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Home My WebLink About04-1304BYERLY INCORPORATED, Plaintiff VS. HOFFMAN MECHANICAL, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004 ~- [ 50 ¢ CIVIL ACTION - LAW JURY TRIAL DEMANDED CIVIL TERM 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, (30 TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 B Y~RLY HOFFMAN MECHANICAL COMPLAINT / DISK 69 BYERLY INCORPORATED, Plaintiff VS. HOFFMAN MECHANICAL, INC., Defendant ) ) ) PENNSYLVANIA ) ) NO. 2004 I~o~ ) ) CIVIL ACTION - LAW ) JURY TRIAL DEMANDED COMPLAINT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, CIVIL TERM AND NOW comes the Plaintiff, BYERLY INCORPORATED, by and through its attorney, Michael L. Bangs, Esquire, and in support thereof files the following Complaint: 1. Plaintiff, BYERLY INCORPORATED, is a corporation duly organized and existing under the laws of the Commonwealth of Peunsylvania with a principal place of business at 525 North 12th Street, Lemoyne, Cumberland County, Pennsylvania. 2. Defendant, HOFFMAN MECHANICAL, INC., is a Pennsylvania corporation with a principal place of business at 3 Keystone Drive, Mechanicsburg, Cumberland County, Pennsylvania. 3. Plaintiffprovided to Defendant, at Defendant's request and instruction, insurance policies, coverages and services. All of the insurance policies, coverages and services were provided in reliance upon a verbal contract between Plaintiff and Defendant whereby Defendant agreed to pay Plaintiff's reasonable costs and charges for the insurance policies, coverages and services provided by Plaintiff. 4. The amounts charged to Defendant by Plaintiff for the insurance policies, coverages and services rendered to Defendant are the fair amounts for those policies, coverages and services at the times such items were provided and were the amounts which Defendant agreed to pay for such items. 5. Plaintiffhas well and truly performed its obligations under the agreement between the parties in that it has provided the insurance policies, coverages and services as stated. 6. Defendant has breached the agreement with Plaintiffas a result of its failure to pay Plaintiff for the insurance policies, coverages and services provided by Plaintiff to Defendant pursuant to the oral agreement between the parties. 7. Plaintiffhas provided Defendant with regular invoicing for the costs of the insurance policies, coverages and services provided to Defendant. Attached hereto and marked as Exhibit A is a tree and correct copy of Plaintiff's customer transaction history showing the mounts invoiced to Defendant; the payments made by Defendant; and the outstanding amount currently owed to Plaintiff. 8. Plaintiff has been damaged in the amount of $31,511.35, this being the amount of the insurance policies, coverages and services provided to Defendant by Plaintiff and invoiced to Defendant which have remained unpaid. 9. Defendant has failed or refused to pay the outstanding sums due and owing to Plaintiff in the amount of $31,511.35 despite repeated requests by Plaintiff. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $31,511.35, plus interest plus costs of suit. Respectfully submitted, Attorney for ¢laintiff 6/ 429 South 18th Street Camp Hill, PA 17011 (717) 730-7310 Supreme Court ID #41263 2 VERIFICATION ALLEN MILLER, being duly sworn according to law, deposes and says that he is the Vice President of Byerly Insurance Agents & Brokers, Inc., a Pennsylvania corporation, and that as such officer, he is authorized to make this Verification on its behalf and that the facts set forth in the foregoing Complaint are true and correct to the best of his knowledge, information and belief, and further understands that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities. BYERLY INSURANCE AGENTS & BROKERS, INC. ALLEN MILLEI~ Vice President BYERLY HOFFMAN MECHANICAL COMPLAINT / DISK 69 EXHIBIT A Name Hoffman Mechanical Inc and Attn Creative Distribution Inc Street 3 Keystone Dr City Mechanicsburg St PA Zip 17050 Hdg Emily Cst SM 'Client # HOFFM-7 Conglom # Parent Agency 1 Branch 1 Broker Code C2 Pr ATM Ph-R Ph-B 717-790-6062 Ph-F 717-790-6075 Note Marie Jacobs Filters= All Policies, All Items, Oldest F~rst Dates from 01/01/2003 to 03/12/2004 Item # Date Trn Type D~e Data B 140899 01/10/2003 +EN CAUT 01/24/2003 A 142304 01/30/2003 +EN CAUT 02/13/2003 A 145243 03/19/2003 INT CEQU 04/09/2003 A 145244 03/19/2003 INT CPKG 04/09/2003 A 145248 03/19/2003 INT CAUT 04/09/2003 A 145249 03/19/2003 RIS CPK~ 04/09/2003 A 145250 03/19/2003 RIS CPKG 04/09/2003 A 145251 03/19/2003 RIS CPKG 04/09/2003 A 145252 03/19/2003 RIS CAUT 04/09/2003 A 145253 03/19/2003 RIS CAUT 04/09/2003 A 145254 03/19/2003 RIS CAUT 04/09/2003 A 145258 03/19/2003 RIS CEQU 04/09/2003 A 145259 03/19/2003 RIS CEQU 04/09/2003 A 145260 03/19/2003 RIS CEQU 04/09/2003 A 145309 03/20/2003 INT C-EXC 04/09/2003 A 145310 03/20/2003 AST CWC 04/09/2003 A 145315 03/20/2003 RIS CEXC 04/09/2003 A 145316 03/20/2003 RIS CEXC 04/09/2003 A 145317 03/20/2003 RIS CEXC 04/09/2003 A 145318 03/20/2003 RIS CWC 04/09/2003 A 145319 03/20/2003 RIS CWC 04/09/2003 A 145320 03/20/2003 RIS CWC 04/09/2003 A 146909 04/09/2003 RIS CPKG 05/09/2003 A 146910 04/09/2003 RIS CAUT 05/09/2003 A 146911 04/09/2003 RIS CEXC 05/09/2003 A 146912 04/09/2003 RIS CWC 05/09/2003 A 146913 04/09/2003 RIS CEQU 05/09/2003 A 146967 04/11/2003 PAY 04/11/2003 A 148269 05/09/2003 RIS CPKG 06/09/2003 A 148270 05/09/2003 RIS CAUT 06/09/2003 A 148271 05/09/2003 RIS CEXC 06/09/2003 A 148272 05/09/2003 RIS CWC 06/09/2003 A 148273 05/09/2003 RIS CEQU 06/09/2003 A 148403 05/14/2003 AUD CWC 05/28/2003 A 148404 05/14/2003 AST CWC 05/28/2003 A 148405 05/14/2003 AD/) CPKG 05/28/2003 A 149628 06/09/2003 RIS CPKG 07/09/2003 A 149629 06/09/2003 RIS CAUT 07/09/2003 A 149630 06/09/2003 RIS CEXC 07/09/2003 A 149631 06/09/2003 RIS CWC 07/09/2003 A 149632 06/09/2003 RIS CEQU 07/09/2003 A 149720 06/10/2003 PAY 06/10/2003 A 150429 06/27/2003 PAY 06/27/2003 A 151268 07/09/2003 RIS CPKG 08/09/2003 A 151269 07/09/2003 RIS CAUT 08/09/2003 A 151270 07/09/2003 PIS C~XC 08/09/2003 A 151271 07/09/2003 RIS CWC 08/09/2003 A 151272 07/09/2003 RIS CEQU 08/09/2003 A P BCO Dascr~ption Y PNI Endorsement adds 2003 Ford Y PNI Endorsement adds 03 Ford Y PNI Installment Fee ~ IM Y PNI Installment Fee - Pkg Y PNI Installment Fee - Auto Y PNI Pkg Down Payment Y PNI March Pkg Installment Y FNI April Pkg Installment Y PNI Auto Down Payment Y PNI March Auto Installment Y PNI April Auto Installment Y PNI IM Down Payment Y PNI March IM Installment Y PNI April IM Installment ¥ PNI Installment Fee - Umb Y PNI PA WC Assessment Fee Y PNI Umb Down Payment Y PNI March Umb Installment Y PNI April Umb Installment Y PNI WC Down Payment Y PNI March WC Installment Y PNI April WC Installment Y PNI May Pkg Installment Y PNI May Auto Installment Y PNI May umb Installment Y PNI May WC Installment Y PNI May IM Installment Y Ck#15486 Y PNI June Pk~ Installment Y PNI June Auto Installment Y PNI June Umb Installment Y PNI June WC Installment Y PNI June IM Installment Y PNI 02-03 WC Audit Y PNI PA WC Assessment Fee Y PNI 02-03 GL Audit y PNI July Pkg Installment y PNI J~ly Auto Installment y PNI July Umb Installment y PNI July WC Installment y PNI July IM Installment ¥ Ck~16103 Ck#16085 Y PNI August Pkg Installment Y PNI August Auto Installment Y FNI August Umb Installment ¥ PNI August WC Installment Y PNI August IM Installment Amount 118.00 138.00 22.00 22.00 22.00 1418.84 515.56 515.56 3313.40 1210.30 1204.33 154.44 55.96 55.96 22.00 591.00 496.40 180.60 180.50 3507.00 1275.40 1275.26 515.56 1204.33 180.50 1275.26 55.96 -2266.36 515.56 1204.33 180.50 1275.26 55.96 3193.00 107.00 2170.00 515.56 1204.33 180.50 1275.26 55.96 -2148.36 -3231.61 515.56 1204.33 180.50 1275.26 95.96 Filters= All Policies, All Items, OldeSt F~rst Dates from 01/01/2003 to 03/12/2004 Item # Date Trn T~pe Due Date B P BCo Description 151563 07/18/2003 PAY 07/18/2003 152899 08/11/2003 RIS CPKG 09/09/2003 152900 08/11/2003 RIS CAUT 09/09/2003 152901 08/11/2003 RIS CEXC 09/09/2003 152902 08/11/2003 RIS CWC 09/09/2003 152903 08/11/2003 RIS CEQU 09/09/2003 154624 09/09/2003 RIS CPKG 10/09/2003 154625 09/09/2003 RIS CAUT 10/09/2003 154626 09/09/2003 RIS CEXC 10/09/2003 154627 09/09/2003 RIS CWC 10/09/2003 154628 09/09/2003 RIS CEQU 10/09/2003 156529 10/09/2003 RIS CPKG 11/09/2003 156530 10/09/2003 RIS CA~3T 11/09/2003 156531 10/09/2003 RIS CEXC 11/09/2003 156532 10/09/2003 RIS CWC 11/09/2003 156533 10/09/2003 RI$ CEQU 11/09/2003 157085 10/21/2003 PAY 10/21/2003 158004 11/10/2003 RIS CPKG 12/09/2003 158005 11/10/2003 RIS CAB 12/09/2003 158006 11/10/2003 RIS CEXC 12/09/2003 158007 11/10/2003 RIS CWC 12/09/2003 158008 11/10/2003 RIS CEQU 12/09/2003 158072 11/12/2003 PAY 11/12/2003 159471 12/05/2003 PAY 12/05/2003 159559 12/09/2003 RIS CPKG 01/09/2004 159560 12/09/2003 RIS CAUT 01/09/2004 159561 12/09/2003 RIS CEXC 01/09/2004 159562 12/09/2003 RIS CWC 01/09/2004 159563 12/09/2003 RIS CEQU 01/09/2004 162980 02/20/2004 PAY 02/20/2004 A Y Ck#16294 A y PNI September Pkg Installment A y PNI September Auto Installment A y PNI September Umb Installment A y PNI September WC Installment A y PNI September IM Installment A Y PNI october Pkg Installment A Y PNI October Auto Installment A Y PNI October Umb Installment A Y PNI October WC Installment A Y PNI October IM Installment A ¥ PNI November Pkg Installment A Y PNI November Auto Installment A Y PNI November Umb Installment A Y PNI November WC Installment A Y PNI November IM Installment A Y Ck~16960 A Y PNI December Pkg Installment A Y PNI December Auto Installment A Y PNI December Umb Installment A Y PNI December WC Installment A Y PNI December IM Installment A Y Ck#15246 A Y Ck#17224 A y PNI January Pkg Installment A y PNI January Auto Installment A y PNI January Umb Installment A y PNI January WC Installment A y PNI January IM Installment A Y Ck#17642 Total Balance: -3231.61 515.56 1204.33 180.50 1275.26 55.96 515.56 1204.33 180.50 1275.26 55.96 515.56 1204,33 180.50 1275.26 55.96 -4000.00 515.56 1204133 180.50 1275,26 55.96 -1000,00 -5375.62 515.56 1204.33 180.50 1275.26 55.96 -2380.81 31511.35 SHERIFF'S CASE NO: 2004-01304 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BYERLY INCORPORAED VS HOFFMAN MECHANICAL INC RETURN - REGULAR ROBERT BITNER , Cumberland County, Pennsylvania, says, the within COMPLAINT & NOTICE HOFFMAN MECHANICAL INC DEFENDANT , at 1527:00 HOURS, at 3 KEYSTONE DRIVE MECHANICSBURG, PA 17055 BARBARA JANATI, RECEPTIONIST, ADULT a true and attested copy of COMPLAINT & NOTICE Sheriff or Deputy Sheriff of who being duly sworn according to law, was served upon on the 29th day of March by handing to IN CHARGE the , 2004 together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18 00 7 59 00 10 00 00 35 59 Sworn and Subscribed to before me this _9-~-~ day of O~.X~__, ~l~9 9~ A.D. · Prothonotary · _ So Answers: R. Thomas Kline 03/30/2004 MICHAEL BANGS ~eputy Sheriff - BYERLY INCORPORATED, Plaintiff VS. HOFFMAN MECHANICAL, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004-i[304 CIVIL TERM CIVIL ACTION - LAW TO: HOFFMAN MECHANICAL, 1NC. 3 Keystone Drive Mechanicsburg, PA 17050 DATE OF NOTICE: April 22, 2004 IMPORTANT NOTICE Required by Rule 237.1 (a)(2) YOU ARE IN DEFAULT BECAUSE YOU HAVE Fk[LED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRIT1NG WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGA1NST YOU. UNLESS YOU ACT WITHIN TEN 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. LAWYER REFERRAL SERVICE OF PENNSYLVANIA TELEPHONE: (800) 692-7375 MICHAEL L. BANGS Attorney for Plaintiff 302 South 18th Street Camp Hill, PA 17011 (717) 730-7310 Supreme Court ID #41263 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW BYERLY INCORPORATED Plaintiff, VS. HOFFMAN MECHANICAL, INC. Defendant No. 2004-1304 CIVIL TERM TO: BYLERLY INCORPORATED You are hereby notified to file a written response to the enclosed Answer and New Matter within twenty (20) days from service hereof or a judgment may be entered against you. ANSWER AND NEW MATTER 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied. It is specifically denied that the amounts charged to Defendant by Plaintiff for the insurance policies, coverages and services rendered to Defendant are the fair amounts for those policies, coverages and services at the time such items were provided, and it is specifically denied that the amounts charged were the amounts Defendant agreed to pay for such items. To the contrary, during the period of coverage, significant policy changes occurred, of which Plaintiff was aware, which should have decreased the premium, and for which Plaintiff failed and refused to credit Defendant's account. Strict proof otherwise is hereby demanded at the time of trial. 5. Denied. It is specifically denied that Plaintiff performed its obligations well and truly under the agreement. To the contrary, despite policy changes, of which Defendant made Plaintiff aware, Plaintiff failed to properly credit Defendant's account. Strict proof otherwise is hereby demanded at the time of trial. 6. Denied. The averments contained in Paragraph 6 of Plaintiff's Complaint are conclusions of law to which no response is required. To the extent that a response may be required, it is specifically denied that Defendant breached any agreement with Plaintiff. To the contrary, during the term of coverage, changes occurred in Defendant's policy, which should have reduced Defendant's premium. Plaintiff failed to properly credit Defendant's account to reflect the policy changes. Strict proof otherwise is hereby demanded at the time of trial. 7. Admitted in part; denied in part. It is admitted that Plaintiff provided Defendant with invoices for the policies, coverages and services provided to Defendant. It is specifically denied that the information contained in those invoices is accurate, in as much as Plaintiff has failed to properly credit Defendant's account for all payments made and for lower premium amounts which were the result of changes to the policy, and of which Defendant was aware. Strict proof otherwise is hereby demanded at the time of trial. 8. Denied. The averments contained in Paragraph 8 of Plaintiff's Complaint are conclusions of law to which to response is required. To the extent that a response may be required, it is specifically denied that Plaintiff has been damaged in the amount of $31, 511.35 in as much as the changes to Defendant's policy, which should have reduced Defendant's premium, were never taken into consideration, and Plaintiff has failed to properly credit Defendant for all payments made on the account. Strict proof otherwise is hereby demanded at the time of trial. 9. Denied. It is specifically denied that the sum ,of $31,511.35 is due and owing to Plaintiff, in that significant policy changes which slhould have reduced Defendant's premium were not properly accounted for by Plaintiff, and Plaintiff has failed to properly credit Defendant's account. Strict proof otherwise is hereby demanded at the time of trial. WHEREFORE, Defendant, Hoffman Mechanical, Inc. respectfully requests that the Complaint of Plaintiff, Byerly Incorporated be denied with prejudice. .NEW MATTER 10. Paragraphs 1 through 9 are hereby incorporated as if set forth at length. 11. Defendant believes and therefore avers that during the period of coverage, Plaintiff improperly included personal vehicles of one of Defendant's employees on Defendant's corporate policy, and, after removing the vehicles from the policy failed to credit Defendant's account for the change in coverage. 12. Defendant believes and therefore avers that during the period of coverage, Plaintiff improperly included certain corporate vehicles on the policy, and, after removing the vehicles from the policy failed to credit Defendant's account for the change in coverage, 13. Defendant believes and therefore avers that during the period of coverage, Defendant's payroll decreased significantly due to downsizing, and Plaintiff failed to properly credit Defendant's worker's compensation account for the reduction in premium which should have resulted from the payroll decrease. 14. Defendant's policy includes charges which were improperly inflated. 15. Defendant's policy improperly includes amounts for worker's compensation audits. 16. Plaintiff's claim is barred by the Doctrine of Estoppel. 17. Plaintiff's claim is barred by the Doctrine of Justification. 18. Plaintiff's claim is barred by the Doctrine of Consideration. 19. Plaintiff's claim is barred by the Doctrine of Accord and Satisfaction. 20. Plaintiff's claim is barred by the applicable Statute of Limitations. 21. Plaintiff's claim in barred by the Doctrine of Accord and Satisfaction. WHEREFORE~ Plaintiff respectfully requests that this Honorable Court enter judgment in its favor and against Defendant and that the Plaintiff's Complaint be dismissed with prejudice. Respectfully sul~,mitted, REIDENBACH, HENDERSON & PECHT BY: V~~uire~ Attorney I~D. No. 38904 1205 Manor ]Drive, Suite 200 Mechanicsburg, PA 17055-4917 (717) 691-9808 COMMONWEALTH OF PENNSYLVANIA, ) )SS: COUNTY OF CUMBERLAND ) WAYNE M. PECHT, ESQUIRE, being duly affirmed according to law, deposes and says that he is the attorney for the within-named Defendant; that he is authorized to make this affidavit; that this affidavit is made by him and not the Defendant as he is more familiar with the subject matter of the document than the Defendant; being procedural matters involved in this document, and that the facts set forth in the foregoing document are true and correct. Sworn and subscribed to before me this 26th day of May 2004. Notary Public CERTIFICATE OF SERVICE I hereby certify that on the 26th day of May 2004, I served a true and correct copy of the foregoing Answer and New Matter upon the following by First Class Mail, postage pre-paid, addressed as follows: Michael L. Bangs, Esquire 429 South 18th Street Camp Hill, PA 17011 BYERLY INCORPORATED, Plaintiff VS. HOFFMAN MECHANICAL, INC., Defendant ) ) ) ) ) ) ) IN THE COURT OF COMMON PLEAS OF CUMBiERLAND COUNTY, PENNSYLVANIA NO. 2004-11304 CIVIL TERM CIVIL AC'lION - LAW RULE 1312-1. The Petition for Appointment of Arbitrators shall be substantially in the fOllowing form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: MICHAEL L. BANGS, counsel for the Plaintiff in the above action, respectfully represents that: 1. The above-captioned action is at issue. 2. The claim of the Plaintiff in the action is $31,511.3:5, plus interest, plus costs of suit. The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Michael L. Bangs, Esquire, and Herbert P. ttenderson, II, Esquire (Reidenbach, Henderson & Pecht, 36 East King Street, Lancaster, Pennsylvania, 17602). WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respect ful~ Sut~mi[ted' . , ORDER OF COURT _, 2004, in consideration of the AND NOW, _, Esquire, _ , Esquire, foregoing petition, _ and , Esquire, are appointed arbitrators in the above-captioned action (or actions) as prayed for. BY THE COURT, C) BYERLY INCORPORATED HOFFP.~I HECHANICAL~ INC. In The Court of Common Pleas of Cumberland County, Pennsylvania No. 2004 - 13o4 Defendant Civil Action - Law. Signature Keith O. Brenneman Name (Chairman) Snelbaker, Brenne~n & Spare Law Firm 44 W. ~aiu Street Mechanicsburg PA 17055 Address Oath We do solemnly sweat' (or affmu) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office with fidelity. Name lloa~. & Adlc; Law Firm 2331 ~[a~ltct gtroct 0~g llill ci~, Zip ci~, Zip ciw, zip Award 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.) Craig Diehl Name Craig Diehl Camp ltill P& 17011 Address Notice of Entry of Award · Arbitrator, dissents. (Insert ~'~!ne if ~ Now, the ') ~/~ day of K~)d.~. ,20~" _, at q-b"~ ,. ,~ .M., the above award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. Arbitrators' compensation to be paid upon appeal: Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BYERLY INCORPORATED, Vo Plaintiff, HOFFMAN MECHANICAL, INC., Defendant. No. 2004-1304 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED RULE TO SHOW CAUSE '~day of December, 2004, upon consideration of Defendant's order by the Court. BY THE COUP, T: / DEC 0 3 2004/4~ AND NOW, this . Petition to Strike or, Alternatively, Open Judgment, it is hereby ORDERED that Plaintiff, Byerly Incorporated, SHOW CAUSE this Court on tile// uay of 200~at~'/C)a .... " c,,,, ~; " ~. ......~ her, cd in Courtroom .m~.;-.~. ,., ~ -- :~=?.cr -~:e ~.:.-~--=- mc' Number_~, Cumberland County Court of Common Please, why the above-captioned judgment should not be stricken or open of prayer of said Petition. AND IT IS FURTHER ORDERED, that Defendant shall cause a copy of this Rule and theresaid Petition to be served on Plaintiff forthwith. AND IT IS FURTHER ORDERED, that any and all discovery as to the said Petition SHALL BE COMPLETED not later than 60-days following entry of this Order. AND IT IS FURTHER ORDERED, that, except as expressed in this Order, all other proceedings herein, including execution proceedings are STAYED until further IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYILVANIA BYERLY INCORPORATED, Plaintiff, V. HOFFMAN MECHANICAL, INC., Defendant. No. 2004-1304 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW, this __ day of December, 2004, upon consideration of Defendant Hoffman Mechanical Inc.'s Petition to Strike or, Alternatively Open Judgment, response thereto, argument thereon, and the record as a whole, is hereby ORDERED, that the said Petition is GRANTED. AND IT IS FURTHER ORDERED, that for good cause shown, the above- captioned Judgment entered against Defendant is hereby OPENED. AND IT IS FURTHER ORDERED, that any manner of execution on, and/or enforcement of the said Judgment is STAYED until further Order of this Court. By the Court: 73~7.1 Jo IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYILVANIA BYERLY INCORPORATED, Plaintiff, V. HOFFMAN MECHANICAL, INC., Defendant. No. 2004-1304 CIVIL CIVIL ACTIION - LAW JURY TRIAL DEMANDED ORDER AND NOW, this ~ day of December, 2004, it is hereby ORDERED, ADJUDGED, and DECREED that Hoffman Mechanical, Inc.'s Motion To Strike Judgment in the above-captioned matter is hereby GRANTED and the judgment by arbitration award entered November 16, 2004 is hereby STRICKEN. The Prothonotary is hereby ordered to reschedule an arbitration hearing in this matter. By the Court: 73847.1 DEC 0 .:q 2OO4/ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BYERLY INCORPORATED, Plaintiff, HOFFMAN MECHANICAL, INC., Defendant. No. 2004-1304 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT'S PETITION TO STRIKE, OR IN THE ALTERNATIVE, OPEN JUDGMENT AND REQUEST FOR STAY OF EXECUTION AND NOW, comes Defendant, Hoffman Mechanical, Inc. ("Hoffman"), by and through its counsel, Tucker Arensberg, P.C., and files the within Petition To Strike, Or Alternatively Open Judgment and Request For Stay of Execution, and in support thereof avers as follows: INTRODUCTION 1. The Plaintiff, Byerly Incorporated ("Plaintiff"), is a Pennsylvania corporation with a principal place of business at 525 North 12th Street, Lemoyne, PA 17043. 2. Defendant, Hoffman Mechanical, Inc., is a Pennsylvania corporation with a former business address of 3 Keystone Drive, Mechanicsburg, PA 17050. 3. On or about March 26, 2004, Plaintiff instituted the above-captioned action via Complaint against Hoffman in the Cumberland County Court of Common Pleas. The original action was commenced by Plaintiff Byerly Incorporated ("Plaintiff") against Defendant Hoffman Mechanical, Inc. ("Hoffman") seeking ilo recover amounts claimed due and owing under certain insurance policies. 4. On or about August 11, 2004, Plaintiff filed a Praecipe to list the above matter for arbitration. 5. An arbitration hearing on the matter was scheduled on October 7, 2004. 6. Hoffman was in the process of transitioning the within matter to other counsel and as such, failed to appear for the arbitration as scheduled. 7. Upon failure of Hoffman to appear at the arbitration, Plaintiff was awarded an unknown judgment amount by the arbitration panel. 8. Hoffman has not received any copy of the arbitrator's award and as such, was unable to properly appeal the same within the allotted appeal period. 9. The award from the arbitration panel was apparently entered in the form of a judgment on November 16, 2004 in the Court of Common Pleas of Cumberland County. I. PETITION TO STRIKE JUDGMENT 10. The averments set forth in paragraphs 1 through 9 are incorporated herein as if set forth more fully at length. 11. On or about November 22, 2004, Defendant received a Rule 236 Notice indicating the entry of an Order, Decree or Judgment, without further information and without having previously received a copy of a Notice of En~try of the Arbitration Award, a Notice of Entry of Judgment, Praecipe for Entry of Judgment or other copy of Order, -2- Decree or Judgment entered against Hoffman. A true and correct copy of the Rule 236 Notice is attached hereto as Exhibit "^". 12. Defendant's Petition to Strike is timely filed. 13. ^ review of the Rule 236 Notice and related judgment entry documents reveal fatal defects and/or irregularities appearing of recon:l, to wit (a) Plaintiff failed to comply with the Notice requirements by failing to forward a~ Notice of Entry of Judgment to Hoffman; (b) the Notice received from the Prothonotary violated Pa.R.C.P. 236(a)(2) by failing to include "any other order, decree or judgment to each parties attorney of record or, if unrepresented, to each party. The Notice shall include a copy of the order, decree or judgment." As stated above, no Notice of Entry of Judgment or document indicating amount or information regarding judgment was entered. See Exhibit "A", attached; (c) Defendant did not receive a notice of arbitration award and thus was not properly informed of the same for purposes of filing a timely appeal of the award. 14. Pennsylvania law is clear that the court may grant a petition to strike off the judgment if a fatal defect or irregularity appears on the record. See First Union National Bank, et al. v. Portside Refrigerated Services, Inc.., 2003 Pa. Super. 244 (2003); Resolution Trust Corp. v. Copley Qu-Wayne ^ssociates, 546 Pa. 98, 683 ^.2d 269,273 (1996). 15. Defendant has been and will continue to be prejudiced unless Plaintiff's Judgment is stricken. WHEREFORE, Defendant, Hoffman Mechanical, Inc., respectfully requests this Honorable Court grant its Petition To Strike, striking off the judgment entered by Plaintiff against Hoffman Mechanical, Inc. and further award Hoffman Mechanical, Inc. all such -3- other relief as is proper and just, including but not limited to reasonable fees and costs incurred in the filing of this Petition. II. IN THE ALTERNATIVE, PETITION TO ()PEN JUDGMENT 16. The averments set forth in paragraphs 1 through 15 are incorporated herein by reference as if set forth more fully at length. 17. In the alternative, Defendant Hoffman has good and meritorious defenses which warrant the opening of Plaintiff's Judgment, to wit: certain amounts charged were not amounts agreed to by Defendant for payment for services provided by Plaintiff; significant policy changes which should have decreased Defendant's premium occurred which Plaintiff was aware of and for which Plaintiff failed and refused to credit Defendant's account; Plaintiff otherwise failed to properly credit Defendant's account. WHEREFORE, Defendant, Hoffman Mechanical, Inc., respectfully requests this Honorable Court to grant its Petition to Strike off the Judgment entered against Defendant by Plaintiff, or in the alternative, open the Judgrnent and permit Defendant to proceed with its defenses and claims and further award Defendant all such other relief as is proper and just. III. REQUEST FOR STAY OF EXFCUTION 18. The averments set forth in paragraphs 1 through 17 are incorporated herein by reference as if set forth more fully at length. 19. Plaintiff and/or the Cumberland County Prothonotary Office failed to adhere to procedural requirements for the Entry and Notice of Judgment, including but not limited to Rule 236(a)(2). -4- 20. Defendant has good and meritorious defenses to the judgment which have been timely filed. 21. Defendant has suffered and will continue to suffer prejudice unless this Honorable Court enters an Order staying execution on Plaintiff's Judgment. 22. Hoffman respectfully requests this HonorablE; Court strike the judgment entered November 16, 2004 and order that an arbitration hearing be rescheduled so that a determination on the merits of Plaintiff's claims may be made and that Hoffman may present proper defense as necessary. WHEREFORE, Defendant, Hoffman Mechanical, Inc., respectfully requests that this Honorable Court (a) grant its Petition to strike off the Judgment entered against it by Plaintiff or, in the alternative (b) open the Judgment and permit Defendant to proceed with its defenses against Plaintiff's claims; (c) stay all proc~._.edings herein, including execution on Defendant's personal property and (d) further award Defendant all such other relief as is proper and just, including but not limited to counsel fees' incurred in the filing of this Petition. 73847.1 Respectfully submitted, TUCKER ARENSBERG, P.C. F. Stephenson Matthes PA I.D. No. 67408 111 North Front Street P.O. Box 889 Harrisburg, PA 17108-0889 Telephone: 717-234-4121 Facsimile: 717'-232-6802 Attorneys for Hoffman Mechanical, Inc. -5- CERTIFICATE OF SERVICE AND NOW, this ,,2.">'/day of December, 2004, I, Dawn T. Heilman, Secretary to F. Stephenson Matthes, Esquire, for the law firm of Tucker Arensberg, P.C., attorneys for Hoffman Mechanical, Inc., hereby certify that I have this day served the foregoing Motion To Strike Judgment by depositing a true and correct copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Michael L. Bangs, Esquire 429 South 18th Street Camp Hill, PA 17011 Dawn T. Heilman 73847.1 -6- Exhibit A MICHAEL L. BANGS, ESQUIRE I.D. NO. 41263 429 SOUTH 18TM STREET hULL, PA 170 (717) 730-7310 ATTORNEY FOR PLAINTIFF BYERLY INCORPORATED, Plaintiff VS. HOFFMAN MECHANICAL, INC., Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004--1304 CIVIL CIVIL AC, TION - LAW JURY TRIAL DEMANDED NOTICE PURSUANT TO RULE 236 TO: HOFFMAN MECHANICAL, INC., Defendant(s) You are hereby notified that on ,~}e3~ I {~ ,2004, the following (Judgment) (Order) (Decree) has been entered against you in the above-captioned case. Prothonotary "" ~ I hereby certify that the name and address of the proper person(s) to receive this notice is: HOFFMAN MECHANICAL, ~C. 3 Keystone Drive Mechanicsburg, PA 17050 A: HOFFMAN MECHANICAL, INC., Defendido/a o Defendidos/as Por este medio se le esta notificando que el de del 20.. el/la siguiente (Orden) (Decreto) (Fallo) ha sido anotado en contra suya en el caso mencionado en el epigrafe. FECHA: Protonotario Certifico que la siguiente direccion es la del defendido/a segun indicada en el certificado de residencia: HOFFMAN MECHANICAL, INC. 3 Keystone Drive Mechanicsburg, PA 17050 E'el SLOSOB/../.IL .sPO/.XtUH '-' d~0:£O i~0 I~ AoN MICHAEL L. BANGS, ESQUIRE I.D. NO. 41263 429 SOUTH 18TM STREET CAMP HILL, PA 17011 (717) 730-7310 ATTORNEY FOR PLAINTIFF BYERLY INCORPORATED, Plaintiff VS. HOFFMAN MECHANICAL, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004-1304 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO THEPROTHONOTARY: Please enter judgment in favor of the Plaintiff and against the Defendant in the amount of $25,000.00, plus interest, plus costs of suit, pursuant to the attached Award of Arbitrators dated October 7, 2004. As of November 10, 2004, Defendant had not filed an appeal to the Award of Arbitrators. Respectfully submitted, MIC, HAEL L. BANGS Attorney for Plaintiff 429 South 18th Street Camp Hill, PA 17011 (717) 730-7310 Supreme Court ID #41263 Date: November 11, 2004 BYERL¥ INCORPORATED HOFFP,/~ I~ECHAI~ICAL, Plaintiff INC. Defendant In The Court of Common Pleas of Cumberland County, Pennsylvania No. 2004 - 1304 Civil Action - Law. with fidelity. Signature Keith O. Brennenmn Name (Chairman) Snelbaker, Brenneman & Spare Law Fkm 44 W. Main Street Mechanicsburg PA 17055 Address Oath We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office Naln~ R~age. & Adlt. La~3~Ma. lte t gtre~t City, Zip City, Zip City, Zip Award 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.) Craig Diehl Name Craig Diehl h~/6F~lX~fr ind 1 e Road Camp Hill PA 17011 Address Date of Hearing: October 7, 2004 Date of Award: 0~1'~,~ Z 2-~,'-{ Now, the '~'P'~ day of Od~ - ,20al?z/ , at ~-b"~ , ~ .M., the above award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. Arbitrators' compensation to be paid upon appeal: $ c~Td~, d94~ othonotaryBy: Deputy MICHAEL L. BANGS, ESQUIRE I.D. NO. 41263 429 SOUTH 18TM STREET CAMP HILL, PA 17011 (717) 730-7310 BYERLY INCORPORATED, Plaintiff VS. HOFFMAN MECHANICAL, INC., Defendant ATTORNEY FOR PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004-1304 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF RESIDENCE I hereby certify that the addresses of the Plaintiff and Defendant are as follows: Byerly Incorporated 525 North 12th Street Lemoyne, PA 17043 Hoffman Mechanical, Inc. 3 Keystone Drive Mechanicsburg, PA 17050 429 South 18th Street Camp Hill, PA 17011 (717) 730-7310 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION PRAECIPE FOR WRIT OF EXECUTION Caption: : ( ) Confessed Judgment BYERLY INCORPORATED : ( X ) Other- Award of Arbitrators Plaintiff : File No. 2004-1304 vs. : Amount Due $25,000.00 HOFFMAN MECHANICAL, INC. : Interest Defendant : Arty' s Comm : Costs TO THE PROTHONOTARY OF THE SAID COURT: The undersigned hereby certifies that the below does not arise out of a retail installment sale, contract or account based on a confession of judgment, but if it does, it is based on the appropriate original proceeding filed pursuant to Act 7 of 1966 as amended; and for real property pursuant to Act 6 of 1974 as amended. Issue writ of execution in the above matter to the Sheriff of CUMBERLAND County, for debt, interest and costs, upon the following described property of the defendant(s): Bank account maintained at Fulton Bank, Account No. 031301422. PRAECIPE FOR ATTACHMENT EXECUTION Issue writ of attachment to the Sheriff of CUMBERLAND County, for debt, interest and costs, as above, directing attachment against the above-named garnishee(s) for the following property (if real estate, supply six copies of the description; supply four copies of lengthy personalty list): Levy upon all property of the Defendant located at 3 Keystone Drive, Mechanicsburg, Pennsylvania. and all other property of the defendant(s) in the possession, custody or control of the said garnishee(s). (Indicate) Index this writ against the garnishee(s) as a lis pendens against real estate of the defendant(s) described in the attached exhibit. Signature: Print Name: Address: Attorney for: Date: MICHAEL L. BANGS 429 SOUTH 18TM STREET CAMP HILL, PA 17011 PLAINTIFF Telephone: (717) 730-7310 Supreme Court ID No.: 41263 ("9 WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) NO 04-1304 Civil COUNTY OF CUMBERLAND) CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due BYERLY INCORPORATED, Plaintiff (s) From HOFFMAN MECHANICAL, INC., 3 KEYSTONE DRIVE, MECHANICSBURG, PA (1) You are directed to levy upon the property of the defendant (s)and to sell LEVY UPON ALL PROPERTY LOCATED AT 3 KEYSTONE DRIVE, MECHANICSBURG, PA (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of BANK ACCOUNT MAINTAINED AT FULTON BANK, ACCOUNT NO., 031301422 GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $25,000.00 Interest Atty's Comm % Arty Paid $133.09 Plaintiff Paid Date: NOVEMBER 16, 2004 (Seal) REQUESTING PARTY: Name MICHAEL L. BANGS, ESQUIRE Address: 429 SOUTH 18TM STREET CAMP HILL, PA 17011 Attorney for: PLAINTIFF Telephone: 717-730-7310 Supreme Court ID No. 41263 L.L. $.50 Due Prothy $1.00 Other Costs CURTIS R. LONG By:Pr°th°n°J/~l~J~ ~ Deputy R. Thomas Kline, Sheriff, who being duly sworn according to law, states this writ is returned STAYED, DUE TO BANKRUPTCY. Sheriffs Costs: Advance Costs: Sheriffs Costs: 150.00 67.22 82.78 Docketing Poundage Advertising Law Library Prothonotary Mileage Misc. Surcharge Levy Post Pone Sale Garnishee TOT AL $ $ 18.00 1.32 .50 1.00 7.40 Refunded to Atty on 01/19/05 30.00 9.00 67.22 Sworn and Subscribed to before me ,t5~~"~~~d~ R. Thomas Kline, Sheriff (r, [" It. I I // Byi~1 (cudl ^.ylJ:,<-~:..:t(J( , <:. ..c this .J-1"LA day of L..a."A"J 2005 A.D., 4:1:'(. r? In< /;{(.,; ~ Pm1h notary , '- \lol Q ^ - o E :E d 8 I WN nOOl Vd 'All'~rIUJ GH\jld:)G~JljJ JJIB3HS 3Hl JO J:JWO 0'.;.... :':'l^0/." {!.j/;.{,>-// "0:S~fJ>'.~ "V, , ~., J.u0 'J-'V ;') !) /0 ~ 4 4 ()Z. '\ · fu. /(,0.;<1 L.H.. lj ~ ",' ,", 'i. L ,. , /()-q , /.... .,- J' WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 04-1304 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due BYERLY INCORPORATED, Plaintiff (s) From HOFFMAN MECHANICAL, INC., 3 KEYSTONE DRIVE, MECHANICSBURG, PA (I) You are directed to levy upon the property of the defendant (s)and to sell LEVY UPON ALL PROPERTY LOCATED AT 3 KEYSTONE DRIVE, MECHANICSBURG, PA (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of BANK ACCOUNT MAINTAINED AT FULTON BANK, ACCOUNT NO., 031301422 GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the gamishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) Ifproperty of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify himlher that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $25,000.00 Interest Arty's Comm % Arty Paid $133.09 PlaintifrPaid Date: NOVEMBER 16, 2004 L.L. $.50 Due Prothy $1.00 Other Costs CURTIS R. LONG (Seal) prothon~ ~ a... _f?~A".uf1L-r--- Deputy REQUESTING PARTY: Narne MICHAEL L. BANGS, ESQIDRE Address: 429 SOUTH ISrn STREET CAMP HILL, PA 17011 Attorney for: PLAINTIFF Telephone: 717-730-7310 Supreme Court ID No. 41263