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HomeMy WebLinkAbout08-4860COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS NOTICE OF APPEAL Judicial District, County Of Cumberland FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. O NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. 1907 Fry Loop Avenue )ATE OF JUDGMENT IN Carlisle 07/16/2008 IShaffers concrete construction . Ora Jean CV-0000045-08 This block will be signed ONLY when this notation its required under Pa. R.C.P.D.J. No. 10086. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. SOWtu s of Piwlwnatary or DspW was in action before a District Justice, A COMPLAINT MUST BE FILED within twenty (20) days after filing the NOTICE of APPEAL. 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 District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon Shaffers Concrete Construction appellee(s), to file a complaint in this appeal /+, (?i L t Name of appellees) (Common Pleas No. V b 4 v f0 +?r within twenty (20) days afte4e ice of ru r su r"ntry of judgment of non pros. RULE: To Shaffers Concrete Construction . appellee(s) Name of appedee(s) PA 17013 of appellant or aNomey or agent (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: 20 Q ? s f.Aw signature or ary or Deputy YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 WHITE -COURT FILE TO BE FILED WITH PROTHONOTARY GREEN - COURT FILE YELLOW- APPELLANTS COPY PINK -COPY TO BE SERVED ON APPELLEE GOLD -COPY TO BE SERVED ON DISTRICT JUSTICE PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED IMTHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I hereby (swear) (affirm) that I served ? a copy of the Notice of Appeal, Common Pleas , upon the District Justice designated therein on (date of service) 20 , ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name) , on ,20 ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto. (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF 20 Signature of affiant Signature of official before whom affidavit was made TWO of official My commission expires on 20 a? 9 •? polsZ ',3 4 $ Vftr'I mv, 'z wd C1 ? eoo? AdVIC)IV()r uOud a 301?# ?0 COMMONWEALTH OF PENNSYLVANIA COUNTY OF• CUMBERLAND Mag. Dist. No.: 09-2-01 MDJ Name: Hon. PAULA P. CORREAL Address: 2260 SPRING RD SUITE #3 CARLISLE, PA Telephone: (717 ) 218-5250 17013-0000 ATTORNEY DEF PRIVATE : ROBERT J. DAILEY 19 N SOUTH ST CARLISLE, PA 17013 THIS IS TO NOTIFY YOU THAT: Judgment: FOR PLAINTIFF NOTICE OF JUDGMENTYTRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS ISHAFFERS CONCRETE CONSTRUCTION 7 105 STEELSTOW RD NWVILLE, PA 17241 L J VS. DEFENDANT: NAME and ADDRESS rPERRY O -1 , RAJEAN 1907 FRYLOOP AVENUE CARLISLE, PA 17013 L J Docket No.: CV-0000045-08 Date Filed: 4/01/08 (Date of Judgment) 7/16/08 ® Judgment was entered for: (Name) SHAFFERS CONCRETE CO, NSTRUCTI rX1 Judgment was entered against: (Name) PERRY, ORAJEAN in the amount of it 3,111.5) Defendants are jointly and severally liable. Damages will be assessed on Date & Time This case dismissed without prejudice. ? Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 Portion of Judgment for physical damages arising out of residential lease $ Amount of Judgment $ 3,000.00 Judgment Costs $ 111. St Interest on Judgment $ • Attorney Fees $ .00 Total $ 3,111.58 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. _ UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE - A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL,, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. 4 Date I certify that,this-,is:a, true' and Date -? Z copy fthe e c My commission expires first Monday of January, 2012 AOPC 315-07 Magisterial District Judge; :ee's col tair in the juil`grrterit. .di , M'?gigteri4l District Judge' % 'a SEAL I "Pren DATE PRINTED: 7/17/08 12:38:00 PM (Domestic Mail Only; No Insurance Coverage Provic -• For delivery information visit our website at www.usps.corr M rt-t Postage $ 43 Certified Fee rq Post mrk O Return Receipt Fee p (Endorsement Required) O Restricted Delivery Fee Q (Endorsement Require d) v? t.rt . J r-q Total Postage & Fees $ - -- -? C3 s2, et C3 or PO Box No.5!! W Sl._? CY Q 1171 C!ty . Z1Pr4. ii •^•° • •?•• ?c ?1...-°---. 3 sla ptnn 0uu_l;K l-701 N co 1 I 1' 1 1 1 ' 0 .. M Postage $ ?t co Certified Fee r-q O E3 Return Receipt Fee (Endorsement Required) {{?? PrJistmark ?l V Here O Restricted Delivery Fee (Endorsement Required) C3 u7 n ra Total Postage & Fees $ J . 3 N r C-3 t Sent To?(? t APt. . No.; ? ,mot 1L ? rr%- or PO Box No. 3U So_w! ! r 1 vitX v P "10 3 PS Foini 3800 ALIgUst r PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF Cumberland ; ss AFFIDAVIT- I hereby (swear) (affirm) that I served ® a copy of the Notice of Appeal, Common Pleas 08-4860 , upon the District Justice designated therein on (date of service) August 13 2008 , ? by personal service ® by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name) gaffers Cbrxxete Oonstruc tip , on August 13 20 08 ? by personal service 91 by (certified) (re istered) mail, sender's receipt attached hereto. A /1 _ AM (SWOR AFFIRMED) AND UBSCRI ED BEFORE ME THIS J DAY OF V 20_Q_L. L Signature of affient Signature of officiat before whom affidavit was made No6ilu Pubri'c Title of official V My commission expires on A 6 / 17 200 nVANIN C At OWN L. Nowy Public caw* em dwafto oom- - Am l?. am* solo nAerne.r, C= o C3 m w COMMONWEALTH OF COURT OF COMMON Judicial District, County Of Cumberlano NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No.? NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. ADDRESS OF AMEUANT GU r- .--_ SIAM 4W UV M 1907 Fly Loop Avenue Carlisle 1,701 DATE OF JUDGMENT IN THE CASE OF V%k*M (owl' 07/16/2008 ISbaffers Concrete construction . urea can CV-0000045-08 when tht nota*m is in R.C.P.D.J. No. 10088. ?...,,,,._.1 This Notice of Appeal, when received by the District Justice, will operate as a before a Distdd Justice, A COMPLAINT MUST BE F(L.ED within twenty SUPERSEDEAS to the judgment for . In Oft case. 1 (20) days afrisr tag the fvtarfcE of APPEAL. sryn.rur.ofAafft-a ry-DV* PRMCM TO ENTER RULE TO FILE COMPLAINT A RULE TO FILE (This section of foim to be used ONLY when appellant was DEFENDANT (see P&RC.P.D.J. No. 1001(7) in action before Disc et Justice. IF NOT USED, detach from copy of nodes of appeal to be ssiasd upon aApefte PRAECIPE: To Prothonotary Enter rule upon Shaffers Concrete Construction aPPe (s), to file a complaint in #tis appeal Named SPIN/WS) (Common Pleas No. * d, Within twenty, (20) clays all of su rentry of judgment of non pros. 0 Sigenettire oisApeftnt oraeorney or agerd RULE: To Shaffers Concrete Construction , appellee(s) J` NWW daprPNOats) (1) You are notified that a rum is hereby entered upon you to file a complaint in Oft appeal within twertly (20) days after the dal of service of this rule;upon youby naf service or by cerltilsd or registered mail. (2) If you do not file a oomplairlt within this time, a JUDGMENT OF NON PROS MAY, BE ENTERED ACA{NST YOU. (3) The date of service of this rude if service was by mail is on deft of the malting. i° Date: j200 ( is ;cox YOU MUST I LUM A COPY OF THE NOTICE OF JUDGMENTITRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 WHITE - COURT FILE TO BE FILED WTrH PROTHONOTARY GREEN - COURT FILE YELLOW- APPELLANTS COPY PINK - COPY TO t>IE SERVED ON APPELLEE GOLD - COPY TO BE SERVED ON DiSTRWr JUSTICE OM & U, ILAKIS lVayne Melnick, Esquire Attorney I.D. No.: 53150 36 South Hanover Street Carkrle, Pennsylvania 17013 (717) 249-0900 SHAFFER'S CONCRETE CONSTRUCTION Plaintiff V. ORA JEAN PERRY Defendant DOCKET NO.: 08-4860 Civil 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 an 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 FOR BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9180 or (717) 249-3166 ul?OM & ULAKIS W6ne Melnick, Esquire Attorney I.D. No.: 53150 36 South Hanover Street Carlisle, Pennsylvania 17013 (717) 249-0900 SHAFFER'S CONCRETE CONSTRUCTION Plaintiff V. ORA JEAN PERRY Defendant DOCKET NO.: 08-4860 Civil COMPLAINT AND NOW, comes the Plaintiff, Derek Shaffer, d/b/a Shaffer's Concrete Construction, by and through his Attorneys, Abom & Kutulakis, LLP, and makes the following Complaint against the Defendant, OraJean Perry, as follows: 1. The Plaintiff is Derek Shaffer, doing business as Shaffer's Concrete Construction, with an address of 105 Steelstown Road, Newville, PA 17241. 2. The Defendant is Orajean Perry, with an address of 1907 Fryloop Avenue, Carlisle, PA, 17013. 3. The parties entered into a contract for construction services dated September 12, 2007, a copy of which is attached hereto and marked as Exhibit A. 4. The contract between the parties includes a fixed contract price of $14,000, for the work involved plus the possibility of additional costs to be paid by Defendant. 5. Defendant paid a $10,000 down payment to Plaintiff for the work to be performed. 6. During the course of the contract, Plaintiff completed $13,200 worth of work including $700 additional costs above and beyond the original contract amount for hauling excess dirt. 7. Plaintiff completed all work under the contract except for completion of the last $1,500 worth of concrete work to provide a cement slab for Defendant's garage floor. 8. A dispute arose between the parties as to whether weather conditions were conducive to the completion of the work. 9. Defendant's chose not to wait for acceptable weather conditions and instead did not allow Mr. Shaffer to complete the last $1,500 of work. 10. The Plaintiff has made demand upon Defendant's for payment of the $13,200 of completed work less Defendant's $10,000 deposit. 11. Plaintiff has made numerous demands for payment of the $3,200 outstanding balance. 12. Defendant's have refused all demands to pay the outstanding $3,200 balance owed to Plaintiff. 13. An outstanding balance in the amount of $3,200 still remains due and payable by the Defendant to the Plaintiff. WHEREFORE, the Plaintiff respectfully demands judgment against the Defendant in the amount of $3,200, plus interest and costs on the ground that Defendant has failed to pay for time and materials performed and provided. Respectfully submitted, DATE ? .,?? ABOM & KuTuLAKIS, LLP Wayne Melnick, Esquire 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 ID No. 53150 VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. understand that false statements herein are made subject to the penalties of Pa.C.S. §4904, relating to unsworn falsification to authorities. 1? a C)06e) Date erek Sha r Shaffer's Concrete Construction 105 Steelstown Rd Newville, PA 17241 Telephone: 717-226-0267 Servicing Central Pennsylvania for ... Sidewalks - Driveways - Basements - Porches - Patios Stamped Concrete - General Construction - Pole Buildings - Decks Remodeling & Roofing FREE ESTIMATES - FULLYINSURED Contractor Agreement: THIS AGREEMENT made the ? day of .S e. , 20 07 by and between Sha er's Concrete Construction hereinaf&r called the Contractor and ct , hereinafter called the Owner. WITNESSETH, that the Contractor and the Owner for the considerations named agree as follows: Article L Scope of the Work The Contractor shall furnish all of the materials and perform all of the work shown on the drawings and/or described in a specificatio s for the work to be performed on property at 190 rr,460 ffy, (l,.r'I ;s Article La S 5x00 IN .- Mn W r 7 'Mi C [ -} NSA ^ J 1'1? ?E? r 1T(d ,9C' - ---Article-2.--Time-of-Completion- -- The work p?ed under this Contract shall be commenced on or before -ILL and shall be substaintially completed on or fore ?? . Time is of the essence. The follo p suUtan?tia A-1 co tion of wo ursuant to this proposal and contract: mow. - Article 3. Addition Costs The work to be performed at the above stated property may be subject to additional costs after start of work and contract signing. The following constitutes additional costs in materials and labor: Jackhammer rental (receipt provided upon completion) due to obstruction too big for a machine that is on site (skid loaderlbackhoe) to remove, unless included in the contract price. Jackhammer labor is S50DAh Per laborer. Removal of dirt, extra stone, concrete. stumps ect unless included in the contract orrice. Repair or replacement of underground wiring, Pipinz ect. unless contractor was aware of this which was stated by owner in Article S. Article 4. The Contract Price The Owner shall pay the Contractor for the mate al and labor to be performed under the Contract the sum of Dollars ($ [y 'uO subject to additions and deductions pursuant to authorized change orders. Article 4.a Progress Payments Payments of the contract price shall be paid in the manner following: Note: Payments are to be made on time as specified above or work will be suspended until payment is received. 9 • Article 5. Owner Responsibility Owner is responsible for divulging any information that would be pertinent to the services and completion of the project. This could be but not limited to: Septic tanks, underground drainage, anderground wiring, ect... Should the Owner fail to provide this pertinent information and there are any damages, costs, and/or liabilities passed on to the contractor, the owner will be legally responsible in these situations. Article 5.a Specify (owner) Article 6. General Provisions Any alteration or deviation from the above specifications, including but not limited to any such alteration or deviation involving additional material and/or labor costs, will be executed upon a written order or notification by phone or person. If there is any charge fm Auch alteration or deviation, the additional charge will be added to the contract price or this contract and due upon next scheduled payment. If payment is not made when due, Contractor may suspend work on the job until such time as all payments due have been made. A failure to make payment for a period in excess of THREE (3) days from the due date of the payment shall be deemed a material breach of this contract, and further actions, such as legal, may be taken. Signed this day of 20 d 7 Contractor: Derek Shaffer Address: 105 Steelstown Rd. Newville. Pa 17241 Telephone # : 717-7,7 7 ,P Signature: F Owner: C?Gr:f ti fy. Signature: .u ,.00, I I 1 { I ? ? ? .,,ate 1 t ? r? z t l C ? i l ?t oy I + f ? i I ? v w i ? I ,ry G J ' CERTIFICATE OF SERVICE AND NOW, this 15?)day of September, 2008, I, Wayne Melnick, Esquire, of Abom & Kutulakis, L.L.P, hereby certify that I did serve a true and correct copy of the foregoing Complaint, upon the Defendant by depositing, or causing to be deposited, same in the United States Mail, postage prepaid addressed to the following: Robert J. Dailey, Esquire O'Brien, Baric & Scherer 19 W. South Street Carlisle, PA 17013 Respectfully submitted, Abom & Kutulakis, L.L.P. Wayne Me ck, Esquire r-? "" i ?°-? t1 4 ?. ? ti ? ?'•rrJ a'?Y ?„? ? ( . ?' r-'f _,.. °?.`.. . Vi'i`. t L.*? y.t . •? a .-s.. .. SHAFFER'S CONCRETE CONSTRUCTION Plaintiff, V. ORA-JEAN PERRY Defendant V. DEREK SHAFFER, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CASE NO. 2008-4860 CIVIL TERM CIVIL ACTION -LAW Additional Defendant : NOTICE TO PLEAD TO: ABOM & KUTULAKIS Wayne S. Melnick, Esquire 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 You are hereby notified that you have twenty (20) days in which to plead to the enclosed New Matter and Counterclaim or a Default Judgment may be entered against you. GERBER & ASSOCIATES Robert J. Dailey, qu c Supreme Ct. I.D. 203 8 46 East Main Street Palmyra, PA 17078 (717) 838-5411 Attorney for Defendant L SHAFFER'S CONCRETE CONSTRUCTION IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, V. PENNSYLVANIA ORA-JEAN PERRY Defendant CASE NO. 2008-4860 CIVIL TERM V. DEREK SHAFFER, Additional Defendant : : CIVIL ACTION - LAW ANSWER, NEW MATTER, and COUNTERCLAIM AND NOW, comes Defendant, Ora-Jean Perry, by and through her attorneys, GERBER & ASSOCIATES, and files the within Answer, New Matters, and Counterclaims and, in support thereof, sets forth the following: 1. Admitted in part; denied in part. It is admitted that the address of Shaeffer's Concrete is 105 Steelstown Road, Newville, PA 17241. It is denied that the address of Derek Shaffer is the same. 2. Admitted. 3. Admitted. 4. Admitted. By way of further information, the document speaks for itself. 5. Admitted. 6. Denied. An accounting thereof is demanded. 7. Denied. An accounting thereof is demanded. 8. Denied. Plaintiff and Additional Defendant failed and refused to complete the work, despite weeks and months of adequate weather conditions. 9. Denied. Defendant waited through weeks and months of acceptable weather conditions for performance while Plaintiff and Additional Defendant, without excuse, failed to perform. 10. Admitted. 11. Admitted. 12. Admitted. 13. Denied. Due to Plaintiff and Additional Defendant's continued failure to perform, Defendant was forced to contract with a separate individual to complete the floors, which that individual performed immediately. Defendant was also forced to repair and replace many items broken and destroyed by Plaintiff and Additional Defendant or by their employees while on the job. Wherefore, Defendant respectfully requests that this Honorable Court dismiss Plaintiff and Additional Defendant's complaint and find in favor of Defendant, assessing all costs, expenses and attorney's fees against Plaintiff and Additional Defendant. NEW MATTER 14. Defendant incorporates by reference paragraphs one (1) through thirteen (13) of her Answer as though set forth at length. 15. Plaintiff and Additional Defendant's claims are barred by justification. 16. Plaintiff and Additional Defendant's claims are barred by their own anticipatory repudiation of the Agreement. 17. Plaintiff and Additional Defendant's claims are barred by frustration. 18. Plaintiff and Additional Defendant's claims are barred in whole or in part by their own actions or inactions. 19. Plaintiff and Additional Defendant's claims are barred by unclean hands. Wherefore, Defendant respectfully requests that this Honorable Court dismiss Plaintiff and Additional Defendant's complaint and find in favor of Defendant, assessing all costs, expenses and attorney's fees against Plaintiff and Additional Defendant. COUNTERCLAIM 20. Defendant incorporates by reference paragraphs one (1) through nineteen (19) of her Answer and New Matter as though set forth at length. 21. Additional Defendant is Derek Shaffer, an adult individual who resides at 52 Parsonage Street, Newville, PA 17241 and who does business as Shaffer's Concrete Construction. 22. On September 12th, 2007, Plaintiff and Additional Defendant entered into a construction agreement (the "Agreement") for the price of $14,000 plus the cost to remove dirt. 23. Plaintiff and Additional Defendant drafted the Agreement and expressly stated that "the work to be performed... shall be substantially completed on or before October 30th, 2007. Time is of the essence" (emphasis added). 24. Defendant waited until January 7, 2008 for Plaintiff and Additional Defendant to complete the garage floor, which was a material term to the Agreement. 25. Plaintiff and Additional Defendant never completed the garage floor. 26. On or about January 7, 2008, Defendant called Jason Tiday to complete the garage floors. 27. Jason Tiday completed the floors on January 9, 2008 - less than forty-eight (48) hours after having received the job request. 28. Plaintiff and Additional Defendant left Defendant's property without laying the garage floor, which, although Plaintiff and Additional Defendant claim would cost only $1,200, actually cost Defendant $2,900 to be completed by Jason Tiday. 29. Plaintiff and Additional Defendant left Defendant's property without grading the dirt, properly parging the block foundation or waterproofing the crawl space and stair well, which, by estimate of Jason Tiday, will cost Defendant $1,250 to correct. 30. Plaintiff and Additional Defendant broke and destroyed a concrete step that cost Defendant $700 to replace. 31. Plaintiff and Additional Defendant broke and destroyed a deck and steps thereto that cost Defendant $660 to replace. Count I - Breach of Contract 32. Defendant hereby incorporates paragraphs one (1) through thirty-one (31) as though set forth at length. 33. Plaintiff and Additional Defendant promised to substantially complete construction by October 30, 2007 in exchange for Defendant's up-front payment of $10,000 and payment upon completion of $4,000. 34. Plaintiff and Additional Defendant drafted the Agreement and expressly stated that time is of the essence. 35. Defendant paid $10,000 towards the construction. 36. Plaintiff and Additional Defendant did not complete the work by October 30, 2007; indeed, they did not complete the work by January 7, 2008 when Defendant finally hired another contractor to complete her garage floor. 37. Plaintiff and Additional Defendant's failure to complete the garage floor as contracted-for amounts to a material breach of the Agreement. 38. Defendant's cost to complete the garage was $2,900. 39. Implied in every construction contract is the duty to complete the job in a workman- like manner. 40. Plaintiff and Additional Defendant failed to properly grade and excavate the dirt they had disturbed, failed to properly parge exposed block, and failed to waterproof the crawlspace and stair well foundation. 41. Further, Plaintiff and Additional Defendant broke and destroyed Defendant's concrete step and wooden deck and steps. 42. Plaintiff and Additional Defendant's failure to complete the job in a workman-like manner amounts to a material breach of the Agreement. 43. Defendant's cost to complete the project in a workman-like manner is $1,250 plus the cost to replace the concrete step, $700, and rebuild the wooden deck and steps, $660. WHEREFORE, Defendant requests judgment in her favor and against Plaintiff and Addition Defendant in the amount of $5,510 plus costs, expenses and attorney's fees. Respectfully submitted, GERBER & ASSOCIATES Robert J. Dailey, qui I.D. No. 203418 46 East Main Street Palmyra, PA 17078 (717) 838-5411 Attorney for Defendant VERIFICATION I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. RA JEAN P Y Dated: YIJ7 /e2,? SHAFFER'S CONCRETE CONSTRUCTION Plaintiff, V. ORA-JEAN PERRY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CASE NO. 2008-4860 CIVIL TERM Defendant V. CIVIL ACTION - LAW DEREK SHAFFER, ; Additional Defendant CERTIFICATE OF SERVICE I hereby certify that on September 19, 2008, I, Robert J. Dailey, Esquire, of GERBER & ASSOCIATES, did serve a copy of the Defendant's Answer, New Matter and Counterclaim by first class U.S. mail, postage prepaid, to the party's attorney listed below, as follows: ABOM & KUTULAKIS Wayne S. Melnick, Esquire 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 Attorney for Plaintiff, Additional Defendant C? Robert J. Dailey, C7 ^? ' ? , •+.,. > e X1.,1 i `7^- w TAB 2OM & &U l ULAKIS Wayne Melnick, Esquire Attorney I.D. No.: 53150 36 South Hanover Street Carlisle, Pennsylvania 17013 (717) 249-0900 SHAFFEWS CONCRETE CONSTRUCTION Plaintiff V. ORA JEAN PERRY Defendant DOCKET NO.: 08-4860 Civil NOTICE TO PLEAD You are hereby notified that you have twenty (20) days in which to plead to the enclosed New Matter or default judgment may be entered against you. • TAB 2OM & &U i ULAKIS Wayne Melnick, Esquire Attorney I.D. No.: 53150 36 South Hanover Street Carlisle, Pennsylvania 17013 (717) 249-0900 SHAFFER'S CONCRETE CONSTRUCTION Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : DOCKET NO.: 08-4860 Civil ORA JEAN PERRY Defendant PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER AND COUNTERCLAIM AND PLAINTIFF'S NEW MATTER AND NOW this 9t'' day of October, 2008, comes the Plaintiff, Derek Shaffer, d/b/a Shaffer's Concrete Construction, by and through his Attorneys, Wayne Melnick, Esquire of Abom & Kutulakis, LLP, and enters this reply to Defendant's New Matter and Counterclaim and files Plaintiff's New Matter as follows: 14. No responsive pleading necessary' 15. Denied. It is specifically denied that Plaintiffs claims are barred by justification. Specific proof to the contrary is demanded. 16. Denied. It is specifically denied that Plaintiff's claims are barred by the anticipatory repudiation of the Agreement. Specific proof to the contrary is demanded. 17. Denied. It is specifically denied that Plaintiff's claims are barred by frustration. Specific proof to the contrary is demanded. 18. Denied. It is specifically denied that Plaintiff's claims are barred in 1 Paragraphs 1 - 13 contain Defendant's Answer to Plaintiff's Complaint. 46 whole or in part by their own actions or inactions. Specific proof to the contrary is demanded. 19. Denied. It is specifically denied that Plaintiffs claims are barred by unclean hands. Specific proof to the contrary is demanded. 20. No responsive pleading is necessary. 21. Denied. Plaintiff is Derek Shaffer d/b/a Shaffer's Concrete Construction. 22. Denied. By way of further answer, the agreement of September 12, 2007, was entered into by Plaintiff and Defendant. 23. Admitted. 24. Denied. By way of further answer, Plaintiff informed Defendant that inclement weather was intervening and would detrimentally affect the durability of the garage floor. Plaintiff advised Defendant that the floor could suffer cracks if not installed under acceptable weather conditions. Defendant agreed to an extension of the target date of completion to allow the garage floor to be installed during a period of acceptable weather. 25. Admitted. 26. Denied. By way of further answer, Defendant informed Plaintiff in December of 2007 that the Defendant would contract with another contractor to complete installation of the garage floor. 27. Denied. After reasonable investigation, Plaintiff is unable to assert the truth or falsity of Defendant's allegation. To the extent an answer is required, it should be deemed denied. 28. Denied. After reasonable investigation, Plaintiff is unable to assert the truth or falsity of Defendant's allegation. To the extent an answer is required, it should be deemed denied. 29. Denied. After reasonable investigation, Plaintiff is unable to assert the truth or falsity of Defendant's allegation regarding what it will cost to correct. To the extent an answer is required, it should be deemed denied. n 30. Denied. After reasonable investigation, Plaintiff is unable to assert the truth or falsity of Defendant's allegation regarding replacement costs. To the extent an answer is required, it should be deemed denied. Defendant denies that Plaintiff broke and destroyed a concrete step. By way of further answer, Defendant asked Plaintiff to attempt to remove the concrete step in tact but was aware that the step could be damaged in the attempt at removal. 31. Denied. After reasonable investigation, Plaintiff is unable to assert the truth or falsity of Defendant's allegation regarding replacement costs. To the extent an answer is required, it should be deemed denied. It is denied that Plaintiff destroyed a deck and steps. Removal of the deck and step was part of the work requested by Defendant. 32. No responsive pleading necessary. 33. Amitted. 34. Admitted. 35. Admitted. 36. Admitted that Plaintiff did not complete the garage floor. The remainder of the allegation is denied. After reasonable investigation, Plaintiff is unable to assert the truth or falsity of Defendant's allegation. Specific proof to the contrary is demanded. 37. Denied as a conclusion of law. 38. Denied. After reasonable investigation, Plaintiff is unable to assert the truth or falsity of Defendant's allegation. To the extent an answer is required, it should be deemed denied. 39. Denied as a conclusion of law. 40. Denied. Plaintiff properly completed all work for which Defendant has been charged. 41. Denied. See response to paragraphs 30 and 31 supra. 42. Denied as a conclusion of law. Wherefore, strick proof thereof is demanded. 43. Denied as a conclusion of law. Wherefore, strick proof thereof is demanded. NEW MATTER 44. Plaintiff incorporates by reference paragraphs 14 through 43 of Plaintiff's reply to Defendant's New Matter and Counterclaim as though set forth at length. 45. Defendant's claims are barred by her own anticipatory repudiation of the agreement. 46. Defendant's counterclaims are barred in whole or in part by her own actions or inactions. 47. Defendant's counterclaims are barred by unclean hands. 48. Plaintiff asserts that Defendant's counterclaims were caused by intervening and/or by superseding causes not within the control of Plaintiff. 49. Some or all of Defendant's alleged counterclaim may have resulted from pre-existing conditions of the premises, fixtures, and/or attachments not related to the actual acts and/or omissions of the Plaintiff. 50. To the extent that discovery in this case and the facts produced at Trial demonstrate the availability of any of the affirmative defenses preserved by virtue of the provisions of the Pennsylvania Rules of Civil Procedure. Plaintiff reserves the right to offer such facts in support of any such affirmative defense so preserved. Plaintiff reserves the right to amend this reply to Defendant's Counterclaim and New Matter to plead the existence of any additional affirmative defenses that may become available or known to Plaintiff or in the course of discovery in this case or subsequent to the time of the filing of this reply to Plaintiff's reply to Defendant's New Matter and Counterclaim and Plaintiff's New Matter. Respectfully submitted, DATE ABOM & KUTULAKIS, LLP Wayne elnick, Esquire 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 ID No. 53150 CERTIFICATE OF SERVICE AND NOW, this 9`h day of October, 2008, I, Wayne Melnick, Esquire, of Abom & Kutulakis, L.L.P, hereby certify that I did serve a true and correct copy of the foregoing Complaint, upon the Defendant by depositing, or causing to be deposited, same in the United States Mail, postage prepaid addressed to the following: Robert J. Dailey, Esquire 46 East Main Street Palmyra, PA 17078 Respectfully submitted, Abom & Kutulakis, L.L.P. Wayne Melnick, Esquire L,.? ? ?? •'t_' '9 ?x?t?: "s? _ .,,,. .c ' .? . ' .' ?? .+... f ? '.:?? C.° x "? 1% SHAFFER'S CONCRETE CONSTRUCTION, Plaintiff V. ORA-JEAN PERRY, V. DEREK SHAFFER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CASE NO. 2008-4860 CIVIL TERM CIVIL ACTION -LAW Additional Defendant : DEFENDANT'S REPLY TO NEW MATTER AND NOW, comes Defendant, Ora-Jean Perry, by and through her attorneys, GERBER & ASSOCIATES, and files the within Reply to New Matter and, in support thereof, sets forth the following: 44. No responsive pleading is required. Defendant incorporates by reference paragraphs one (1) through forty-three (43) of her Answer, New Matter and Counterclaim. 45. Denied. It is specifically denied that Defendant's claims are barred by her own anticipatory repudiation. Strict proof thereof is demanded. 46. Denied. It is specifically denied that Defendant's claims are barred in whole or in part by her own actions or inactions. Strict proof thereof is demanded. 47. Denied. It is specifically denied that Defendant's claims are barred by unclean hands. Strict proof thereof is demanded. 48. Denied. It is specifically denied that Defendant's counterclaims were caused by intervening and/or superseding causes beyond the control of Plaintiff. Strict proof thereof is demanded. 49. Denied. It is specifically denied that Defendant's counterclaims resulted from pre-existing conditions of the premises, fixtures, and/or attachments not related to the actual acts and/or omissions of Plaintiff. .w 1% 50. Denied. It is specifically denied that Plaintiff and Additional Defendant can unilaterally preserve defenses that are expressly waived if not raised under the Pennsylvania Rules of Civil Procedure. WHEREFORE, Defendant respectfully requests judgment in her favor and against Plaintiff and Additional Defendant, with all costs, expenses and attorney's fees. Respectfully submitted, GERBER & ASSOCIA' Robert J. Dailey,/Esq z I.D. No. 20341- 46 East Main Street Palmyra, PA 17078 (717) 838-5411 Attorney for Defendant _._?..._,.?e- - ? -?.,., SHAFFER'S CONCRETE CONSTRUCTION, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, V. PENNSYLVANIA ORA-JEAN PERRY, CASE NO. 2008-4860 CIVIL TERM Defendant V. CIVIL ACTION - LAW DEREK SHAFFER, : Additional Defendant : CERTIFICATE OF SERVICE I hereby certify that on Tuesday, October 14, 2008, I, Robert J. Dailey, Esquire, of GERBER & ASSOCIATES, did serve a copy of the Defendant's Reply to New Matter by first class U.S. mail, postage prepaid, to the party's attorney listed below, as follows: ABOM & KUTULAKIS Wayne S. Melnick, Esquire 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 Attorney for Plaintiff, Additional Defendant t Robert J. Dailey,.Esqu re I? S1 AFFEWS CONCRETE CONSTRUCTION Plaintiff V. ORA JEAN PERRY Defendant COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA DOCKET NO.: 08-4860 Civil ORDER AND N W, this ID day of 200_b, inconsideration of the foregoing Petition, /esquire, and , Esquire, 1x1 ?. , Esquire, are appointed arbitrators in the above-captioned action as prayed for. By t, v C"' r ?? fob ?? l OK$ Shaffer's Concrete Construction, Plaintiff Ora-Jean Perry, Defendant In The Court of Common Pleas of Cumberland County, Pennsylvania No. 08-4860 Civil Action - Law Oath We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and t onstitution of this Commonwealth and that we will discharge the duties of our office with fidelity gnatur ignattue Signature Robert C. Saidis. Esq. Susann Morrison, Esc. Seth Mosebey Esq Name (Chairman) Name /Name Saidis. Flower & Lindsay Salzmann Hughes PC !Mattson Law Law Firm Law Firm Law Firm 26 West High Street 354 Alexander Spring Road Ste 1 Ten East High Street Address Address Address Carlisle, PA 17013 Carlisle, PA 17015 Carlisle PA 17013 City, zip city, zip city, zip *F- /.? q.?b Award -* //7S 3 dissents (Insert name if applicable) Date of Hearing: January 13, 2009 (Chairman) Date of Award: -J 1 &1?4 - Seth Mosebey 61 Notice of Entry of.Award Now, the 1. k-day of J a-kj r - , 200f, at J4 .M., the above award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. ippeal: $ 3S'd.m By: Deputy We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay, are awarded, they shall be separately stated) 4+ t r r I c 4c ?4 hq?