA 18901 (215) 345-9100 Attorney for Defendant DONALD WOOD, d/b/a WOODY'S, Plaintiff VS. ABOUT TIME SNOW REMOVAL, Defendant DONALD WOOD, d/b/a WOODY'S, Plaintiff VS. ABOUT TIME SNOW REMOVAL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW : NO.: 2008-103 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO.: 2008-4491 DONALD WOOD, d/b/a WOODY'S, Plaintiff VS. ABOUT TIME SNOW REMOVAL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO.: 2008-4492 CERTIFICATE OF SERVICE I, Gregory F. Mitsch, Esquire, hereby certify that a true and correct copy of Defendant's Response to Plaintiff s Motion for Judgment on the Pleadings and Brief in support thereof, was served upon Plaintiff's attorney, Bryan W. Shook, Esquire, via regular mail and e-mail on the 26th day of November, 2008, as follows: Bryan W. Shook, Esquire 2132 Market Street Camp Hill, PA 17001 BShook@dedlaw.net Respectfully Submitted, BENSTEAD & MABON, p.C. BY: ORY F. MITS H ESQUIRE Attorney for Defendant DONALD WOOD, d/b/a WOODY' S, Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO. 2008-103 CIVIL TERM DONALD WOOD, d/b/a : IN THE COURT OF COMMON PLEAS OF WOODY' S, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : CIVIL ACTION-LAW ABOUT TIME SNOW REMOVAL, Defendant : NO. 2008-4491 CIVIL TERM DONALD WOOD, d/b/a : IN THE COURT OF COMMON PLEAS OF WOODY' S, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vi. : CIVIL ACTION-LAW ABOUT TIME SNOW REMOVAL, Defendant : NO. 2008-4492 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS, OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this Bch day of January, 2009, upon consideration of Plaintiff's Motion for Judgment on the Pleadings in the above-captioned cases, and for the reasons stated in the accompanying opinion, the motion is denied. VINVAIASNNU i lCo rl.? ,??x 39" ,ki .11 1? It, ?Z Wd 8- 8VC 50OZ } GAD- 4 x-03 w 30 BY THE COURT /Bryan W. Shook, Esq. 2132 Market Street Camp Hill, PA 17011 Attorney for Plaintiff /Greg Mitsch, Esq. Benstead & Mabon, P.C. 124 East Court Street Doylestown, PA 18901 Attorney for Defendant COPt'gs rnat . 1/Q/01 tzl Wesley O , Jr.; DONALD WOOD, d/b/a : IN THE COURT OF COMMON PLEAS OF WOODY' S, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant CIVIL ACTION-LAW : NO. 2008-103 CIVIL TERM DONALD WOOD, d/b/a : IN THE COURT OF COMMON PLEAS OF WOODY' S, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : CIVIL ACTION-LAW ABOUT TIME SNOW REMOVAL, Defendant : NO. 2008-4491 CIVIL TERM DONALD WOOD, d/b/a : IN THE COURT OF COMMON PLEAS OF WOODY' S, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : CIVIL ACTION-LAW ABOUT TIME SNOW REMOVAL, Defendant : NO. 2008-4492 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS, OLER and GUIDO, JJ. OPINION and ORDER OF COURT OLER, J., January 8, 2009. In these consolidated civil cases,' (a) Plaintiff, a snow remover, has sued Defendant, another snow remover, for payment for certain snow removal projects which Plaintiff allegedly performed on Defendant's behalf,2 (b) Defendant has counterclaimed on the basis of an allegedly deficient performance of the projects by Plaintiff,3 and (c) Plaintiff has "counterclaimf ed] to Defendant's counterclaim" on the basis of Defendant's failure to comply with its obligations to a subcontractor under Pennsylvania's Contractor and Subcontractor Payment Act.4 For disposition at this time is Plaintiff's motion for judgment on the pleadings.5 Plaintiff's motion was argued on December 3, 2008. For the reasons stated in this opinion, the motion will be denied. STATEMENT OF FACTS Procedural history. The procedural history of these cases has been well summarized in the brief by Plaintiff's counsel, Bryan W. Shook, Esq., as follows: Docket Number 2008-103 was commenced before the Honorable Thomas A. Placey, Magisterial District Number 09-3-04 on May 29, 2007. Upon appeal of the Judgment in favor of Plaintiff, Donald Wood d/b/a/ Woody's, the case was assigned Docket Number 2008-103 in the Court of Common Pleas of Cumberland County. A Complaint in Docket Number 1 See Order of Court, August 21, 2008. 2 Plaintiff's Complaint, No. 08-103 Civil Term, filed March 4, 2008; Plaintiff's Amended Complaint, No. 08-4491 Civil Term, filed February 11, 2008; Plaintiff's Amended Complaint, No. 08-4492 Civil Term, filed February 11, 2008. 3 Defendant's Answer to Plaintiff's Complaint, No. 08-103 Civil Term, filed April 14, 2008; Defendant's Answer to Plaintiff's Amended Complaint, No. 08-4491 Civil Term, filed April 10, 2008; Defendant's Answer to Plaintiff's Amended Complaint, No. 08-4492 Civil Term, filed April 10, 2008. 4 Plaintiff's Reply to Defendant's New Matter and Counterclaim, Plaintiff's New Matter to Defendant's Counterclaim and Plaintiff's Counterclaim to Defendant's Counterclaim, No. 08-103 Civil Term, filed May 6, 2008; Plaintiff's Reply to Defendant's New Matter and Counterclaim, Plaintiff's New Matter to Defendant's Counterclaim and Plaintiff's Counterclaim to Defendant's Counterclaim, No. 08-4491 Civil Term, filed May 6, 2008; Plaintiff's Reply to Defendant's New Matter and Counterclaim, Plaintiff's New Matter to Defendant's Counterclaim and Plaintiff's Counterclaim to Defendant's Counterclaim, No. 08-4492 Civil Term, filed May 6, 2008; 5 Plaintiff's Motion for Judgment on the Pleadings, filed November 12, 2008. 2 2008-103 was filed on March 4, 2008. An Answer with New matter and Counterclaim was filed by Defendant, in Docket Number 200-103, on April 14, 2008. An Answer to Defendant's New Matter and Counterclaim and New Matter and a Counterclaim to Defendant's Counterclaim was filed by Plaintiff, in Docket Number 2008-103, on or about May 6, 2008. An Answer to Plaintiff's New Matter and Counterclaim to Defendant's Counterclaim was filed by Defendant on June 6, 2008. Docket Number 2008-4491 was commenced before the Honorable Michael J. Smith, Magisterial District Number 12-2-01, on May 29, 2007 in Dauphin County, Pennsylvania. Upon appeal of the Judgment in favor of Plaintiff, Donald Wood d/b/a Woody's, the case was assigned Docket Number 2007-CV-10211-DJ in the Court of Common Pleas of Dauphin County and was according[ly] transferred to this Honorable Court (Docket Number 2008-4491) pursuant to an Order of the Honorable Bruce Batton on July 1, 2008. A Complaint in Docket Number 2008-4491 was filed on November 27, 2007. An Amended Complaint in Docket Number 2008- 4491 was filed on February 11, 2008. An Answer with New Matter and Counterclaim was filed by Defendant, in Docket Number 2008-4491, on April 10, 2008. An Answer to Defendant's New Matter and Counterclaim and New Matter and a Counterclaim to Defendant's Counterclaim was filed by Plaintiff, in Docket Number 2008-4491, on or about May 6, 2008. An Answer to Plaintiff's New Matter and Counterclaim to Defendant's Counterclaim was filed by Defendant on June 6, 2008. Docket Number 2008-4492 was commenced before the Honorable Joseph S. Lindsey, Magisterial District Number 12-1-06, on May 29, 2007 in Dauphin County, Pennsylvania. Upon appeal of the Judgment in favor of Plaintiff, Donald Wood d/b/a Woody's, the case was assigned Docket Number 2007-CV-9906-DJ in the Court of Common Pleas of Dauphin County and was according[ly] transferred to this Honorable Court (2008- 4492) pursuant to an Order of the Honorable Judge Bratton on July 1, 2008. A Complaint in Docket Number 2008-4492 was filed on November 27, 2007. An Amended Complaint in Docket Number 2008-4492 was filed on February 11, 2008. An Answer with New Matter and Counterclaim was filed by Defendant, in Docket Number 2008-4492, on April 10, 2008. An Answer to Defendant's New Matter and Counterclaim and New Matter and a Counterclaim to Defendant's Counterclaim was filed by Plaintiff, in Docket Number 2008-4492, on or about may 6, 2008. An Answer to Plaintiff's New Matter and Counterclaim to Defendant's Counterclaim was filed by Defendant on June 6, 2008. All pleadings are closed with respect to the above-captioned matters. All of the captioned matters were consolidated pursuant to [a Cumberland County] Order dated August 21, 2008.6 Allegations of pleadings. In these cases, Plaintiff alleges a failure to pay on the part of Defendant for snow removal projects at various Home Depot stores.7 6 Brief of Plaintiff on Plaintiff's Motion for Judgment on the Pleadings, submitted November 12, 2008, at 1-3. 3 Home Depot had allegedly engaged Defendant to perform, or cause to be performed, these services.8 The complaint/amended complaints sound in breach of contract.9 Defendant's answers with new matter and counterclaim, when read as a whole, allege that the work performed by Plaintiff was so unsatisfactory that the various Home Depot stores had to engage alternative snow removal services, the costs of which Home Depot billed to Defendant.10 Defendant's counterclaims sound in breach of contract. I 1 Plaintiff's replies to Defendant's answers with new matter and counterclaim each contain (a) a "Counterclaim to Defendant's Counterclaim"" ' Plaintiff's Complaint, No. 08-103 Civil Term, ¶11-15, filed March 4, 2008; Plaintiff's Amended Complaint, No. 08-4491 Civil Term, ¶109-13, filed February 11, 2008; Plaintiff's Amended Complaint, No. 08-4492 Civil Term, ¶10-13, filed February 11, 2008. 8 Plaintiff's Complaint, No. 08-103 Civil Term, ¶7, filed March 4, 2008; Plaintiff's Amended Complaint, No. 08-4491 Civil Term, ¶7, filed February 11, 2008; Plaintiff's Amended Complaint, No. 08-4492 Civil Term, ¶7, filed February 11, 2008. 9 Plaintiff's Complaint, No. 08-103 Civil Term, ¶16, filed March 4, 2008; Plaintiffs Amended Complaint, No. 08-4491 Civil Term, ¶14, filed February 11, 2008; Plaintiff's Amended Complaint, No. 08-4492 Civil Term, ¶14, filed February 11, 2008. 10 Defendant's Answer to Plaintiff's Complaint, No. 08-103 Civil Term, ¶30-35, filed April 14, 2008; Defendant's Answer to Plaintiff's Amended Complaint, No. 08-4491 Civil Term, ¶26-32, filed April 10, 2008; Defendant's Answer to Plaintiff's Amended Complaint, No. 08-4492 Civil Term, ¶26-32, filed April 10, 2008. 11 Defendant's Answer to Plaintiffs Complaint, No. 08-103 Civil Term, ¶35, filed April 14, 2008; Defendant's Answer to Plaintiff's Amended Complaint, No. 08-4491 Civil Term, $32, filed April 10, 2008; Defendant's Answer to Plaintiff s Amended Complaint, No. 08-4492 Civil Term, ¶32, filed April 10, 2008. 12 Plaintiffs Reply to Defendant's New Matter and Counterclaim, Plaintiffs New Matter to Defendant's Counterclaim and Plaintiff's Counterclaim to Defendant's Counterclaim, No. 08-103 Civil Term, ¶61-77, filed May 6, 2008; Plaintiffs Reply to Defendant's New Matter and Counterclaim, Plaintiffs New Matter to Defendant's Counterclaim and Plaintiffs Counterclaim to Defendant's Counterclaim, No. 08-4491 Civil Term, ¶58-74, filed May 6, 2008; Plaintiffs Reply to Defendant's New Matter and Counterclaim, Plaintiffs New Matter to Defendant's Counterclaim and Plaintiffs Counterclaim to Defendant's Counterclaim, No. 08-4492 Civil Term, 158-74, filed May 6, 2008. Whether a "counterclaim to a counterclaim" is a permissible pleading is beyond the scope of this opinion. See Pa. R.C.P. 1017(a) (pleadings allowed). 4 J and (b) various defenses to Defendant's counterclaim. 13 In the counterclaim to a counterclaim, Plaintiff purports to assert a cause of action against Defendant in Plaintiff's capacity as a "subcontractor" of Defendant under Pennsylvania's Contractor and Subcontractor Payment Act. 14 Specifically, it is alleged that Defendant failed to notify Plaintiff of deficiencies in Plaintiff's performance as a "subcontractor" within seven days after receipt of notice of the deficiencies, as required by Section 511(b) of the Act. 15 Among the defenses to Defendant's counterclaim, Plaintiff cites the aforesaid notice provision of the Pennsylvania statute16 and apparently also advances an impossibility-of-performance argument as to some of Plaintiff's work, based upon a certain "proclamation of disaster emergency" issued by the Governor of Pennsylvania. 17 13 Plaintiff's Reply to Defendant's New Matter and Counterclaim, Plaintiff's New Matter to Defendant's Counterclaim and Plaintiff's Counterclaim to Defendant's Counterclaim, No. 08-103 Civil Term, ¶37-43, filed May 6, 2008; Plaintiff's Reply to Defendant's New Matter and Counterclaim, Plaintiff's New Matter to Defendant's Counterclaim and Plaintiff's Counterclaim to Defendant's Counterclaim, No. 08-4491 Civil Term, ¶34-40, Filed May 6, 2008; Plaintiff's Reply to Defendant's New Matter and Counterclaim, Plaintiffs New Matter to Defendant's Counterclaim and Plaintiff's Counterclaim to Defendant's Counterclaim, No. 08-4492 Civil Term, 134-40, filed May 6, 2008. 14 Act of February 17, 1994, P.L. 73, 73 P.S. §§501-516. 15 Act of February 17, 1994, P.L. 73, §11(b), 73 P.S. §511(b). 16 Plaintiff's Reply to Defendant's New Matter and Counterclaim, Plaintiff's New Matter to Defendant's Counterclaim and Plaintiff's Counterclaim to Defendant's Counterclaim, No. 08-103 Civil Term, ¶54, filed May 6, 2008; Plaintiff's Reply to Defendant's New Matter and Counterclaim, Plaintiff's New Matter to Defendant's Counterclaim and Plaintiff's Counterclaim to Defendant's Counterclaim, No. 08-4491 Civil Term, ¶51, Filed May 6, 2008; Plaintiff's Reply to Defendant's New Matter and Counterclaim, Plaintiff's New Matter to Defendant's Counterclaim and Plaintiff's Counterclaim to Defendant's Counterclaim, No. 08-4492 Civil Term, ¶51, filed May 6, 2008. 17 Plaintiff's Reply to Defendant's New Matter and Counterclaim, Plaintiff's New Matter to Defendant's Counterclaim and Plaintiff's Counterclaim to Defendant's Counterclaim, No. 08-103 Civil Term, 158-60, filed May 6, 2008; Plaintiff's Reply to Defendant's New Matter and Counterclaim, Plaintiff's New Matter to Defendant's Counterclaim and Plaintiff's Counterclaim to Defendant's Counterclaim, No. 08-4491 Civil Term, 155-57, filed May 6, 2008; Plaintiff's Reply to Defendant's New Matter and Counterclaim, Plaintiff's New Matter to Defendant's Counterclaim and Plaintiff's Counterclaim to Defendant's Counterclaim, No. 08-4492 Civil Term, ¶55-57, filed May 6, 2008. 5 DISCUSSION Statement of law. "When ruling on a motion for judgment on the pleadings ... , [the court] must view all of the opposing party's allegations as true, and only those facts that the opposing party has specifically admitted may be considered against the opposing party. We may consider only the pleadings themselves and any documents properly attached thereto. We may grant a motion for judgment on the pleadings only when there is no genuine issue of fact and the moving party is entitled to judgment as a matter of law." Parish v. Horn, 768 A.2d 1214, 1215 n.I (Pa. Commw. 2001), aff'd, 569 Pa. 45, 800 A.2d 294 (2002) (citations omitted). A motion for judgment on the pleadings which seeks to conclude the litigation in question is not, of course, a proper substitute for a motion for a more specific pleading. Cf. Garrett Electronics Corp. v. Conwell, 46 Cumberland L.J. 256, 260 (1997) ("claim should not be stricken or dismissed for mere lack of specificity") (citation omitted). In addition, under Pennsylvania Rule of Civil Procedure 126, it is provided that [t]he rules [of civil procedure] shall be liberally construed to secure the just, speedy and expensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties. Finally, the Pennsylvania Contractors and Subcontractors Payment Act applies to "construction contracts," 18 and a subcontractor is defined as "[a] person who has contracted to furnish labor or materials to, or has performed labor for, a contractor or another subcontractor in connection with a contract to improve real property."19 18 Act of February 17, 1994, P.L. 73, §15, 73 P.S. §515. 19 Act of February 17, 1994, P.L. 73, §2, 73 P.S. §502. 6 Application of law to facts. In the present case, while Defendant's responses to Plaintiff's allegations in the pleadings are in some instances deficient in terms of specificity and, in others, more substantively at variance with the procedural requirements as to affirmative denials, a fair reading of Defendant's pleadings as a whole reveals the existence of genuine issues of material fact as to the quality of Plaintiff's work on the projects at issue. Similarly, the question of whether the circumstances surrounding a proclamation of the governor somehow rendered Plaintiff's performance on some of the projects impossible, and the question of whether snow removal by Plaintiff rose to the level of engagement in a "construction contract" involving "the improvement of real property," are more properly disposed of on a more developed record than the current pleadings. For these reasons, the following order will be entered: ORDER OF COURT AND NOW, this 8'1' day of January, 2009, upon consideration of Plaintiff's Motion for Judgment on the Pleadings in the above-captioned cases, and for the reasons stated in the accompanying opinion, the motion is denied. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Bryan W. Shook, Esq. 2132 Market Street Camp Hill, PA 17011 Attorney for Plaintiff Greg Mitsch, Esq. Benstead & Mabon, P.C. 124 East Court Street Doylestown, PA 18901 Attorney for Defendant 7 Bryan W. Shook. Esquire Ill # 203250 Dethlers-Pykosh Law Group. LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone - (717) 975-9446 F a\ - (717) 975-2309 BShook: dplelaw.com rr, :zm -+ 'L'-U OFFI L '-U t, M T OF OT,R"` A ?-- -+ 2011 JUL ! AMII=07 CUMBER AND PENNSYLVA A r Y Attorney for Na intifaf DONALD WOOD, d/b/a WOODY'S Plaintiff v. ABOUT TIME SNOW REMOVAL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No: 2008-103 DONALD WOOD, d/b/a WOODY'S Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant DONALD WOOD, d/b/a WOODY'S Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW/ No: 2008-4491 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No: 2008-4492 PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, JUDGES OF SAID COURT: Bryan W. Shook, Esquire, counsel for the Plaintiff in the above actions, respectfully represents that: 1. The above-captioned actions are at issue. 2. The claim of Plaintiff in the action is of $11,556.55 (which is derived from $1,601.81 requested in Docket No. 2008-103, $5,824.28 requested in Docket No. 2008-4491 and $4,130.44 requested in Docket No. 2003-4492), plus interest from April 1, 2007, the date established by the Contractor Subcontractor Payment Act ("CSPA") (14 calendar days after issuance of the final invoice at a rate of 1 % per month pursuant to 73 Pa. C.S. § 507(d)); plus a penalty for failure to comply with the CSPA equal to 1% per month of the amount wrongfully withheld pursuant to 73 Pa. C.S. § 512(a); plus an award of attorney's fees, costs and expenses to Plaintiff as the prevailing party in this proceeding pursuant to 73 Pa. C.S. § 512(b). 3. The counterclaim of the Defendant in the action is of $25,001.00. (which is derived from $9,013.00 requested at Docket No. 2008-4491, $5,580.00 requested in Docket No. 2008-4492 and $10,408.00 requested in Docket No. 2008-103). The following attorneys are interested in the cases as counsel or are otherwise disqualified to sit as arbitrators: All Attorneys from the Dethlefs-Pykosh Law Group, LLC (Counsel for Plaintiff) and All Attorneys from the Benstead, Mabon & Mitsch (Counsel for Defendant). WHEREFORE, your petition prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully Submitte , Date: 7- 13- a D l/ Bryan Shook, Esquire I.D. # 203250 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Email: BShook(a)dplglaw.com ORDER OF COURT AND NOW, this the _ day of 2011, in consideration of the forgoing petition, Esq., and Esq. and Esq. are appointed arbitrators in the above captioned actions as prayed for. By the Court, J. ..r 4 1 2. The claim of Plaintiff in the action is of $11,556.55 (which is derived from $1,601.81 requested in Docket No. 2008-103, $5,824.28 requested in Docket No. 2008-4491 and $4,130.44 requested in Docket No. 2003-4492), plus interest from April 1, 2007, the date established by the Contractor Subcontractor Payment Act ("CSPA") (14 calendar days after issuance of the final invoice at a rate of 1 % per month pursuant to 73 Pa. C.S. § 507(d)); plus a penalty for failure to comply with the CSPA equal to 1% per month of the amount wrongfully withheld pursuant to 73 Pa. C.S. § 512(a); plus an award of attorney's fees, costs and expenses to Plaintiff as the prevailing party in this proceeding pursuant to 73 Pa. C.S. § 512(b). 3. The counterclaim of the Defendant in the action is of $25,001.00. (which is derived from $9,013.00 requested at Docket No. 2008-4491, $5,580.00 requested in Docket No. 2008-4492 and $10,408.00 requested in Docket No. 2008-103). The following attorneys are interested in the cases as counsel or are otherwise disqualified to sit as arbitrators: All Attorneys from the Dethlefs-Pykosh Law Group, LLC (Counsel for Plaintiff) and All Attorneys from the Benstead, Mabon & Mitsch (Counsel for Defendant). WHEREFORE, your petition prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully Submitte , Date: 7- 13-a o ll anW Shook, Esquire Bry I.D. # 203250 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Email: BShook(Ddplglaw.com ORDER OF COURT AND NOW, this the day of 2011, in consideration of the forgoing petition, Esq., and Esq. and Esq. ar appoint d arbitrators in he above caption actions as prayed for. By the Cou ?. L/ LA- C) C) C,?> A9 v oa N -._-' Cr Co ?es ?.yu fed `7?ai?l? ?_ -, Mw P DONALD WOOD, d/b/a IN THE COURT OF COMMON PLEAS OF WOODY'S, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW vs. NO. 2008-103 CIVIL ABOUT TIME SNOW REMOVAL, : Defendant DONALD WOOD, d/b/a IN THE COURT OF COMMON PLEAS OF WOODY'S, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW vs. NO. 2008-4491 CIVIL? ABOUT TIME SNOW REMOVAL, : Defendant DONALD WOOD, d/b/a IN THE COURT OF COMMON PLEAS OF WOODY'S, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. CIVIL ACTION - LAW NO. 2008-4492 CIVIL ABOUT TIME SNOW REMOVAL, : Defendant ORDER AND NOW, this Z-`r' day of August, 2011, the appointment of Jennifer Hipp, Esquire, as a member of the Board of Arbitrators in the above-captioned case is VACATED. Jason Kutulakis, Esquire, is appointed in her place. BY THE COURT, Az rim ? -m. rY a Kevin ess, P. J.,^- ?' -< c3 Ron Turo, Esquire Court Administrator S-L rv = , DONALD WOOD d/b/a IN THE COURT OF COMMON PLEAS OF WOODY'S, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff --, CIVIL ACTION - LAW vs. NO. 08-0103 CIVIL a. -•d NO 08-4491 CIVIL? . ABOUT TIME SNOW REMOVAL NO. 08-4492 CIVIL '' Defendant ORDER AND NOW, this 2 Z! day of September, 2011, the appointment of a Board o f Arbitrators in the above-captioned case is VACATED. Ron Turo, Esquire, Chairman, shall be paid the sum of $50.00. BY THE COURT, -/(z X?? in X. Hess, P. J. ? Ron Turo, Esquire l' Court Administrator rlm cry t1?t?.??d ? ?alr? E4t