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HomeMy WebLinkAbout08-4553A ' fy REAGER & ADLER, P.C. BY: JOHN H. PIETRZAK Attorney I.D. No. 79538 Email: Jpietrzak@ReagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Jerry W. Simpson JERRY W. SIMPSON, : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. :NO. pg- H553 O ivtl Terri WESTWOOD HILLS CIVIL ACTION -LAW ASSOCIATES, LLC, Defendant JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff Jerry W. Simpson (hereinafter "Simpson") is an adult individual with an address of 416 Spring Run Drive, Mechanicsburg, PA 17055. Simpson is experienced in the area of construction management services. 2. Defendant is Westwood Hills Associated, LLC (hereinafter "Westwood"), a limited liability company organized and doing business under the laws of the Commonwealth of Pennsylvania, with a principal place of business located at 4216 Little Run Road, Dauphin County, Harrisburg, Pennsylvania 17110. 3. At all times relevant to this Complaint, Defendant was an owner and developer of a subdivision known as Westwood Hills located in East Pennsboro Township, Cumberland County, Pennsylvania. COUNTI BREACH OF CONTRACT 4. On or about November 15, 2005, Simpson and Westwood entered into a written agreement (the "Contract") by which Simpson agreed to perform construction management services for Westwood on Phase 6 of the Westwood Hills development project. Westwood agreed to pay Simpson the amount of $4,166.66 per month for a one-year period. 5. Pursuant to Paragraph 3 of the Contract, the Contract's term was automatically extended beyond the initial one-year term. Under the terms of the extension, Westwood was obligated to pay Simpson the sum of $4,166.66 per month beyond the initial one-year term until the Phase 6 was completed or until either party terminated the Contract. 6. The scope of work to be performed by Simpson under the agreement and the price to be paid by Westwood to Simpson are set forth in the Contract. A true and correct copy of the Contract is attached hereto as Exhibit "A". 7. Simpson completed all work and performed all services under the Contract in a good and workmanlike manner. 8. By letter dated December 23, 2007, Westwood terminated Simpson's contract. In its letter, Westwood admitted that it owed Simpson at least $8,332.32 under the Contract. A true and correct copy of Westwood's termination letter is attached hereto as Exhibit "B". 9. By letter dated January 11, 2008, Simpson responded to Westwood's termination letter and informed Westwood that it owed Simpson a contract balance of $12,909.00 for construction management services. 10. Simpson submitted an invoice to Westwood on January 11, 2008, showing that the contract balance for the construction management services performed by Simpson under the Contract amounted to $12,909.00 at the time Westwood terminated the Contract. A true and correct copy of the invoice submitted to Westwood on January 11, 2008 is attached hereto as Exhibit "C". 11. On February 1, 2008, Simpson agreed to accept $8,332.00 as full payment for the Contract balance due. Simpson and Westwood's Corporate President, Donald Erwin, signed a handwritten note on Simpson's January 11, 2008 letter stating that Westwood agreed to pay Simpson $8332.00 as full payment of the Contract balance owed to Simpson. A true and correct copy of the January 11, 2008 letter with the signed handwritten note is attached hereto as Exhibit "D99. 12. Westwood has failed and/or refused to pay Simpson the $8,332.00 as agreed, making the full Contract Balance of $12,909.00 due. 13. Westwood has accepted all construction management services performed by Simpson. 14. Westwood never provided Simpson with any notices that any of Simpson's construction management services were deficient or that any of Simpson's invoices were inaccurate in any way. i 15. Westwood's failure and refusal to pay Simpson the balance of $12,909.00 due for the construction management services that Simpson performed under the contract constitutes a breach of contract. 16. As a result of Westwood's breach of contract, Simpson has suffered damages in the principal amount of $12,909.00. 17. Simpson has complied with all conditions precedent to the bringing of this action. WHEREFORE, Plaintiff Jerry W. Simpson respectfully requests this Honorable Court to enter judgment in its favor and against Defendant, Westwood Hills Associates, P.C., in the amount of $12,909.00 plus interest, costs and such other relief as the Court deems appropriate. COUNT II VIOLATION OF THE PENNSYLVANIA CONTRACTOR AND SUBCONTRACTOR PAYMENT ACT. 73 P.S. & 501 et sea. 18. Plaintiff incorporates herein by reference the averments of paragraphs 1 through 17 above as if set forth fully herein. 19. Simpson is a "contractor" and Westwood is an "owner" as those terms are defined in the Pennsylvania Contractor and Subcontractor Payment Act, 73 P.S. § 501 et. seq. (hereinafter "the Act'). 20. More than thirty (30) days have passed since Westwood received the last of Simpson's invoices for the construction management services that Simpson provided pursuant to the Contract between Simpson and Westwood. 21. Westwood has never given Simpson any notices that any of Simpson's construction management services for which it invoiced Westwood were deficient in any manner or that its invoices were not accurate. 22. Westwood's failure and refusal to pay Simpson in accordance with the Act and its unjustified withholding of payment in bad faith constitutes a violation of the Act. 23. Under Section 505(c) of the Act, Westwood was required to make payments to Simpson within twenty (20) days after Simpson delivered its invoices to Westwood. 24. Under Section 505(d) of the Act, in the event Westwood's payment was not made within seven (7) days of the due date set forth in Section 505(c), Simpson is entitled to receive interest at the rate of one percent (1%) per month on all invoice balances. 25. Westwood has violated the Act by failing to timely pay Simpson's invoices. 26. Under Section 512(a) of the Act, if litigation or arbitration is commenced to recover payment, Westwood is liable to Simpson for a penalty equal to one percent (1%) per month of the amount wrongfully withheld. 27. Under Section 512(b) of the Act, Simpson is entitled to an award of reasonable attorney's fees in the event it substantially prevails in its action to recover payment under the Act. 28. All conditions precedent to the bringing of this action have occurred and/or have been performed. WHEREFORE, Plaintiff Jerry W. Simpson respectfully requests this Honorable Court to enter judgment in its favor and against Defendant, Westwood Hills Associates, P.C., in the amount of $12,909.00 plus interest, costs, statutory penalties/interest, attorney's fees and such other relief as the Court deems appropriate. Respectfully submitted, REAGER & ADLER, P Date: July 29, 2008 H. I.D. No. 79538 Thomas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Plaintiff ?,, k'?If A t INDEPENDENT CONTRACTOR AGREEMENT THIS AGREEMENT ("Agreement") made this / f 7, day of A41 ,/ 2005 by and between WESTWOOD HILLS ASSOCIATES, LLC. a Pennsylvania Limited Liability Company, ("WWM and JERRY W. SIMPSON, an adult individual ("SIMPSON'). Recitals WHEREAS, W WH is a real estate company which currently owns and is developing Phase 6 of its Westwood Hills Development located off the Wertzville Road in East Pennsboro Township, Cumberland County, Pennsylvania (hereinafter "Phase 6'); WHEREAS, WWVH desires to engage SIMPSON as its construction manager in conjunction with its Phase 6 development upon the terms and. conditions set forth herein; WHEREAS, SIMPSON is experienced in constriction management and supervision. NOW THEREFORE, in consideration of the mutual promises contained herein and intending to be legally bound hereby, the parties hereto agree as follows: 1. Contractor Services. SIMPSON shall serve as Construction Manager to assist WWH in the development, coordination, supervision and construction of Phase 6, with emphasis on the day-today supervision of constriction of 21 new Town homes in accordance with WWH's development plan as approved by East Pennsboro Township. SIMPSON shall devote his full time to the services under this Agreement during the Initial Term and any extensions thereof. SIMPSON shall not subcontract nor permit third '1p 4 es to perform services under this Agreement with WWH's prior written consent. 2. Compensation. For the services rendered herein, W WH shall pay SIMPSON the sum of Fifty Thousand ($50,000.00) Dollars payable in equal monthly installments of Four Thousand One Hundred Sixty Six and 661100 ($4,166.66) Dollars at the end of each calendar- month prorated for any partial month. SIMPSON shall submit R . to W WH such monthly time records and reports as it shall request detailing the hours spent and tasks performed. 3. Initial Term. The initial term of this Agreement shall be for one (1) year. This Agreement shall automatically be extended for successive one (1) month terms until terminated if such extension be necessary for completion of Phase 6. Either party shall have the right to terminate this Agreement upon ten (10) days written notice to the other party. 4. Confidentiality. SIMPSON shall not retain in writing, use, divulge, furnish or make assessable to anyone any private or confidential information about WWH obtained or acquired by him while performing services under this Agreement. Upon termination ofthis Agreement for any reason, SMIPSON shall deliver to WWH without ftu Cher demand, any property, plans, contracts or other items belong to W WH which may then be in his possession. This provisions ofthis paragraph shall survive and termination of this Agreement and may be enforced by the Court of Common Please of Cumberland County Pennsylvania. 5. Relationship Of The Parties. SIMPSON shall perform his duties hereunder as an independent contractor. Nothingherein shall be deemed to create a relationship between the parties other than an independent contractor relationship. Nothing in this Agreement shall be construed to be inconsistent with this relationship or status. WWH will not withhold from the compensation paid to SIMPSON pursuant to this Agreement any sum of income tax, unemployment insurance, Social Security or any other withholding pursuant to any law or requirement of any governmental body. .A MPSON shall submit such reports and returns, make any necessary payments and maintain any records required by any local, state or federal government or agency thereof. SIMPSON shall indemnify and hold V;WH harmless from and against and all losses or liabilities (including reasonable attorneys' fees) which WWH may incur as a t result of SIMPSON's claim of status other than independent contractor or his failure to submit reports or returns, mAke any necessary payments, or maintain required records 2 with regard to his independent contractor status. SEM PSON shall not be entitled to any rights and privileges established for employees of WWH such as vacation, sick leave with pay, paid holidays or severance pay upon termination of this Agreement. 6. Assiggment. SIMPSON may not assign this Agreement, or the rights to any payment hereunder, without the express written consent of W WH. 7. Liab " . All work performed by SRAPSON shall be performed entirely at his own risk. SIMPSON shall provide all tools and equipment necessary for his performance of the services of this Agreement and shall be responsible for the condition of such tools and equipment. 8. No enc . Nothing in this Agreement shall be construed as conferring actual or implied authority upon SIMPSON to bind W WH to any obligation or payment without the express written authority of WWH. 9. Governing _Law. This Agreement shall be governed and construed under the laws of the Commonwealth of Pennsylvania. 10. Notices. All notices under this-Agreement shall be in writing and shall be delivered to the other party by personal delivery, certified mail or facsimile transmission to the address as sent forth herein: If to WWH: Westwood Hills LLC 1943 Monterey Drive Mechanicsburg, PA. 17050 Fax No: 717-236-5570 If to SITIOPSON: Jerry W. Simpson 416 Spring Run Drive Mechanicsburg, PA. 17055 Fax No. 717- 1., 3 c j ' 11. Waiver. The failure of either party to require performance by the other of any provision hereof shall not affect the right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself 12. Headings. The headings appearing in this Agreement are inserted as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement. 13. Parties Bound. This Agreement shall be binding upon and inure to the parties respective heirs, successors and assigns subject to the limitation on assignment by SINIPSON. 14. Entire Agreement. This Agreement constitutes the entire Agreement of the parties and supersedes any prior understandings or agreements of the parties with respect to the subject matter hereof. This Agreement may only be modified by mutual agreement of the parties in writing. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year first above written. -- WESTWOOD HILL ASSOCIATES, LLC. rR a 4 ?)C ? d l d '?" '? ?C X A ld;t C- Jerry W Simpson 416 Spring Run Drive Mechanicsburg, PA 17055 (717) 795-8899 12-6-07 This year 2007. As of December 6, 2007 money due: November 15 passed due $4166.00 As of December 15- $ 4166.00 Total is $ 8332 There was partial payment in May for the amount owed for the year 2006 and 2007. There is a balance of $ 2494.00 strfl owed. So the total is $ 10 826.00 Which was due December 151h 2007. 1/05108 addition The work of two weeks of December before notice Jan 04 Fax to Jerry Simpson is another $ 2083.00 A total as of Jan 4 2008 is $ 12909 00 Thank you Jerry W Simpson rx A I b)-f 'D M8r.Ve on n f-ry-1-utruy -ma=y 11, 2006 Mr. Donald H. &vvin 1943 Monterey Drive Mechanicsburg, PA 17050 Dear Don, JERRY W. SWpSM 416 Spring Run Ddve A"Chvnicsburg, PA 17055 U.1 1 recei`n Id Your letter of termination via fax on Joruanr 4.20W and a copy by rnag on Januosy 7.200& According to ocs• Agreement dated and sued November 19, 2005, a written notice shoed have been receive 10 days PdOr to the termination of the agreement. Also, there has been a breQkdown of money owed to me. On December 12- 20071 foxed YOU Noveembees mOnft report and a breakdown of the money i am awed. I have not yet heard from you regapIng this matter. I am, once agoin, fa)ang that some report long vA#h Ddb es Wort- ]he amount owed for the month of December is $2.(83. brirgng the toil amount you owe me to $12,909. I would aE VOW Prompt a#twdlon to this matter. I w9l sign and send to you for Ycxr signature the agreement for scut Wngs #mt is to start January 28,200& M the mea ntkne. l wilt heip you with the oppnwcft. Sincerft JertY W. Simpson IA'." lr-- 1?70 /?-? VERIFICATION I, Jerry W. Simpson, hereby verify that the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. Date:3 By: q'c-' V,' J . Simpson { 4 + 4._._a ? J 00 ?? _ VI 17 6? ua SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-04553 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SIMPSON JERRY W VS WESTWOOD HILLS ASSOCIATES LLC R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: WESTWOOD HILLS ASSOCIATES LLC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within COMPLAINT & NOTICE On August 11th , 2008 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Dauphin County 47.25 Postage 2.44 8 6. 6.9 08/11/2008 REAGER & ADLER So answers;. R. Thomas Kline Sheriff of Cumberland County Sworn and subscribe to before me this day of A. D. In The Court of Common Pleas of Cumberland County, Pennsylvania, Jerry W. Simpson vs. Westwood Hills Associates LLC No. 08-4553 civil Now, July 29, 2008 , L SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, 520 , at o'clock M. served the within upon at by handing to a copy of the original and made known to Sworn and subscribed before me this day of , 20 So answers, the contents thereof. . Sheriff of County, PA COSTS SERVICE $ MILEAGE AFFIDAVIT mtfio of the ?Shcrfrf Mary Jane Snyder Charles E. SheaffeT Real Estate Depu William T. Tully Michael Assistant Chief Rinehart Deputy art Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania JERRY W SIMPSON VS County of Dauphin WESTWOOD HILLS ASSOCIATES LLC Sheriff s Return No. 2008-T-1672 OTHER COUNTY NO. 08-4553 I, Jack Lotwick, Sheriff of the County of Dauphin, State of Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for WESTWOOD HILLS ASSOCIATES LLC the DEFENDANT named in the within COMPLAINT and that I am unable to find him/her in the County of Dauphin, and therefore return same NOT FOUND, AUGUST 4, 2008. PER STEPHANNIE SWARTZ RESIDENT FOR 3 YEARS DOES NOT KNOW DEFENDANT Sworn and subscribed to before me this 4TH day of August, 2008 So Answers, ?)(? ef?- A7? NOTARIAL SEAL ARY JANE SNYDER, Notary Publi Highspire, Dauphin County M Commission Expires Sept 1, 2010 Sheriff of Dau County By Deputy Sheriff Deputy: S REED Sheriffs Costs: $47.25 7/31/2008 Ad VIOL REAGER & ADLER, P.C. BY: JOHN H. PIETRZAK Attorney I.D. No. 79538 Email: Jpietrzak@ReagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attornevs for Jerry W. Simpson JERRY W. SIMPSON, Plaintiff V. WESTWOOD HILLS ASSOCIATES, LLC, Defendant TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2008-4553-CV : CIVIL ACTION -LAW : JURY TRIAL DEMANDED PRAECIPE TO ATTACH Please attach the enclosed Notice to Defend to the Complaint filed on July 29, 2008 in this matter Date: August 20, 2008 Respectfully submitted, REAGER & ADLER, P.C. 21A 21 h ( J H. Pietrzak, Esquire Attorney I.D. No. 79538 Thomas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Plaintiff j REAGER & ADLER, P.C. BY: JOHN H. PIETRZAK Attorney I.D. No. 79538 Email: Jpietrzak@ReagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Jerry W. Simpson JERRY W. SIMPSON, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2008-4553-CV WESTWOOD HILLS CIVIL ACTION -LAW ASSOCIATES, LLC, Defendant : JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 or 1-800-990-9108 ?. 1 REAGER & ADLER, P.C. BY: JOHN H. PIETRZAK Attorney I.D. No. 79538 Email: Jpietrzak@ReagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Jerry W. Simpson JERRY W. SIMPSON, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 2008-4553 - CV WESTWOOD HILLS CIVIL ACTION -LAW ASSOCIATES, LLC, : Defendant JURY TRIAL DEMANDED NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siquientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICION, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Lawyer Referral Service Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 or 1-800-990-9108 ? ? ..?, -.., f_r ? N ?'?r,? ~- l a C =? ?='; 'ter f. ` -`?: ?f: ,?' ? k `j I i'7 "?i G) ?? o.,,, ,? SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-04553 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SIMPSON JERRY W VS WESTWOOD HILLS ASSOCIATES LLC R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT WESTWOOD HILLS ASSOCIATES LLC but was unable to locate Them deputized the sheriff of DAUPHIN , to wit: in his bailiwick. He therefore serve the within COMPLAINT & NOTICE County, Pennsylvania, to On August 11th , 2008 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Dauphin County 47.25 Postage 2.44 86.69 ? 08/11/2008 REAGER & ADLER Sworn and subscribe to before me this day of So answers,;- R.-Thomas Kline Sheriff of Cumberland County A. D. In The Court of Common Pleas of Cumberland County, Pennsylvania, Jerry W. Simpson vs. Westwood Hills Associates LLC No. 08-4553 civil Now, July 2% 2008 I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, within upon at by handing to a copy of the original and made known to So answers, the contents thereof. Sheriff of Sworn and subscribed before me this day of , 20 W 20 , at o'clock M. served the COSTS SERVICE MILEAGE _ AFFIDAVIT County, PA ?D tfit Of the *hcrt f ? Mary Jane Snyder Charles E. Sheaffer Real Estate Depu Chief Deputy William T. Tully f Michael W. Rinehart Solicitor Assistant Chief Deputy Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania JERRY W SIMPSON VS County of Dauphin WESTWOOD HILLS ASSOCIATES LLC Sheriffs Return No. 2008-T-1672 OTHER COUNTY NO. 08-4553 I, Jack Lotwick, Sheriff of the County of Dauphin, State of Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for WESTWOOD HILLS ASSOCIATES LLC the DEFENDANT named in the within COMPLAINT and that I am unable to find him/her in the County of Dauphin, and therefore return same NOT FOUND, AUGUST 4, 2008. PER STEPHANNIE SWARTZ RESIDENT FOR 3 YEARS DOES NOT KNOW DEFENDANT Sworn and subscribed to before me this 4TH day of August, 2008 So Answers, ? )?? '11? - NOTARIAL SEAL ARY JANE SNYDER, Notary Publi Highspire, Dauphin County LMI'y Commission Expires Set 1, 2010 Sheriff of Dau County By Deputy Sheriff Deputy: S REED Sheriffs Costs: $47.25 7/31/2008 (7 -n REAGER & ADLER, P.C. E..._ .-o BY: JOHN H. PIETRZAK Attorney I.D. No. 79538 Email: Jpietrzak@ReagerAdlerPC.com -' _ BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams@ReagerAdlerPC.com Cl 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Jerry W. Simpson JERRY W. SIMPSON, : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 08 - OA VI _9r k, WESTWOOD HILLS CIVIL ACTION -LAW ASSOCIATES, LLC, Defendant JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff Jerry W. Simpson (hereinafter "Simpson") is an adult individual with an address of 416 Spring Run Drive, Mechanicsburg, PA 17055. Simpson is experienced in the area of construction management services. 2. Defendant is Westwood Hills Associated, LLC (hereinafter "Westwood"), a limited liability company organized and doing business under the laws of the Commonwealth of Pennsylvania, with a principal place of business located at 4216 Little Run Road, Dauphin County, Harrisburg, Pennsylvania 17110. :;- ?0FROM RECORD in TWO" w tWoot, f terse unto suet my haw # of seCowt &t CaXA, Pa. d 4 . ? rv 3. At all times relevant to this Complaint, Defendant was an owner and developer of a subdivision known as Westwood Hills located in East Pennsboro Township, Cumberland County, Pennsylvania. COUNTI BREACH OF CONTRACT 4. On or about November 15, 2005, Simpson and Westwood entered into a written agreement (the "Contract") by which Simpson agreed to perform construction management services for Westwood on Phase 6 of the Westwood Hills development project. Westwood agreed to pay Simpson the amount of $4,166.66 per month for a one-year period. 5. Pursuant to Paragraph 3 of the Contract, the Contract's term was automatically extended beyond the initial one-year term. Under the terms of the extension, Westwood was obligated to pay Simpson the sum of $4,166.66 per month beyond the initial one-year term until the Phase 6 was completed or until either party terminated the Contract. 6. The scope of work to be performed by Simpson under the agreement and the price to be paid by Westwood to Simpson are set forth in the Contract. A true and correct copy of the Contract is attached hereto as Exhibit "A". 7. Simpson completed all work and performed all services under the Contract in a good and workmanlike manner. 8. By letter dated December 23, 2007, Westwood terminated Simpson's contract. In its letter, Westwood admitted that it owed Simpson at least $8,332.32 under the Contract. A true and correct copy of Westwood's termination letter is attached hereto as Exhibit "B". 9. By letter dated January 11, 2008, Simpson responded to Westwood's termination letter and informed Westwood that it owed Simpson a contract balance of $12,909.00 for construction management services. 10. Simpson submitted an invoice to Westwood on January 11, 2008, showing that the contract balance for the construction management services performed by Simpson under the Contract amounted to $12,909.00 at the time Westwood terminated the Contract. A true and correct copy of the invoice submitted to Westwood on January 11, 2008 is attached hereto as Exhibit "C". 11. On February 1, 2008, Simpson agreed to accept $8,332.00 as full payment for the Contract balance due. Simpson and Westwood's Corporate President, Donald Erwin, signed a handwritten note on Simpson's January 11, 2008 letter stating that Westwood agreed to pay Simpson $8332.00 as full payment of the Contract balance owed to Simpson. A true and correct copy of the January 11, 2008 letter with the signed handwritten note is attached hereto as Exhibit «D„ 12. Westwood has failed and/or refused to pay Simpson the $8,332.00 as agreed, making the full Contract Balance of $12,909.00 due. 13. Westwood has accepted all construction management services performed by Simpson. 14. Westwood never provided Simpson with any notices that any of Simpson's construction management services were deficient or that any of Simpson's invoices were inaccurate in any way. 15. Westwood's failure and refusal to pay Simpson the balance of $12,909.00 due for the construction management services that Simpson performed under the contract constitutes a breach of contract. 16. As a result of Westwood's breach of contract, Simpson has suffered damages in the principal amount of $12,909.00. 17. Simpson has complied with all conditions precedent to the bringing of this action. WHEREFORE, Plaintiff Jerry W. Simpson respectfully requests this Honorable Court to enter judgment in its favor and against Defendant, Westwood Hills Associates, P.C., in the amount of $12,909.00 plus interest, costs and such other relief as the Court deems appropriate. COUNT II VIOLATION OF THE PENNSYLVANIA CONTRACTOR AND SUBCONTRACTOR PAYMENT ACT, 73 P.S. & 501 et sea. 18. Plaintiff incorporates herein by reference the averments of paragraphs 1 through 17 above as if set forth fully herein. 19. Simpson is a "contractor" and Westwood is an "owner" as those terms are defined in the Pennsylvania Contractor and Subcontractor Payment Act, 73 P.S. § 501 et. seq. (hereinafter "the Act") 20. More than thirty (30) days have passed since Westwood received the last of Simpson's invoices for the construction management services that Simpson provided pursuant to the Contract between Simpson and Westwood. 21. Westwood has never given Simpson any notices that any of Simpson's construction management services for which it invoiced Westwood were deficient in any manner or that its invoices were not accurate. 22. Westwood's failure and refusal to pay Simpson in accordance with the Act and its unjustified withholding of payment in bad faith constitutes a violation of the Act. 23. Under Section 505(c) of the Act, Westwood was required to make payments to Simpson within twenty (20) days after Simpson delivered its invoices to Westwood. 24. Under Section 505(d) of the Act, in the event Westwood's payment was not made within seven (7) days of the due date set forth in Section 505(c), Simpson is entitled to receive interest at the rate of one percent (1%) per month on all invoice balances. 25. Westwood has violated the Act by failing to timely pay Simpson's invoices. 26. Under Section 512(a) of the Act, if litigation or arbitration is commenced to recover payment, Westwood is liable to Simpson for a penalty equal to one percent (10/6) per month of the amount wrongfully withheld. 27. Under Section 512(b) of the Act, Simpson is entitled to an award of reasonable attorney's fees in the event it substantially prevails in its action to recover payment under the Act. 28. All conditions precedent to the bringing of this action have occurred and/or have been performed. WHEREFORE, Plaintiff Jerry W. Simpson respectfully requests this Honorable Court to enter judgment in its favor and against Defendant, Westwood Hills Associates, P.C., in the amount of $12,909.00 plus interest, costs, statutory penalties/interest, attorney's fees and such other relief as the Court deems appropriate. Respectfully submitted, REAGER & ADLER, P,C. Date: July 29, 2008 o H. Pietr2W, E§4uire Aftomey I.D. No. 79538 Thomas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Plaintiff ?? INDEPENDENT CONTRACTOR AGREEMENT THIS AGREEMENT ("Agreement's made this / 7' day of 2005 by and between WESTWOOD HILLS ASSOCIATES, LLC. a Pennsylvania. Limited Liability Company, ("WWH") and JERRY W. SIMPSON, an adult individual ("SIMPSON'J. Recitals WHEREAS, WWH is a real estate company which currently owns and is developing Phase 6 of its Westwood Hills Development located off the Wentzville Road m East Pennsboro Township, Cumberland County, Pennsylvania (hereinafter "Phase 6'); WHEREAS, WWH desires to engage SIMPSON as its construction manager in conjunction with its Phase 6 development upon the terms and. conditions set forth herein; WHEREAS, SIMPSON is experienced in construction management and supervision. NOW THEREFORE, in consideration of the mutual. promises contained herein and intending to be legally bound hereby, the parties hereto agree as follows: 1. Contractor Services. SIMPSON shall serve as Construction Manager to assist WWH in the development, coordination, supervision and construction of Phad 6, with emphasis on the day-today supervision of construction of 21 new Town homes in accordance with WWH's development plan as approved by East Pennsboro Township. SIMPSON shall devote his full time to the services under this Agreement during the Initial Term and any extensions thereof SIMPSON shall not subcontract nor permit third parties to perform services under this Agreement with WWH's prior written consent. 2. Compensation. For the services rendered herein, W WH shall pay SIMPSON the sum of Fifty Thousand ($50,000.00) Dollars payable in equal monthly installments of Four Thousand One Hundred Sixty Six and 6611'00 ($4,166.66) Dollars at the end of each calendar- month prorated for any partial month. SIMPSON shall submit to WWH such monthly time records and reports as it shall request detailing the hours spent and tasks performed. 3. Initial, Term. The initial term of this Agreement shall be for one (1) year. This Agreement shall automatically be extended for successive one (1) month terms until terminated if such extension be necessary for completion of Phase 6. Either parry shall have the right to terminate this Agreement upon ten (10) days written notice to the other ply. 4. Confidentiality. SIMPSON shall not retain in writing, use, divulge, fiunish or make assessable to anyone any private or confidential information about WWH obtained or acquired by him while performing services under t)iis Agreement. Upon termination of this Agreement for any reason, SMSON shall deliver to WWH without fir ther demand, any property, plans, contracts or other items belong to W WH which may then be in his possession. This provisions ofthis paragraph shall survive and termination of this Agreement and may be enforced by the Court of Common Please of Cumberland County Pennsylvania. 5. Relationship Of The Parties. SIMPSON shall perform his duties hereunder as an independent contractor. Nothing herein shall be deemed to create a relationship between the parties other than an independent contractor relationship. Nothing in this Agreement shall be construed to be inconsistent with this relationship or status. WWi will not withhold from the compensation paid to SIMPSON pursuant to this Agreement any sum of income tax, unemployment insurance, Social Security or any other withholding pursuant to any law or requirement of any governmental body. A MPSON shall submit such reports and returns, make any necessary payments and maintain any records required by any local, state or federal government or agency thereof. SIWSON shall indemnify and hold WWH harmless from and against and all losses or liabilities (including reasonable attorneys' fees) which WWH may incur as a result of SIMPSON's claim of status other than independent contractor or his failure to submit reports or returns, make any necessary payments, or maintain required records 2 with regard to his independent contractor status. SRAPSON shall not be entitled to any rights and privileges established for employees of WWH such as vacation, sick leave with pay, paid holidays or severance pay upon termination of this Agreement. 6. Assignment. SIMPSON may not assign this Agreement, or the rights to any payment hereunder, without the express written consent of WWH. 7. Liao' ' All work performed by SIMPSON shall be performed entirely at his own risk. SIlVIPSON shall provide all tools and equipment necessary for his performance of the services of this Agreement and shall be responsible for the condition of such tools and equipment. 8. No Agency. Nothing in this Agreement shall be construed as conferring actual or implied authority upon SIMPSON to bind WWH to any obligation or payment without the express written authority of WWH. 9. GovermngLw. This Agreement shall be governed and construed under the laws of the Commonwealth of Pennsylvania. 10. otices. All notices under this-Agreement shall be in writing and shall be delivered to the other party by personal delivery, certified mail or facsimile transmission to the address as sent forth herein: If to WWH: Westwood Hills LLC 1943 Monterey Drive Mechanicsburg, PA. 17050 Fax No: 717-236-5570 .1^ t Ifto SI WSON: Jerry W. Simpson 416 Spring Run Drive Mechanicsburg, PA. 17055 Fax No. 717- 3 ' ii. aiver. The failure of either parry to require performance by the other of any provision hereof shall not affect the right to require such performance at any time thereafter; nor shall the waiver by either party of a breach `of any provision hereof be taken or held to be a waiver of the provision itself 12. Headings. The headings appearing in this Agreement axe inserted as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement. 13. Parties Bound. This Agreement shall be binding upon and inure to the parties respective heirs, successors and assigns subject to the limitation on assignment by SIWSON. 14. Entire Bement. This Agreement constitutes the entire Agreement of the parties and supersedes any prior understandings or agreements of the parties with respect to the subject matter hereof. This Agreement may only be modified by mutual agreement of the parties in writing. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year first above written. WESTWOOD HILL ASSOCIATES, LLC. /, '0 4 Jerry W Simpson 416 Spring Run Drive A+feehwk*urg, PA 17055 (717) 795-8899 126-07 This year 2007. As of December 6, 2007 money due: November 15 passed due $4166.00 As of December 15- $ 4166.00 Total is $ 8332 There was partial payment in May for the amount owed for the year 2006 and 2007. There is a balance of $ 2494.00 OR owed. So the total is $ 10 826.00 Which was due December 151h 2007. 1/05108 addition The work of two weeks of December before notice Jan 04 Fax to Jerry Simpson is another $ 2083.00 A total as of Jan 4 2008 is $ 12909 00 Thank you Jerry W Simpson • marys Zmpson /l /-noIAt-jd W. i JERRY W. SIMPSON 416 S#dtg Run drive Mechanicsburg, PA 17055 Jarwaty 11, 2006 Mir. Donald H. Elwin 1943 Monterey Drive Mechanicsburg, PA 17050 Dear Don, 1 received your Fetter of tettnln Aon via fax on Jorwimy 4,2W8 and a copy by mail on JCNWCay 7.20W According to our Agreement dated and signed November 19, 2005, a written notice Oxxild have been received 10 days prior to the termination of the agreement. Also, there has been a breakdown of money owed to me. On December 12, 20071 faxed you November's nxm ty report end a breakdown of the money 1 am owed. 1 have not yet heard from you regarding this matter. I am, once vgoin, faxing that some report along with December's report The amount owed for the month of December is $2=3, bringing the total amount you owe me to $12,909. 1 would appreciate your prompt offention to this matter. I vA sign and send to you for your sgrxature the agreement for kx*m Springs thot is to start January 28.2001& In the MOM *M, I wlf help you with the approvals. swxwelyl .ferry W. -VMPSOn VERIFICATION I, Jerry W. Simpson, hereby verify that the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. Date:3 b By: J . Simpson +F.. .,..-? .r, ,. ,. REAGER & ADLER, P.C. BY: JOHN H. PIETRZAK Attorney I.D. No. 79538 Email: Jpietrzak@ReagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Plaintiff Jerry W. Simpson JERRY W. SIMPSON, Plaintiff PENNSYLVANIA V. WESTWOOD HILLS ASSOCIATES, LLC, Defendant TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, NO. 2008-4553-CV CIVIL ACTION -LAW JURY TRIAL DEMANDED PRAECIPE Please reinstate the attached Complaint at the above-captioned docket. Respectfully submitted, REAGER & ADLER, P.C. Date: September 10, 2008 16yn H. Pietrzak, Esquire ttomey I.D. No. 79538 Thomas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Plaintiff 1?61 r-I 11 1 YT F5 ?iJ SHERIFF'S RETURN - REGULAR CASE NO: 2008-04553 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SIMPSON JERRY W VS WESTWOOD HILLS ASSOCIATES LLC TIMOTHY BLACK Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon WESTWOOD HILLS ASSOCIATES LLC DEFENDANT at 1943 MONTEREY DRIVE the , at 1555:00 HOURS, on the 17th day of September, 2008 MECHANICSBURG, PA 17050-8510 PATRICIA A ERVIN by handing to ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 Service 13.00 ???'' " .? Postage .42 Surcharge 10.00 R. Thomas Kline .00 RhRJb? ?,, `? 41.42 09/18/2008 REAGER & ADLER Sworn and Subscibed to By: before me this day Deputy Sheriff of , A.D. REAGER & ADLER, P.C. BY: JOHN H. PIETRZAK Attorney I.D. No. 79538 Email: Jpietrzak@ReagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Jerry W. Simpson JERRY W. SIMPSON, Plaintiff V. WESTWOOD HILLS ASSOCIATES, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2008-4553-CV : CIVIL ACTION -LAW : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, John H. Pietrzak, Esquire, verify that on October 16, 2008, I caused the Notice which is attached hereto as Exhibit A to be placed in the United States mail, first class, postage prepaid and addressed to Defendant and Defendant's attorney at the addresses listed below. A copy of the certificate of mailing is attached hereto as Exhibit B. Westwood Hills Associated, LLC or Owner(s) Donald H. Erwin or Patricia A. Erwin 1943 Monterey Drive Mechanicsburg, Cumberland County, PA 17050-8510 Respectfully submitted, REAGER & ADLER, P.C. Date: 0 ?!Q O 4omey . PIET AK, Esquire I.D. No. 79538 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 Attorneys for Plaintiff READER & ADLER, P.C. BY: JOHN H. PIETRZAK Attorney I.D. No. 79538 Email: Jpietrzak@ReagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Jerry W: Simpson JERRY W. SIMPSON, Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2008-4553-CV WESTWOOD HILLS CIVIL ACTION -LAW ASSOCIATES, LLC, Defendant JURY TRIAL DEMANDED IMPORTANT NOTICE TO: Westwood Bills Associated, LLC or Owner(s) Donald H. Erwin or Patricia A. Erwin 1943 Monterey Drive Mechanicsburg, Cumberland County, PA 17050-8510 DATE OF NOTICE: October 16, 2008 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND/OR FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Jo H. Pietrzak, squire REAGER & ADLER, P.C. BY: JOHN H. PIETRZAK Attorney I.D. No. 79538 Email: Jpietrzak@ReagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Jerry W. Simpson JERRY W. SIMPSON, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. WESTWOOD HILLS ASSOCIATES, LLC, Defendant : NO. 2008-4553-CV : CIVIL ACTION -LAW : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, 'this 16th day of October, 2008, I, John H. Pietrzak, Esquire, hereby certify that I have caused a true and correct copy of the foregoing 10-Day Notice to be placed in the U.S. Mail, postage prepaid and addressed as follows: Westwood Hills Associated, LLC or Owner(s) Donald H. Erwin or Patricia A. Erwin 1943 Monterey Drive Mechanicsburg, Cumberland County, PA 17050-8510 VIA John V"ietrzak, Esquire 2 I----- - woom Ir"wo-o" U.S. POSTAL SERVICE 6ER?iFICATE OF MAILING MAY BE USED FOR DOMESTIC AND INTERNATIONAL MAIL, DOES NOT PROVIDE FOR INSURANCE-POSTMASTER Re ,ved F s. One piece of ordinary mail addressed to: ' L .? 9y3 PS Form 3817, January 2001 p w ?- 6 r- o r._T.'? tv n z?W W s t 0 uu CA G ?311NC1 a r_? ?. ?'? ?? ?.? r - ??? ? ?_- c? .? ?, ti? `3 f°}?3 ..... . , "?'7 .?.. ? .... {`'?'i _ - C-'S ::? t, , --C Jopadm M. Crist, Esq. 226 West Chocolate Ave. Hershey, PA 17033-1570 PH: (717) 533-6600 FX: (717) 533-8418 JERRY W. SIMPSON, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2008-4553-CV WESTWOOD HILLS, CIVIL ACTION - LAW ASSOCIATES, LLC. Defendant JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Jerry W. Simpson and his attorney John H. Pietrzak, Esq. REAGER & ADLER, P.C. 2331 Market Street Camp Hill, PA. 17011 You are hereby notified to file a written response to the enclosed New Matter and Counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. r- DATE: Jonadiin M. Crist, Esq. Atty ID 29936 226 W. Chocolate Ave. Hershey, PA. 17033-1570 PH: (717) 533-6600 FX: (717) 533-8418 Jonathan M. Crist, Esq. 226 West Chocolate Ave. Hershey, PA 17033-1570 PH: (717) 533-6600 FX: (717) 533-8418 JERRY W. SIMPSON, Plaintiff V. WESTWOOD HILLS, ASSOCIATES, LLC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2008-4553-CV CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER WITH NEW MATTER AND COUNTERCLAIM AND NOW comes the Defendant, WESTWOOD HILLS ASSOCIATES, LLC by and through its attorney, Jonathan M. Crist Esq, and makes the following Answer With New Matter and Counterclaim to the Complaint of the Plaintiff, JERRY W. SIMPSON ("Simpson') of which the following is a statement: 1.) Admitted. 2.) Denied as Stated. The correct name of the Defendant is Westwood Hills Associates, LLC (hereinafter "Westwood") whose current principal business address is 1943 Monterey Drive, Mechanicsburg, PA 17050. 3.) Admitted. COUNT I - BREACH OF CONTRACT 4.) Admitted as qualified herein. It is admitted that on or about November 15, 2005 Plaintiff and Defendant entered into a written agreement (the "Contract") under which Simpson was to perform construction management services for Westwood on Phase 6 of the Westwood 1 Hills development project located in Hampden Township, Cumberland County Pennsylvania. By way of qualification the terms and conditions of said Contract speak for themselves. By way of further qualification, the nature of the services rendered by Simpson under said Contract were substantially modified, after the site work for Phase 6 of Westwood Hills had been completed, when Westwood elected not to construct the contemplated 21 new Town homes on the Westwood Hills lots; in lieu of Simpson's termination Westwood and Simpson agreed that Simpson would continue to provide construction management services under the same terms and conditions as set forth in the Contract for site development work on Phase II of the Eagle View Mobile Home Park in Berwick Township, Adams County, Pennsylvania. 5.) Admitted as qualified herein. By way of qualification the terms and conditions of said Contact speak for themselves. By way of further qualification, the nature of the services rendered by Simpson under said Contract were substantially modified, after the site work for Phase 6 of Westwood Hills had been completed, when Westwood elected not to construct the contemplated 21 new Town homes on the Westwood Hills lots; in lieu of Simpson's termination Westwood and Simpson agreed that Simpson would continue to provide construction management services under the Contract for site development work on Phase H of the Eagle View Mobile Home Park in Berwick Township, Adams County, Pennsylvania. 6.) Admitted as qualified herein. By way of qualification, the nature of the services rendered by Simpson under said Contract were substantially modified, after the site work for Phase 6 of Westwood Hills had been completed, when Westwood elected not to construct the contemplated 21 new Town homes on the Westwood Hills lots; in lieu of Simpson's termination Westwood and Simpson agreed that Simpson would continue to provide construction management services under the Contract for site development work on Phase II of the Eagle View Mobile Home Park in Berwick Township, Adams County, Pennsylvania. 2 7.) Denied. To the contrary, Simpson's construction management services were deficient in two separate and distinct instances: a) During the site development work on Phase b of Westwood Hills, Simpson either allowed, failed to discover, or failed to prevent the grading contractor Krall from discharging silt laden waters into a nearby creek which subsequently resulted in a PA Department of Environmental Resources (DEP) investigation and citation of Westwood with the resultant damages as set forth in Paragraphs 30(a) and 30(b) of Westwood's New Matter which are incorporated herein by reference. b) Simpson was directed to oversee and make sure that the detention pond for Phase II of the Eagle View Mobile Home Park were constructed in accordance with the plans as approved; however the Adams County Conservation District rejected the Phase II Eagle View detention ponds on at least three separate occasions over an 18 month period as not being in compliance with the submitted plans resulting in the damages set forth in Paragraph 30(c) of the New Matter which are incorporated herein by reference. 8.) Denied as Stated. The letter Exhibit "B" set forth the amount that Westwood believed was due to Simpson at that time said letter was drafted and executed, but subsequently Westwood came to believe that said amount set forth in Exhibit "B" was no longer due to Simpson as a result of Simpson's failures as set forth in Paragraph 7 above. 9.) Admitted as qualified herein. By way of qualification the written letter speaks for itself. 10.) Admitted as qualified herein. By way of qualification the written invoice speaks for itself. 11.) Denied as Stated. The notation in Exhibit "D" set forth the amount that Westwood believed was due to Simpson at that time said notation was executed, but subsequently Westwood came to believe that said amount set forth in Exhibit "D" was no longer due to Simpson as a result of Simpson's failures as set forth in Paragraph 7 above. 3 12.) Denied. The allegations of Paragraph 12 are a conclusion of law to which no responsive pleading is required. 13.) Denied for the reasons set forth in Paragraph 7 above the allegations of which are incorporated herein by reference. 14.) Denied as Stated. To the contrary Simpson was aware of the problems as set forth in Paragraph 7 above the allegations of which are incorporated herein by reference. 15.) Denied. The allegations of Paragraph 15 are a conclusion of law to which no responsive pleading is required. 16.) Denied. The allegations of Paragraph 16 are a conclusion of law to which no responsive pleading is required. 17.) Denied. The allegations of Paragraph 17 are a conclusion of law to which no responsive pleading is required. COUNT II - CONTRACTOR PAYMENT ACT 18.) Defendant's responses to Paragraphs 1 through 17 above are incorporated by reference as if fully set forth. 19.) Denied. The allegations of Paragraph 19 are a conclusion of law to which no responsive pleading is required. 20.) Admitted. 21.) Denied as Stated. To the contrary Simpson was aware of the problems as set forth in Paragraph 7 above the allegations of which are incorporated herein by reference. 4 22.) Denied. The allegations of Paragraph 22 are a conclusion of law to which no responsive pleading is required. 23.) Denied. The allegations of Paragraph 23 are a conclusion of law to which no responsive pleading is required. 24.) Denied. The allegations of Paragraph 24 are a conclusion of law to which no responsive pleading is required. 25.) Denied. The allegations of Paragraph 25 are a conclusion of law to which no responsive pleading is required. 26.) Denied. The allegations of Paragraph 26 are a conclusion of law to which no responsive pleading is required. 27.) Denied. The allegations of Paragraph 27 are a conclusion of law to which no responsive pleading is required. 28.) Denied. The allegations of Paragraph 28 are a conclusion of law to which no responsive pleading is required. NEW MATTER 29.) Defendant's responses to Paragraphs 1 through 28 above are incorporated by reference as if fully set forth. 5 30.) Defendant Westwood asserts by way of setoff: (a) As a result of the DEP investigation into the silt stream infiltration in conjunction with Phase 6 of Westwood Hills, Westwood was required to post two separate escrow accounts as security for the inspection and mandated clean-up/remediation of the infiltrated stream and to date there have been payments of $39,000.00 made from these escrow accounts for inspection and remediation expenses; (b) Because of its pending investigation into the silt stream infiltration for Westwood Hills as aforesaid, DEP delayed consideration of Westwood's application for environmental permits for its new Hawks Landing development in East Pennsboro Township Cumberland County Pennsylvania whereby Westwood has incurred additional financing carrying costs in the amount of $30,000.00 on its Hawks Landing loans since Westwood was not able to complete sales of its Hawks Landing lots with its contracted builder while the environmental permit application was pending; (c) Because of the 18 month delay in approval of the Eagle View Mobile Home Park detention ponds by the Adams County Conservation District as aforesaid, there was a delay of 18 months in being able to deliver the otherwise completed Phase 11 mobile home pad sites under Westwood's agreements with its contracted mobile home manufacturer/dealer. Westwood's agreement with its mobile home manufacturer/dealer requires said manufacturer dealer to take down a minimum of 3 pad sites a month at $8,500.00 per pad site and Westwood has been damaged: (i) by loss of the pad site sales; (ii) by the additional loan carrying costs for the 18 months it did not have monthly pad sales to reduce its construction loan and (ii) to the extent that said manufacturer/dealer would have sold the homes erected on said pad sites to third parties, Westwood would have received lot rent of Four Hundred ($400.00) Dollars per month for each such lot sold. The total damages here are Eighty Five Thousand ($85,000.00) Dollars. 31.) The deficiencies of Simpson's services as set forth in Paragraph 7 above incorporated herein by reference represent reasonable cause for Westwood to withhold payment under the Pennsylvania Contractor and Subcontractor Payment Act, 73 P. S. §501 et. seq. 6 33.) The Pennsylvania Contractor and Subcontractor Payment Act, 73 P. S. §501 et. seq. is not applicable to the Contract as it involved the construction involved six or less residential units at one time. WHEREFORE, Defendant, WESTWOOD HILLS ASSOCIATES, LLC, requests that the Complaint of the Plaintiff JERRY W. SM PSON be dismissed with costs to the Defendant. COUNTERCLAIM WESTWOOD HILLS ASSOCIATES. LLC V. JERRY W. SIMPSON 34) Westwood's responses and allegations of to Paragraphs 1 through 34 inclusive are incorporated herein by reference as if set out at length. 35) By reason of the failure of Simpson to perform his duties under the Contract as modified Westwood has incurred damages totaling One Hundred Fifty Four Thousand ($154,000.00) Dollars. WHEREFORE, Defendant, WESTWOOD HILLS ASSOCIATES, LLC, requests this Honorable Court to enter judgment in its favor and against Plaintiff, JERRY W. SEAPSON in the amount of One Hundred Fifty Four Thousand ($154,000.00) Dollars, plus interest, costs, and such other relief as the Court deems appropriate. DATE: ?v zY' Respectfully Submitted, Jo an M. Crist, Esq. Atty ID 29936 226 W. Chocolate Ave. Hershey, PA. 17033-1570 PH: (717) 533-6600 FX: (717) 533-8418 7 V E R I F I C A T I O N The undersigned is a representative of Westwood Hills Associaties, LLC and authorized to take this verification on its behalf. The above Answer With New Matter in this matter is based upon information which has been famished to counsel and information which has been gathered by counsel in preparation of this matter. The language of the Answer With New Matter is that of counsel and not of me. I have read the Answer With New Matter and to the extent that the Answer With New Matter is based upon information which has been given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the Answer With New Matter is that of counsel, I have relied upon counsel in making this verification. I hereby acknowledge that the facts set forth in the aforesaid Answer With New Matter are made subject to the penalties of 18 Pa.C.S. §4904 relating to unworn falsification to authorities. d? DATE: .- -- DONAEff-g.-ERWIN WESTWOOD HILLS ASSOCIATES, LLC :? . . Jonathan M. Crist, Esq. 226 West Chocolate Ave. Hershey, PA 17033-1570 PH: (717) 533-6600 FX: (717) 533-8418 JERRY W. SUSAPSON, Plaintiff V. WESTWOOD HILLS, ASSOCIATES, LLC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2008-4553-CV CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 24th day of October, 2008, I hereby certify that I have served a copy of Westwood Hills Associates, LLC's Answer With New Matter And Counterclaim in the above captioned litigation upon the following by depositing a true and correct copy of the same in the United States Mail, postage prepaid, at Hershey Pennsylvania addressed to: John H. Pietrzak, Esq. REAGER & ADLER, P.C. 2331 Market Street Camp Hill, PA 17011 ;'?m Jo ' th M. Crist, Esq ` 22 est Chocolate Ave. Hershey, PA. 17033-1570 PH: (717) 533-6600 FX: (717) 533-8418 f;7S r ;- ? C. r'?l REAGER & ADLER, P.C. BY: JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 ,Re ?erAdlerPC.com Email: Jpietrzakg BY: THOMAS O. WILLIAMS Attorney I.D. No. 67987 Email: TwilliamskReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Plaintiff, Jerry W. Simpson JERRY W. SIMPSON, Plaintiff V. WESTWOOD HILLS ASSOCIATES, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2008-4553-CV : CIVIL ACTION -LAW JURY TRIAL DEMANDED NOTICE TO PLEAD To: WESTWOOD HILLS ASSOCIATES, LLC YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED ANSWER TO DEFENDANT'S NEW MATTER AND COUNTERCLAIM. WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, REAGER & R, P.C. /7 A ,/ Date: November 17, 2008 ^ H. Pietrzak / Attorney I.D. No. 79538 Thomas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 44 REAGER & ADLER, P.C. BY: JOHN H. PIETRZAE, ESQUIRE Attorney I.D. No. 79538 Email: Jpietrzak(a Reag?erAdlerPC.com BY: THOMAS O. WILLIAMS Attorney I.D. No. 67987 Email: TwilliamsAReaerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Plaintiff Jerry W. Simpson JERRY W. SIMPSON, Plaintiff V. WESTWOOD HILLS ASSOCIATES, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2008-4553-CV : CIVIL ACTION -LAW JURY TRIAL DEMANDED PLAINTIFF, JERRY W SIMPSON'S ANSWER TO DEFENDANT, WESTWOOD HILLS ASSOCIATES LLC'S NEW MATTER AND COUNTERCLAIM Plaintiff, Jerry W. Simpson, ("Simpson") by and through its undersigned counsel, Reager & Adler, P.C., hereby files the following Answer to Defendant Westwood Hills Associates, LLC's ("Westwood") New Matter and Counterclaim, in the above-captioned action. NEW MATTER 29. No response required. 30. No response required. a). After reasonable investigation, Simpson is without sufficient knowledge or information to form a belief as to the accuracy of the averments of this paragraph. The factual averments are denied and proof thereof is demanded at trial. By way of further answer, under the terms of the parties written agreement, Simpson was not responsible for supervision of the site contractor Krall, who allegedly discharged the silt-laden water into the stream. Simpson further denies that there was any modification to his written agreement with Westwood that would have made Simpson responsible for the supervision of this contractor. Westwood retained complete control over the project and Simpson had no authority to direct any contractor's work without Westwood's direct authorization. Simpson denies that Westwood either paid for or performed any remediation of the stream. b). After reasonable investigation, Simpson is without sufficient knowledge or information to form a belief as to the accuracy of the averments of this paragraph. The factual averments are denied and proof thereof is demanded at trial. By way of further answer, Simpson denies that there was any delay or any impact whatsoever on the Hawks Landing project due to the DEP investigation on the Westwood Hills Project. c). Denied. The alleged defective construction of the detention pond occurred prior to Simpson's beginning work on the Eagle View Mobile Home Park project. Westwood, and not Simpson, directed the manner in which the contractors constructed and repaired the detention pond. Westwood's direction of how the detention pond was constructed and repaired was the cause of any delays. By way of further answer, under the terms of the parties written agreement, Simpson was not responsible for supervision of the contractor who allegedly constructed the detention pond in a deficient manner. Simpson further denies that there was any modification to his written agreement with Westwood that would have made Simpson responsible for the supervision of this contractor. Westwood retained complete control over the project and Simpson had no authority to direct any contractor's work without Westwood's direct authorization. 31. This paragraph contains a legal conclusion to which no response is required. By . 66 way of further answer, to respond to the factual allegations contained in Paragraph 7 of Westwood's Answer, those factual allegations are denied. Simpson did not allow or otherwise permit contractor Krall to discharge silt-laden water into a nearby creek. By way of further answer, under the terms of the parties written agreement, Simpson was not responsible for supervision of the site contractor Krall on the Westwood Hills project or the detention pond contractor on the Eagle View Mobile Home Park Project. Simpson further denies that there was any modification to his written agreement with Westwood that would have made Simpson responsible for the supervision of these contractors. Further, the alleged defective construction of the detention pond occurred prior to Simpson's work on the Eagle View Mobile Home Park Project. Regarding any alleged DEP or Adams County Conservation District investigations, after reasonable investigation, Simpson is without sufficient knowledge or information to form a belief as to the accuracy of the averments of this paragraph. The factual averments are denied and proof thereof is demanded at trial. 32. Westwood's Answer does not contain a paragraph 32. 33. This paragraph contains a legal conclusion to which no response is required. COUNTERCLAIM WESTWOOD HILLS ASSOCIATES. LLC V. JERRY W. SIMPSON 34. Simpson incorporates paragraphs 29-33 above herein as if set forth at length. 35. This paragraph contains a legal conclusion to which no response is required. To the extent a response is required, the factual averments of this paragraph are denied. Simpson performed all construction management services properly as required by its written contract with Westwood. Simpson denies that Westwood has suffered One Hundred Fifty Four Thousand Dollars ($154,000.00) in damages, or any amount, due to any action taken by Simpson. .q .. WHEREFORE, Plaintiff/Counterclaim Defendant, Jerry W. Simpson requests this Honorable Court to enter judgment in his behalf and against Defendant/Counterclaim Plaintiff Westwood Hills Associates, LLC. NEW MATTER 36. Simpson incorporates paragraphs 29-35 as if set forth herein at length. 37. Westwood's Counterclaim fails to state a cause of action for which relief can be granted. 38. Westwood's Counterclaim is barred by the doctrines of estoppel, failure of consideration, justification, laches and waiver. 39. It is believed and therefore averred that Westwood is involved in separate litigation with contractor Krall and the detention pond contractor regarding the allegations contained in paragraph 7 of Westwood's Answer and paragraph 30 of Westwood's New Matter. 40. The written contract between the parties was attached as Exhibit A to Simpson's Complaint. 41. Westwood did not attach any written agreement modifying the parties written agreement as an attachment to its Answer with New Matter and Counterclaim. 42. The parties written agreement contains a scope of work in paragraph 1 under the heading "Contractor Services." 43. The alleged incidents Westwood cites in paragraph 7 of its Answer to Simpson's Complaint and in paragraph 30 of its New Matter are beyond the scope of work and responsibilities contained in Simpson's written contract with Westwood and are beyond the construction management duties assigned to Simpson under the parties' written contract. 44. Simpson was not responsible to directly supervise the work of the contractors who allegedly discharged silt-laden water into the stream on the Westwood Hills project or who allegedly built a deficient detention pond on the Eagle View Mobile Home Park project. 45. The alleged defective construction of the detention pond on the Eagle View Mobile Home Park project occurred prior to Simpson performing any work on that project. 46. Westwood retained complete control over the projects at issue and Simpson had no authority to direct any contractor's work without the direct authorization of Westwood. WHEREFORE, Plaintiff/Counterclaim Defendant, Jerry W. Simpson requests this Honorable Court to enter judgment in his behalf and against Defendant/Counterclaim Plaintiff Westwood Hills Associates, LLC. Respectfully submitted, REAGER & ADLER, PC Date: November 14, 2008 BY: ohn H. Pietrza , Esquire Attorney I.D. No. 79538 Thomas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Jerry W. Simpson VERIFICATION I, Jerry W. Simpson, hereby verify that the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: // 7 By: Y CERTIFICATE OF SERVICE AND NOW, this 17th day of November, 2008, I hereby verify that I have caused a true and correct copy of the foregoing document to be placed in the U.S. Mail, postage prepaid and addressed as follows: Jonathan M. Crist, Esq. 226 W. Chocolate Ave. Hershey, PA 17033-1570 REAGER & ADLER, PC A /4?& Jo H. Pietrzak CO r JERRY W. SIMPSON, Plaintiff V. WESTWOOD HILLS, ASSOCIATES, LLC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2008-4553-CV CIVIL ACTION - LAW JURY TRIAL DEMANDED PETITION FOR LEAVE TO WITHDRAW APPEARANCE PURSUANT TO Pa.R.C.P 1012(c) The undersigned attorney, JONATHAN M. CRIST, Esq. ("CRIST") who is currently representing Defendant, WESTWOOD HILLS ASSOCIATES, LLC, ("WESTWOOD"), in the above captioned matter respectfully moves this Court for an Order withdrawing his appearance as counsel for WESTWOOD and in support thereof states: 1.) The above captioned collection action was commenced by Plaintiff, JERRY W. SIMPSON ("SIMPSON"), on July 29, 2008 seeking the sum of $12,909.00 allegedly due SIMPSON under an Independent Contractor Agreement with Defendant WESTWOOD. 2.) WESTWOOD is a single member Pennsylvania limited liability company owned by DONALD H. ERWIN ("ERWIN"). 3.) The current address for WESTWOOD is ERWIN'S personal residence located at 1943 Monterey Drive, Mechanicsburg, PA 17050. 4.) SIMPSON's Complaint was served on WESTWOOD on or about September 15, 2008. 5.) WESTWOOD filed its Answer With New Matter and Counterclaim in this matter on October 24, 2008. 6.) On November 12, 2008 CRIST presented ERWIN with a consolidated invoice for his legal services covering multiple matters for which CRIST had been representing either ERWIN personally and/or one of ERWIN's four controlled business entities (including WESTWOOD) which invoice included services for CRIST's representation of WESTWOOD in the above captioned SIMPSON matter. 7.) In response to the presented invoice as aforesaid, ERWIN informed CRIST that CRIST's representation of ERWIN and all four of ERWIN's various business enterprises (including WESTWOOD) was being immediately terminated and that ERWIN would obtain other counsel to represent the interests of each of his various business entities (including WESTWOOD) in those matters where CRIST was involved. 8.) To the best of CRIST's knowledge and information, to date ERWIN has not obtained other counsel to represent WESTOOD in the above captioned SIMPSON matter. 9.) Pursuant to Cumberland County Rule 208.2(d), the undersigned has obtained the concurrence of John H. Pietrak, Esq of Reager & Adler. P.C. attorney for SIMPSON in the above captioned matter with regard to this Petition. WHEREFORE, the undersigned JONATHAN M. CRIST, requests this Honorable Court to issue unto WESTWOOD HILLS ASSOCIATES, LLC a Rule To Show Cause, if any it has, why JONATHAN M. CRIST should not be permitted to withdraw his appearance for WESTWOOD in the above captioned matter. Submitted, DATE: l'L v/ Za e an M. Crist, Esq. ID 29936 226 W. Chocolate Ave. Hershey, PA. 17033-1570 PH: (717) 533-6600 FX: (717) 533-8418 JERRY W. SIMPSON, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2008-4553-CV WESTWOOD HILLS, CIVIL ACTION - LAW ASSOCIATES, LLC. Defendant JURY TRIAL DEMANDED VERIFICATION I, JONATHAN M. CRIST, ESQ. hereby verify that the averments of the foregoing Petition are true and correct to the best of my knowledge, information and belief I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. §4904 relating to unsworn falsification to authorities. DATE: JON HAN M. CRIST a z JERRY W. SIMPSON, Plaintiff V. WESTWOOD HILLS, ASSOCIATES, LLC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2008-4553-CV CIVIL ACTION - LAW : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 1 st day of December, 2008, I hereby certify that I have served a copy of the attached Petition For Leave To Withdraw Appearance Pursuant to Pa R.C. P. 1012(c) in the above captioned litigation upon the following by depositing a true and correct copy of the same in the United States Mail, postage prepaid, at Hershey Pennsylvania addressed to: John H. Pietrzak, Esq. REAGER & ADLER, P.C. 2331 Market Street Camp Hill, PA 17011 Attorney for Jerry W. Simpson Westwood Hills Associates, LLC 1943 Monterey Drive Mechanicsburg, PA 17050 Att: Donald H. Erwin W. Chocolate Ave. ;hey, PA. 17033-1570 ?? r ? ?? =?x;a 'si ? ? - ,-, ? , sv .. ?;; i .?: ?? _ JERRY W. SIMPSON, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2008-4553-CV WESTWOOD HILLS, CIVIL ACTION - LAW ASSOCIATES, LLC. Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE OF PETITION AND ORDER I hereby certify that on December 7, 2008 at 12: l OPM, I personally served a copy of the attached Petition For Leave To Withdraw Appearance Pursuant To Pa. R.C. P. 1012(a) along with a certified copy of the attached Order of Court dated December 4, 2008 upon WESTWOOD HILLS ASSOCIATES, LLC at its principal place of business at 1943 Monterey Drive, Mechanicsburg, PA 17050 by handing a copy to Patricia Provenzano-Erwin, wife of Donald H. Erwin (sole member of Westwood Hills Associates, LLC) the person then in charge of the office at that time. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. §4904 relating to unsworn falsification to authorities. DATE: 2---//- Zld' I )" /Ow- Jonathan M. Crist, Esq 226 West Chocolate Ave. Hershey, PA. 17033-1570 PH: (717) 533-6600 FX: (717) 533-8418 JERRY W. SIMPSON, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW WESTWOOD HILLS ASSOCIATES, LLC, Defendant NO. 08-4553 CIVIL TERM ORDER OF COURT AND NOW, this 4"' day of December, 2008, upon consideration of the Petition for Leave To Withdraw Appearance Pursuant To Pa. R.C.P. 1012(a), a Rule is hereby issued upon the Plaintiff and Defendant to show cause why the relief requested should not be granted. RULE RETURNABLE within 14 days of service. BY THE COURT, Wesley Oler/Jr., 1. t John H. Pietrzak, Esq. 2331 Market Street Camp Hill, PA 17011 Attorney for Plaintiff Jonathan . Crist, Esq. 22 . Chocolate Avenue ershey, PA 17033-1570 Attorney for Defendant Westwood Hills Associates, LLC 1943 Monterey Drive Mechanicsburg, PA 17050 Attn: Donald H. Erwin :rc ' "7two `.r f,; ;: ?: i 8s d JERRY W. SIMPSON, Plaintiff V. WESTWOOD HILLS, ASSOCIATES, LLC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2008-4553-CV CIVIL ACTION - LAW JURY TRIAL DEMANDED PETITION FOR LEAVE TO WITHDRAW APPEARANCE PURSUANT TO Pa.R.C.P 1012(c) The undersigned attorney, JONATHAN M. CRIST, Esq. ("CRIST") who is currently representing Defendant, WESTWOOD HILLS ASSOCIATES, LLC, ("WESTWOOD"), in the above captioned matter respectfully moves this Court for an Order withdrawing his appearance as counsel for WESTWOOD and in support thereof states: 1.) The above captioned collection action was commenced by Plaintiff, JERRY W. SIMPSON ("SIMPSON"), on July 29, 2008 seeking the sum of $12,909.00 allegedly due SIMPSON under an Independent Contractor Agreement with Defendant WESTWOOD. 2.) WESTWOOD is a single member Pennsylvania limited liability company owned by DONALD H. ERWIN (" ERWIN") 3.) The current address for WESTWOOD is ERWIN'S personal residence located at 1943 Monterey Drive, Mechanicsburg, PA 17050. 4.) SIMPSON's Complaint was served on WESTWOOD on or about September 15, 2008. 5.) WESTWOOD filed its Answer With New Matter and Counterclaim in this matter on October 24, 2008. 6.) On November 12, 2008 CRIST presented ERWIN with a consolidated invoice for his legal services covering multiple matters for which CRIST had been representing either ERWIN personally and/or one of ERWIN's four controlled business entities (including WESTWOOD) which invoice included services for CRIST's representation of WESTWOOD in the above captioned SIMPSON matter. 7.) In response to the presented invoice as aforesaid, ERWIN informed CRIST that CRIST's representation of ERWIN and all four of ERWIN's various business enterprises (including WESTWOOD) was being immediately terminated and that ERWIN would obtain other counsel to represent the interests of each of his various business entities (including WESTWOOD) in those matters where CRIST was involved. 8.) To the best of CRIST's knowledge and information, to date ERWIN has not obtained other counsel to represent WESTOOD in the above captioned SIMPSON matter. 9.) Pursuant to Cumberland County Rule 208.2(d), the undersigned has obtained the concurrence of John H. Pietrak, Esq of Reager & Adler. P.C. attorney for SIMPSON in the above captioned matter with regard to this Petition. WHEREFORE, the undersigned JONATHAN M. CRIST, requests this Honorable Court to issue unto WESTWOOD HILLS ASSOCIATES, LLC a Rule To Show Cause, if any it has, why JONATHAN M. CRIST should not be permitted to withdraw his appearance for WESTWOOD in the above captioned matter. DATE: /Z -o/ -o Y Respectfully Submitted, 4///, 4 ? ? Jo an M. Crist, Esq. Atty ID 29936 226 W. Chocolate Ave. Hershey, PA. 17033-1570 PH: (717) 533-6600 FX: (717) 533-8418 JERRY W. SIMPSON, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2008-4553-CV WESTWOOD HILLS, CIVIL ACTION - LAW ASSOCIATES, LLC. Defendant JURY TRIAL DEMANDED VERIFICATION I, JONATHAN M. CRIST, ESQ. hereby verify that the averments of the foregoing Petition are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. §4904 relating to unsworn falsification to authorities. DATE: 02 -oi- or - 475y, e??W JO THAN M. CRIST . . .. • A . JERRY W. SIMPSON, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2008-4553-CV WESTWOOD HILLS, CIVIL ACTION - LAW ASSOCIATES, LLC. Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 1 st day of December, 2008, I hereby certify that I have served a copy of the attached Petition For Leave To Withdraw Appearance Pursuant to Pa R.C. P. 1012(c) in the above captioned litigation upon the following by depositing a true and correct copy of the same in the United States Mail, postage prepaid, at Hershey Pennsylvania addressed to: John H. Pietrzak, Esq. REAGER & ADLER, P.C. 2331 Market Street Camp Hill, PA 17011 Attorney for Jerry W. Simpson Westwood Hills Associates, LLC 1943 Monterey Drive Mechanicsburg, PA 17050 Att: Donald H. Erwin 411,411 Jo han M. Crist, Esq. 226 W. Chocolate Ave. Hershey, PA. 17033-1570 C) ?,? - .."7 't»"" ^ :: -i y_ , t ? .. ?P...., ?+ ,, V f ?,t.1 ??,. .til /-t`, ,_ JERRY W. SIMPSON, Plaintiff V. WESTWOOD HILLS, ASSOCIATES, LLC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2008-4553-CV CIVIL ACTION - LAW JURY TRIAL DEMANDED MOTION TO MAKE RULE ABSOLUTE RE: PETITION TO WITHDRAW APPEARANCE The undersigned attorney, JONATHAN M. GRIST, ESQ. hereby makes the following Motion To Make Rule Absolute in regards to his Petition To Withdraw Appearance in the above captioned matter and represents: 1.) Petitioner filed his Petition To Withdraw Appearance Pursuant To Pa.R.C.P 1012 (c) ("Petition") on or about December 1, 2008. A copy of this Petition is attached as Exhibit "A„ 2.) Upon consideration of said Petition, on December 4, 2008, this Court entered an Order with Rule To Show Cause why the relief demanded in the Petition should not be granted. A copy of this Court's Order dated December 4, 2008 is attached hereto as Exhibit "B". 3.) On December 7, 2008 a copy of said Petition (Exhibit "A") and a copy of this Court's Order (Exhibit "B") were served together by hand delivery upon Defendant, Westwood Hills Associates, LLC, at its offices as more fully set forth in the Certificate of Service of Petition and Order attached hereto as Exhibit "C" 4.) No response or answer to the Petition has been filed by Defendant, Westwood Hills Associates, LLC by the return date of the Rule as set forth in this Court's Order dated December 4, 2008. WHEREFORE, the undersigned Petitioner, JONATHAN M. CRIST, ESQ. requests this Court issue an Order granting his Petition To Withdraw As Counsel for Defendant, WESTWOOD HILLS ASSOCIATES, LLC in the above-captioned matter. Respectfully Submitted, DATE: (L- 2_3 _U 4W4(41 J an M. Crist, Esq. Atty ID 29936 226 W. Chocolate Ave. Hershey, PA. 17033-1570 PH: (717) 533-6600 FX: (717) 533-8418 EXHIBIT «A» JERRY W. SIMPSON, Plaintiff V. WESTWOOD HILLS, ASSOCIATES, LLC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2008-4553-CV CIVIL ACTION - LAW JURY TRIAL DEMANDED PETITION FOR LEAVE TO WITHDRAW APPEARANCE PURSUANT TO Pa.R.C.P 1012(c) The undersigned attorney, JONATHAN M. CRIST, Esq. ("CRIST") who is currently representing Defendant, WESTWOOD HILLS ASSOCIATES, LLC, ("WESTWOOD"), in the above captioned matter respectfully moves this Court for an Order withdrawing his appearance as counsel for WESTWOOD and in support thereof states: 1.) The above captioned collection action was commenced by Plaintiff, JERRY W. SIMPSON ("SIMPSON"), on July 29, 2008 seeking the sum of $12,909.00 allegedly due SIMPSON under an Independent Contractor Agreement with Defendant WESTWOOD. 2.) WESTWOOD is a single member Pennsylvania limited liability company owned by DONALD H. ERWIN (" ERWIN") 3.) The current address for WESTWOOD is ERWIN'S personal residence located at 1943 Monterey Drive, Mechanicsburg, PA 17050. 4.) SIMPSON's Complaint was served on WESTWOOD on or about September 15, 2008. 5.) WESTWOOD filed its Answer With New Matter and Counterclaim in this matter on October 24, 2008. 6.) On November 12, 2008 GRIST presented ERWIN with a consolidated invoice for his legal services covering multiple matters for which CRIST had been representing either ERWIN personally and/or one of ERWIN's four controlled business entities (including WESTWOOD) which invoice included services for CRIST's representation of WESTWOOD in the above captioned SIMPSON matter. 7.) In response to the presented invoice as aforesaid, ERWIN informed CRIST that CRIST's representation of ERWIN and all four of ERWIN's various business enterprises (including WESTWOOD) was being immediately terminated and that ERWIN would obtain other counsel to represent the interests of each of his various business entities (including WESTWOOD) in those matters where CRIST was involved. 8.) To the best of CRIST's knowledge and information, to date ERWIN has not obtained other counsel to represent WESTOOD in the above captioned SIMPSON matter. 9.) Pursuant to Cumberland County Rule 208.2(d), the undersigned has obtained the concurrence of John H. Pietrak, Esq of Reager & Adler. P.C. attorney for SIMPSON in the above captioned matter with regard to this Petition. WHEREFORE, the undersigned JONATHAN M. CRIST, requests this Honorable Court to issue unto WESTWOOD HILLS ASSOCIATES, LLC a Rule To Show Cause, if any it has, why JONATHAN M. CRIST should not be permitted to withdraw his appearance for WESTWOOD in the above captioned matter. Respectfully Submitted, DATE: (2--u(_ a 9' 2-?? ?;t JJonatIfA M. Crist, Esq. Atty ID 29936 226 W. Chocolate Ave. Hershey, PA. 17033-1570 PH: (717) 533-6600 FX: (717) 533-8418 JERRY W. SIMPSON, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2008-4553-CV WESTWOOD HILLS, CIVIL ACTION - LAW ASSOCIATES, LLC. Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 1 st day of December, 2008, I hereby certify that I have served a copy of the attached Petition For Leave To Withdraw Appearance Pursuant to Pa R.C. P. 1012(c) in the above captioned litigation upon the following by depositing a true and correct copy of the same in the United States Mail, postage prepaid, at Hershey Pennsylvania addressed to: John H. Pietrzak, Esq. REAGER & ADLER, P.C. 2331 Market Street Camp Hill, PA 17011 Attorney for Jerry W. Simpson Westwood Hills Associates, LLC 1943 Monterey Drive Mechanicsburg, PA 17050 Att: Donald H. Erwin 4Jon ' an M. Crist, Esq. 226 W. Chocolate Ave. Hershey, PA. 17033-1570 EXHIBIT «B» JERRY W. SIMPSON, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW WESTWOOD HILLS ASSOCIATES, LLC, Defendant NO. 08-4553 CIVIL TERM ORDER OF COURT AND NOW, this 41h day of December, 2008, upon consideration of the Petition for Leave To Withdraw Appearance Pursuant To Pa. R.C.P. 1012(a), a Rule is hereby issued upon the Plaintiff and Defendant to show cause why the relief requested should not be granted. RULE RETURNABLE within 14 days of service. BY THE COURT, Wesley O s? r., John H. Pietrzak, Esq. 2331 Market Street Camp Hill, PA 17011 Attorney for Plaintiff Jonathan . Crist, Esq. 22 Chocolate Avenue ershey, PA 17033-1570 Attorney for Defendant Westwood Hills Associates, LLC 1943 Monterey Drive Mechanicsburg, PA 17050 Attn: Donald H. Erwin :rc ±• Oki, r4 ^ Y ?. T aV? `: ???ytj -•1 ?: .'ry ,L Y ?Y r ij • y- ? Flip. , F•?? t try 4 EXHIBIT «c„ JERRY W. SIMPSON, IN THE COURT OF COMMON PLE ; Plaintiff CUMBERLAND COUNTY, PENNS?'V AA V. NO. 2008-4553-CV _ cn WESTWOOD HILLS, CIVIL ACTION - LAW ASSOCIATES, LLC. Defendant JURY TRIAL DEMANDED -? , CERTIFICATE OF SERVICE OF PETITION AND ORDER I hereby certify that on December 7, 2008 at 12:1OPM, I personally served a copy of the attached Petition For Leave To Withdraw Appearance Pursuant To Pa. R.C. P. 1012(a) along with a certified copy of the attached Order of Court dated December 4, 2008 upon WESTWOOD HILLS ASSOCIATES, LLC at its principal place of business at 1943 Monterey Drive, Mechanicsburg, PA 17050 by handing a copy to Patricia Provenzano-Erwin, wife of Donald H. Erwin (sole member of Westwood Hills Associates, LLC) the person then in charge of the office at that time. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. §4904 relating to unsworn falsification to authorities. DATE: ? 2 -// - 2?V Q, e, 0. /."? - dAathan M. Crist, Esq 226 West Chocolate Ave. Hershey, PA. 17033-1570 PH: (717) 533-6600„ FX: (717) 533-84.18 JERRY W. SIMPSON, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2008-4553-CV WESTWOOD HILLS, CIVIL ACTION - LAW ASSOCIATES, LLC. Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 23rd day of December, 2008, I hereby certify that I have served a copy of the attached Motion To Make Rule Absolute RE: Petition For Leave To Withdraw Appearance Pursuant to Pa R.C. P. 1012(c) in the above captioned litigation upon the following by depositing a true and correct copy of the same in the United States Mail, postage prepaid, at Hershey Pennsylvania addressed to: John H. Pietrzak, Esq. REAGER & ADLER, P.C. 2331 Market Street Camp Hill, PA 17011 Attorney for Jerry W. Simpson Westwood Hills Associates, LLC 1943 Monterey Drive Mechanicsburg, PA 17050 Att: Donald H. Erwin , *? 9 Joan M. Crist, Esq. 22 W. Chocolate Ave. Hershey, PA. 17033-1570 C?:7 C-1 T t ,DEC ?9 JERRY W. SIMPSON, IN THE COURT OF COMMON PLEAS ?I Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2008-4553-CV WESTWOOD HILLS, CIVIL ACTION - LAW ASSOCIATES, LLC. Defendant JURY TRIAL DEMANDED ORDER AND NOW this day of December, 2008 upon consideration of the Petition of Jonathan M. Crist, Esq. For Leave To Withdraw Appearance on behalf of Defendant, Westwood Hills Associates, LLC ("Petition"), there being no response to said Petition filed after service on December 7, 2008 of this Court's Order with Rule To Show Cause dated December 4, 2008 directing response to said Petition within fourteen (14) days of service, it is hereby ordered and decreed that Jonathan M. Crist is withdrawn as counsel for Defendant Westwood Hills Associates, LLC. BY THE COURT: J. /26?n H. Pietrzak, Esq. REAGER & ADLER, P.C. 2331 Market Street Camp Hill, PA 17011 Attorney for Plaintiff /nathan M. Crist, Esq. J 226 W. Chocolate Ave. Hershey, PA 17033-1570 Xestwood Hills Associates, LLC 1943 Monterey Drive Mechanicsburg, PA 17050 Att: Donald H. Erwin L 1 0 I.,Id 0£ 330 0001 L .JV- " N. REAGER & ADLER, P.C. BY: JOHN H. PIETRZAK Attorney I.D. No. 79538 Email: Jpietrzak@ReagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Plaintiff Jerry W. Simpson JERRY W. SIMPSON, Plaintiff V. WESTWOOD HILLS ASSOCIATES, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2008-4553-CV : CIVIL ACTION - LAW : JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: Please mark this matter as settled and discontinued with prejudice. Respectfully submitted, REAGER & ADLER, P.C. Date: February 13, 2009 ire k1H. etrzak, Esq 8 .D. N o. 79538 Thomas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Plaintiff + 4 REAGER & ADLER, PC By: JOHN H. PIETRZAK, ESQUIRE Attorney I.D. #79538 By: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. #67987 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Email: JPietrzakaa reageradlerpc.com JERRY W. SIMPSON, Plaintiff v. WESTWOOD HILLS ASSOCIATES, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2008-4553-CV CIVIL ACTION -LAW : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing Praecipe to Mark Settled and Discontinued was served via first class U.S. mail, postage prepaid, to the following: Don Erwin, President Westwood Hills Associates, LLC 1943 Monterey Drive Mechanicsburg, PA 17050 Dated: February 13, 2009 4Jica Shull Legal Assistant, Reager & Adler C7 ? 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