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Home My WebLink About08-4492Stephen E. Farina Prothonotary OFFICE OF .?gOTHONOTApV Front & Market Streets Harrisburg, PA 17101 (717) 780-6520 Curtis R Long, Prothonotary July 8, Cumberland County Court House Hanover & High Streets Carlisle, Pa 17013 IN RE: Donald wood d/b/a Woody's Vs About Time Snow Dauphin County Dkt No 2007CV 9906 DJ Cumberland County Dkt No. 0 ?(- y41y 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 PI Cumberland County. I am, accordingly, sending originals of all the papers I Will appreciate the return of the attached receipt address Attention: of Ms. Lisandra Garcia. Very trd 011#en, Stephen of the yours, Farina County of Dauphin 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-9906-DJ 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 PLEAS OF VANIA ORDER AND NOW this the day of , 2008, upon the Joint Stipulation to Transfer Venue, filed in the above captioned case consideration of , it is hereby ORDERED that jurisdiction with respect to the above captioned cases i? hereby RELINQUISHED and venue is transferred to Cumberland County, Pennsylvania. FURTHER, the Prothonotary of Dauphin County, is hereby immediately forward the above captioned matters' files to the Prothon Cumberland County, without delay. to ry of J. JUL 8 2008 IS a true and co; 7iginal filed. ornthnnr af 2. At all times material hereto, Defendant's principal place of business was 410 Brendwood Drive, Langhorne, Bucks County, Pennsylvania 1 3. Both of the above captioned maters arise out a contract entered into in Cumberland County, Pennsylvania. (A true and correct copy of tf?iis contract is attached to Plaintiffs Complaint, in both matters, and marked as Exhibit "A"). 4. The aforementioned contract called for Plaintiff to provide snow r?moval services for Defendant, as an independent contractor, whenever Defenda it contacted Plaintiff throughout the snow season. 5. The work performed under the contract was performed in Dauph n 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 ?9, 2007. 7. Docket Number 2007-CV-10211-DJ was commenced before the I Honorable Michael J. Smith, Magisterial District Number 12-2-01 on May 20, 2007. 8. Defendant timely appealed both judgments and Plaintiff timely filod the respective Complaints. 9. All pleadings are closed with respect to the above-captioned 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 q the same aforementioned contract and includes claims for work performed) in both Cumberland County and York County, Pennsylvania. Date: 718/2008 Time: 03:28 PM Page 1 of 3 Filed: Subtype: Comment: C. i Dauphin County No. User: LGARCIA Complete Case History Case: 2007-CV-09906-DJ Donald Wood, etal. vs. About Time Snow Removal 9/25/2007 District Justice Appeals Physical File: Y Status History Pending Transferred Judge History Date Judge 9/25/2007 No Judge, Payments Benstead & Mabon Plaintiff Name: Address: Phone: Employer: Litigant Type: Comment: Attorneys Shook, Bryan W Plaintiff Name: Address: Phone: Employer: Litigant Type: Comment: Attorneys Shook, Bryan W Defendant Name: Address: Phone: Employer: Litigant Type: Comment: Attorneys Gresh, Sean M Wood, Donald Home: 9/25/2007 7/8/2008 Receipt Date Type 141642 9/25/2007 Civil Filing Work: Appealed: N Reason for Remove Current SSN: DOB: Sex: Send notices: (Primary attorney) Send Notices Woodys SSN: DOB: Sex: Home: Work: Send notices: (Primary attorney) Send Notices About Time Snow Removal SSN: DOB: Sex: Home: Work: Send notices: 1 (Primary attorney) Send Notices Amount 117.00 117.00 Date: 7/8/2008 Dauphin County User: LGARCIA Time: 03:28 PM Complete Case History Page 2 of 3 Case: 2007-CV-09906-DJ Donald Wood, stal. vs. About Time Snow Removal Register of Actions 9/25/2007 New Civil Case Filed This Date. No Judge, Filing: Appeal - District Justice Paid by: No Judge, Benstead & Mabon Receipt number: 0141642 Dated: 9/25/2007 Amount: $117.00 (Check) Rule is issued upon Plaintiff to file a No Judge, Complaint within 20 days of service or suffer entry of Judgment of Non Pros. 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. 10/3/2007 Transcript of judgment received from No Judge, District Justice, Joseph S. Lindsey, filed 10/15/2007 Proof of Service of Notice Of Appeal and No Judge, Rule to file Complaint, filed 11/27/2007 Complaint filed. No Judge, Plaintiff: Wood, Donald Attorney of No Judge, Record: Bryan W Shook 1/28/2008 Defendant's Preliminary Objections to No Judge, Plaintiffs Complaint, filed. 2/11/2008 Amended Complaint filed. No Judge, Plaintiff: Woodys Attorney of Record: No Judge, Bryan W Shook 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. 6/30/2008 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 Date: 7/8/2008 Dauphin County User: LGARCIA Time: 03:28 PM Complete Case History Page 3 of 3 Case: 2007-CV-09906-DJ JUL 0 8 2008 Donald Wood, etal. vs. About Time Snow Removal I hereby rtify that the fo of g is a d orr cop f th on anal Qled. 'fIz Pro onotary/Clerk of Cou s C ' )COMMONWEAi TN nF aFNtievl vAkiiA COURT OF COMMON PLEAS rP NOTICE OF APPEAL Judicial District, County Oty ROM Dauphin MAGISTERIAL DIST RICT JUDGE JUDGMENT COMMON PLEAS o. NOTICE OF APPEAL Notice is given that the appellant has filed in the above Courtof Common Pleas an appeal from the judgm J d nt rendered by the Magisterial District u ge on the date and in the case referenced below. NAME OF APPELLANT About Time Snow Removal MAG. DIST. NO. 12-1-06 NAME OF MDJ ADDRESS OF APPELLANT Jose h S. Lindsey CITY 45 Buck Road Huntingirin DATE F STATE ZIP CODE PA 19006-15( O JUDGMENT AS E OF ainr 9-12-2007 Donald Wood n an DOCKET No. Abo t Time ? Snow Removal CV-0000507-07 SIGNA OpEL OR ATTORNEY AGENT n resA f This block will be signed ONLY when this notation is required under Pa. R.C.P.D.J. No. 1008B. If appella was Claimant (se Pa. R.C.P.D.J. No. 01(6) in action This Notice of Appeal, when received by the Magisterial District Judge, will operate as a SUPERSEDEAS to the judgment for possession in this c before a Magisterial District Ju dge, A COMPLAINT MUST BE FILED ase. within twenty (20) days after filing the NOTICE of APPEAL. Signature of Prothonotary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE T FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001() 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 upoon?7(]//'?)?^1) Donald Wood appellee(s) to file a complaint in this appeal t/tVV 1. 1 qq Name of appellee(s) (Common Pleas o. ) within twenty (20) days after service oe or su er entry of judgment of non pry. of RULE: To Donald Wood appellee(s) Name of appellees) (1) You are notified that a rule is hereby entered upon you to file a complaint In tws appeai within M 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 (3) The date of service of this rule if service was by mail is the date of the maiiirig. ? ti-. Date: 9-210 VNN3d YOU MUST INCLUDE A COPY OF THE NOTICE OF ff ffflW/1WFORM AOPC 312-05 FIN Cj H 11,'), j ;r' i v or (20) days after the date of service ST YOU. Prothonotary or Deputy THIS NOTICE OF APPEAL. 11 COMMONWEALTH OF PENNSYLVANIA COUNTY OF: DAUPHIN Mag. Dist. No.: 1a-1-06 MDJ Name: Hon: t t JOBEPR S. LIEDSEY Address: 5201 JOHESTOW ROAD 1ffARRI9BVRQ, PA Telephone: (717 ) 671-8640 17112 ATTOREEY DEF PRIVATE s SZAN K. GIRZSR 124 MST COURT STREET DOYLESTONNI PA 18901 NOTICE OF MOGMENT/TRANSCRIPT CIVI CASE PLAINTIFF: NAME and ADDRESS rDO1Q= Moog, ]A'. P29]IIT 8 DBAsMOODY'S POLA, PA 1702 J VS. DEFENDANT: NAME and ADDRESS UOOT TZIIIIZ B RE1071L 45 BUM ROAD SUITINGDON V , PA 19006-1501 L J Docket No.: CV-0000507-07 Date Filed: 5/29/07 - 411fit THIS IS TO NOTIFY YOU THAT: DEFAULT JVD T PLFF Judgment: (Date of Judgment) ® Judgment was entered for: (Name) DONALD MOOD, Judgment was entered against: (Name) ABOUT TIM ONM RZKOVAI, in the amount of $ 4,262.11 Amount of Ju I Q Defendants are jointly and severally liable. Judgment Co l Damages will be assessed on Date & Time Atttorneorne on Ju Ay Fees ? This case dismissed without prejudice. Total Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 Post Judgmen Post Judgmen Portion of Judgment for physical damages arising out of residential lease $ Certified Judi ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY OF APPEAL WITH THE PROTHONOTARY/CLERK`OF THE COURT OF COMMON PLEAS, CIVIL DIVISIO . MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENTlTRANSCRIPT FORM WITH YOUR NOTICE O EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL Di JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL F COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE UNLESS THE JUDGMENT 1S ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL. DISTRICT JUDGE IF THE JUDG SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. .?/12/Cfl Date I certify that this is a true a rr Copy of the record of the proceedings coi Date 9/12/07 Iment $ 4,130.44 s $•' 131.67 Iment $ .06 UFO $ $ i,262.11 Credits $ Costs $ Total $ LING A NOTICE YOU APPEAL. - ICT JUDGES, IF THE JRTHEA PROCESS MUST MAGISTERIAL DISTRICT JUDGE. N THE JUDGMENT MAY FILE ENT DEBTOR PAYS IN FULL, O C V II tart = r dn' 36 My commission expires first Monday of January, 2012 COMMONWEALTH OF PENNSYLVANIA COUNTY OF: DAB IKg. Dist. No.: 12-1-06 MW Name: Hon. JOSEPH S. LINDSEY Address: 5201 JONESTOWN ROAD HARRISBURG, PA Telephone: (717) 671-8640 17 .F JOSEPH S. LINDSEY 5201 JONESTOWN ROAD HARRISBURG, PA 17112 THIS IS TO NOTIFY YOU THAT: NOTICE OF JU CIV PLAINTIFF: I'DONALD WOOD, N. FRONT STRE DBA:NOODY'S LENOLA, PA 170,' X106 bi MENT/TRANSCRIPT ;ASE NAME and ADDRESS 1 J VS. DEFENDANT: NAME and ADDRESS 5BOUT TIMES RmovAL 45 BUCK ROAD HUNTINGDON VALLEY, PA 19006-1501 L Docket No..: CV-000 507-07 Date Filed: 5/29 07 Judgment: DEFAULT JUDGMENT PLTF (Date of Judgment) 9/12/07 Judgment was entered for: (Name) DONALD WOOD, ® Judgment was entered against: (Name) ABOUT TIME SNOW REMOV in the amount of $ 4,262.11 Defendants are jointly and severally liable. Amount of Ju Judgment Co gment $ 4,130.44 is $? F Damages will be assessed on Date & Time Interest on Ju gment $ Attorney Fee $ . Cm This case dismissed without prejudice. 4 262 11 Total $ , . Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 Post Judgme t Credits $ $ Post Judgmen _ t Costs $ Portion of Judgment for physical damages arising out of residential lease ,$ Certified Jud ment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY ILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISIO . YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENTITRANSCRIPT FORM WITH YOUR NOTICE O APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DIS ICT JUDGES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL URTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAYBE ISSUED BY TH MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTS IN THE JU ENT Y FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDG ENT DEBTCJR PAY ON Fft SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. Clp? 2 C+?i 8-P Zc'3 zn- z \??\\?IInIr//f"I -< ?p\.tH OF pfti?? ®11 t" ' ! Date Yial trig' s I certify that this is a true a rr copy of the record of the proceedings con_i, IT 9 Date , *g ?ipd My commission expires first Monday of January, 2012 J AOPC 315-07 1 RECEIVED P CT O J 20,W COMMONWEALTH OF PENNSYLVANIA GOU-RA OF COMMON PLEAS NOTICE F APPEAL Judicial District, County Of F ROM Dauphin MAGISTERIAL DISTR ICT JUDGE JUDGMENT COMMON PLEAS No . ` NOTICE OF APPEAL Notice is given that the appellant has filed in the above Courtof Common Pleas an appeal from the judgmen t rendered by the Magisterial District Judge on the date and in the case referenced below. NAME OF APPELLANT MAG. DIST. NO. NAME OF MDJ About Time Snow Removal 12-1-06 Joseph S. Lind se ADDRESS OF APPELLANT CITY STATE ZIP CODE 45 Buck Road PA 19006-15( DATE OF JUDGMENT INTHEC wnh n an 9-12-2007 Donald Wood Abo t Time S ow Removal DOCKET No. SIGNATURE OF APPEL OR ATTORNEY OR AGENT CV-0000507-07 s` This block will be signed ONLY when this notation is required under Pa. If appellarif was Claimant (see a. C P D J No 01(6) in action R.C.P.D.J. No. 10086. . . . . . This Notice of Appeal, when received by the Magisterial District Judge, will before a Magisterial District Jud e, A COMPLAINT MUST BE FILED operate as a SUPERSEDEAS to the judgment for possession in this case within . twenty (26) days after filing the NOTICE fAPPEAL. Signature of Prothonotary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (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 Donald Wood appellee(s), Jo file a complaint in this appeal x- ! t•o ( N:b ame of appellee, (Common Pleas o. `.J ) within twenty (20) days after service oe or RULE: To Donald Wood , appellee(s) Name of appel eels) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within 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 (3) The date of service of this rule if service was by mail is the date of the mailin D , 1>*?bN3d ?b YOU MUST INCLUDE A COPY OF THE NOTIC AIRIPbbf G1% 14THT AQCRIPT FORM WITH judgment of non of appellant or attornev or (20) days after the date of service ST YOU. Signature ofltrothonotary or Deputy IS NOTICE OF APPEAL. I1 AOPC 312-05 aJ ,i .w IMAGF N ? O > c: o °- z CA =c- X : . E° s > -. tV W PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COM (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. COMMONWEALTH OF PENNSYLVANIA ` COUNTY OF ; ss DAUPHIN AFFIDAVIT: I hereby (swear) (affirm) that I served 2007CV9906DJ LAX a copy of the Notice of Appeal, Common Pleas No. ; upon t e Magisterial District, (date of service) 10-1, 20 07 ? 1liy personal service ® by (cei sender's receipt attached hereto, and upon the appellee, (name) Donalon Wood 10-1, 20 07 ? by personal service8 by (certified) (regisl sender's receipt attached hereto. TH S . 90 (ADAYROF MED) DSUBSCRIBED BEFORE ME Signature of official before whom affidavit was made Trtle of official My commission expires on .10 COMMONWEALTH OF PENNSYLVANIA Notarial Seal Eileen F. Smith, Notary Public Doylestown Boro,'Bucl s County MY Commission Expires Oct.-2,2008 Member, Pennsylvania Association Of Notaries applicable boxes.) designated thereWon (registered) m is mail, of afant AOPC 312A - 05 ¦ Complete Items 1, 2, and 3. Also complete g1et a Rem 4 if Restricted Delivery is desired. 11111 P i ? Agent x r nt your name and address on the reverse so that we ca t h ? Addre n re um t e card to you. ¦ Attach this card to the back of the mailpiece, B. ?? Name) p or on the front if space permits. -- ((?? 1. Article Addressed to: D. Is delivery address different from item .1? ? Yes If YES, enter delivery address below: ? No District Justice Joseph S. Lindsey 5201 Jonestown Road Harrisburg, PA 17112 3 ?Ype . Mail ? Express Mall r Reglatered ? Return Receipt for Merdun ? Insured mail ? C.O.D. 4. Reetrlcted Delivery/ #Dft Fee) ? Yes 2. Article Number 7005 0390 0003 7604 0857 (rransrer firm service bw Ps Form 3811, February 2004 Domestic Return Receipt 102595-024A-1 4 II ?\ ¦ Complete Items 1 2 and 3. Also complete A. ign re Item 4 If Restricted Delivery is desired. x Agerd ¦ Print your name and address on the reverse 13 Addresses 3o that we can return the card to you. (? ¦ Attach this card to the back of the maiiplece, ) C. Date of Delivery or on the front if space permits. `J - V 1. Article Addressed to: D. Is delivery address different m Item 19 0 Yes If YES, enter delivery address below: 0 No Donald Wuod North Front Street DBA: Woody's Enola, PA 17025 3. oe Type certified mail 0 txpress mail 'p Registered 0 Return Receipt for Merchandise 0 Insured Mail 0 C.O.D. 4. Restricted Delivery? (Exha Fee) p Yea 2. irrmns Nrxnber 7005 0390 0003 7604 0864 (Transfer from service IebeQ Ps Form 3811, February 2004 Domestic Retum Receipt 102595.024A-1540 i r.a IM fV --1 a Bryan W. Shook, Esquire AGED - p ; ID # 203250 The Law Office of Darrell C. Dethlefs 2132 Market Street 0 Camp Hill, Pennsylvania 17011 O Telephone - (717) 975-9446 Fax - (717) 975-2309 13Shook'i_dcdlaw.net 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 NOTICE TO DEFEND )N PLEAS OF YLVANIA 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 a r this Complaint and Notice are served, by entering a written appearance personally o r 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 plaintiff. You may lose money or property or other rights important toy u. 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 SERVI< 213 North Front Street Harrisburg, PA 17101 71.7-232-7536 NOTICIA Le han demandado a usted en la corte. Si usted qu estas demandas expuestas en las paginas signuientes, usted tiene plazo al partir de al. fecha de la demanda y la notificacion. Usted apariencia escrita o en persona a por abogado y archivar en la coi sus defensas o sus objectiones a las demandas en contra de su pei que si usted no se fefiende, la corte tomara medidas y puede una sin previo aviso o notificacion y por cualquier queja o akuvui qL peticion de demanda. Usted puedo parder dinero o sus propiedad( importantes para usted. re defenderse de enta (20) dias de be presentar una en forma escrita )na. Sea avisado den contra usted es pedido en la o otros derechos LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DIMERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEPONO A LA OFICINA C YA DIRECCION SE EMCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSSGUTA ASISTENCIA LEGAL. DAUPHIN COUNTY LAWYER REFERRAL SER 213 North Front Street Harrisburg, PA 17101 717-232-7536 r-a 6 f 4 ? ?. 4 +' r?? 1 M •.. ?'1' t .E o 0 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_dcdlak.net 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 tLVANIA 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 Complaint against the Defendant, Removal, and, in support thereof, avers as follows: 1. Plaintiff, Donald Wood d/b/a Woody's operates as a business with Front Street, Enola, Cumberland County, Pennsylvania 17025 2. Defendant, About Time Snow Removal, operates as a business Time Snow office at North an office located at 410 Brendwood Drive, Langhorne, Bucks County, Pennoylvania 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 of the original contract is attached hereto, made part hereof and marked as Exhioit "A") for snow removal 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 Re the work to independent service providers. 6. At all times material hereto, Plaintiff, Don Wood d/b/a Woody's aforementioned independent service providers. for which brokering out one of the 7. Plaintiff believes, and, therefore, avers, that Defendant, About Tine Snow Removal, had a contract or contracts with The Home Depot to provide snow1removal services for store number 4138. (Copies of this contract is believed, by Plaintiff, to exist however is not attached because Plaintiff is only aware of it, as a r?natter of course, and is not in possession of it). 8. At all times material hereto, this case arises out of services perfonjned at The Home Depot store number 4138, Jonestown Road, Harrisburg, Dauphin Pennsylvania during February and March, 2007. COUNT I - BREACH OF CONTRACT od d/b/a Woody's v. About Time Snow 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 performed) at The Home Depot store number 4138 on five separate invoices as set forth more fully below: (Copies of all invoices and related time and material sheets attached hereto, made part hereof and marked as Exhibit "B") a. Invoice # 3018 dated 2/3/2007 = $116.00; b. Invoice # 3055 dated 2/16/2007 = $1,416.25 (the below are referred to as # 3055 is made up of invoices numbered 3051, 3053, 3054 & 3055 and collectively referred to as Invoice # 3055); c. Invoice # 3103 dated 2/26/2007 = $436.63; d. Invoice # 3139 dated 3/8/2007 = $801.08 (the invoice 3139 is made up of invoices 3138 & 3139 and is col Invoice # 3139); e. Invoice # 3161 dated 3/17/2007 = $1,360.48 (the invo to as # referred to as referred to as # 3161 is made up of invoices 3159, 3160 & 3161 and is Oollectively referred to as Invoice # 3161). 11. The total amount of the six invoices referenced above and billed to Defendant, About Time Snow Removal for The Home Depot Store # 4138 is $4,130.44. 12. Payment of the aforementioned $4,130.44 has been demanded b4 Plaintiff. 13. To date, no payment on the aforementioned $4,130.44 has been received by Plaintiff. 14. Consequently, by reason of the non-payment of the aforementioned $4,130.44, Defendant has breached its contract with Plaintiff. 15. Plaintiff has been harmed and damaged by not receiving payment aforementioned $4,130.44 for snow removal work performed on at Plaintiff's time and expense with Plaintiff's manpower and equ WHEREFORE, Plaintiff demands judgment against Defendant, Removal, in the amount of $4,130.44 which represents actual dam incurred by reason of Defendant's breach of contract with respect to of the ?half of Defendant ment. out Time Snow -s and expenses ie aforementioned snow removal service provider contract plus costs and attorney's fee and any other relief that this Honorable Court deems necessary and just. COUNT II - UNJUST ENRICHMENT aid Wood d/b/a Woody's v. About Time Snc 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 i December 5, 2006 conveyed a benefit unto Defendant whereby the use of Plaintiff's snow removal services on as needed basis. 18. Plaintiff believes, and, therefore, avers, that Defendant 19. Plaintiff believes, and, therefore, avers, that Defendant was unj receiving Plaintiff's snow removal services, without paying for more specifically in the preceding paragraphs. 20. Plaintiff believes, and, therefore, avers, that it would be unconscio to on or about fendant realized the benefit. enriched by , as outlined able for Defendant to not be required to pay Plaintiff for Plaintiff's services performed. WHEREFORE, Plaintiff demands judgment against Defendants About Time Snow Removal, in the amount of $4,130.44 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 Ond any other relief that this Honorable Court deems necessary and just. Respectfully Submitted, Dated: / I".1 -?- 0 7 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 fore! 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: L/-,)?-o ng ation and the criminal i falsification Donald Wood d/b/h Woody'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 IN THE COURT OF C( DAUPHIN COUNTY, P CIVIL ACTION -LAW No: 2007-CV-9906-DJ for Plaintiff PLEAS OF VANIA CERTIFICATE OF SERVICE Pursuant to agreement of the parties counsel, Defendant's 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. Gresh, Esquire Benstead & Mabon, PC 124 East Court Street Doylestown, PA 18901 Ily Submitted, Dated: 1 1, ? 7 O 7 Bryan W. Shook, Esquire Attorney Id. No.: 203250 2132 Market Street Camp Hill, PA 17011 (717) 975-9446 nsel as agreed to a copy of the the custody of as follows: Independent Service provider's Agreement, Page I of 3 d. _i SNOW REMOVAL 410 Brendwood Drive Langhorne, PA 1904, Service TERM: This Agreement is made between FHC Companies, DBA About Time Snow, 410 Brenc 19047 (called "ATS°) and E?" r,,.i -_,A (individual's Name) ?t $ (Company Name) (called "service provider") for the ider Agreement for Snow Service Drive, Langhorne, PA snow season. OBJECTIVE: ATS is in the business of providing snowplowing, ice control, and similar services. 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 Mien requested by ATS: 2. EQUIPMENT Year Make S(2,- A- ??L,-e -9 Model No., Transmission Size of Color/Description Blade/E S ? e-e-t- PAYMENT. a_ Snow/Ice Events. ATS will compensate the service provider the rates shown services and/or equipment. It is required that time sheets are to be turned in a than 24 hours after each event. If the timesheet is not received within 24 t event, there will be a 5% penalty for the first day late and then a I% for every is received in the office. Each time sheet must be clear, complete and legib sheets will be returned to the Service provider for correction and re-subn reviewed and approved by a Manager of ATS to be considered complete. must be recorded in order to receive payment for services performed. Startir down time will be randomly checked with store managers. Payment will be n of the completed and approved time sheet- b. Paper work Submittal- Payment for the first event of the 2006-2007 will n( paperwork has been submitted to ATS. c. Property Damage. In the event there are any damages done by the service f customers, or poor workmanship that has caused ATS to have to credit damages will be paid for by the service provider and shall be deducted fror provider. Rate per hour above for the service providers the end of each event, no more curs at the completion of each fay after that until the timesheet e; incomplete and illegible time ttal. All time sheets must be )n all time sheets, exact times 3 and ending times, breaks and ade within 45 days from receipt be released until all required wider to the property of ATS's ie customer's account, these any amounts due the service 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 15i job site and will end at 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 pment. 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 well as any other tools or supplies which they deem necessary in order to provide the services which service provider is engaged to provide. The service provider must provide transportation for themselves and their employees. The service provider must have a telephone where they can be reached by ATS. The service provider 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 o¢3 provide their own Worker's Compensation insurance for thee?-; anti for their employ provide auto liability insurance with recommended limits not less than $300,000. The with appropriate current certificates of insurance. The service provider will be re employees for their work and any withholding. If, for some reason, additional insur levied against ATS because of the services provided by the service provider, then tt service provider. ATS has the right to withhold any such costs from the service provii any additional insurance premiums and/or tax levies against AT S. if thie compensatioi the costs, then the service provider shall repay ATS within 30 days from their rece payment is not made, ATS may proceed to collect fror f the service provider by leg service provider shall also be responsible for ATS's reasonable costs and attorney provide a certificate of insurance will result in 25% of amounts due to service provide additional insurance premiums that may be levied agai;,St the se-ice provider by the adequately insure that apparent uninsured service provider. nis retainage will be p 30 days of receipt of a valid certificate of insurance, and t&,ill be paid n the foilovvmg r be paid within 30 days of receipt of actual "Certificate of insurance", 10% retaina? General Liability coverage in the amount of $100,000 is shown on he ceriificate. es- The service provider ;rust ervice provider will provide ATS ponsible for payments to their nce premiums and/or taxes are se costs will be paid to ATS by :r's compensation that results in is not sufficient enough to cover t of no?ice 'thereof from AT-"-. if process an r-. s -ch oase "-e fees. in ary event, failure to being retained by A S to cover ir;,sJra ice company in orate- :e id to, the ser rice p-ovider vott'i anger 15% of retalr3ge _due to to ne paid if Ccrnprehensive SUPERVISION. Service provider will be responsible for a ,York assigned to hire; a, d fc _ corc+uct Zerr.s°i and their employees and will provide adequate supervision for them. They will assure that 1hei( work ar d the ',v.crir their employees is provided in a good and workmanlike fashion and m accordance wth t e s'?n rtdc •-:ctab? ATS. Within these limits, service provider may perform the ;co as ii.,ey see fit wi i, t^ yi.) deunes or the ,cope c vr, t established. They agree to coordinate with ATS and that ATS has tie riGht to cwer see the 7ua' `.: a .rte f+r.-e!i ?ss r work. However, ATS will have no obligation to pro-.ioe supervision or con;rci i service provide. -s manner c` 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 weatr.er conditions and when there is threatening weather, is required to contact their ATS Site Manager via phone or emaii to indicate that they are ready and available to be dispatched. In the event of the possibility of snowfall the service provider agrees to keep ATS informed of whereabouts and availability if service provider will not be at their regu!a:iy designated phone number. The service provider and equipment shall be "rolling" within 30 minutes of the time that ATS gives notice to the service provider. 9. MINIMUM USAGE. ATS will not estimate the nouns of usage fcr the above equip usage, due to the uncertainty of winter weather patterns. 10. NEW ACCOUNTS. It is understood that ATS has a iarge nur bet of accounts for whic years and that it is continuously engaged in advertising and sales promotions in an Therefore, all accounts for which work is done are acctl?nts of ATS. Service provic ATS. Such new accounts will be accounts o: ATS ever though t ey were procu ( Service provider will receive a commission for all new accouims Secured by hit whicr of ATS's gross billings to that account for the first year. Ti ,e commission will be paid has been paid in full by the account. 11. NON-COMPETE. Because ATS has expended many , eG; s u, u a ge arr:our?ts of m o the accounts which it has, and because Service provider wi!i be o?aced in co- Zac Z, performing the services under this Agreement, service proVjdzr agrees tha'! 3? viii! employee, Sub-Service provider, service provider or in a^y )er capacity, b, provic subject of this Agreement for any of ATS's customers fc- a p•?ricd n,4,: `hree ',3) yaw reason whatsoever of their engagement with ATS as an indeper,ae+it service provider not disclose to any other person, or use on their own behalf, any customer names gained from ATS. The parties agree that in the event of service provider's violation of ATS will be entitled to both temporary and permanent injunctions and, at its option, li equal to the total gross amount which service provider earns frorn competing jobs dunr termination with ATS, plus ATS's costs of enforcing this Agreement including its Court c nor guarantee a -timmurr. it has done work over the past for: to acquire new accounts. ?av solici° new accounts fc- fcr -S by se vic:a provider. T.,. s s ion ;v,;. be eq:.iai tc 5 ,. ua, 15'", providing that ATS 4h; marv o` these az;ccul:t_ r. :pct \.lll.Uele v4;`- A-S as n9 - Services .'hich are i7 ?6aitior., service provicer vvii- other confidential inforr nation his agreement rot to compete uidate da ages in an amour' I the three (3) year period after sts and attorney fees. 12. BILLING AND ADVERTISING. ATS will be responsible for billing customers for the vork done by service provider hereunder and for collecting from those customers. It will continue its advertising a. d sales promotion activities n order to obtain new accounts and maintain existing accounts. 13. TAXES. ATS will not be responsible for any withhoiding of income taxes. Social Security, or the like from amounts vaib to service provider under this Agreement. It will not be providing 'v1lorkers Compensation Insurance for service provider. It will not provide any company benefits of any kind for service provider. its obligation to service provider wi,i be solely those set forth in this Agreement. A S will send t=ort;, ,038 o service 3rovic r a° `as' <riovW ; ac =ss after the end of the calendar year. Independent Service provider's Agreement, page of 14. TERMINATION. It is the intention, of the oarties that this Au eem.ent. art,, the re.•^tion hin nev° e^ then-;. wi',l coati%e until terminated by the parties. Service provider has riy it ter n hate the Agreemen- ov : t`?i.:y }sys notice to ATS. However, when ATS o }tainS a Ot r iv ^ 'ff _ `.l c Yd .V ,de:. .:c service provider accepts the work, he will not terming*e the A?tpement, sxcept for c?: Asa J rt' -tha' cb a? route completed. ATS may terminate the Agreement immediately at _ nv 'iMe fen 2r7, ca_ise v 15. CHARGING AGAINST COMPANY Service provider etiili not °' e .ame f . 'S ^r A `S's di` f--- the purpose of buying or charging fuel, parts, 'tires or anyt:li°ru ,se :hat would inure to pirovi_`?_?:'s benefit. anything is charged to ATS without authorization, service provider car expect ATS to 'aye w".atever ?egaf action is necessary to seek reimbursement and will be responsible fcr alI expenses incurred by ATS. Also this %vould because for termination of this Agreement by ATS. 16. DAMAGES. Service provider understands they will be fully :espo'Isible for any da aces c'he property of any of ATS's customers which is done by service provider or any of the;;r employees. ATS Tay Vvr t^ho,,ld funds o repair s c~ damage from any amounts owed by ATS to the service provider. If the amount of the darnage exceeds any arnoun owed by ATS to the service provider at the time the amount of the damage is asce ined, t"en the service provider shall pay over to ATS the difference within 30 days thereafter. if payn?ert is not made. ATS may pursue coilectior by legal means and the Service provider shall then also be responsible for AT S's costs an attorney fees. 17. MISCELLANEOUS. This Agreement is made in the Con o, n th of ?err s t aria a? d is a?corr to Pennsylvania Law. If any part of the Agreement be fo r v l,d .? t"e _ r Agreement- The Agreement may be amended only by G wr inc ; 'Zj .-`'Y Loth pass. 18. MODIFICATION. This Agreement shag not be same manner as this Agreement is executed. 19. ENTIRE AGREEMENT. This Agreerner:t contains 1%a = G ' y :?F ?a ;de e r ?s obligations, covenants, representations, statements or cor.a` 11io;is, o, ainet mse, of transaction. 20. INTERPRETATION. This Agreement shall be interpre'-., to such factors as the party who prepared (or causes the plepa,G.iL this inst..:m.emr rel'a avz oargaiping _ power of the parties. 21. AUTHORITY TO BIND. Each party signing this.Agrearric' .: reNre3eints a:iu aar rants to ;?e - z: rant; : ,s: t ey a L the full legal power, authority and right to execute, deiiver this Aareen,ent and the party on whose behalf they are executing has the full legal power, authority to perform its obligations under this Agreement 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 party action is required to make this Agreement b!ndina upon such party. 22. FACSIMILE. All parties will deem facsi:-nde copies of this Agreei neat acceptable. The p? ;es agree fcilovd up it signed originals. By application of their signature below, the pa 'ies acknowledge that they have read ?ii Agreement, uncrerstand the Agreement, and have received a copy of it and agree to aoide uv the fee oils and Cort i ijoi;S heresn. IN WITNESS WHEREOF, intending to be legally bound he nv the parties ner? c 7e P ;N -h s ?- weer-e--as of the date first above written. (SI=KVICE PROVIDER A_S'D'OU I'M? Sa Lam'- --- Signature l :?C /7 Print Name += r l , _ 4 a -,;'E 2- O G __ a__??_?._._____?? n Date _ For Office Use Only 1NCVT Y./N moo SUBCONTRACTOR INFORMATION SHEET RIM SNOW REMOVAL *** Please complete all fields of information - Thanks *** CO?NT ACTOR CPMPANY Company Name `> Contact Name,,, Street Address t?s ?city ..?tt Company Phone/Ext Q11) -732 - qo (3-3 Cell Phone -,?-r) - 7G Website Social Security or EIN # Insurance Co Name Sub Home Address INFORMA ION Title State/Zip Company R' Referred By Email f ???.,?i c. ?z4;1? r,? ?, , Ins. Home Phone Date of Birth Previous Plow Co Drivers License No. zq - 5-,-?;-7 - 133 Misc Info Dates Not Avail to work Truck & Equipment Type 1. 2. (note: skip only if listed on 3 Independent Contractor's t A 4 ) greemen 5. # Years Exnerience Make Check Payable To: State/Zi Priori Desired Issuinq 1 certify that my answers are true and complete to the best of my misleading information given may result in my release. r : 'cable i s0A 1-702S-- -71-7) 732- gOe_S I'ION -7 -3 - JZ r 7p&s -'25__ $ / hour 1 understand that false or l Signature: - Date: "•? Mail to About Time Snow Removal, 410 Brendwood Drive, Langhorne, PA 19047, Phone 215-757-8840 Or Fax to 215-757-0143 .? Pe quest for Taxpayer Cat O form to the 4,dentiflcatios. 'umber and Certification requester. °o tO¢ ?g,??, of #;eTr?SU send to the LAS. =-e nue sz-' jour curnt =x r.turr/r., ,///l °= ass name, rt d ,-'P.rCt front above i t beckup ` u GWc< appWOE`n&e box: S.I. txoxietor El' c vrat;on ? Pa<..,tip El a ? ? ? nr?cLvidu2 ? --------- -------- El r?ioidrg ott. Exempt O ~ Address (number, street, and apt. or suite no-) Requester name and address Opwr * 4 A), w j C?ityJJ, state and 7JP code to t--'- - a 'r t_> ?ccov:^tt numtter<sj here ro?onafi I 0 G:1 f I, _ .gas Paykkk j aJelidiiallpn NIi7ino- ei "N' :ate L- TN Nrcv ram the name given on Line I to avoid ?. 15 s yo?j a r._y , i; r ber (SSM- i-iowa%w, for a n rot r 4 ` . n-, C .tons on page For other entities, it is r. , -. - ro :n; + *,f iron, r'_. r :t `vivo. a nornber, sea 14ow to get a 17N on page 3. _ e i'ren se;? -Y c ?arf oR ge 4 fa gzdei4rir?e_s on whose nuln1w or iriritlinatlon number i It. Iv I2 l9 1-7 ±car pa: taities a, p&,--y. . certify -aat_ -In,- rn,_ rr?r: ::is fOf,- is rm; conect iaYPk ,: cntffi a0on :camber (or i am waiting fora numb 3r to be issaled to me), and err: ,c;ec, t" 3a -kup withncid6rg because: (a) 1 art': exempt from backup withho"M or (b) I have been rwWwd by the Internal :ie "m° am suNecct to bacrrrip wittahak fine as a rest* of a failm to report all interes or dividends, or (c) the IRS has ffp =t z rtf?rr , 1jF-.:^'t to3C4'up 1 ""RI'ai'1C, and itC' 3;r 2 U.S- erso ,'lrt[:fuariCJ. a U.S. resident alien). C?rific ?t;?n os rc'io; . You must cross cut item 3 Nave d you have bear notified by the IRS thatdi re subiect to backup yr °i?, ioid ng becassa you have failed to report all it terast and dividends on your tax rehan. For red item 2 does not eppiy- For mortgage interest pad, acquisition: or abandonment of Secured property, cancellation of debt, to an individual retirement arar,ger em iiRAf, airs generally, payments other Yuan interest and dividends, you are not required C.ertifica bon, but you worst proviae your correct VN- (See the instructions on page 4.) e Sore i Us?Ye tin ??/ ? - H@Ye L"S peorrar. ® _u Doe i ?l /1:? Pu.Tose of Form A person , r,o is required to file an information recur r with fahe f RS. must obtain your ofrect taxpayer identification number rrNj xa= e, income paid to you, ryaf cesia?e t.anc,^r;-ire ? ? -¢erest fors :ra'd, acciuisit'-.'n ii, :: ?!" _ .-P,..• tf, (?rf :'e:? c/?:-'r ry- 7 ire ' rthe to- is cos.: y - t v: ,t chin„a;-t T, back OiNdina, Backup wi1`inholding if +o4 - are a li.S. e;,erript payee. MjTe . - _ : ?'•: ' E ` ux r a fGm? n?l?er tfpp Form I41-9 to , r2CIU:?S' f%tr` f:,i use- i%c ie{JU2St2(:, r,,..7i L f 1: iS suOstant'aw stmular to this Form W-9. -v,- T ta: ;):: po, es, You are =ns tiered a for: if you are. s An individual wno is a citizen or resident of the United States, w A partnership, corporation, company, or association created or organized in the United States or under the laws of the United States, or ® Any estate (other than a for Regulations sections 301.770 informado i. Foreign person. If you are a Form W-9. Instead, use the q Publication 515, Withholding , [and FForreiignE^n?titiies N `)mow ?or resident aim vAm bew Generally, only a nonresident te,,i of a tax treaty to ram certain types of income. How provision known as a "saving in ttte saving clause may peril continue for certain types of it 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 following five items: 1. The treaty country. Genes treaty under which you claime nonresident alien. 2- The treaty article address 3. The article number (or hoc contains the saving clause am CM No. 1MIX estate) or trust. See and 7(a) for additiorial reign person, do not use wopriate Form W-8 (See Tax on Nonresident Aliens res a resident aWn. lien individual may use the or eliminate U.S. tans on her, most tax treaties contain a t....__ w Exceptions yy ?r,ecified t an exemption from tax to Mie even after the recipient esident alien for tax purposes. n who is relying on an ng clause of a tax treaty to ax on certain types of income, Forn? w-9 that specific the My, this must be the sw* exemption from tax as a the mcorm dime) in the tax treaty that its exceptions. Form W-9 (Rev. 1-2005 ?- o a o a o 0 o a o ? o o 0 o 0 o L ui tri ui ui O tci try tci O r r d Eg ?3 ft} ? 6f} ffl fet da ~ It t 0 OD (0 O I- N co to CO N to to ac> t' ui o ` Y J ? Z Lo Y X y co 00 W Z Z Z 0 c j Y O :C z W) y w 4) 0 a ? 143 T- ? U r j G -y W - = W W Z J N c o Z U' LL ? u. t? F- 2 co m X- cn to L c C4 it 0 Lo °? - - o o o ?. o o ° C 0 0 C Cl. L ??? 0 3 ? 3 3 ta ? d ty a a a o o o o E c 0 N o a a- cm: s U W 1- C L 0 U - 8 p Z V 0= 3 N (/1 0 0 0 0 'a a C.4 :3° to a o O O .0 O t6 Q 3 O CD 0) OD OD N LO S ` m c d ?- a a? U E L a w _ Q N CO L D O L N 0 0 N @ r i m N `O m 0 O o iL m C] ma o N ` N }, N 0 N "g O . c U U. o U- -C U Lo S J m O O -0 .o w w o m u IT O .- M ?- CD r CD r m m .9 x{1319 ?. l l 3L> t $ 305 303 /3 2 q3G c3 31--?, cl- 31 1 3/16 o! &v1 1360 v?g ?l3 o yy r WOODY'S Don Wood N. Front Street `3t- + G,? West Fairview, PA 17025 Office (717) 732-4083 Date 2- 3 Phone (C 15) 7 5? -Pp, q& Name J9 d" 1 ?.-,?..? 6- z"-Address t-/ to 0. City, State, Zip luY 7 DATE DESCRIPTION PRICE .4 41113 _ -//13 7 -02-0 21' 1 TOTAL e C ?- THANKYOU REORDER FORM #247901 D c D ?X zC) v mD n ?m ?o x N 0 D z v ? Z T y ^ r J A rn C 0 N Cc: o > u' =Z m > v • Q c -i O < T ro Iz?3 I2 x r ?c N Zs r ! -3 s z c O C d z 0 C W g 1 0 t o Oo ! -i • J o . ' J N O ! - c 0 m ti 13 ) l a ++ I J , G NS bbb {(; Q g! 01 ? I ! i I I ? ? II { ` ?? ' )Z! 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I ..» • 7 --- -- -- -- ---- - - -- -. - ; - -T- f r t7 w I'U !I ' I f• i? o D 2 r -r -- ! m 10 _ --, Cl) - I , 1 LL r-- j 01 i ;D "xx all. that apply q v '? (? ill. 1 0c ;?' IM L = r i °o sty i o ? < Y ::3 S -2;9 c z m m i C G -C ?+ x r Z? I C) G Z -,I ' - r o 0 nC?,i i s C 1 ' i A -4 ?o m D { Z } 1 ! 1 ( I I 1 i j i _ m y CD I ( ; I i i a m 2 I _ l'J - - W ? ynCN j 1 m V`l C1 y ID D Fri (T. O u' '? ice- ;? }? m FZ? z v? .. i y ;Vr i> CO C r:l .7 y i7 r j is Z T, 'I? 1? Is ILI i:.? J 'CD I ' 0 116-\ 10 - 1 r I co ?m r ho I ern i `I) k-j j r c o ° I a t ! o i!7 T- 1 i [ ry I i rc-'1-19 1, } C7 sFroTi c m I -! - --- ---- ---- ;' i i m U) I T, I I G I ? i f- s - +c it _' _.. ?? R; ail that apply i 1 `J cl L = O C Z -4 CD i :C r Z ??/ ? O I U O J ! C z f19 m 1:5 >-13C N ?Z > I cn G Ga-?k 1 C D m i (i1DD?i R c'o r-! D?ZcI T --z crn t J ti_ .;i C y O d --4 C T 0- ,?ry m -? ^ in Il-f S IL _z .-n > Z - 7N = t n z z > ? C!i c ?l-4TJ - Z L O r p Z r- -1 Y > 'rn t ? t J 010 'J vl v Z V .-•i r^; 7 - t c ' i ! O O i? p tom: ti n ?I p G'• o b l:7 V G O :D 1- X O IS! (D -0 ? D A O G? ? v Z `- Z` ? f® !N AIM ' y D > -1 5L m i m f r i? Z C C '.Cf I irni !?- j ? ' : i i VIP ICD k.D (ft Z V? C •? r- ! ; i 1 + ! f f t ? ' 1 I A i 1 -€ > i t ? 0 4 1'1'1 j A > is t^. I h s ig, ---- - -- -- -- ---- -- -- i r -n E' 10 > 2 ' r i G iT i Ir p !O C - ----' C m j a m - - - - -- - - Ir f 4 "xx" all that apply WOODY" Don Wood N. Front Street o? ( West Fairview, PA 17025 fJ 1 Office (717) 732-4083 r, 310.3 -7 -1 Date G z6 v Phone (Z S? 7-5- 7 el?'4itp Name Amod- l (,"-L Address %0 /nom96;V- City, State, Zip Lc., 1 J O Ll 7 DATE DESCRIPTION PRICE 2 2sA? )2 I COG ?s C i l % 137 '1 Z We 3-7 38 ?,.. J n?.le.- 2 ?- ?- y036 J 3C 1 mac- ?l ?r,,,,? `l 5 -7 -7 3 5 ?, l w? I `I qyz - 37 TOTAL -5L/ "7 c?3 LA 3G THANKYOU REORDER FORM A247901 Lanai C o c? c _ _h Ul i W F' i Fl. r; 41 n - r-. tj 7-1 t- 0 r y? ' 10 C) D - - - i _ ..- Vii..;-• p ', ,'.:. _ ? - .-. ., .--. .. _ - ='-i•^'?t; --- ---- -- -- Z ?? jm ! 73 i That 2c•DI`• r- . O 0 ? v v d `" I? ?? ( i? I? `S i ?? IN 'o C ? s ? N 4 0 In ? y z d a ?; y ?J b ? W ?? w c d J 4 Z O Q rf S? i y 3 N C B ? J 1 C ? j ro IS G c I ck. C? ?v o? z ?? ..o Q v 1 0 W VJ w e W N a N o v?•'T?o o ' n '? W O a ov W v? V J w ' Qo e ct (n : o r N c o ;,? ?_ l J.: J CZ) - 1 g x A-Imm 7m $ 11 cJ' r m 1!•rY :Lj 2 { \ p _+ r D > Cfi? t < CZ mil- v it ---t r i v ' . r-,? rrl _ n -47 , - s T - { t? x 4?. Ri ---- - T Q 1 t - _ ' xx arl that armi, `= s ' rr, ? J 0•. m ;:11 r; = P: U > 7 ? Lfi J- > - Q 1111 1 ?:. (r n _ 1 _ / v 7 77 0 '. Q ti J ' L ? I i i ` i i ~ W ! 1 1 U u x ,3 cr [D v iT D V O ? t? o i i3! Lp i fb 1 lwrf ? t 1 .?v v I? 1> Im i iw i ?. J W' ti CE: C" •.i f ? ; ! to i ;, i D !> 'Q ?Q n !< i I c i i s "xx" a!i th2t aoofb C ? d 4r ? hn o `' w L J W W Vp -4 ti rd C J d co 4 "? N ? c S '"" ? 1 1 ?)??y ??yy r4 N W N v? _ W W ?, G c co b ? 2 > z K C W 1 CA N 'J 'b 0 C or ? ?w zdO 5 'ti ?-` ?' O p O 00o No Ni Q G W - ? ? re N CA a ,L J G ? K7zd V ,? 0 O J 00 O v W ?• t i C V V ? .,C L O z O L, ? c? w cs w ? ' " ? n > a ?n ? n h y .0 I P b J d W 9 0 9 N ?1 0 °o G ?1 V on ?, z ?-• ... p p v ? O ? W '? n °o " o , N W F" • cr? t_' r= J O ? Q `? ;? C fi It Ob 'Waft r ? 3 ,,\\ L a_ J ? C 7. j /Cdr -C i t.2 (I tT 7Z. ! 03i. C., 5=I 4 • ? j ~ I 71 0 o > ;r -- lo 0 - ;? q N Ez Im i5 i i> -- :- - •- - .. .. _ .-. ._ ,. ,. .- .>-. !"vv"' n?i ihai a?:nly Jc_ -A cr - J_ o c `1 v4 - _ ?, ..? N d w - r I.?Yi J ? z 7 T-) COY z N - _-_-- _...._. _ ??. _ - - ?i - i -. I ? - I T t cn s 2` ? J m C n1 ? ? ? - ?f r r? . vt? A W - r 1. n II ? ?i rn r BENSTEAD & MABON, P.C. By: Sean M. Gresh, Esquire Attorney I.D. #90107 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.: 2007-CV-9906-DJ Plaintiff vs. ATTORNEY I.D. #9.0107 ABOUT TIME SNOW REMOVAL Defendant ORDER AND NOW, this day of , 2008, It is hereby ORDERED and DECREED upon consideration of the foregoing that Count II of Plaintiff's Complaint be dismissed with prejudice. BY THE COURT: c' ?y J. i IF . BENSTEAD & MABON, P.C. By: Sean M. Gresh, Esquire Attorney I.D. #90107 124 East Court Street Doylestown, PA 18901 (215) 345-9100 F. a . I G F. D ONOT ,RY H Attorney for Defendant 2088 JAN 28 PM 3,35 JAUPPENNAUNTY COURT OF COMMON PLEAS-DAUPHIN COUNTY CIVIL ACTION-LAW DOANLD WOOD, d/b/a WOODY'S DOCKET NO.: 29 E3" ' ?IU I nJ Plaintiff vs. ATTORNEY I.D. #90107 ABOUT TIME SNOW REMOVAL Defendant 9 AND NOW, comes Defendant, About Time Snow Removal, by and through its attorney, Sean M. Gresh, Esquire, and with him the Law Offices of Benstead 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 complaint 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 an expressed 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 contract, and Plaintiff's alleged performance, that the Plaintiff has been unjustly enriched. DEFENDANT'S FIRST PRELIMINARY OBJECTION li 9 4. The Defendant hereby incorporates by reference the preceding paragraphs as if more fully set forth herein. 5. PARCP 1028--A2 states that a party may file preliminary objections 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 quasi- contractual doctrine based in equity. See, Wiernik v. P.H.H. U.S. Mortg Corp., 736 A2.d 616, 622 (Pa. Super. 1999), appeal denied, 561 Pa. 700, 751 A.2d 193 (2000). 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 Skepton, 586 Pa. 513, 521, 895 A.2d 1250, 1254 (2006). 8. It is clear from the face of Plaintiff's Complaint that Count II-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 Honorable Court dismiss Count II of the Plaintiff's Complaint with prejudice. Respectfully Submitted, N, P.C. 77BENSTEAD1y? - .; BY: SEAN M. GRESH, ESQUIRE Attorney I.D. #90107 Attorney for Plaintiff, About Time Snow Removal 124 East Court Street Doylestown, PA 18901 Date: January 24, 2008 (215) 345-9100 0 % ATTORNEY SUBSTITUTE VERIFICATION Sean M. Gresh, Esquire, Attorney for Defendant, About Time Snow Removal being duly sworn according to law, deposes and says that he is authorized to take this affidavit on behalf of the Defendant and that the facts contained in the 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 the penalties of 18 PA. C.S.A. Section 4904, relating to unswom, falsification to authorities. Date: January 25, 2008 `SEAN M. GRESH, ESQUIRE Attorney I.D. #90107 Attorney for Defendant, About Time Snow Removal N ? -n rn IMA GED Bryan W. Shook. Esquire 2p f:. _ ID # 203250 The Law Office of Darrell C. Dethlefs - CD 2132 Market Street Camp Hill, Pennsylvania 17011 Qn Telephone - (717) 975-9446 Fax - (717) 975-2309 13Shook'f dcdlaN%,nei Attorney for Plaintiff DONALD WOOD, d/b/a WOODY'S Plaintiff IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA V. ABOUT TIME SNOW REMOVAL, Defendant : CIVIL ACTION -LAW : No: 2007-CV-9906-DJ 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 or by attorney, and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any 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 TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP: DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 717-232-7536 L. NOTICIA Le han demandado a usted en la corte. Si usted quiere 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 debe presentar una apariencia escrita o en persona a por abogado y archivar en la corte 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 que 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. SI NO TIENE ABOGADO O SI NO TIENE EL DIMERO SURCIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEPONO A LA OFICINA CUYA 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 ' N Q _ r r7l a D c, a 0% 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 trdcdla?N •net Attorney for Plaintiff 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-9906-DJ 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 Defendant, 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 with 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 of the original contract is attached and marked as Exhibit "A" to Plaintiffs Complaint) for snow removal service in and around Dauphin County. 4. Defendant, About Time Snow Removal, has a large number of accounts 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. 7. Plaintiff believes, and, therefore, avers, that Defendant, About Time Snow Removal, had a contract or contracts with The Home Depot to provide snow removal services for store number 4138. (Copies of this contract is believed, by Plaintiff, to exist however is not attached because Plaintiff is only aware of it, as a matter 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 4138, Jonestown Road, Harrisburg, Dauphin County, Pennsylvania during February and March, 2007. COUNT I - BREACH OF CONTRACT Donald Wood d/b/a Woody's v. About Time Snow Removal 9. Plaintiff incorporates and makes part of this Count, paragraphs 1 through 8 of this Complaint as if fully set forth. 10. Plaintiff invoiced Defendant for the snow removal work performed at The Home Depot store number 4138 on five separate invoices as set forth more fully below: (Copies of all invoices and related time and material sheets referenced below are attached and marked as Exhibit "B" to Plaintiff's Complaint.) a. Invoice # 3018 dated 2/3/2007 = $116.00; b. Invoice # 3055 dated 2/16/2007 = $1,416.25 (the invoice referred to as # 3055 is made up of invoices numbered 3051, 3053, 3054 & 3055 and collectively referred to as Invoice # 3055); c. Invoice # 3103 dated 2/26/2007 = $436.63; d. Invoice # 3139 dated 3/8/2007 = $801.08 (the invoice referred to as # 3139 is made up of invoices 3138 & 3139 and is collectively referred to as Invoice # 3139); e. Invoice # 3161 dated 3/17/2007 = $1,360.48 (the invoice 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 to Defendant, About Time Snow Removal for The Home Depot Store # 4138 is $4,130.44. 12. Payment of the aforementioned $4,130.44 has been demanded by Plaintiff. 13. To date, no payment on the aforementioned $4,130.44 has been received by Plaintiff. 14. Consequently, by reason of the non-payment of the aforementioned $4,130.44, Defendant has breached its contract with Plaintiff. 15. Plaintiff has been harmed and damaged by not receiving payment of the aforementioned $4,130.44 for snow removal work performed on behalf of Defendant at Plaintiff's time and expense with Plaintiffs manpower and equipment. WHEREFORE, Plaintiff demands judgment against Defendant, About Time Snow Removal, in the amount of $4,130.44 which represents actual damages 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 and any other relief that this Honorable Court deems necessary and just. Respectfully Submitted, Dated: C? I1- D f Bryan W. 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 BShooku dcdim•net Attorney for Plaintiff DONALD WOOD, d/b/a WOODY'S Plaintiff IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA v. ABOUT TIME SNOW REMOVAL, Defendant : 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, 1 hereby certify that a copy of the foregoing Amended Complaint, 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, PC 124 East Court Street Doylestown, PA 18901 Dated: a - l 1- 0 T Respectfully Submitted, Bryan-W. Shook, Esquire Attorney Id. No.: 203250 2132 Market Street Camp Hill, PA 17011 (717) 975-9446 IMAGED Bryan W. Shook, Esquire r? e ID # 203250 ?Q+rvt7?? 1h -? ?i t ?: Q4 The Law Office of Darrell C. Dethlefs 2132 Market Street a Camp Hill, Pennsylvania 17011 (? U uT Y Telephone - (717) 975-9446 ii Fax - (717) 975-2309 13Shoo k c%;dcdlau.net Attorney for Plaintiff DONALD WOOD, d/b/a WOODY'S Plaintiff IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA V. ABOUT TIME SNOW REMOVAL, Defendant : CIVIL ACTION -LAW : No: 2007-CV-9906-DJ NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without fiu-ther notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717) 232-7536 NOTICE CONCERNING MEDIATION OF ACTIONS PENDING BEFORE THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY The Judges of the Court of Common Pleas of Dauphin County believe that mediation of lawsuits is a very important component of dispute resolution. Virtually all lawsuits can benefit in some manner from mediation. The Court has adopted Dauphin County Local Rule 1001 to encourage the use of mediation. This early alert enables litigants to determine the best time during the life of their lawsuit for a mediation session. The intent of this early alert is to help the parties act upon the requirement to consider good faith mediation at the optimal time. The Dauphin County Bar Association provides mediation services and can be reached at (717) 232-7536 Free mediation sessions for pro Bono cases referred by MidPenn Legal Services are available through the DCBA. A VISO USTED HA SIDO DEMANDADOIA EN CORTE Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomaraccion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier 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 otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SUABOGADO INMEDIATAMENTE SI USTED NO TIENE UNABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACIONA CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PA GAR POR LOS SERVICIOS DE UNABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PR0VEER INFORMA- CION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717) 232-7536 A VISO REFERENCES A LA MEDIA CIONDE LAS ACCIONES PENDIENTES ANTES LA CORTE DE SOPLICAS COMUNES DEL CONDADO DE DAUPHIN Los jueces de la corte de suplicas comunes del condado de Dauphin creen que la mediacion de pleitos es un componente muy importante de la resolucion del conflicto. Virtualmente todos los pleitos pueden beneficiar de cierta manera de la mediacion. La code ha adoptado la regla local de condado de Dauphin 1001 para animar el use de la mediacion. Esta alarma temprana permite a litigantes determiner la mejor epoca durante la vida de su pleito para una sesion de la mediacion. El intento de esta alarma temprana es actuar sobre la mediacion de la Buena fe en el tiempo optimo. La asociacion de la Barra del condado de Dauphin proporciona servicios de la mediacion y se puede alcanzar en (717) 232-7536. La sesion Libre de la mediacion para los favorables casos del Bono se refinio por MidPenn que los servicios juridicos estan disponibles con el DCBA. An adequate supply of forms containing the bilingual notices required by these Rules shall be furnished by the Dauphin County Bar Association to the Office of the Prothonotary and shall be available for use by litigants and their attorneys. 2008 KAY -o PH 2:04 Ty P ENNA 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( dcdlaw.net Attorney for Plaintiff DONALD WOOD, d/b/a WOODY'S Plaintiff IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA V. ABOUT TIME SNOW REMOVAL, Defendant To: About Time Snow Removal c/o Sean M. Gresh, Esquire Benstead & Mabon, P.C. 124 East Court Street Doylestown, PA 18901 : CIVIL ACTION -LAW : No: 2007-CV-9906-DJ You are hereby notified to file a written response to the enclosed New Matter & Counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. qj. Brya . Shook, Esquire i Ln r 2 'a'f -6 fj?lj 2:04 r J N T Y 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 BShookAdcdlaw.net Attorney for Plaintiff DONALD WOOD, d/b/a WOODY'S Plaintiff IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA V. ABOUT TIME SNOW REMOVAL, Defendant : CIVIL ACTION -LAW : No: 2007-CV-9906-DJ 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 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 answers Defendant's New Matter and Counterclaim, brings forth New Matter to Defendant's Counterclaim and by reason of issues raised and facts averred in Defendant's Counterclaim, Plaintiff brings forth his Counterclaim to Defendant'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 Matter 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 way of further argument, Defendant does not allege sufficient facts to support this allegation. 18. The averments in Paragraph 18 of Defendant's New Matter 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 way of further argument, Defendant does not allege sufficient facts to support this allegation. 19. The averments in Paragraph 19 of Defendant's New Matter 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 way of further argument, Defendant does not allege sufficient facts to support this allegation. 20. The averments in Paragraph 20 of Defendant's New Matter 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 way of further argument, Defendant does not allege sufficient facts to support this allegation. 21. The averments in Paragraph 21 of Defendant's New Matter 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 way of further argument, Defendant does not allege sufficient facts to support this allegation. 22. The averments in Paragraph 22 of Defendant's New Matter 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 way of further argument, Defendant does not allege sufficient facts to support this allegation. WHEREFORE, Plaintiff, Donald Wood d/b/a Woody's, respectfully requests that this Honorable Court dismiss Defendant's New Matter and enter judgment in his favor. PLAINTIFF'S RESPONSE TO DEFENDANT'S COUNTERCLAIM Count I - Breach of Contract 23. Paragraph 23 being a paragraph of incorporation does not require a response. 24. Denied. By way of clarification, 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 and marked as Exhibit "A" to Plaintiff's Complaint) for snow removal service in and around Dauphin & Cumberland Counties. Defendant, About Time Snow Removal, has a large number of accounts for which they have contracted for snow removal services. These accounts are serviced primarily by About Time Snow Removal, brokering out the work to independent service providers. 25.Admitted in Part and Denied in Part. This allegation is denied as stated. This allegation refers to a document that speaks for itself and to which no additional response is necessary. If the court deems that an 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 Defendant, About Time Snow Removal. By way of further argument, at no place in the aforementioned contact is there specific mention of snow removal services to be provided at Home Depot store number 3138, 5101 Jonestown Road, Dauphin County, Pennsylvania. It is admitted however, that 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. 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.) 26.Admitted in Part and Denied in Part. It is admitted that Plaintiff did render services at Home Depot 4138 during the February 14, 2007 snow and ice event. The fact that Plaintiff did render services at Home Depot 4138 is further evidenced by Exhibit B to Plaintiffs Complaint namely invoices showing work which was completed at 4138. Any reference to Plaintiff attempting to render services or any inference or reference that the work was incomplete and/or insufficient is specifically denied with strict proof thereof demanded at time of trial. 27. The averments in Paragraph 27 of Defendant's Counterclaim 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. Additionally, there is no mention in the aforementioned contract that a condition precedent to payment for Plaintiffs services, provided, be the satisfactory performance of Plaintiff, as determined by the end-client; in this case, the Home Depot store 4138 or Defendant. By way of further argument, Defendant does not allege sufficient facts to support this allegation. 28. The averments in Paragraph 28 of Defendant's Counterclaim 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. 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; in this case, the Home Depot store 4138 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. 29. The averments in Paragraph 29 of Defendant's Counterclaim 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 way 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. 30. The averments in Paragraph 30 of Defendant's Counterclaim 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. Additionally, there is no mention in the aforementioned contract that a condition precedent to payment for Plaintiffs services, provided, be the satisfactory performance of Plaintiff, as determined by the end-client; in this case, the Home Depot store 4138 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. 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 way 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. Furthermore, Defendant has failed to attach or provide Plaintiff with a copy of the contract between Defendant and Home Depot number 4138. 32. The averments in Paragraph 32 of Defendant's Counterclaim 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 way 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, respectfully requests that this Honorable Court dismiss Defendant's Counterclaim and enter judgment in his favor. PLAINTIFF'S NEW MATTER TO DEFENDANT'S COUNTERCLAIM 33. Plaintiff incorporates and makes part hereof the preceding paragraphs as if 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 judicata. 36. Defendant's Counterclaim is barred by the doctrine of estoppel. 37. Defendant's Counterclaim is barred by the doctrine of waiver. 38. Defendant's Counterclaim is barred in whole or in party by the ethical statute of limitations. 39. Defendant's Counterclaim is barred by Plaintiff's performance pursuant to the aforementioned contract entered into between Plaintiff and Defendant. 40. Defendant's Counterclaim is barred by the Contractor and Subcontractor Payment Act, 73 Pa. C.S. § 501, et seq., hereinafter the "CSPA." 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 entered into between 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 contract on February 14, 2007 and on several other dates. 47. Pursuant to 73 Pa. C.S. § 504, performance by Plaintiff, in accordance with the provisions of the contract entitle Plaintiff to payment from 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 detailed in Plaintiff's Complaint and evidence more specifically through the invoices attached to Plaintiff's Complaint as Exhibit "B." 50. To date Plaintiff has not been paid by Defendant for aforementioned work completed. 51. 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 a counterclaim for $5,580.00 for work allegedly completed by another company. 52. Pursuant to the terms of the aforementioned contract, Defendant 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 quality and/or sufficiency of work performed. 54. There is no mention in the aforementioned contract that a condition precedent to payment for Plaintiffs services, provided, be the satisfactory performance of Plaintiff, as determined by the end-client; in this case, the Home Depot store 4138 or Defendant. 55. 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. 56. 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. 57.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. WHEREFORE, Plaintiff, Donald Wood d/b/a Woody's, respectfully requests that this Honorable Court enter judgment against Defendant, About Time Snow Removal, in the amount of $4,130.44 which represents actual damages 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 and any other relief that this Honorable Court deems necessary and just. PLAINTIFF'S COUNTERCLAIM TO DEFENDANT'S COUNTERCLAIM 58. Plaintiff incorporates and makes part hereof the preceding paragraphs as if fully set forth herein. 59. Plaintiff sets forth this instant Counterclaim by reason of issues raised and facts alleged in Defendant's Counterclaim. 60. Pursuant to the facts alleged in Defendant's Counterclaim Plaintiff hereby alleges this Counterclaim of Defendant's Counterclaim pursuant Contractor and Subcontractor Payment Act, 73 Pa. C.S. § 501, et seq., hereinafter the "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 entered into between Plaintiff and Defendant. 64. Plaintiff fully executed his duties pursuant to the contract. 65. Plaintiff is not in breach of the contract. 66. Plaintiff provided snow removal services pursuant to the contract 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 satisfactory performance of Plaintiff, as determined by the end-client; in this case, the Home Depot store 4138 or Defendant. 68. Pursuant to 73 Pa. C.S. § 504, performance by Plaintiff, in accordance with the provisions of the contract entitle Plaintiff to payment from 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 detailed in Plaintiffs Complaint and evidence more specifically through the invoices attached to Plaintiff's 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 withholding payment from Plaintiff and is further barred from asserting a counterclaim for $5,580.00 for work allegedly completed by another company. 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 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). 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, respectfully requests that this Honorable Court enter judgment against Defendant, About Time Snow Removal, in the amount of $4,130.44 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. § 512(a) and 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). Respectfully Submitted: Date: 6 ` 0 k t;'?? Bry an J. Shook, Esquire ID# 203250 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant VERIFICATION I, Donald Wood d/b/a Woody's, hereby verify that the statements of fact made in the foregoing documents are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are subject to the criminal penalties contained in 18 Pa C. S. Section 4904, relating to unsworn falsification to authorities. Date: May C0 , 2008 4-&-Wxx)S Donald Wood d/b/a Woody'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 BShook<<%dcdlaw.net Attorney for 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-9906-DJ Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing pleading, 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, Dated: `? -or _?ujtA 'OF Bryan W. Shook, Esquire Attorney Id. No.: 203250 2132 Market Street Camp Hill, PA 17011 (717) 975-9446 _ 3 y r ? ,71 a ' i 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 BShookAdcdlaw.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 SGresbaBucksLaw.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 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, Plaintiffs 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 >A C-S 13. h 41 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 ully(j1Submitted, 1, J Bryan %. Shook, Esquire Attorney for Plaintiff Respectfu Submitted, G? Sean M. Gresh, Esquire( Attorney for Defendant Ca ?? ?' `? ?? `rr c.w z ?;, rr7? 4;-; . -?,, rn ? ??_ - ? ? _r_ . -q ?_ .?: ? r - ti "? -?7 (?`r °< AUG 19 2008 r? 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 : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, No: 20084491 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: 2008-4492 AND NOW, on this the 2u 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. vl? 13r\an W. Shook. Esquire ID # 203250 The Law Office of Darrell C. Dethlets 2132 Market Street Camp Hill. Pennsylvania 17011 Telephone - (717) 975-9446 1 ax - (717) 975-2309 R'.-'hook o kicklL m.nct 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 : 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 Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant : 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 r 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 2.0,06/2007. 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, 78). 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, ¶10). 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 Plaintiffs 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 Plaintiffs New Matter to Defendant's Counterclaim (Docket # 2008-103 ¶52, 2008-4491 & 2008-4492, ¶49). 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' 14, 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 110 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 158, 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 Plaintiffs 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 Plaintiff's 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 j$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 ¶¶ 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: 11- l a - ? 0 0 ? e"?A? Bryan Shook, Esquire I. D. # 203250 2132 Market Street Camp Hill, Pennsylvania 17011 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 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: ? ?- ??-- ;LOOT Bryan Shook, Esquire "'' ? --x? .? _ J v' .s _. N ? ? f flgr? C. .i ???.,, - 4? ?, - r, + , ?? ' ? ? , .r ? _? _`,? 4 16 Bryan W. Shook. Esquire ID 4 203250 The Law Office of Darrell C. Dethlets 2132 Market Street Camp Hill. Pennsylvania 17011 Telephone -(717)975-9446 Fax - (717) 975-2309 11' 1hook a dcdkw.uct Attornev 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 Plaintiff V. ABOUT TIME SNOW REMOVAL, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW No: 2008-4492 11 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: 1 1_ I )-a 0o r Respectfully Submitted: Bryan . Shook, Esquire I.D. # 203250 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Plaintiff ' N ca'? BENSTEAD & MABON, P.C. By: Gregory F. Mitsch, Esquire Attorney I.D. #78381 124 East Court Street Doylestown, PA 18901 (215) 345-9100 DONALD WOOD, d/b/a WOODY' S, Plaintiff VS. ABOUT TIME SNOW REMOVAL, Defendant Attorney for 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 VS. 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 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, Plaintiffs 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 Plaintiffs 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: tRiGdAY F. MITSCH, ESQUIRE Attorney for Defendant Date: November 26, 2008 f....l f?.y? -. .: ?:3^ ?? trl r.o3 ?:.Y { 'r? ?« ?_ ? _?, e *% BENSTEAD & MABON, P.C. Attorney for Defendant By: Gregory F. Mitsch, Esquire Attorney I.D. #78381 124 East Court Street Doylestown, PA 18901 (215) 345-9100 DONALD WOOD, d/b/a WOODY'S, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. 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 vs. 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 VS. CIVIL ACTION -LAW ABOUT TIME SNOW REMOVAL, NO.: 2008-4492 Defendant 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 r . 1* 26'' 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: -41-1? ORY F. MITS H, ESQUIRE Attorney for Defendant 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. 2008-103 CIVIL TERM 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. 2008-4491 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 8th 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. ?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 C!sP I f-•S rn?- f/4/0? BY THE COURT, DONALD WOOD, d/b/a : IN THE COURT OF COMMON PLEAS OF WOODY' S, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v ABOUT TIME SNOW REMOVAL, Defendant DONALD WOOD, d/b/a WOODY'S, Plaintiff v ABOUT TIME SNOW REMOVAL, Defendant : CIVIL ACTION-LAW NO. 2008-103 CIVIL TERM : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW 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 "counterclaim[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 Plaintiffs 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. 6 Brief of Plaintiff on Plaintiffs Motion for Judgment on the Pleadings, submitted November 12, 2008, at 1-3. 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 I Plaintiff's replies to Defendant's answers with new matter and counterclaim each contain (a) a "Counterclaim to Defendant's Counterclaim" 12 ' 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. ' Plaintiff's Complaint, No. 08-103 Civil Term, ¶7, filed March 4, 2008; Plaintiff's Amended Complaint, No. 08-4491 Civil Term, 17, 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; Plaintiff's Amended Complaint, No. 08-4491 Civil Term, 114, 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, 130-35, 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 Plaintiff's 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 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, ¶61-77, 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, ¶58-74, 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, ¶58-74, 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 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 statute 16 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, Plaintiffs New Matter to Defendant's Counterclaim and Plaintiffs Counterclaim to Defendant's Counterclaim, No. 08-103 Civil Term, ¶37-43, 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, 134-40, 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, ¶34-40, filed May 6, 2008. 14 Act of February 17, 1994, P.L. 73, 73 P.S. §§501-516. is Act of February 17, 1994, P.L. 73, §11(b), 73 P.S. §511(b). 16 Plaintiffs Reply to Defendant's New Matter and Counterclaim, Plaintiffs New Matter to Defendant's Counterclaim and Plaintiffs Counterclaim to Defendant's Counterclaim, No. 08-103 Civil Term, ¶54, 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, ¶51, 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, ¶51, 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. 08-103 Civil Term, 158-60, 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, ¶55-57, 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, ¶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 h 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 i O T l,A Bryan W. Shook. Esquire F PROO -e03 1D # 203230 Dethlefs-Pykosh Law Group, LLC 21 K 0 QM G rri 32 Market Street 7 Camp Hill, Pennsylvania 17011 Telephone-(717)97 -9446 cum Y P Fax - (717) 975-2309 I3Sh k u' oo : dplelawcom - ' Attorney fot 'Pn -?S tiff" C:) ' DONALD WOOD, d/b/a WOODY'S IN THE COURT OF COMMON PLEAS OF ~} Plaintiff CUMBERLAND COUNTY , PENNSYLVAN IA V. ABOUT TIME SNOW REMOVAL, Defendant 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 CIVIL ACTION -LAW No: 2008-103 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 I/ 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 // ?-dv Bryan Shook, Esquire I. D. # 203250 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Email: BShook 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. W, 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 ?i an Shook, Esquire Bry I. D. # 203250 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Email: BShook ,dplglaw.com ORDER OF COURT AND NOW, this the day of 2011, in cons"deration of the forgoing petition, f Esq., and Esq. and Esq. ar appoint d arbitrators in he above captione ctions as prayed for. iv By the Cou , CD ?- CD z C?e?o,Y•?Sc?. ?s. J. U-1 Cr- - wz 13r y an c?. ?Lioo?. L s . s? z COW C, eOp,'es 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 WOODY' S, Plaintiff VS. ABOUT TIME SNOW REMOVAL, : Defendant : IN THE COURT OF COMMUN PLtA?i Ur CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2008-4492 CIVIL V ORDER AND NOW, this 21 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, 1 / -r-M Kevin ess, P. J.,r- --I c Ron Turo, Esquire Court Administrator '?' DONALD WOOD d/b/a IN THE COURT OF COMMON PLEAS OF WOODY' S, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff e , CIVIL ACTION - LAWS.,' vs. NO. 08-0103 CIVIL NO. 08-4491 CIVIL -< K) r? ABOUT TIME SNOW REMOVAL NO. 08-4492 CIVIL? Defendant rv - ORDER AND NOW, this 2 z-J day of September, 2011, the appointment of a Board of Arbitrators in the above-captioned case is VACATED. Ron Turo, Esquire, Chairman, shall. be paid the sum of $50.00. BY THE COURT, x S, P. J. Ron Turo, Esquire t/ Court Administrator :rlm, ,4 t