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HomeMy WebLinkAbout08-5419D$- 5q (I Civil Trig KLEMOW LAW FIRM LAWRENCE M. KLEMOW, ESQUIRE 81 NORTH LAUREL STREET, SUITE HAZLETON, PA 18201 (570) 501-1771 ID NO. 15313 Attorney for Defendants M0032782008-0022 Order Luzerne County Prothonotary 8/13/200811 39:26 AM DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY Plaintiff - CIVIL ACTION - L? VS.„ JIM LAGANA PLUMBING & -' HEATING, INC. and JAMES == LAGANA, Individually, -a ' Defendants NO. 3278 of 2008 ORDER AND NOW, this day of 21c?, 2008, upon Stipulation of the parties which is attached hereto, IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows: 1. The judgment entered by the Plaintiff against the Defendant on March 13, 2008 in the amount of $6,291.19 is hereby stricken; 2. Pursuant to the parties' Stipulation and in accordance with 42 Pa. C.S.A. 5103(a), the Notice of Appeal filed by the Defendants in Luzerne County on February 15, 2008 shall be transferred by the Prothonotary of Luzerne County to the Prothonotary of Cumberland County; 11111rMVIRK11111 0032782008-0023 Stipulation Luzerne County Prothonotary 8!13/2008 11:39:53 AM KLEMOW LAW FIRM LAWRENCE M. KLEMOW, ESQUIRE 81 NORTH LAUREL STREET, SUITE 201 HAZLETON, PA 18201 (570) 501-1771 ID NO. 15313 Attorney for Defendants DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY Plaintiff VS. CIVIL ACTION - LAW JIM LAGANA PLUMBING & HEATING, INC. and JAMES - LAGANA, Individually, w ;may c? ;::: Defendants NO. 3278 of 2008 -< STIPULATON r' This agreement, made this y day of ?a?v , 2008, by and between DRIVEKORE, INC., hereinafter referred to as the Plaintiff, and JIM LAGANA PLUMBING I:E ATTNG-, IT; C. and ;A:*??S Ln A?,A , Individually, hcrcirafter i ? r ed to as the Defendants. WITNESSETH: WHEREAS, the parties hereto are engaged in litigation in Luzerne Cotmty, Pa. to No. 3278 of 2008; and WHEREAS, the Defendants have recently filed a Motion for Reconsideration relying upon 42 Pa. C.S.A. 5103(a), along with a Notice of Appeal to the Pennsylvania Superior Court to 1213 MDA 2008; and WHEREAS, the Plaintiff agrees that 42 Pa. C.S.A. 5103(a) is applicable and that Plaintiff's appeal filed in Luzerne County to a judgment entered by Magisterial District Justice Charles A. Clement, Jr. should be transferred to Cumberland County, Pa. and considered timely filed; and WHEREAS, the Plaintiff agrees that the judgment entered in its favor and against the Defendant on March 13, 2008 in the amount of $6,291.19 should be stricken; and WHEREAS, the Defendants agree to withdraw the appeal to the Pennsylvania Superior Court. NOW, THEREFORE, in consideration of the mutual promises herein contained, and intending to be legally bound hereby, the parties agree as follows: The Plaintiff agrees that 42 Pa. C.S.A. 5103(a) applies to the Notice of Appeal of the Magisterial District Justice Charles A. Clement, Jr.'s judgment of January 24, 2008 which was erroneously filed in Luzeme County and said appeal should be transferred to Cumberland County and considered to be timely filed. The Court should also enter an Order striking the judgment entered by the Plaintiff against the Defendants on March 13, 2008 in the amount of $6,291.19. 2. Upon entry of an Order by the Court of Common Pleas of Luzerne County transferring the Notice of Appeal to Cumberland County and striking the judgment entered on March 13, 2008, the Defendants agree that they shall withdraw the appeal to the Pennsylvania Superior Court. 2 r The parties agree that upon transfer of Defendants, appeal to Cumberland County, shall appeal shall be considered as timely filed and the parties shall proceed pursuant to Pa. R.C.P. MDJ Nos. 1002 and 1004. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. WITNESS: BY: /,4j l? WITNESS: DRIVEKORE, INC. JIM LAGANA PLUMBING & HEATING, INC. BY: Jam 4ana:a, President WITNESS: X1.11 cc? M41 (SEAL) 4Jamea, Individually r 96 3 Luzerne County Page 1 of 1 Back to Search > Case #0032782008 Case Details Case Number 0032782008 Commencement Date 3/13/2008 10:02:33 AM Case Type Transcripts (Magistrate Judgment) PFA Number Caption Plaintiff DRIVEKORE INC Caption Defendant Judgment Indicator Status - Judge JIM LAGANA PLUMBING & HEATING INC Yes Cashiered Parcel Number Remarks Sealed - APPEAL DOCKET SHEET No - - G Plaintiffs AddcasH Address ZIR Name /.ins, l.lu8 2 S?tX so Soda Seams! C9uIl EO! Hobby l2quence DRIVEKORE 101 MECHANICSBURG PA 17055 Rector, Yes 1 INC WESLEY Charles DR Alexander B Defendants Name Address Address iL ne t Lin icy %& M Counsel CoCounsel I yi ?uence JIM LAGANA 146 STE 3 HAZLETON PA 18202 Klemow, Yes 1 PLUMBING & AIRPORT i Ln? HEATING INC RD i ( M LAGANA, RR2 BOX HAZLETON PA 18202 Klemow, Yes 2 JAMES P6-16 ( Lawrence M. S Garnishees 9 Dockets Filing Date Docket Tvoe Docket Text Sealed Sequence 3113/2008 10:02:33 AM Transcripts (Magistrate Judgment) No 0 3/13/200810:09:19 AM Praecipe No 1 3/13/2008 10:10:21 AM Affidavit No 2 3/1312008 10:12:27 AM Notice Of Entry Of Judgment No 3 412412008 10:34:48 AM ..-. _.--._ ___....__.._ 4/24/200810.35:08 AM Rule to Show Cause .-.... .._..-'--- .-.--_._ ...._......_.- Petition .. No No 6 4 4124/2008 10:35:50 AM Brief No 5 5/15/2008 12:58:24 PM Answer No 7 5/15/2008 12:59:04 PM Certificate Of Service No 8 5/15/2008 1:00:42 PM 5115/2008 1:01:16 PM Brief Certificate Of Service No No 9 10 5/2212008 11:41:46 AM File Transmittal No 11 6110/2008 3:35:37 PM Order with Rule 236 No 12 611112008 8:02:42 AM File Transmittal No 13 7181200810:09:23 AM Appeal to Apellate Court No 14 7/81200810:14:59 AM _ Proof Of Service No _ 15 7/812008 10:15:51 AM Other No 16 718/2008 10:18:20 AM Certificate Of Service _ No 17 7110/2008 11:46:59 AM Order with Rule 236 _ _ No 18 7/15/2008 11:43:32 AM Order No 19 7/15/2008 11:43:52 AM Motion No 20 7/21/2008 9:39:23 AM Other No 21 8/13/200811:39:26 AM Order No 22 8113/2008 11:39:53 AM Stipulation No 23 -j Judgments Plain if -f nd n Amount DRIVEKORE INC JIM LAGANA PLUMBING & HEATING INC 3/13/200812:00:00 AM 6291.19 DRIVEKORE INC LAGANA, JAMES 3/13/2008 12:00:00 AM 6291.19 8Linked Cases Copyright © 2008 Paperless Solutions, Inc. All rights reserved. CERTIFIED FROM E RECORDS THIS ?DAYOF ll? A.D.200V JILL A. 7rNIPROT?HONOUTIIARY PERhttp://mcweb/PSINiewer/Detail.aspx?oq=aWQ90DEONzYmZW50aXR5PUNhc2U%3d 8/18/2008 2- Tz 777 IN THE COURT OF COMMON PLEAS OF Luzerne COUNTY, PENNSYLVANIA CIVIL DIVISION DriveKore, Inc. Plaintiff(s) : vs. Jim Lagana Plumbing & Heating, Inc. and James Lagana Defendant(s) File No. _ \-?79',;Loo g' NOTICE OF FILING JUDGMENT ( ) Notice is hereby given that a Judament in the above-captioned matter has been entered against you in the amount of $6,291.19 on 3 /3 oar . (_)A copy of all documents filed with the Prothonotary in support of the within judgment is are enclosed. Qu 0#L Pro onotary/Clbrk, Civil Division by: Deputy If you have any questions regarding this Notice, please contact the filing party: c? Name: Charles Rector, Esquire Attorney for Party: Plaintiff Q Supreme Court ID No.: 391 1 Mme. Address: 1104 Fernwood Ave. , Ste. 203 Ca Hill P 17 mp , A 011 N Telephone No. 717-761-8101 (This Notice is given in accordance with Pa.R.C.P. No. 236.) 111119&ISMANN Nil 0 t ff9w 'I III 0032782008-"04 Notice Of Of Entry Of Of Judgment Entry Jude (Rev. 4/04) Luzerne County Prothonotary 3/13/200810:12 27 AM Ir.? A DRIVEKORE, INC. 101 Wesley Drive Mechanicsburg, PA 17055 Plaintiff V. JIM LAGANA PLUMBING & HEATING, INC. 146 Airport Road, Ste. 3 Hazleton, PA 18202 and JAMES LAGANA RR 2, Box P646 Hazleton, PA 18202 Defendants TO THE PROTHONOTARY: N r?Q s?C3 o ' N IN THE COURT OF COMMON PLEAS LUZERNE COUNTY, PENNSYLVANIA NO. k-?a 7 P - a0-0 Ob PRAECIPE Please enter Judgment in the amount of $6,291.19, plus costs, against Jim Lagana Plumbing & Heating, Inc. and James Lagana, as per the attached Notices of Judgment/Transcript of Civil Case. Date: J' / 11R, By: Charles Rector, Esquire 1104 Fernwood Avenue, Ste. 203 Camp Hill, PA 17011-6912 (717) 761-0454 Attorney for Plaintiff PAINUSIMEN111I ' 0032782008-00002 Praecipe Luzerne County Prothonotary 3113/2008 100919 AM t? CbMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mag. Dist. No.. 09-1-01 MDJ Name: Hon. CHARLES A. CLEMENT, JR Address: 400 BRIDGE ST OLDS TOWNZ COMMONS -SUITE 3 NEW CUMBERLAND, PA Telephone: (717 ) 774-5989 17070 DRIVEEORE INC 101 WESLEY DRIVE MECHANICSBURG, PA 17055 THIS IS TO NOTIFY YOU THAT: Judgment: DEFAULT JODGMENT PLTF NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: rDRIVZKORE INC NAME and ADDRESS 7 101 WESLEY DRIVE MECHANICSBURG, PA 17059 ?-- L J VS DEFENDANT: . NAME and ADDRESS rJIM LAGAZA PLUMBING A HP11liiTI3C,? 146 AIRPORT RD APT/STE 3 AND JAMES LAGANA PZLETON, PA 18202 J d Docket No.: CV-0000538-07 Date Filed: 11/15/07 (Date of Judgment) 1/24/08 ® Judgment was entered for: (Name) DRIVEXORE INC, ® Judgment was entered against: (Name) JIM LAGANA PLUMBING & HEATING INC in the amount of $ 6,291.19 F1 Defendants are jointly and severally liable. F] Damages will be assessed on Date & Time FIThis 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 $ 6,144.29 Judgment Costs $ 146.90 Interest on Judgment $ .00 Attorney Fees $ -?0 Total $ 6,291.19 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. ' ", a ' non Ift, IIIII 0032782008-00001 Transcripts (Magistrate Judgment) Luzeme County Prothonotary l 3113/2008 10:02:33 AM 1/24/08 Date I certify that this is a true and correct 3/6/08 Date Y District Judge of the proceedings containing the judgment. My commission expires first Monday of January, 2014 AOPC 315-07 DATE PRINTED: 3/06/08 , Magisterial District Judge I S A. CLEMENT, JR. SEAL 9:47:00 AM a- ,COMMONWEALTH OF PENNSYLVANIA ?. COUNTY OF: CUMBERLAND Mag. Dist. No.: 09-1-01 MDJ Name: Hon. CHARLES A. CLEMENT, JR Address: 400 BRIDGE ST OLDS TONNE COMMONS -SUITE 3 NEW CWMERLAND, PA Telephone: (717 ) 774-5989 17070 DRIVEZORE INC 101 WESLEY DRIVE MECHANICSBURG, PA 17055 THIS IS TO NOTIFY YOU THAT: $-OA_.PLAIN!r3EF Judgment: NOTICE OF JUDGMENTfMANSCRIPT CIVIL CASE, PLAINTIFF: t-0 V- NAME we ADDRESS rDRIVZKORZ INC -1 101 WESLEY DRIVE %o MECHANICSBURG, PA 17019 ° L. J VS DEFENDANT: . NAME and*FESS -JIM 'LAGANA PLUMBING do 1*&TING INC,-' 146 AIRPORT RD APT/STS tT AND JAMBS LAGA IL L)BAZLETON, PA 18202 J Docket No.: CV-0000538-07 Date Filed: 11/15/07 a : (Date of judgment) -.1124/08.:. ® Judgment was entered for: (Name) DRIVEZORZ INC, ® Judgment was entered against: (Name) LAGAM, JAMES in the amount of $ 6,291.197- Defendants are jointly and severally liable. Damages will be assessed on Date & Time F 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 $ 6,144.29 Judgment Costs $ 14 6.90 Interest on Judgment $ .00 Attorney Fees $ Total $ 6,291.-19 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 Tt E 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. 1124/08 Date Magisterial District Judge I certify that this is a true y o e record o e gs containing the judgment. 3/6/08 Date , Magisterial District Judge SPECIALLY SITTING R: CHARLES A. CLEMENT- TR My commission expires first Monday of January, 2014 AOPC 315-07 DATE PRINTED: 3/06/08 9:48:00 AM SEAL AFFIDAVIT OF NO APPEAL DriveKore, Inc. Plaintiff District Justice Docket No: CV-538-07 V. Jim Lagana Plumbing & Heating, Inc. and James Lagana Defendants As of March 12, 2008, a District Justice Appeal has not been filed in the Court of Common Pleas of Cumberland County in the above-captioned matter. RESPECTFULLY SUBMITTED, Charles Rector, Esquire 1104 Fernwood Avenue, Ste. 203 Camp Hill, PA 17011-6912 (717) 761-0454 Attorney for Plaintiff Date: D? --4 s,. 1111116 r? wilm 61111011111 0032782008.00003 Affidavit Luzerne County Prothonotary 3/13/200810:10:21 AM r? 0032782008-00006 Brief Luzeme County Prothonotary n 4124/2008 103550 AM \LLJV/h) KLEMOW LAW FIRM o LAWRENCE M. KLEMOW, ESQUIRE C 81 NORTH LAUREL STREET, SUITE 201 HAZLETON, PA 18201 N (570) 501-1771 ID NO. 15313 x Attorney for Defendants DRIVEKORE, INC., IN THE COURT OF COMMR9N PLEAS OF LUZERNE COUNTY Plaintiff CIVIL ACTION - LAW VS. JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA, Individually, Defendants NO. 3278 of 2008 BRIEF IN SUPPORT OF DEFENDANTS' PETITION TO STRIKE OFF JUDGMENT 1. HISTORY DriveKore commenced an action in the office of Magisterial Justice Charles A. Clement, Jr. in New Cumberland, Cumberland County, Pennsylvania on November 15, 2007. On January 24, 2008, Judgment was entered in favor of DriveKore and against the Defendants in the amount of $6,291.19. On February 15, 2008, twenty-two (22) days after the Judgment was entered, the Defendant, through a member of his office staff, filed a Notice of Appeal of the Judgment with the Prothonotary of Luzerne County. The Notice of Appeal clearly identified District Magistrate Clement, including his office address in New Cumberland, Pennsylvania, in addition to having a copy of the Judgment entered by Magistrate Clement attached to the Notice of Appeal. That Notice of Judgment also indicated that the Judgment was entered in Cumberland County. When the employee presented the Notice of Appeal to the Prothonotary's Office, she asked if it could be filed in that office and was told that an Appeal from a Magistrate's Judgment could be filed in any Prothonotary's Office. Furthermore, the Notice of Appeal was accepted and filed by the Luzerne County Prothonotary. The Notice of Appeal was properly served upon DriveKore, Inc. pursuant to the Rules of Procedure Before a District Justice. In fact, the Plaintiff through its attorney, Charles Rector, Esquire, prepared and mailed a Civil Complaint to the Cumberland County Prothonotary on March 3, 2008. (Counsel for the Defendants has been notified that the Complaint was not actually filed.) On March 13, 2008, counsel for DriveKore caused to be filed a Praecipe to Enter Magistrate Clement's Judgment in Luzerne County, which was filed to the above caption. The Defendants now seek to strike that judgment and to allow their appeal to go forward as though properly filed in Cumberland County. H. LEGAL ARGUMENT A Petition to Strike a Judgment is the proper procedure to follow when seeking to strike a judgment because of defect apparent on the face of the record. Manor Building Corp. v. Manor Complex Association, Ltd., 645 A.2d 843. There is no question that the Notice of Appeal was timely filed. The sole issue deals with the fact that it was filed in the wrong county. It is also easy to see how a layperson could easily file the appeal in the wrong place. The judgment form used by Magistrate Clement states the following: 2 "Any party has the right to appeal within thirty days after the entry of judgment by filing a Notice of Appeal with the Prothonotary/ Clerk of the Court of Common Pleas, Civil Division." Furthermore, the "Notice of Appeal" form that is used statewide says nothing about where the notice should be filed. In fact, Pa. R.C.P. N.D.J.1002(A) is also silent on where a Notice of Appeal should be filed. The Rule states: "A party aggrieved by a judgment for money or a judgment affecting the delivery of possession of real property arising out of a non- residential lease may appeal there from within thirty days after the date of the entry of the judgment of filing with the Prothonotary of Court of Common Pleas a Notice of Appeal on a form which shall be prescribed by state Court Administrator together with a copy of the Notice of Judgment issued by the Magisterial District Judge." The only place that one can actually determine that the filing should be in the County in which the Magistrate is located is under Pa. R.C.P. N.D.J. 1001 which are the definitions dealing with appellate proceedings. Section 5 does state: "Court of Common Pleas" means the Court of Common Pleas of the judicial district in which is located the Magisterial District wherein the question action of the Magisterial District Judge took place. One must keep in mind that the Defendants in this case are from Luzerne County and the natural inclination was to go to the Prothonotary's Office located in Luzerne County. However, it is what happened next that provides support to the Defendant's request to strike the judgment, that is, the Luzerne County Prothonotary accepted and filed the Notice of Appeal even advising the Defendant's representative that the Notice of Appeal could be filed in Luzerne County even though it was a judgment entered by a Magistrate in another county. The interesting legal question is whether this Court should simply transfer the Notice of Appeal to Cumberland County or allow the Defendants to file a second Notice of Appeal with Cumberland County "nunc pro tunc". There is a long line of cases in Pennsylvania that hold under extraordinary circumstances a Court may extend the appeal period by granting equitable relief in the form of a nunc pro tunc appeal. Traditionally, extensions of time for filing an appeal were limited to matters involving fraud or a breakdown in the Court's operations. City of Philadelphia v. Tirrill906 A.2d 663 (2006). However, the Pennsylvania Supreme Court has expanded the limited exceptions permitting this relief where non- negligent circumstances relating to either the appellant or the appellant's counsel caused an untimely appeal to be filed. Bass v. Commonwealth, 401 A.2d 1133 (1979). Without further muddying the waters on what appears to be a rather simple issue, the Defendants are simply requesting that the Court conclude that the appeal was timely filed, strike the judgment entered in Luzerne County and transfer the Notice of Appeal to Cumberland County. It is submitted that equity and fair play could not allow any other result. Respectfully submitted, KOMOW LAW FIRM <RINCE M. KLENIOW, ESQUIRE Attorney for Defendants 4 DRIVEKORE, INC., Plaintiff V. JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA Defendants IN THE COURT OF COMMON PLEAS LUZERNE COUNTY, PENNSYLVANIA NO. 08-3278 of 2008 CIVIL ACTION -LAW PLAINTIFF'S ANSWER TO DEFENDANT'S PETITION TO STRIKE OFF JUDGMENT AND NOW, comes the Plaintiff, DriveKore, Inc., by and through its attorney, r fr S G? t Gn Charles Rector, Esquire, and files the following Answer to Defendants' Petition to Strike Off Judgment: 1. Admitted. 2. Admitted in part and denied in part. It is admitted that Defendants' Notice of Appeal was filed with the Prothonotary of Luzerne County on February 15, 2008. Plaintiff is without sufficient knowledge or information to form a belief as to the remaining averments of Paragraph 2 and proof thereof is demanded and the same are deemed denied. 3. Admitted. 11 4. Admitted. 1111 7 4*0K 0032782008- ? II I 5. Admitted. Answer 0007 nswer I^ Luzerne County Prothonotary p1 6. Admitted. 5,52008,2:5824 PM Illllh"JJJIII cs r ?' 7. Denied. Paragraph 7 constitutes a legal conclusion which requires no answer and is deemed denied. To the extent that any further answer is required, alleged improper legal advice of a non-attorney County employee does not constitute a breakdown of the Court's operation which would entitle Defendants to relief. WHEREFORE, Plaintiff respectfully requests that your Honorable Court deny Defendants' Petition to Strike Off Judgment. i By: Chahn Rector, Es re 1104 Fernwood Avenue, Ste. 203 Camp Hill, PA 17011-6912 (717) 761-8101 Attorney for Plaintiff, DriveKore, Inc. Date: I verify that the statements made herein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. E. Jerry Loo Date: - 6-11 Y1.) ? 3)7W-?)W7" CERTIFICATE OF SERVICE I, Charles Rector, Esquire, do hereby certify that on the 14`h day of May, 2008, I caused a true and correct copy of the within to be served upon the following persons by depositing same in first class, United States mail, postage paid, in Camp Hill, Pennsylvania: Lawrence M. Klemow, Esquire 81 N. Laurel Street, Ste. 201 Hazleton, PA 18201 ?Q By: d Charles Rector, Es t 1104 Fernwood A nue, Ste. 203 - Camp Hill, PA 17011-6912 t (717) 761-8101 Date: s Zlvlelpl 11119 ' i' ¦ 1 AA I? I 0032782008-0008 Certificate Of Semce Luzerne County prothonotary 5/15/200812 59 .01 PM b 1111EUNPIM1111 0032782008-0009 Brief Luzerne County Prothonotary 5/15/2008 10042 PM DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS Plaintiff LUZERNE COUNTY, PENNSYLVANIA V. : NO. 08-3278 of 2008 JIM LAGANA PLUMBING & CIVIL ACTION -LAW HEATING, INC. and JAMES !?:-u LAGANA Defendants BRIEF IN OPPOSITION TO DEFENDANTS' 5 PETITION TO STRIKE OFF JUDGMENT . cr 1. HISTORY The Plaintiff, DriveKore, Inc. ("DriveKore"), filed this action against the Defendants in the office of Magisterial District Judge Charles A. Clement, Jr., New Cumberland, Cumberland County, Pennsylvania. On January 24, 2008, the Magisterial District Judge entered judgment in favor of DriveKore. Despite the fact that the action had been commenced and the judgment entered by a Cumberland County Magisterial District Judge, on February 15, 2008, the Defendants filed a Notice of Appeal with the Prothonotary of Luzerne County. The Defendants aver that the Prothonotary's Office informed the Defendants' employee who arrived with the Notice of Appeal that an appeal from a Magistrate's judgment can be filed in any Prothonotary's Office, and that the Luzerne County Prothonotary accepted and filed the Notice of Appeal. The Defendants now seek to have the judgment in favor of the Plaintiff in Luzerne County stricken, under the theory that their Notice of Appeal was filed in a timely manner because the Defendants did not know that the Notice had to be filed in the county in which the Magistrate is located, and that they received incorrect advice from the Luzerne County Prothonotary that the Notice of Appeal could be filed in Luzerne County. As demonstrated herein, the Defendants' argument is incorrect. Accordingly, the Court should deny the Defendants' Petition. II. ISSUE Whether alleged improper legal advice of a non-attorney County employee to Defendants constitutes a "breakdown of the Court's operation" such that Plaintiff's Judgment against Defendants should be stricken. (Answered in the negative below.) III. LEGAL ARGUMENT The Pennsylvania Rules of Civil Procedure Governing Actions and Proceedings Before Magisterial District Judges clearly provide that a Notice of Appeal from a Magistrate's decision must be filed in the Court of Common Pleas of the judicial district encompassing the magisterial district rendering the judgment, within thirty days after entry of the judgment. Rule 1002 provides, in relevant part: Rule 1002. Time and Method of Appeal A. A party aggrieved by a judgment for money, or a judgment affecting the delivery of possession of real property arising out of a nonresidential lease, may appeal therefrom within thirty (30) days after the date of the entry of the judgment by filing with the prothonotary of the court of common pleas a notice of appeal on a form which shall be prescribed by the State Court Administrator together with a 2 copy of the Notice of Judgment issued by the magisterial district judge. The prothonotary shall not accept an appeal from an aggrieved party which is presented for filing more than thirty (30) days after the date of entry of the judgment without leave of court and upon good cause shown. Pa. R. Civ. P. Mag. Dist. J. No. 1002. (Emphasis added.) Rule 1001 makes plain that the Court of Common Pleas where the Notice of Appeal must be filed is that of the judicial district where the Magistrate was located: Rule 1001. Definitions As used in this chapter. (1) "Judgment" means a judgment rendered by a magisterial district judge under Rule 319, 322 or 514. (2) "Appeal" means an appeal from a judgment to the court of common pleas. (5) "Court of common pleas" means the court of common pleas of the judicial district in which is located the magisterial district wherein the questioned action of the magisterial district judge took place. Pa. R. Civ. P. Mag. Dist. J. No. 1001. (Emphasis added.) The rules governing appeals must be strictly complied with, and courts have little power to alter the times fixed by the legislature for the filing of appeals. E.g., Goldberg v. Goldberg, 315 Pa. Super. 333, 461 A.2d 1307 (1983); see also Stivers Temporary Personnel, Inc. v. Brown, 2002 Pa. Super. 379, 789 A.2d 292 (2001) (timeliness of an appeal, whether to an appellate court or a de novo appeal to the Court of Common Pleas, is jurisdictional; when a statute fixes the time within which an appeal may be taken, the time may not be extended as a matter of indulgence or grace), appeal denied, 569 Pa. 694, 803 A.2d 736 (2002); City of Philadelphia v. Tirrill, 906 A.2d 663 (Pa. Commw. Ct. 2006) (appeal periods are jurisdictional, and may not be extended as a matter of grace or mere indulgence), appeal denied, 591 Pa. 674, 916 A.2d 1103 (2007). Mere hardship does not warrant an extension of the period within which to file an appeal. Goldberg, 461 A.2d at 1308 (appeals were properly quashed when not filed within the required thirty-day period, despite the fact that appellant's period was essentially reduced to twenty-two days as a result of delay in receipt of actual notice of the judgment). A narrow exception to the general rule that courts have no power to enlarge the time for an appeal has been recognized in the case of fraud, or where a party has been prevented from appealing by the wrongful or negligent act of a court official. E.g., Petition of Redevelopment Authority of City of Bethlehem, 204 Pa. Super. 490, 205 A.2d 629 (1964), aff d, 418 Pa. 624, 210 A.2d 169 (1965). The party claiming that the time for appeal should be extended due to the wrongful or negligent act of a court official has the burden of establishing circumstances mitigating the time requirements governing an appeal. See Conrad v. Kemmerer, 301 Pa. Super. 410, 447 A.2d 1032 (1982) (eight-day delay by court official in sending to defendants notice of default judgment did not entitle defendants to enlargement of time to appeal, when there was no showing that delay prejudiced defendants' ability to appeal). Negligence of a court official, or a "breakdown in the court's operations", is not established, however, when the mistake is that of a party or its agent. In Rothstein v. Polysciences, Inc., 2004 Pa. Super. 249, 853 A.2d 1072 (2004), the court held that counsel's 4 failure to ascertain and to comply with court rules governing appeals, not any dereliction by the prothonotary, was the cause of the party's failure to file a timely notice of appeal, such that the party was not entitled to nunc pro tunc relief. In so holding, the court observed that cases evidencing a breakdown of the court's operations, which may warrant relief from the deadline for filing an appeal, involve a failure on the part of the prothonotary to fulfill his or her ministerial duties, such as filing dispositions and other relevant information on the appropriate docket, and giving notice of such dispositions to the interested parties. 853 A.2d at 1075. A prothonotary does not have the duty to provide legal advice to parties, and the furnishing of incorrect legal information to a party thus cannot support the granting of relief from an appellate deadline. In In re Philadelphia Democratic Mayoralty Primary Election Contest, 11 Pa. D.&C.3d 381 (Pa. Com. Pl. 1979), the prothonotary mistakenly advised the petitioner's attorney that only five signatures were required on a petition for an election contest, when the governing statute provided that twenty signatures were necessary. The court held that the attorney's reliance upon the advice of the prothonotary was immaterial because "where there is a statute which does set forth in clear and concise terms the requirements for proceeding, counsel's reliance upon misinformation from the prothonotary cannot justify her failure to file a proper petition." Id. at 391. Similarly, in the case at bar, there is a statute, Pa. R. Civ. P. Mag. Dist. J. No. 1001(5), which makes absolutely clear that a Notice of Appeal from a district magistrate must be filed in the Court of Common Pleas encompassing that district. It was not within the ministerial duties of the Luzerne County Prothonotary to provide legal advice to the Defendants as to where they 5 were required to file their Notice of Appeal. The fact that the Prothonotary's Office may have told the Defendants that the appeal could be filed in Luzerne County, and that the Defendants may have relied upon such information, is immaterial because there is a statute furnishing notice to all persons of where such an appeal must be filed. For these reasons, there is no basis in Pennsylvania law upon which the Defendants can be relieved of their failure to file a timely appeal, and their Petition to Strike Off Judgment must be denied. III. CONCLUSION For all the foregoing reasons, the Plaintiff, DriveKore, Inc., respectfully requests that this Honorable Court deny the Defendants' Petition to Strike Off Judgment. Date: i U Respectfully submitted ' aarles Rector, quire Law office of Charles Rector, P.C. 1104 Fernwood Avenue, Suite 203 Camp Hill, Pennsylvania 17011 (717) 761-8101 Attorney for Plaintiff 6 CERTIFICATE OF SERVICE I, Charles Rector, Esquire, do hereby certify that on the 14`h day of May, 2008, I caused a true and correct copy of the within to be served upon the following persons by depositing same in first class, United States mail, postage paid, in Camp Hill, Pennsylvania: Lawrence M. Klemow, Esquire 81 N. Laurel Street, Ste. 201 Hazleton, PA 18201 B Iles Rector, Es re 1104 Fernwood venue, Ste. 203 Camp Hill, PA 17011-6912 (717) 761-8101 : rMn s ? -n Date: r+? I Irf yr 0032782008- III cenificate Of Sere Oe Ind Luzern,- County Prothonotary 1 `\ 5/15/20081,01.16 PM >1'!) KLEMOW LAW FIRM LAWRENCE M. KLEMOW, ESQUIRE 81 NORTH LAUREL STREET, SUITE 201 HAZLETON, PA 18201 (570) 501-1771 ID NO. 15313 Attorney for Defendants DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY Plaintiff CIVIL ACTION - LAW N VS. JIM LAGANA PLUMBING & HEATING, :;a { INC. and JAMES LAGANA,_ Individually, Defendants NO. 3278 of 2008 RULE TO SHOW CAUSE = 10 AND NOW, thisa`-r day of 601,42 , 2008 at .?? o'clock,2.-.m. upon consideration of the foregoing Petition, a Rule is GRANTED upon the Plaintiff to show cause why the Judgment entered on March 13, 2008 should not be stricken. Rule returnable to Argument Court. All proceedings to stay meanwhile. 'III 9? tiIP.l'I III 0032782008-00007 Rule to Show Cause Luzerne County Prothonotary 4124/2008 10.34:48 AM BY THE COURT: J 0032782008-00005 Petition Luzerne County Prothonotary 412412008 10'.35'.08 AM KLEMOW LAW FIRM LAWRENCE M. KLEMOW, ESQUIRE 81 NORTH LAUREL STREET, SUITE 201 HAZLETON, PA 18201 (570) 501-1771 ID NO. 15313 Attorney for Defendants DRIVEKORE, INC., Plaintiff JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA, Individually, VS. IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY CIVIL ACTION - I*W -'T7 J%3 C= A -70 Defendants NO. 3278 of 20OW DEFENDANTS' PETITION TO STRIKE OFF JUDGMENT Defendants, Jim Lagana Plumbing & Heating, Inc. and James Lagana, Individually, by and through their counsel, the Klemow Law Firm, respectfully petitions this Court to strike off or open the Judgment entered on March 13, 2008 and in support thereof, states the following: 1. PETITION TO STRIKE OFF 1. On January 24, 2008, the Respondent (DriveKore, Inc.) caused a Judgment in the amount of $6,291.19 to be entered in the office of Magisterial District Justice Charles A. Clement, Jr. located at 400 Bridge Street, Old Towne Commons, Suite 3, New Cumberland, Cumberland County, Pennsylvania. 2. On February 15, 2008, an employee of the Defendants filed a Notice of Appeal with the Prothonotary of Luzerne County. A copy of the Magisterial Judgment was attached to the Notice of Appeal. The employee was advised by the Prothonotary that a Notice of Appeal from a Magistrate's Judgment could be entered in any county. A copy of the Notice of Appeal and attached Judgment is attached hereto, marked Exhibit "A" and incorporated herein as though set forth at length. 3. The standard form used to file a Notice of Appeal from a District Justice Judgment does not contain any indication as to the appropriate county in which an appeal must be filed. 4. The Notice of Appeal was timely filed in Luzerne County. 5. On March 3, 2008, DriveKore caused to be mailed by its counsel, Charles Rector, Esquire, a Civil Complaint which was to have been filed with the Cumberland County Prothonotary. A copy of Attorney Rector's letter was mailed to the Defendants by Attorney Rector's office. A copy of Attorney Rector's letter dated March 3, 2008 and the Civil Complaint are attached hereto, marked Exhibits "B" and "C" and incorporated herein as though set forth at length. 6. On March 13, 2008, DriveKore entered Judgment in the amount of $6,291.19 in Luzerne County. A copy of said Praecipe and Notice of Filing Judgment are marked Exhibits "D" and "E" and incorporated herein as though set forth at length. 7. The acceptance and filing of the Notice of Appeal by the Luzerne County Prothonotary was a breakdown of the Court's operation whereby relief should be granted to the Defendants. WHEREFORE, Defendants respectfully request that this Court strike off the Judgment entered on March 13, 2008 in the above-captioned matter and further transfer the 2 Notice of Appeal filed by the Defendants on February 15, 2008 to the Court of Common Pleas of Cumberland County. Respectfully submitted, KLPMOW LAW RE E M. KLE "Q Attorne or Defendants VERIFICATION I, JIM LAGANA, individually and as President of Jim Lagana Plumbing & Heating, Inc., verify that the statements made in the foregoing Defendants' Petition to Strike Off judgment are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unworn falsification to authorities. JIM A, President Dated: 47-A O$ 4 EXHIBIT "A" 153/20/2008 16:26 570-455-6324 2OAMMONWEALTH OF PENNSYLVAA.. . COURT OF COMMON PLEAS Judicial District, County Of A 1 LAGANA PLMBG.iNL. NOTICE OF APPEAL FROM MAGISTERIAL DISTRICT JUDGE 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 Magisterial District Judge on the date and in the case referenced below. 'i _m Las-?na -41 RM OFAPPELUW ?4Iv Ai riC }. y? it •.i.'.?. 5 1 .:T n, z n 1-24-05 c V?J??:JL? .L ZI:_ ve Ti 4- ,+ •?_^ ^A 'J 1, 1 ;•.e,: • n SIGMTUFM „ ,*. L i ,•?t 30cKrNO. ORAWNT C7 --Zt1n,? ? . -07 This block will be signed ONLY when this notation Is required under Pa. If ap n lmant (see Pa. R.C.P.D. . 1N'?) in salon R.C.P.D.J. No. 10088. ? ,- . This Notice of Appeal, when received -by the Magisterial District Judge, wh be a Maglsladal District Judge, A COMPL 4WT MG?Z E•F1LED )pomte as a SUPPRSEOEAS to the judgment for posseseian In this imse. within I"t. warty (20) days after fyfng the NOTICE of APPEAL n c) = I= 3r S1???,luro d'?ornoratery a :? ?"?•+ PR14ECIPE TO ENTER RULE TO FILE COMPLAIN'/ AND.RULE TO FILE This ae tivn of fbrm to be used ONLY when appegant was DEf ENDENT (am Pa.R CAD.J. No. 1001(7) In acgon before Magic a6sl District fudge. IF NOT USED, detach from copy of nooks of sppo# to by served upon.appelleee. IRAECIPE: To Prothonotary '.nter rule upon Alarm of appefdeefs) 'amnion P$m No. f y . ;C1 `` ) within twenty (20) days after service c me To appeffee(s) appelles(s), to lie a complaint in this appeal or 1Vft1Agtry of judgment of non pros. (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal vritbin twenty (20) days after the date of service F this rule upon you by personal service or by oertified or registered mail. (2) if you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY M ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. 'Or ate: l-? 0 ?..?- S,?rrNltws ofProlhoraorsryoroeprry YOU musT INCLUDE A COPY OF THE NOTICE OF JUDG-MENTITRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. )PC 312.05 93/20/2008 16:26 570-455-6324 LAGANA VLMbU.1NU. r ¦ GornpMe P:ems 1, 2, and 3. Abo complete hem 4 it Fleawto Delivery is dewed. ¦ Print your rWme wW address an the raver" 30 that we can return the card to you. ¦ Attach this axd to the back of the mollpieoe, or an the fr'7nt 0 space permhs. 1.ArHOM Addmwed to: t,AUt 17.i A. i e - a Addmm B. RetOMW by f ftad A?ernai a V V. RA ?N1)C 7 D. ra &#A" address dlliemm frran mm 1? ? Y*a K YM sneer del" +IddrO I a below: 0 No 't?.'..>?.:•.: C.?: a?rky?rl?-,?1 ? (? ?... s"4w~?f p0iwn o .. WI - 1"?o'"1 O P4" -ERZWM d w,Roeefpt for Mar Chefrdia o ensured Mrdl a c.om. a Resurcted D*iwf? Oft Fee) 13 MIS 2. Areldo Numtxrr 7 U07 1440 0000 7716 4801 (Timis w oom semm aw PS Form 3811, February 20D4 Domeenc Retum Receipt lomm-as-M•1s r ¦ t?ottrpirrte iterm i. 2. errd S. Also oompie4o A. itertr d M PIWO Ad Ddiwry Is dnbd. .- t your name and Rint the reverse ¦ m f - so that are Wn return 00 dA ld j % ¦ Attach thle *Nd to the back of the movies e. Q by f Prhrte0 or on the front if apace permits. 1. Article Addim ed to D. B Wmpy addrsoe Iterrr Yom, &Vw ddvwy add , 3. Smigs Type map 0 agmse Meu E3 ASOMINd -aKfftn PmekA for Madw K bbe insured moo l3 czA 4. %shleted r pft r,* 0 Yes I Arty %Nwnbar 7007 1490 ' (flsn?r hum aervke ._.?„ 0000 7716, 4818 PS Form 3811, Febmkvy 2004 Domestic Rotrm Receipt tosses as.ra•rs?c UJIl bl ZIJMI lb: Lb /t7-4b?-b3L4 fr LHUHIVH rLIYIDU. lIV4?. t-HUG U4 d r9 ?- p0elatl0 © Car"Aetl Fee ?-, C7 Ralum Aeealpr Pee r Postmark O (7reemenl Pl9qulrsd} Hers G 'o iMEtad Em" %a d (Rndw amnnt Fiequlmd) or zI- Total PaMap Q Fees $ rq }? lM 0 / . ? //yy .y?? //,?kx P ?.?-- f! r co ` ?tfN M-4? P ,R?t, ? A?+ Tmb ?I ?• r- Pumps z r- CerIIAeQ NO 0 p (EMWMN erx Requibd) Asatrtalae BWb% y Fee 0 {Erulorsen,sal Req*" cr .'7y Total Pestop A Fees e? r o --- l u P4elrnark Flom 03/20/2008 15:14 57d-455-b314 03-20-'08 13;54 FROM- . , ,• ,.a,J.•?r ;'.COMMONVIIEALTH OF PENNSYLVANIA COUNTY OF; CWT 1 Ma bIA1. No•: 49-1-01 Ma Numb NO. CMZN= A. CL000>; Illrl M 000 ST y 27070. :? . IIIUVMMDU I>rIC 101 Illii9!' iilr nkm enmwl PA 17055 THIS IS TO NOTIFY YOU THAT: nt° T-339 P294/005 F-228 NOTICE OF JIJ??taM NT/TRANSCRIPT CIV L AJ PLAINTIFF: NAME ADO rD=v>0[ou sic ?,,, ` o ?? 101 IIZM&w 1111M - 1 C r PA 270 Zr L° J vs. , DEFENDANT: KAW and rim L#<Qilm PL?I> i 'WI7010 145 AatMW W WHI/Mrs MM 413=1 LAG= L!ML1lSDNv Ps 10202 J Docket No.: C9-0000530-07 Qate Filed: 11/15/07 ' (Date of Judgment) .. • •1/20•/0x._ .. . Judgment was, entered for: (Name) D? Z>rC, Judgment was entered against: (Na Mel XAaM# in the amount of A 6 r 291. Defendaets are jointly and severally liable. Daa g"s will be as ee,ssed on •D'iaft8; TImO :rllarxiissed.without prejudice. Amount-6f Judgment Subject to Attachment/42 Pa.C.s. $ 8127 Portion of Judgment for physical damages arising out of residential lease $_ Amount of Judgment $6,144.29 Judgment Cme $ • Interest on Judgment $ .00 Attorney Fees Total $' 291 Fast Judgment Crests $ Post Judgment Costs $ a=W --p= Cartitd Judgment Total s. ANY PARTY NAS 71•! 1tLk#HT TO APPEAL. WM013D DAYS AMR THE ENTRY OF AJDGMMT EY FILNG A NOTICE OF APP" NORM TIM PRO7f10NOTARY/1 XJ MK OF 7M COURT OF COWAON PLEAS. CAVIL DIVNiOON, YOU MW EK'Lr M A COPY OF TM WRicFe OF .pJD MTRRAWRIPT MM WITH YOUR NO ICS OF APPEAL. b T 'Oft PROD O FOR MA(ti}E MMAL DMITI IC'T MOM, IF THE ' IN Tmx'.M RT OP COMIitON PLEAS,AL.L FNRtHM PROOM MM'r FROM 7MI OF•COM M PLEAS AND NO MIMIEA PRICESS MAY BE ISSUE BY THE MAMM1111AL DWMCT JUDGE. won THE dIIbLIiN1EN1' M IN IN TIM COURT OF COMWN PLEAl A , ANYONR INTERE:Tt9p IN THE dUDnMEKT MAY fN.6 "MRaT " ENTRY OR SAS WIT" 'MME M OSTMAL. 0191 HICT JOE IP THE JMMENT OBdTOR PAV3 fN FULL, TEES, eft OTHMAWE COMPUgg yY11'I'1 TW JUDaM1t;NTJ :}? :S 4;: :?rC?,r y 'ON' thimisatrup 3/6/08 Date • , Magisterial District JL 99 containing the judgment. , Magieterial District Judge My CofrinUgsion expires first Monday of January, 2014 AOPC SIS-07 DATE WRMrM= 3/06100 a:4es0a awls LfilONFA M-InDla.11T- SEAL I?e '?- EXHIBIT "B" 03/19/2008 09:17 570-455-6324 LAUANA FLMIJU.1NU. rFtar- uc Law Offices of Chaves Rector, Esquire, P.C. Collections Deparrtrnent 1104 Ferawood Avenue, Ste. 203 Camp Hill, PA 17011-6912 wvvw.charkarector.corn (717) 761-8101 (888) 505-7502 Fax (717) 761-2161 March 3, 2008 Curt Long, Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Re: 2dU&0re, Inc v_.. Jint Lowne Plumbing & H-90na, Inc. & Jim Lana No. 08-1851 Civil T9477 Dear Mr, Long: Enclosed for filing please find a Civil Complaint in the above-referenced matter. Once time-stamped, please return the! copies to me in the enclosed self-addressed, stamped envelope. Thank you for your assistance. If you have any questions, please feel free to contact me. Very truly yours, Charles Rector, Esquire CR/tsf Enclosures cc: DriveKore, Inc. ?Pm Cagan Plumbing & Heating, Inc, James Lagana EXHIBIT "C" 13119/2eM 09:17 570-455-6324 DRIVEKORE, INC., Plaintiff V. JIM LAGANA PLUMBING & HEATING, INC. and JAMES L4GANA Defendants r?mtsu . l IYI.? . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-1851 CIVIL TERM CIVIL ACTION - LAW NOTICE TQZFEND AND CLAIM! RIGHTS 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 wetting with the court your defenses or objections to the claim set forth against you. You are warned that if you fall 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. Cumbedand County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 24$-3188 V+• 4 03/19/2008 09:17 5fb-45b-b?14 LHUHIVA rLIrloU. 1110r. DRNEKORE, INC., . IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 08-1851 CIVIL TERM JIM LAGANA PLUMBING & CIVIL ACTION - LAW HEATING, INC. and JAMES LAGANA Defendants +OOMPL.AINT AND NOW, comes the Plaint;ff, DriveKore, Inc., by and through its' attorney Charles Rector, Esquire, and avers in support of its' Complaint against Defendants, Jim Lagans Plumbing & Heating, Inc, and James Lagana, as follows: 1. Plaintiff, DriveKore, In;., is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with a principal place of business located at 101 Wesley Drive, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 2. Defendant, Jim Lagana Plumbing & Heating, Inc. is believed to be a Pennsylvania Corporation with its principle plane of business located at 14$ Airport Road, Ste. 3, Hazleton, Pennsylvania, 18202, 3. Defendant, James Lagana, is an adult individual who resides at RR2, Box P6-16, Hazleton, Pennsylvania, 18202. 4. On or about Mauch 13, 2003, James Lagana, completed an Application for Credit on behalf of his company, Jim Lagana Plumbing & Heating, Inc., with Plaintiff (see Exhibit "A" attached hereto and incorporate herein), 5. The Credit Application signed by Defendant, James Lagana, on March 13, 2006, provides in pertinent park that: MAR i 03/1912008 09:17 570-455-6324 F'LMlSU. INN. "I hereby guarantee all amounts due under this contract and promise to pay all amounts due on demand." 6. Based upon Defendants' Credit Application and personal guarantee, credit was granted to Defendants for the purchase of equipment from Plaintiff and for services provided by Plaintiff. 7. On February 27, 2007, Defendant purchased a Spectra pipelaser and cradle, (see Invoice #895425 attaclvad hereto, incorporated herein and marked as Exhibit °B") 8. On April 13, 2007, Plaaintiff repaired Defendants' drain cleaner (see Invoice #904963) attached hereto, Incorporated herein and marked as Exhibit T"). 9. Defendants have failed and/or refused to pay Plaintiff the amount of $5,894.29, for the above-referenced invoices (see Statement dated October 5, 2007, attached hereto, incorporated herein and marked as Exhibit "D") 10. Pursuant to the terms of the Application for Credit and invoices, eighteen (18%) percent annual interest is to be charged to all invoices not paid within thirty (30) days of the date of the invoice (see Exhibits "A," "8," and "C" referenced above). 11. Pursuant to the terms -of the Application for Credit, Defendants have agreed to be responsible for Plafntiff's attorneys fees, collection costs and all costs associated with the collection of any delinquent balance (See Exhibit "A" referenced above). 12. Additional interest will accrue and be due and owing through disposition rJ 0 of this case. 0311912008 09:17 570-455-6324 LAUANU HLMBU - INL; - 13, Plaintiff has retained the services of the Law Offices of Charles Rector, Esquire, P.C. and has agreed to pay them a fee, which fees accrue monthly and will be calculated upon disposition of the case. 14. Plaintiff has incurred and may continue to incur costs of collection of the balance due from Defendant, which total will be calculated upon disposition of the case. WHEREFORE, Plaintiff, Drive lore, Inc., demands judgment in its favor and against Defendants, Jim Lagana Plumbing and Heating, Inc. and James Lagana, in the amount of $5,894.29, plus interest at 18% per annum, collection costs and attorneys fees and such further relief that the Court deems just and appropriate under the circumstances. RESPECTFULLY SUBD, Date: -7 6 d' ?Lja arses Rector, squire 1104 Femwoo Avenue, Ste. 203 Co"amp Hill, PA 17011-43912 (717) 761-8101 Attomey for Plaintiff 03119/2008 09:17 570-455-5314 LAUANA rLmI5n.1Nt,. I verify that the statements made herein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorfflas. E. Jerr/ Lo , Comptroller pate: 3/3/a?r FJ3l1`3!YM b CF .F'ICATE.OF SERVICE I, Charles Rector, Esquire, do hereby certify that on the 3rd day of March, 2008, I caused a true and correct copy of the within Civil Complaint to be served upon the Defendants at the addresses below by depositing same in first class, United States mail, postage paid, in Camp Hill, Pennsylvania: James Lagana .RR 2, Box ,P6-16 Hazleton, PA 18202 -rind Jim Lagana Plumbing & Heating, Inc. 146 Airport Road, Ste. 3 Hazleton, PA 18202 By late: 17 ?jl-or 1104 Fernwood Avenue, Ste. 203 Camp Hill, PA 17011-6912 (717) 761-8101 0311312028 09:17 570-455-6324 LAGANA PLMBG.INC. roc ey 136109 DRjr ', oRic zNc. APPLICATION FOR CRED11 PLEASE PRINT OR'TYPI ICI; NJJ?11, 4?a?.1.IL??HZ , fi-pC-wad, 101 wftley Drly( PO. Box 2M ,r;r FS,SnNp ?a 3WMQY1I(.AWX*Z Mechordosbtxg. PA 17m c+?c? $ax Ens 0717) 766-763e ?r? ?.?r (SM 382-1311 f J J "Y" $Tm ' ZIP 031% Fc?oc: (717) 766-1101 f ?9Z www.clNekcre.com jr- FIMR6NT COMPANY & AMRM r1.OWANWR1lALLAPpUf:ANA QNII31 F1?IWR?Ttp*- 90 Mr T IN DRAT Olt 0MIAL OF CPI TELl:VwOnIE NUMBER JAfiriP+ Ol7E? NU'7UER '??. . FAX PAAj F - Alt J- 5 D&B RATING A TTPE of I>fm4e 15N.F5TA)CDlV4ITON jCwFYOi'FJ17tt 'T a ? ' OCA'f14N 1'EI1R5 I! MOE MAO CREWWITH •a MV. PRFVlC)t1,:fr yg •'` ?, q,,? INDPJIDUAt QV^IElEtSHIIP- ??- F7AR'rNRRSMP, COpPOF:ArIL7N •.....iG, FpANC3^IL5E FOR INDAnI PAF;TNER5111p M-EASE INCLUL-A W CORPORAt1ON, PRC MDE FIDEAAI, TAX A 10 Ir INOMDUAL OWNER CIR ftit7 NERWPC WI FTJ NAME(S), HOME ADDAE,ES?gj„a TELlEIdHONF NUM r IF CORPOMATiON. LIST Oh?FICER57PT?INCIPALS! WAKS AND TITLF.S OLLOW. '? BELt7W? NAME jo Tmu I - , f m;, a I I "JJ51NW, REFEREN17755 (Gve 3) MINIMUM (Aftfi i( A ?f fivai y md -^--? ,o be III on the Oack) D cQMFAMIY NADIE } ADbREMS (CITY STJ. 1• xIP CCIpE) TELEMOMR 9 12 BANK MFEM4LJ Gw?na P*4e ,ESARE rfgtWAFAIED PCOAND n 19 tMOM7 0:) Ana r0 n I • Id% PW MoNTbI LATE C wpaL INTW RVpa qir oiKALA.T.T1?! A6WA W M V,Mf 71-IE CC=TD4 OR MfrCtSIN T ORbo -* ArPl CFNCYI W, W M IT 9iN L !E Lrnr,Am IN GL?<@B RAND a"n%Pu,INim,,om. AMOL S LU av o&WI 1 IJWl3 ANl5TI Mr. W de... r,.rr -,-• , =TOM or PRrmwmm;E NET )D OA$L 01know NT+?`.oLR?r?+?AE st Ki?c?S ro ANT nGL IMgASONW AlPR]wV" FM CRxNR10N Cosri/I? ? .E. ANY MRS AI{ I74Rfl% AIELATM ?0tM A,rft GRr1' OR ATJ)' , lh :?b'11vWtff,tiLLANOtIfViS DUE LNM7M CONM4IANU R0 4I AAY R FI F" FV+IIHCLR MOMVIIII Cr RS R941.0F5AGRpigTT 4lAFpLICA W Fftr ' APPt,IP.IUVt SICTIAtVRE ?APPMUJQANT TTTLC e,A pa OATF CM01T DEPAW'MRNT USE DIVIT i. CIATOMfER NUMSIRASSrNeD SALESMAN myieEA A55u;nep 7, SALES TAX EXE-MP TION INFORI100N 11209 C> M ? Noj AMLI ;A7 ION CHE,CKECI MID C1IS MbR A4`r, TAXESe YE5 s JS • REPAIR • RENTAL • SR,AIipMNG ? CO11rC RRTEgliErX.iITG &i R'lwI+INCr 1 HMY W' TW 1HnTTHE WRYMnTiQtV??,M O HM. IV FZ rM II BY My SIGM7URE WOW.15THE X IM "" OF OBTAIVN( CAEfal7 ftm Y m t:Qmw s Tm A AIo MR; N STICAMN NEaXAFtr NY >??TIONZa UO C XFJCT M THE oBr OF MY AGE MVO BHN.. MIAINITARV A CT?Ir I TOUII M M PMILU9H AM 03719/2008 09:17 DRI? ORE INC, P. O. BOX 2004 MECHAMICSWRG, PA 17055 EW01CE DrivaKam Inc. P.O. Box 2004 Machuiic*um. PA 17055 (717) 766-7636 * (800) .332-1311 *Far (717) 766-1101 s www.&ivekore.com . SALES REPAIR 6 RENT.4L @ CONCRM SAWING & ,DR,iI., "G HILL IN LAGANA PLO. & HEATING SKIP JIM LAGANA PLO. & HEATING TO: 146 AIRPORT ROAD TO: 146 AIRPORT ROAD sunE 3 SUITE 3 HAZLETON, PA 18202.9324 HAZLETON, PA 18202-9324 pn v 373.3027 SYNCTSA PZX'SL zR W/7 PUNCT 1 0 1 4890.0000 1228 CRADLR PIP8L118RR 1 0 1 17 .1000 ISIMIKL 14470 DON JAN 2007 4890.00 175.10 ruUM RSORT ANY Rflr01L'6 DMCWAM= WMCN M M DAYS KXAIR DlTACR RMnTANCB 9M RM AND IIIMM WRB YOM PATUW TO Wi0l1Ri A=MTS CMff 373.3027 SPECTRA PIPRIAM W/7 POPI 1 0 1 4990.0000 4890.00 1228 CRJWLZ, PIP$LRXZR 1 0 1 173.1000 175.10 aRRIAL # 14470 DOW JAN 2007 R• a '{: YM• '?;>:5 . e.. M.? p i? i?k .Z. •o K<y9. . ;a 136109 Y7I07 39 j M .., ..k•YM 'Y , ?` Y.n+i%fjsS?••ly. 570-455-6324 LAUANA rLMtM.lNU. 03!7.'3/2008 0?:17 570-455-6324 LAUANA rLMM.INU. OkS INCO A P. BOX 2004 MECHAAWSEURG, PA 17055 INVOICE Drivexore I=- P.O. Box 2004 Mciawdeftrg. PA 17045 (717) 766-7636 * (800) 382-1311 * fiWx (717) 766-ZIOI * www.dre"kare.com SALES REPAm + RENTAL: • CONCRETE SAVNG do DRILLING BILL JIM LAGANA PLO. & HEATING SW JIM LAGANA PLO- & HEATING TO: 146 AIRPORT ROAD TO: 146 AIRPORT ROAD SUITS 3 SUITE 3 HAZLETON, PA 18202-9324 HAZLETON, PA 18202-9324 trrw DRAW t'DxAm Model: X750 MAIN CLRA1= S/N: vw-04380 Tag 0 113837 Sin # 3-F ESTIMATE SEE TAG LBR60p L1!$OR+L'HA>?OJ3 - Mb' U I 3. 100.0000 I 100.00 ?R143642 1AUTOPRED, A75 11 0I 1 321.3500 1 321-35 RI50507 V.EPLACMG= GFZ DINE CORD 1 0 1 71.2000 '74-20 am GMTBR&L MAINTENANCE ON TOOL ]. 0 1 _0000 .00 Raaer Ar1Y nr5raes ?prsra?Pwcpcs wrraar Trx ab n 8A= MAW RU DAYB ?' MAMC8 MV11 MM.VV V C DRAEF CL1?A34ER LUC! WtM YOUR PAYMOM TO V MU A=UR:AT15 MWT Nodel: X750 DRAXN t'-'T ?a*n 8/w. `N-0+4380 Tag # 113837 Bin # S-F BSTIMN E BR$ TAG r LS11600 U ABOR CriARGB - AI 1 0 1 100.0000 100.00 R143642 AMOPSED, 175 1 0 1 321.3500 321.35 9150507 R=LAC1 ' GFZ •LIM CORD 1 0 1 74.2000 74.10 G GENEM X.&TWENANCE ON TOOL 1 0 1 0000 .00 s '?3f :: g, ..a. ?,, : , aeroKl? e `.r?6 '`:Y i?? • °K "' .: s 1 04113107 1 0411 90496 31V63023 :r f: sx :. :,<rK - . 03/19/2008 09:17 570-455-b314 LAu?rNA II"LIVIIt"..IINK, Please send payments to- SrnATEMEW DRMKORE,1NC, P.O. Box 2004 MECHA?NICSBURG, PA 17055 717-697-7440 1367.09 JIM LAGANA PLG. & HEATING 146 AIRPORT ROAD SUITE 3 HAZLETON, PA, 18202-5651 02/27/07 895425 03/29/07 04/13/07 904963 05/13/07 5369.01 .525.28 I 10/05/07 5369..01 525.28 EXHIBIT "D" 03/20/2008 15:14 570-455-_6324 93-20-1$ 13:54 M. DR VEKOItE, INC. 101 Wesley Drive Mechanicsburg, PA 17055 Plaintiff V. JIM LAGANA PLUMBING & HEATING, rNC. 146 Airpm Road, Ste. 3 Hazleton, PA 18202 and JAMES LAGANA M 2, Box P6-16 Hazleton, PA 18202 Defendants TO T14E PROTHONOTARY: LAUANA hJLM ". 1NU. rmum rJ T-339 P002/005 F-228 IN THE COURT OF COMMON PLEAS LUZMtNE COUNTY, PENNSYLVANIA NO. Or" ram-ga r?n?+ w ? ° Flease enter Judgment in the aM altnt of 569291.19, plus Costs, against Jim Lagana Plumbing & Keating, Inc. and James La;gana, as per the attached Notices of JudgmerlU'I'M=ript of Civil Case. Daft: By merles R.cctor, F..squi?e 1104 Fernwood Avenue, Ste, 203 Camp Hill, PA 17011-6912 (717) 761-4454 Attorney for PlaindfiF LAUANA rLrrltf V . i lvt?. 570-455-5324 83-20-'08 13;54 FAOM- C6MMONWEALTH OF PENNSYLVANIA ranj awry ric• CWUUIKL? mio. Dist, W, 09-1-01 VW Name: Men, CZARLU A. CIa RII'1`r JR AO*m* 400 221V= ST VLDR 3011111111111110MI1111 -MITE 3 xxw c r im u L n, n Teftrme: 017) 774-5989 1701110 03/20/2008 15:14 D)RX V3xX= II8'c 101 1ilJR9M Dn" 1ilmCfA> C , PA 17055 T-339 P083/005 F-228 NOTICE OFC U?QG?1aENT ITRANSCRIRT PLAINTIFF; IBC r4AME and AWRUS rDiRI9>m0? ? 101 Dam HID 'a, PA, 1705 5--? LJ DOPENPAN'r: NAME an?A00AEli6 ra = Lkam JPLt3>a7?C Jte r, 186 & UP = !b UT/self! 3xp 7: 1P : ; An dmiiid LJIItalsx arc # r tas am . % FA 16209 i . '. J Docket No.: Cv-0000539-07 Date Filed: 11/15/07 THIS I$ TO NOTIFY YOU THAt: Judgment: alli9'i1DtiT 40'QAAMEMOT PL'i'>t? (Date of Judgment) 1/16/08 Judgment was entered for: (Name) Q0t8 mc, Judgment was entered against: (Name; L1 G"M PLtI aim A KU2 IW in the amount of $ 6s291.11 Defendants are jointly and severally liable. L] Damages will be assessed on Date & Time This case dismissed without prejudice. Amount of Judgment Subject to Altachment/42 Pa.C.S. § 8127 Portion of Judgment for physical damages arising out of residential lease S Amount of Judgment $ 6 ? x'88 • Z9 ? Judgment Costs $ 1W. so Interest on Judgment 3 .00 Attorney Fees $_ TONI $ 6,191.3.9 post Judgment Credits $ Pod Judgment Costa $ ,Certified Judgamt Total s6 ANY PARTY HAS THE NGHT TO APPEAL WMIN So CLAYS AVM THE IeN'I'RY OF 4UOiNYIENT MY FLMQ A NOTICE OF APPEAL WITH THE PROTHOWTARYICLERK OF THE COURT OF COMMON PLEAS, CIVIL, b WISION. YOU MUST 94W" A COPY OF Tlas 1'f ME OF JUDQIMEWgrRAm0j1PT FORM WITH YOUM NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED JN THE RULES OF CM PRDOEDUAE FOR MAGIMMAL DISTRICT 4=ES, IF THE JUDOMM HOLDER M.EC'ra TX1 EN'T'ER THE JUDGMENT IN THE OOURT OF COMMON nxis, ALL mffrHm PIS MUST COW R M THE COURT OF COMMON PLEAS AND NO FURTHXR PROCVS MAY EN ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. URE IN TM COURT OF COMMON 10166" ANYOW WMEWM0 IN THE d JUDMNT MAY FILE FOR VOW OF SATISFACWN WITH THIt 114MMMAL DI>'RICT JUDGE IF THE JUDGMENT A DEBTOR PAYS IN FULL, SEMES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. 1/24/08 pate I certify that this is S true and 3/6/08 Date My commission expires first Monday of January, 9oi4 , IVIftWereal District Judge AQPC 3t8-o7 DA'TZ p>itlwnm.. 3/o6/e5 4 .s7 .in ]IS v , MOOMWIal 113"IXt JL the prO&"Np containing the jud"nt. SEAL 1 ...d A - EXHIBIT "E" 03/20/2008 15:14 570-455-6324 03-20-'08 13-54 FROM LAUANA IOLMl U. 1NU. rHuc uv T-339 P001/005 F-228 IN THE COURT OF COMMON PLIBAS OF Luzerne COUNTY, PENNSYLVANIA CIVIL. DIVISION DriveKore, Inc. vs. PlaintlYks) Jim Lagana Plumbing & Heating, Ina. and James Lagana Defendainks) Fite No. 44` r" J40 1'' NOTICE OIL RUNG JUDGMENT { ) Notice is hereby given that a __ -ja amenz in the above-captioned me ar has been entered against you in the amount of , 291.19 on -113 oar . A copy of al documents fled vrith the Prothonotary in support of ft within judgment is / are . 0. P onotarylCl rk, Civil Division ay: AL) Deputy if yOu have any "rations nitgarding this Notice, pba$e contact the tiling party: Name: ch 1ea sector, Esquire cc? y A#tomey for Party,_ 2, ; n s f f .at r Supreme Court ID No.: a 121 Address: -.1104 a. ge wood Ave., Ste. 2o3 11, PA 17011 Telephone No. ("10 Nofe is given in accordance with Pa.R.C.P. No. 23d.) (Rev. 4/04) 03120/2008 15:14 570-455-6324 03-20-'08 13!54 FROM AFFIDAVIT OF NO APPEAL DrivdCore, Inc. Plaintiff V. Jim Lagsaa Plumbing & Heating, hxc. and James Lea DefWaots LAUANA I'LM %b . 1 NU. T-339 P005/005 F-228 District Justice Docket No: CV-538-07 t3.t^7d-- Xabr As of March 12, 2008, a District Justice Appeal has not been tiled in the Cant of C rnon Pleas of Cumberland County in the above-captioned matter. RESPECTFULLY SUBMITTED, Date- Charles Rector, Esquire It 04 Fernwood Avenue, Ste. 203 Camp !rill, PA 17011-6912 (717) 761-0454 Attorney for Plaintiff c, clam Elizabeth Bernstein Decker, Esquire Deputy Prothonotary 570-825-1747 I& 1ARIA all III 0032782008-0011 File Transmittal Luzerne County Prothonotary 5/22/2008 114146 AM CCC JILL A. MORAN, ESQUIRE Prothonotary Luzerne County Courthouse 200 North River Street Wilkes-Barre, Pennsylvania 18711-1001 Phone 570-825-1745 Fax 570-825-17571 TDD 570-825-1860 FILE TRANSMITTAL FORM &4?v? / Plaintiff Defendant DATE: .r"' ,2D UO TRANSMITTED TO: JUDG A--" COURT ADMINISTRATOR DIVORCE MASTER DOCKET NO?? D O r OTHER: OUT: Prothonotary Staff Initial: Received By: (Cf7 RETURNED: Prothonotary Staff Initial: Returned By: M Pi i t 0N0' Af--;'t` ?,_ t T R ( n f„T ZONJUN10 AM 11: 43 DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY Plaintiff VS. Civil Action - Law JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA, Defendants NO. 3278 . of 2008 Before: Judge Hugh F. Mundy ORDER AND NOW, this day of , 2008, after review, it is hereby ORDERED, ADJUDGED and DECR /ED as follows: 1) The Motion to Strike Off Judgment, filed on behalf of the Defendants, Jim Lagana Plumbing and Heating, Inc., and James Lagana, individually, is DENIED; Rule 1001 Pa Rules of Conduct Office Standards and Civil Procedure for Magistrate District Judges. 2) The Prothonotary is hereby directed to mail notice of the entry of this Order to all counsel of record pursuant to Pa. R.C.P. 236. 1 I 111 . 003 '2782008 a0012 Order with Rule 236 Luzerne County Prothonotary 6110/2008 135,37 PM BY THE COURT: o-s Counsel: Charles Rector, Esquire 1104 Fernwood Avenue, Suite 203 Camp Hill, PA 17011 Attorney for Plaintiff Lawrence M. Klemow, Esquire Klemow Law Firm 81 North Laurel Street, Suite 201 Hazleton, PA 18201 Attorney for Defendants Elizabeth Bernstein Decker, Esquire Deputy Prothonotary 570-825-1747 JILL A. MORAN, ESQUIRE Prothonotary Luzerne County Courthouse 200 North River Street Wilkes-Barre, Pennsylvania 18711-1001 Phone 570-825-1745 1 Fax 570-825-1757 TDD 570-825-1860 FILE TRANSMITTAL FORM '1Xwekcxe-Df\c. Plaintiff URQArV:,_ Defendant DATE: -- I 4W TRANSMITTED TO: JUDGE r/ COURT ADMINISTRATOR DIVORCE MASTER OTHER: OUT: Prothonotary Staff Initial: Received By: RETURNED: Prothonotary Staff Initi Luzerne County Prothonotary 611112008 80242 AM '3-jQ4 Returned By. C4 ?m_ myl Peter John Moses, Esquire Solicitor DOCKET NO??U - A 6c?_ 1111 NPI ??r??ll II 0032782008-0013 File Transmittal '34 1111EUVAMR11111 0032782008-0014 Appeal to Apellate Court Luzerne County Prothonotary 7/8/2008 10 09 23 AM co i KLEMOW LAW FIRM co LAWRENCE M. KLEMOW, ESQUIRE 81 NORTH LAUREL STREET SUITE 201 M , HAZLETON, PA 18201 { (570) 501-1771 ID NO. 15313 Attorney for Defendants DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS . OF LUZERNE COUNTY Plaintiff . . CIVIL ACTION - LAW VS. JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA, Individually, Defendants NO. 3278 of 2008 NOTICE OF APPEAL .•••..•...•?••??????????????+???????????? NOTICE IS HEREBY GIVEN that Jim Lagana Plumbing & Heating, Inc. and James Lagana, individually, Defendants above named, hereby appeal to the Superior Court of Pennsylvania from the Order entered in this matter on the 10th day of June, 2008. This Order bas been entered in the docket as evidenced by the attached copy of the docket entry. submitted, LA BY: 1.aw nce M. Kl+e o Esquire AVm-dey for Defendants, Jim Lagana Plumbing & Heating, Inc. and Jim Lagana, Individually Attorney ID No. 15313 81 North Laurel Street, Suite 201 Hazleton, PA 18201 (570) 501-1771 Luzerne County Page 1 of 1 L V A N T7_-AX-,`-.Z Case Details Case Number 10032782008 Commencement Date ....... i._...... _.._.._ ... ..---...._-----------a ! 3/132008 1002:33 AM Case Type _ j Transcripts (Magistrale Judgment) PFA Number Caption Plaintiff I DRIVEHORE INC Caption Defendant JIM LAG ANA PLUMBING & HEATING INC Judgment Indicator ..; Yes Status j Cashiered Judge _ __ Parcel Number .. ..._.._.._ . -._....... .__._. _..... _..... Remarks . Sealed Sealed ---------- No S Garnishees ER Dockets iRIMg Dab 13I13200810:02.33 AM 132008 10:09:19 AM -' ITransrmpla (Magsbale Judgment) _._ -' _._ .... Praedpe 11 11 ..__!,LIE! §MIld ! No 1 ..... ._._ No !31132008 10 10 21AM 3I132008 10:12:27 AM .. 1 Affidavit ? -- -- ' "--CB Of Entry Of Judgment No -- '- No A 42412008 10:34:48 AM _ Rule W Stow Cause t-._ ..._. ...... _._ No __AM x4242008 10 35 ...._ Petition ._... _....... , 50 '424.._1 10 35 50 AM 08 __ Bnef ... ? 151152008 12:58:24 PM _ ..... --_+- ` Answer .. .. .... No 5/152008 12:59:04 PM a Cerbficate Of Service --- tNu -_ 1 151152008 1:00:42 PM Brief No 5/152008 1:0116 PM _ Certificate Of Service 5222008 11:41:46 AM File Transmittal o 161102008 3:35:37 PM Order with Rule 236 !N 611120088:02:42 AM File Transmittal _ No _J G Linked Cases Copyright © 2008 Paperless Solutions, Inc. All rights reserved. http://mcweb/PSI/Viewer/Detail.aspx?oq=aWQ90DEONzYmZW5OaXR5PUNhc2U%3d 7/7/2008 Back to Search > Case #0032782008 1111 11 II lJ? 0032782008-0016 Other Luzerne County Prothonotary 7/8/2008 10 15:51 AM C..:,7 Co +{?' r- KLEMOW LAW FIRM ITI ? LAWRENCE M. KLEMOW, ESQUIRE ?5 ?= 81 NORTH LAUREL STREET, SUITE 201 j HAZLETON, PA 18201 (570) 501-1771 ID NO. 15313 Attorney for Defendants DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY Plaintiff CIVIL ACTION - LAW VS. JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA, Individually, Defendants NO. 3278 of 2008 REQUEST FOR TRANSCRIPT There is no request for transcript inasmuch as there is no verbatim record of the proceedings. Jim Lagana Plumbing & Heating, Inc. and Jim Lagana, Individually Attorney ID No. 15313 81 North Laurel Street, Suite 201 Hazleton, PA 18201 (570) 501-1771 0032782008-0015 Proof Of Service Luzerne County Prothonotary ' 71812008 1014.59 AM C.... -lf C1 0 ?- ? KLEMOW LAW FIRM e; =} LAWRENCE M. KLEMOW, ESQUIRE 81 NORTH LAUREL STREET, SUITE 201 - - " HAZLETON, PA 18201 (570) 501-1771 ID NO. 15313 Attorney for Defendants DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY Plaintiff CIVIL ACTION - LAW VS. JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA, Individually, Defendants NO. 3278 of 2008 PROOF OF SERVICE I, LAWRENCE M. KLEMOW, ESQUIRE, hereby certify that on this date I served copies of the Notice of Appeal, Request for Transcript and Proof of Service in the above-captioned matter by United States First Class Mail, postage prepaid, addressed as follows: Charles Rector, Esquire Honorable Hugh F. Mundy 1104 Fernwood Avenue, Ste. 203 Luzerne County Courthouse Camp Hill, PA 17011-6912 200 North River Street Wilkes-Barre, PA 18711 Court Administrator Luzerne County Courthouse 200 North River Street Wilkes-Barre, PA 18711 Official Court Reporter Luzerne County Courthouse 200 North River Street Wilkes-Barre, PA 18711 OW LA Dated: ttor ey for Defendants, Jim agana Plumbing & Heating, Inc. and Jim Lagana, Individually 2 0032782008-0017 Certificate Of Service Luzerne County Prothonotary 718/2008 10 18 20 AM KLEMOW LAW FIRM LAWRENCE M. KLEMOW, ESQUIRE 81 NORTH LAUREL STREET, SUITE 201 HAZLETON, PA 18201 (570) 501-1771 ID NO. 15313 Attorney for Defendants c co C _4. ?. DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY Plaintiff CIVIL ACTION - LAW VS. JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA, Individually, Defendants NO. 3278 of 2008 CERTIFICATE OF SERVICE I, Lawrence M. Klemow, Esquire, hereby certify that on June 25, 2008 I mailed a Motion for Reconsideration and proposed Order on behalf of the Defendants in the above- captioned matter by U.S. First Class Mail, postage prepaid, to: Honorable Hugh F. Mundy Luzerne County Courthouse 200 North River Street Wilkes-Barre, PA 18711 Dated: July 7, 2008 Jim Lagana Plumbing & Heating, Inc. and James Lagana, Individually lemow Lave Firm Lawrence M. lQemow* 81 North Laurel Street Phone: (570) 501-1771 Suite 201 Fax: (570) 501-7130 FlazletoQ, PA 18201 E-Mail: Hdaw@ptd.net June 25, 2008 Honorable Hugh F. Mundy Luzerne County Courthouse 200 North River Street Wilkes-Barre, PA 18711 (Dopy RE: DriveKore, Inc. vs. Jim Lagana Plumbing & Heating, Inc., et al No. 3278 of 2008 Dear Judge Mundy: Enclosed please find an original and one (1) copy of a Motion for Reconsideration and proposed Order in the above-captioned matter. Upon ruling on the Motion, I would appreciate your returning the original Motion and Order that you issue which I will then have filed with the Prothonotary. Very truly yours, KLEMOW LAW FIRM Lawrence M. Klemow LMK/kms Encl. Cc: Charles Rector, Esquire * Certified As A Civil Trial Advocate By The National Board Of Trial Advocacy KLEMOW LAW FIRM LAWRENCE M. KLEMOW, ESQUIRE 81 NORTH LAUREL STREET, SUITE 201 HAZLETON, PA 18201 (570) 501-1771 ID NO. 15313 Attorney for Defendants DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY Plaintiff CIVIL ACTION - LAW VS. JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA, Individually, Defendants NO. 3278 of 2008 ................................................................................................................ ................................................................................................................ ORDER AND NOW, this day of , 2008, the Defendants' Motion for Reconsideration is hereby granted. BY THE COURT, J. KLEMOW LAW FIRM LAWRENCE M. KLEMOW, ESQUIRE 81 NORTH LAUREL STREET, SUITE 201 HAZLETON, PA 18201 (570) 501-1771 ID NO. 15313 Attorney for Defendants DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY Plaintiff vs. JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA, Individually, CIVIL ACTION - LAW Defendants NO. 3278 of 2008 ........................................... MOTION FOR RECONSIDERATION The Defendants, Jim Lagana Plumbing & Heating, Inc. and James Lagana, by and through their counsel, Lawrence M. Klemow, Esquire, files this Motion for Reconsideration based upon the following: 1. On April 24, 2008, the Defendants in the above-captioned matter filed a Petition to Strike Off Judgment. 2. On June 10, 2008, the Court entered an Order denying the Motion to Strike Off Judgment. A copy of the Court's Order is attached hereto. 3. Subsequent to the Court's ruling, the Defendants have become aware of 42 Pa. C.S.A. 5103(a) which provides as follows: "(a) General Rule - If an appeal or other matter is taken to or brought in a court or magisterial district of this Commonwealth which does not have jurisdiction of the appeal or other matter, the court or magisterial district judge shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper tribunal of this Commonwealth, where the appeal or other matter shall be treated as if originally filed in the transferee tribunal on the date when the appeal or other matter was first filed in a court or magisterial district of this Commonwealth. The matter which is within the exclusive jurisdiction of a court or magisterial district judge of this Commonwealth but which is commenced in any other tribunal of this Commonwealth shall be transferred by the other tribunal to the proper court or magisterial district of this Commonwealth where it shall be treated as if originally filed in the transferee court or magisterial district of this Commonwealth on the date when first filed in the other tribunal." 4. The Defendants believe that the above statute is controlling to the facts in the above-captioned matter and that the Court of Common Pleas of Luzerne County is obligated to transfer the appeal to Cumberland County where it must be treated as if originally filed in Cumberland County. WHEREFORE, the Defendants respectfully request that this Honorable Court grant the Motion for Reconsideration. submitted, LA L&NOrence M. Memairf-Esquire Attorney for Defendants, Jim Lagana Plumbing & Heating, Inc. and James Lagana 2 2:28 P.M. 4ppeal Docket Sheet Docket Number: Pagel of 3 July 15, 2008 1213 MDA 2008 Superior Court of Pennsylvania Drivekore, Inc. V. Jim Lagana Plumbing and Heating, Inc. and James Lagana, Appellants Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: July 14, 2008 Journal Number: Case Category: Civil Awaiting Original Record CaseType: Civil Action Law Consolidated Docket Nos.: Related Docket Nos.: SCHEDULED EVENT Next Event Type: Receive Docketing Statement Next Event Due Date: July 29, 2008 Next Event Type: Original Record Received Next Event Due Date: September 8, 2008 1111 p, 0 ' =am Illll 00327Other 021 Other Luzeme County Prothonotary 7121 /?008 9 39:23 AM 7/15/2008 3023 2:28 P.M. Appeal Docket Sheet Docket Number: Pam2of3 July 15, 2008 1213 MDA 2008 COUNSEL INFORMATION Appellant Pro Se: IFP Status: Jim Lagana Plumbing and Heating, Inc. and James Lagana Appoint Counsel Status: No Appellant Attorney Information: Attorney: Klemow, Lawrence M. Bar No.: 15313 Address: 81 N Laurel Street Hazleton, PA 18201 Phone No.: (570)501-1771 Receive Mail: Yes E-Mail Address: Receive E-Mail: No Law Firm: Glassberg Law Fax No.: (570)501-7790 Appellee Pro Se: IFP Status: Drivekore, Inc. Address: Suite 203 1104 Fernwood Avenue Camp Hill, PA 17011-6912 Phone No.: (717)761-8101 Fax No.: (717)761-2161 Receive Mail: Yes E-Mail Address: Receive E-Mail: No Appoint Counsel Status: Appellee Attorney Information: Attorney: Rector, Charles Alexander Bar No.: 39121 Law Firm: Law Offices of Charles Rector, P.C. FEE INFORMATION Paid Fee Date Fee Name Fee Amt Amount Receipt Number 7/8/08 Notice of Appeal 60.00 60.00 2008SPRMD000592 TRIAL COURT/AGENCY INFORMATION Court Below: Luzerne County Court of Common Pleas County: Luzerne Division: Civil Date of Order Appealed From: June 10, 2008 Judicial District: 11 Date Documents Received: July 14, 2008 Date Notice of Appeal Filed: July 8, 2008 Order Type: Order Entered OTN: Judge: Mundy, Hugh F. Lower Court Docket No.: 3278 of 2008 Judge ORIGINAL RECORD CONTENTS Superior Court of Pennsylvania 7115/2008 3023 2:28 P.M. Appeal Docket Sheet Docket Number: Page 3 of 3 July 15, 2008 Superior Court of Pennsylvania 1213 MDA 2008 Original Record Item Filed Date Content/Description Date of Remand of Record: BRIEFS DOCKET ENTRIES Filed Date Docket Entry/Document Name Party Type Filed By July 14, 2008 Notice of Appeal Filed Appellant Jim Lagana Plumbing and Heating, Inc. and James Lagana July 15, 2008 Docketing Statement Exited (Civil) Middle District Filing Office 7/15/2008 3023 Carbon Copy Recipient List Addressed To: Lawrence M. Klemow, Esq. Glassberg Law 81 N Laurel Street Hazleton, PA 18201 Carbon Copied: Ms. Jill A. Moran Prothonotary Luzerne County Courthouse 200 North River Street Wilkes-Barre, PA 18711 Charles Alexander Rector, Esq. Law Offices of Charles Rector, P.C. Suite 203 1104 Fernwood Avenue Camp Hill, PA 17011-6912 Court Reporter Court Reporter Court of Common Pleas of Luzerne County Luzerne County Courthouse, River Street Wilkes-Barre, PA 18711 The Honorable Hugh F. Mundy Court of Common Pleas of Luzerne County Luzerne County Courthouse, 200 N. River Street Wilkes-Barre, PA 18711 3014 - 10/99 10/1/99 COMMONWEALTH OF PENNSYLVANIA Superior Court of Pennsylvania Karen Reid Bramblett, Esq. Middle District Pmtbonotay James D. McCullough, Esq. July 15, 2008 Deputy Protbonotmy Re: 1213 MDA 2008 Drivekore, Inc. V. Jim Lagana Plumbing and Heating, Inc. and James Lagana, Appellants Dear : 100 Pine Street. Smite 400 Hareisburr. PA 17101 717-772-1294 WWWImPeAOr.COmrt.slate pa. ms Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Very truly yours, Karen Reid Bramblett, Esq. Prothonotary ALV cc: Charles Alexander Rector, Esq. Court Reporter Court Reporter The Honorable Hugh F. Mundy Judge Ms. Jill A. Moran Prothonotary Ms. Jill A. Moran Prothonotary Luzerne County Courthouse 200 North River Street Wilkes-Barre, PA 18711 c -------------------------------------------- 3014-10/99 10/1/99 1 ¦46 DRIVEKORE, INC., vs. 10032782008-0018 Order with Rule 236 Luzerne County Prothonotary 7110/2008 11 46.59 AM IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY Plaintiff JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA, Defendants Civil Action - Law NO. 3278 of 2008 Before: Judge Hugh F. Mundy ORDER IZ/ AND NOW, this _/V day of (I"x-, 2008, it is hereby ORDERED, ADJUDGED and DECREED as fo lows: (?? 1) The Motion of the Defendant, Jim Lagana Plumbing and Heating, Inc., for Reconsideration, is GRANTED; 2) Oral argument is scheduled for Friday, August 22, 2008, at 9:30 a.m. in Courtroom No. 3; 3) Briefs to be provided on or before August 15, 2008; 4) The Prothonotary is hereby directed to mail notice of the entry of this Order to all counsel of record pursuant to Pa. R.C.P. 236. h rh 200 C:> --+.? BY THE COURT: nXm 4 -.. Counsel: Charles Rector, Esquire 1104 Fernwood Avenue, Suite 203 Camp Hill, PA 17011 Attorney for Plaintiff Lawrence M. Klemow, Esquire Klemow Law Firm 81 North Laurel Street, Suite 201 Hazleton, PA 18201 Attorney for Defendants Mar,1161 11111 III 0032782008-0019 Order Luzerne County Prothonotary 7/1512008 11.43.32 AM -? Cad _ ?... '. C) CSl t CJ ; - KLEMOW LAW FIRM LAWRENCE M. KLEMOW, ESQUIRE } 81 NORTH LAUREL STREET, SUITE 201 - HAZLETON, PA 18201 (570) 501-1771 ID NO. 15313 Attorney for Defendants DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY Plaintiff CIVIL ACTION - LAW VS. JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA, Individually, Defendants NO. 3278 of 2008 ORDER AND NOW, this eo/day of 14 , 2008, the Defendants' Motion for Reconsideration is hereby granted. RV T14P Cn1T1DT II I 0032782008-0020 Motion Luzerne County Prothonotary 1 7/1512008 11 4352 AM C= C) c.n Fri ? " ?C:)i KLEMOW LAW FIRM ` LAWRENCE M. KLEMOW, ESQUIRE W? 81 NORTH LAUREL STREET, SUITE 201 HAZLETON, PA 18201 (570) 501-1771 ID NO. 15313 Attorney for Defendants DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY Plaintiff CIVIL ACTION - LAW VS. JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA, Individually, , Defendants NO. 3278 of 2008 ................................ ............................................................... .....................................::::::::::::............................................................... MOTION FOR RECONSIDERATION The Defendants, Jim Lagana Plumbing & Heating, Inc. and James Lagana, by and through their counsel, Lawrence M. Klemow, Esquire, files this Motion for Reconsideration based upon the following: 1. On April 24, 2008, the Defendants in the above-captioned matter filed a Petition to Strike Off Judgment. 2. On June 10, 2008, the Court entered an Order denying the Motion to Strike Off Judgment. A copy of the Court's Order is attached hereto. 3. Subsequent to the Court's ruling, the Defendants have become aware of 42 Pa. C.S.A. 5103(a) which provides as follows: "(a) General Rule - If an appeal or other matter is taken to or brought in a court or magisterial district of this Commonwealth which does not have jurisdiction of the appeal or other matter, the court or magisterial district judge shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper tribunal of this Commonwealth, where the appeal or other matter shall be treated as if originally filed in the transferee tribunal on the date when the appeal or other matter was first filed in a court or magisterial district of this Commonwealth. The matter which is within the exclusive jurisdiction of a court or magisterial district judge of this Commonwealth but which is commenced in any other tribunal of this Commonwealth shall be transferred by the other tribunal to the proper court or magisterial district of this Commonwealth where it shall be treated as if originally filed in the transferee court or magisterial district of this Commonwealth on the date when first filed in the other tribunal." 4. The Defendants believe that the above statute is controlling to the facts in the above-captioned matter and that the Court of Common Pleas of Luzerne County is obligated to transfer the appeal to Cumberland County where it must be treated as if originally filed in Cumberland County. WHEREFORE, the Defendants respectfully request that this Honorable Court grant the Motion for Reconsideration. 2 Attorney for Defendants, Jim Lagana Plumbing & Heating, Inc. and James Lagana 2:28 P.M. Appgal Dot:ket Sheet Superior Court of Pennsylvania Docket Number: 1213 MDA 2008 Page 1 of 3 July 15, 2008 Drivekore, Inc. V. Jim Lagana Plumbing and Heating, Inc. and James Lagana, Appellants Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: July 14, 2008 Awaiting Original Record Journal Number: Case Category: Civil CaseType: Civil Action Law Consolidated Docket Nos.: Related Docket Nos.: SCHEDULED EVENT Next Event Type: Receive Docketing Statement Next Event Due Date: July 29, 2008 Next Event Type: Original Record Received Next Event Due Date: September 8, 2008 003^' _002I IIISAMU$ _,8008 1 -ther _uzerne County Prcthcnotary -1211_008 93923 AM 7/15/2008 3023 2:28 PA Appgal Docket Sheet Docket Number: Page 2 of 3 July 15, 2008 1213 MDA 2008 s COUNSEL INFORMATION Appellant Pro Se: IFP Status: Appellee Pro Se: IFP Status: Jim Lagana Plumbing and Heating, Inc. and James Lagana Appoint Counsel Status: No Appellant Attorney Information: Attorney: Klemow, Lawrence M. Bar No.: 15313 Address: 81 N Laurel Street Hazleton, PA 18201 Phone No.: (570)501-1771 Receive Mail: Yes E-Mail Address: Receive E-Mail: No Drivekore, Inc. Address: Suite 203 Law Firm: Glassberg Law Fax No.: (570)501-7790 Appoint Counsel Status: Appellee Attorney Information: Attorney: Rector, Charles Alexander Bar No.: 39121 Law Firm: Law Offices of Charles Rector, P.C. 1104 Fernwood Avenue Camp Hill, PA 17011-6912 Phone No.: (717)761-8101 Fax No.: (717)761-2161 Receive Mail: Yes E-Mail Address: Receive E-Mail: No FEE INFORMATION Paid Fee Date Fee Name Fee Amt Amount Receipt Number 7/8/08 Notice of Appeal 60.00 60.00 2008SPRMD000592 TRIAL COURT/AGENCY INFORMATION Court Below: Luzerne County Court of Common Pleas County: Luzerne Division: Civil Date of Order Appealed From: June 10, 2008 Judicial District: 11 Date Documents Received: July 14, 2008 Date Notice of Appeal Filed: July 8, 2008 Order Type: Order Entered OTN: Judge: Mundy, Hugh F. Lower Court Docket No.: 3278 of 2008 Judge ORIGINAL RECORD CONTENTS Superior Court of Pennsylvania 7/15/2008 3023 2:28 PA Appgal Docket Sheet Docket Number: Page3of3 July 15, 2008 1213 M DA 2008 Superior Court of Pennsylvania , Original Record Item Date of Remand of Record: Filed Date Content/Description BRIEFS DOCKET ENTRIES Filed Date Docket Entry/Document Name Party Type Filed By July 14, 2008 Notice of Appeal Filed Appellant Jim Lagana Plumbing and Heating, Inc. and James Lagana July 15, 2008 Docketing Statement Exited (Civil) Middle District Filing Office 7/15/2008 3023 Carbon Copy Recipient List Addressed To: Lawrence M. Klemow, Esq. Glassberg Law 81 N Laurel Street Hazleton, PA 18201 Carbon Copied: Ms. Jill A. Moran Prothonotary Luzerne County Courthouse 200 North River Street Wilkes-Barre, PA 18711 Charles Alexander Rector, Esq. Law Offices of Charles Rector, P.C. Suite 203 1104 Fernwood Avenue Camp Hill, PA 17011-6912 Court Reporter Court Reporter Court of Common Pleas of Luzerne County Luzerne County Courthouse, River Street Wilkes-Barre, PA 18711 The Honorable Hugh F. Mundy Court of Common Pleas of Luzerne County Luzerne County Courthouse, 200 N. River Street Wilkes-Barre, PA 18711 3014 - 10/99 10/1199 COMMONWEALTH OF PENNSYLVANIA Karen Reid Bramblett, Esq. Prothonotary James D. McCullough, Esq. Deputy Prothonotary , e Superior Court of Pennsylvania Middle District July 15, 2008 100 Pine Street. Suite 400 Hanisburv. PA 17101 717-772-1294 www superior tour.state pa.us Re: 1213 MDA 2008 Drivekore, Inc. V. Jim Lagana Plumbing and Heating, Inc. and James Lagana, Appellants Dear : Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Very truly yours, Karen Reid Bramblett, Esq. Prothonotary ALV cc: Charles Alexander Rector, Esq. Court Reporter Court Reporter The Honorable Hugh F. Mundy Judge Ms. Jill A. Moran Prothonotary Ms. Jill A. Moran Prothonotary Luzerne County Courthouse 200 North River Street Wilkes-Barre, PA 18711 c --------------------------------------------- 3014-10/99 10/1/99 KLEMOW LAW FIRM LAWRENCE M. KLEMOW, ESQUIRE 81 NORTH LAUREL STREET, SUITE 201 HAZLETON, PA 18201 (570) 501-1771 ID NO. 15313 Attorney for Defendants DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY Plaintiff CIVIL ACTION - LAW VS. JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA, Individually, . Defendants NO. 3278 of 2008 ................................................................................................................ ................................................................................................................ ORDER AND NOW, this day of 2008 upon consideration of Defendants' Petition to Strike and Brief in Support thereof, it is hereby ORDERED, ADJUDGED AND DECREED as follows: 1. Defendants' Petition to Strike Judgment is GRANTED and the Judgment entered on March 13, 2008 is stricken. 2. The Notice of Appeal filed by the Defendants on February 15, 2008 has been timely filed. 3. The Notice of Appeal and this Order shall be transferred to the Court of Common Pleas of Cumberland County. 4. The Prothonotary is directed to enter this Order of record and to mail a copy of the Order to all counsel of record pursuant to Pa. R.C.P. 236. BY THE COURT: J• N O c ? J Cd IZ, O U N 0 0 0 N 0 r\ N M O O tn m u A u N rn 0 41 u 0 to . d t (A ? I i a 1 3 i ? 1 ? G ? C C ' 7 Q? ^S' Mn m O U i in O n O W o F. CL _ N Y 9 :_+ N p w N t311 w N o t`- a ¢ z wC L m ¢ m c) I 3 is ¢ a d Q ¢ ? a a d a a jM N N 7.pp O ? 'N O O N to r O I R M M M n I A O 'O O 'O O C O O fV CV O O r w r w r w r 0 r w r 00 r w r w r 00 r w r w a D 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 ? C M r M r Cl) r M r d N d N Q ? r Q r 3 M M M M d d d L Vn I an J a> N d N N (n 0 , 0 ? N Ln N ? 1 c ? a E 1 01 = 1 I 1 ? ? Q Y In v Z III ? M N O U Z M a o 0 ? W o o a ? O z Q d N w ON v W j J M C J f y m j i O o M 1- 4 Z n ., >- U z L ? 1 3 1 c C a M + + a V L L d L ?. = c d c a c o. E c. c Z a o z E F z O O E ? a m iLa y IA N O A R a ? p 3 A d d 1 0 u I O u u c u U. a m u l 0 u n ai ul n d It to w C d n N c, a co O ° 0 N N C? U) W Q U Z O U a? a? a N O O W t rn Q U C r.. Vi c O 7 O N N N a a 00 0 0 N 0 t L 01 to 'C d ? H Q. (0 O () U .a d Y C J o 00 O O N N V\1 .J 4 ? 0 it a t . L?:? ?' ey w ? 6.- E a f DRIVEKORE, INC., Plaintiff V. JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-5419 CIVIL TERM CIVIL ACTION - LAW NOTICE TO DEFEND AND CLAIM RIGHTS 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 claim 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. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 08-5419 CIVIL TERM JIM LAGANA PLUMBING & CIVIL ACTION - LAW HEATING, INC. and JAMES LAGANA Defendants COMPLAINT AND NOW, comes the Plaintiff, DriveKore, Inc., by and through its' attorney Charles Rector, Esquire, and avers in support of its' Complaint against Defendants, Jim Lagana Plumbing & Heating, Inc. and James Lagana, as follows: 1. Plaintiff, DriveKore, Inc., is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with a principal place of business located at 101 Wesley Drive, Mechanicsburg, Cumberland County, Pennsylvania, 17055. 2. Defendant, Jim Lagana Plumbing & Heating, Inc. is believed to be a Pennsylvania Corporation with its principle place of business located at 146 Airport Road, Ste. 3, Hazleton, Pennsylvania, 18202. 3. Defendant, James Lagana, is an adult individual who resides at RR2, Box P6-16, Hazleton, Pennsylvania, 18202. 4. On or about March 13, 2003, James Lagana, completed an Application for Credit on behalf of his company, Jim Lagana Plumbing & Heating, Inc., with Plaintiff (see Exhibit "A" attached hereto and incorporate herein). 5. The Credit Application signed by Defendant, James Lagana, on March 13, 2006, provides in pertinent part that: "I hereby guarantee all amounts due under this contract and promise to pay all amounts due on demand." 6. Based upon Defendants' Credit Application and personal guarantee, credit was granted to Defendants for the purchase of equipment from Plaintiff and for services provided by Plaintiff. 7. On February 27, 2007, Defendant purchased a Spectra pipelaser and cradle, (see Invoice #895425 attached hereto, incorporated herein and marked as Exhibit "B"). 8. On April 13, 2007, Plaintiff repaired Defendants' drain cleaner (see Invoice #904963) attached hereto, incorporated herein and marked as Exhibit "C") 9. Defendants have failed and/or refused to pay Plaintiff the amount of $5,894.29, for the above-referenced invoices (see Statement dated October 5, 2007, attached hereto, incorporated herein and marked as Exhibit T") 10. Pursuant to the terms of the Application for Credit and invoices, eighteen (18%) percent annual interest is to be charged to all invoices not paid within thirty (30) days of the date of the invoice (see Exhibits "A," T," and "C" referenced above). 11. Pursuant to the terms of the Application for Credit, Defendants have agreed to be responsible for Plaintiffs attorneys fees, collection costs and all costs associated with the collection of any delinquent balance (See Exhibit "A" referenced above). 12. Additional interest will accrue and be due and owing through disposition of this case. 13. Plaintiff has retained the services of the Law Offices of Charles Rector, Esquire, P.C. and has agreed to pay them a fee, which fees accrue monthly and will be calculated upon disposition of the case. 14. Plaintiff has incurred and may continue to incur costs of collection of the balance due from Defendant, which total will be calculated upon disposition of the case. WHEREFORE, Plaintiff, DriveKore, Inc., demands judgment in its favor and against Defendants, Jim Lagana Plumbing and Heating, Inc. and James Lagana, in the amount of $5,894.29, plus interest at 18% per annum, collection costs and attorneys fees and such further relief that the Court deems just and appropriate under the circumstances. RESPECTFULLY S Date: 4 d? J Jp Charles Rectof Esquite- 1104 Fernwood Avenue, Ste. 203 Camp Hill, PA 17011-6912 (717) 761-8101 Attorney for Plaintiff I verify that the statements made herein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Kevin raig Date: 9-1q-o% CERTIFICATE OF SERVICE .,P I, Charles Rector, Esquire, do hereby certify that on the -2'1 day of September, 2008, I caused a true and correct copy of the within Civil Complaint to be served upon counsel for Defendant at the addresses below by depositing same in first class, United States mail, postage paid, in Camp Hill, Pennsylvania: Lawrence M. Klemow, Esquire Klemow Law Firm 81 N. Laurel Street, Ste. 201 Hazleton, PA 18201 By: C s Rector, squire 1104 Fernwood Avenue, Ste. 203 Camp Hill, PA 17011-6912 (717) 761-8101 Date: 9 .7a o? ro> n -rr r 7 r Y ? L. Cr . ? r ; CO 24 G? 4 DRIVEKORE, INC., Plaintiff V. JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-5419 CIVIL TERM CIVIL ACTION - LAW PRAECIPE TO ATTACH EXHIBITS To the Prothonotary: Kindly mark the attached as Exhibits "A" through "D" to the Civil Complaint filed in the above-captioned matter. RESPECTFULLY SUBMITTED: brwi4B,zw? Charles Rector, Esquire (ID # 39121) 1104 Fernwood Avenue, Ste. 203 Camp Hill, PA 17011-6912 (717) 761-8101 Date: 4 ?? VJ: 1?•: LVVJ 11. LV J f V`iJJVJG'? L-.HuHl YH Yral=t uz ******* l ?3 c? 169 DRZVEKORE INC APPLICATION FOR CREDIT PLEASE PRINT OR TYPE 101 W@SIEy Drive P.O. Box 2004 Mechornicsburg. PA 17055 ST C1 AD iRFSS AND M U ADDRES $MPPING ADDRESS (NO P-O.41OX PLEASE) (717) 766-7636 (800)) 382-1311 Fax: (717) 766-1101 r sr ZIP CODE crry STATF_ ZIP COIX WWw,driV9kore.COm PARENT COWANY & ADDRESS,, PLEASEANSWER ALL APPUCABLE QUESTIONS. FAILURETTO DOS MAY RESULT IN DELAY OR DENIAL OF CFMDIT. 3 T E LEN4C)NE NUMBER: AREA DOPE -4Z-1-0 NLNMSER. Vr_-X_4krw 4 PAX NUMBER: AR ? NUMBE 14. r. ?]F S D&S RATINC+ YEARS 6 TYPE OF Sa 55TA?C SERE ON NUM ER (CO?V CFTAX EXEMII?T CFRTIFIFIRMAW.' i ?eLO? DCATIQN 7 HAD CREDIT WITH D uvxXp w nfc. PRFVICAJSLYt YES NO 8 HAVE 9 INDVIDLJA( OWNERSHIP PARTNFR!5H1P CORPORATION _.ge FRANCHISE FOR INDIVIDUAL PARTNERSHIP PLEASE INCLUDE S50 IF GORPORAfION, PROVIDE FEDERAL TAX If x.39. y3 U3 I O Ir INCNVIDUAI. OWNER OR PAR1 NERSHIP COMPI FTE NAME(S), HOME ^DORE'S (ES),AND TELEPHONF NUMBER(S) BELOW. IF CORPORATION, U5T OI-HrERSYPFJNCIPAI.S' NAMr_S ANDT)TI,F•S KLOW: ,.T„ a MAMIE P TITLE, 4 o e l" 02'e(' ,r 1A'Frlip-` DP J? Ae i g-J-LhEPHONE M I I BUSIME55 REFERENCES (Give 3) - MINIMUM (Addito nil oefucrlces ml), be listcd m the tti ck) COMPANY NAME 1 99 ADDRESS CCITT, STILT ZIP CODE) TELEPHONE # 12 BANK REr9kENCE OFFICER CHARGE PFA4EGES ARE HEREBY APPLIED FOR AND 17 IS UNDERSTOOD AND AUVED T' Al 11-IF TERMS OF PAYMENTARE,NET 30 DAYS DELINQUENT ACCOL INIT'S ARE SUBIECT TO A I • In% PER MONTH (ATE CHARGE MITHE FKNT OF DEFAULT.TMt AIVLICANT ArdrFS TO PAY ALL REASONABLE ATTORISI 5 FEES, CCLI,EC nON COSTS Alen COSTS A:WX3ATM VsM1 THE COLLECTION OF ANY DELINQUENT OR DEFOr.NCY BALANCE. ANYANO N.( 015PUTES R FLATM TOTHIS AMICATION OR ANYTRAIV5ArVONS MRlrr ING FROM IT SHALL M LITIGATED IN CUM8ERLANO (-MNT (PEt tt45YLVANIA. I HEREby rAk MNTEE ALL AMOUNTS DUE UNDER Tf115 CON nVrT AND PROM1.%T0 PAY ALL AMOUNTS DUE ON DEMANCA ! UNDERSTOOO TI IAT Dw>rre•JE41W MAY SCFK PAYMENT FROM, ME VA (HOD (XI-IAUSTING ALL Or ITS REMLDIr. . AGAINST THE APPLICANT FIRST. I HERRBY CXRTIFY WTTHE FORMATION FROMDED HEREIN FOR THE INDICATF,O BY MY SIGNAM.11RE BELOW ISTHF AUTHORIZATIONTO Cap PURPOSE OF OBTA84M CREDIT FROM YOUR rOMF!'1NY ISTRUE AND rtlE INVESTIGATION NECESSARY IN OMDERTD ESTABLISH ANO C.OW.CT rU THE BEST OF MY KNOWLEDGE AND BELIEF. MAINTAIN A CREDIT 1 NA WITH IOLJR COMPANY. APPLICANT SIGNATURE 1 01 APPLICANT FYhVTF.I? TITLE A DATF CRECIT DEPARTMENT USE ONLY 1. CUSTOMER NUMMA ASSIGNFP SALESMAN NI_1MBER ASSIGNED 7. SALES TAX U(LMP I ION INFORMADON RECEIVED: YES NO CUSTOMER PAYS TAXES: YES _ APPLICAI ION CHECKED AND APPROVED BY: DATE:_ SALES • REPAIR - RENTAL • SHARPENING * CONCRETE SAWfNG UINC. . 0. BOX 2004 !ECIMNICSBURG, PA 17055 INVOICE 1 DriveKore Inc. P.O. Box 2004 Mechanicsburg, PA 17055 (717) 766-7636 * (800) 382-1311 * Fax (717) 766-1101 * www.&ivekore.com SALES REPAIR • RENTAL • CONCRETE SAWING & DRILLING BILL JIM LAGANA PLG. & HEATING SHIP JIM LAGANA PLG. & HEATING TO: 146 AIRPORT ROAD TO: 146 AIRPORT ROAD SUITE 3 SUITE 3 HAZLETON, PA 18202-9324 HAZLETON, PA 18202-9324 136109 NTW 02/27/07 009 58048 609089 txiap>>><;:<s:.«'>>1ti+tpSC1 373.3027 SPECTRA PIPELASER W/7 F17NCT 1 0 1 4890.0000 4890.00 1228 CRADLE, PIPELASER 1 0 1 175.1000 175.10 SERIAL # 14470 DOM JAN 2007 PLEASE REPORT ANY INVOICE DISCBEPANCEZS Wi MN TEN (10) DAYS PLEASE DETACH REMITTANCE STUB HERB AND INCLUDE WITH YOUR PAYMENT TO ENSURE ACCURATE CREDIT 373.3027 SPECTRA PIPELASER W/7 FUNCT 1 0 1 4890.0000 4890.00 1228 CRADLE, PIPELASER 1 0 1 175.1000 175.10 SERIAL # 14470 DOM JAN 2007 C(3t0'DdEA SI#iX aATS 146!IDICEDaTP t+vb1G!?; ttl?tiC0lt?fYk E T TJ?t€ TO'1'.4L 136109 02/27/07 02%27/07 895425/609089 ; ' .1... ...I 1 04/13/07 904963 DRrvEKoRE iNc. P.O. BOX 2004 AXW? DriveKore Inc. MECHANICSBURG, PA 17055 P.O. Box 2004 Mechanicsburg, PA 17055 INVOICE (717) 766-7636 * (800) 382-1311 * Fax (717) 766-1101 * www.drivekore.com SALES REPAIR • RENTAL • CONCRETE SAWING & DRILLING BILL JIM LAGANA PLG. & HEATING SHIP JIM LAGANA PLG. & HEATING TO: 146 AIRPORT ROAD TO: 146 AIRPORT ROAD SUITE 3 SUITE 3 HAZLETON, PA 18202-9324 HAZLETON, PA 18202-9324 1 136109 1 NTW 1 04/13/07 1 009 1 58341-53311 1 V63623 l DRAIN CLEANER Model: X750 DRAIN CLEANER SIN: VW-04380 Tag # 113837 Bin # S-F ESTIMATE SEE TAG LBR600 LABOR CHARGE - MF RI43642 AUTOFEED, A75 RI50507 REPLACEMENT GFI LINE CORD GM GENERAL MAINTENANCE ON TOOL 1 0 1 100.0000 100.00 1 0 1 321.3500 321.35 1 0 1 74.2000 74.20 1 0 1 .0000 .00 PLEASE REPORT ANY INVOICE DISCREPANCIES WITHIN TEN (10) DAYS -- PLEASE DETACH REMITTANCE STUB HERE AND INCLUDE WITH YOUR PAYMENT TO ENSURE ACCURATE CREDIT DRAIN CLEANER Model: X750 DRAIN CLEANER SIN: VW-04380 Tag # 113837 Bin # S-F ESTIMATE SEE TAG v LBR600 LABOR CHARGE - MP RI43642 AUTOFEED, A75 RI50507 REPLACEMENT GFI LINE CORD GM GENERAL MAINTENANCE ON TOOL 1 0 1 100.0000 100.00 1 0 1 321.3500 321.35 1 0 1 74.2000 74.20] 1 0 1 .0000 .00 136109 04/13/07 _ f 04/13/07 904963/V63623 SS 2S8: "I STATEMENT Please send payments to: DRIVEKORE, INC. P.O. BOX 2004 MECHANICSBURG, PA 17055 717-697-7440 136109 JIM LAGANA PLG. & HEATING 146 AIRPORT ROAD SUITE 3 HAZLETON, PA 18202-9651 02/27/07 895425 03/29/07 04/13/07 904963 05/13/07 5369.01 525.28 Page' Date 10/05/07 5369.01 525.28 Current 1-30 Days 31-60 Days 61.90 Days Over 90 Total Due .00 .00 00 .00 5894.29 5894.29 f-2 0- KLEMOW LAW FIRM LAWRENCE M. KLEMOW, ESQUIRE 81 NORTH LAUREL STREET, SUITE 201 HAZLETON, PA 18201 (570) 501-1771 ID NO. 15313 Attorney for Defendants DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiff VS. JIM LAGANA PLUMBING & CIVIL ACTION - LAW HEATING, INC. and JAMES LAGANA, Individually, . Defendants NO. 08-5419 PRELIMINARY OBJECTIONS TO COMPLAINT The Defendants, Jim Lagana Plumbing & Heating, Inc. and James Lagana, Individually, by and through their counsel, the Klemow Law Firm, files the following Preliminary Objections to Plaintiffs Complaint: IMPROPER VENUE - Pa. R.C.P. 1006 and 2179 1. This action has been instituted in Cumberland County, Pa. 2. Plaintiff's Complaint alleges that the Defendants, Jim Lagana Plumbing & Heating, Inc. and James Lagana, either reside at or maintain their principal place of business in Hazleton, Pa. Hazleton is in Luzerne County, Pa. 3. The venue of this action is improper in Cumberland County pursuant to Pa. R.C.P. 1006 which provides that Plaintiff may only bring this action against an individual in the county where the individual may be served, or in which a cause of action arose, or where a transaction or occurrence took place out of which the cause of action arose. Pa. R.C.P. 2179 provides that the Plaintiff may only bring this action against a defendant corporation in the county where the cause of action arose, where the Defendant's office or principal place of business is located, where it regularly conducts business or where an action or occurrence took place out of which the cause of action arose. 4. Plaintiff's Complaint fails to identify any specific facts which support venue in Cumberland County against an individual or a corporation. 5. Defendant, Jim Lagana Plumbing & Heating, Inc., has no office or place of business in Cumberland County. 6. Defendant, Jim Lagana Plumbing & Heating, Inc., does not and has not regularly conducted any business in Cumberland County. 7. No transaction or occurrence related to this action took place in Cumberland County. 8. The Defendants were not personally served in Cumberland County. 2 INSUFFICIENT SPECIFICITY IN A PLEADING - Pa. R.C.P. 1028(a)(3) 9. Plaintiff s Complaint identifies James Lagana as an individual and Jim Lagana Plumbing & Heating, Inc. as a corporation. However, Plaintiff's Complaint fails to set forth the basis for claiming that both the individual and the corporation are legally obligated to the Plaintiff. Plaintiff's Exhibit "A" (Application for Credit), which is specifically relied upon by Plaintiff in support of its claim against the individual Defendant, clearly indicates that the Application was submitted by the corporation and signed by James Lagana, President of the corporation. There is nothing in the Application which indicates that James Lagana signed as an individual. LACK OF CAPACITY TO SUE, NON-JOINDER OF A NECESSARY PARTY OR MISJOINDER OF A CAUSE OF ACTION - Pa. R.C.P. 1028(a)(5) 10. The Plaintiff has brought suit against James Lagana as an individual and Jim Lagana Plumbing & Heating, Inc. and as failed to specifically plead any facts as to the liability of the individual Defendant. However, Plaintiff's Complaint fails to set forth the basis for claiming that both the individual and the corporation are legally obligated to the Plaintiff. Plaintiff's Exhibit "A" (Application for Credit), which is specifically relied upon by Plaintiff in support of its claim against the individual Defendant, clearly indicates that the Application was submitted by the corporation and signed by James Lagana, President of the corporation. There is nothing in the Application which indicates that James Lagana signed as 3 an individual. It is Defendants' contention that both the individual and the corporate entity cannot be liable to the Plaintiff. WHEREFORE, Defendants respectfully request that Plaintiff s Complaint be dismissed and/or transferred to the appropriate county. Attorney for Defendants, Jim Lagana Plumbing & Heating, Inc. and James Lagana, Individually 4 VERIFICATION I, James Lagana, as President of Jim Lagana Plumbing and Heating, Inc., verify that the statements made in the foregoing Preliminary Objections to Complaint are true and correct. I understand that false statements herein are made subiect to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. Dated: \ % 1 b% C1 ? ?? ` c„ ? -;? .=`" Eaa _-? ? ? =.? ?:' i? 3, '?7 _ ' .!"' w? .,.r w..i .-G. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) DRIVEKORE, INC., Plaintiff VS. JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA, Individually, Defendants No. 5419 2008 Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Preliminary Objections to Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: Charles Rector, Esquire (Name and Address) 1104 Fernwood Avenue, Suite 203, Camp Hill, PA 17011 ) for defendants: Lawrence M. Klemow, Esquire (Name and Address) 81 North Laurel Street, Suite 201, Hazleton, PA 18201 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Print your name Attomeyfor Defendants Date: October 8, 2008 INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. Lawrence M. Klemow k7 C PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) DriveKore, Inc. vs. Jim Lagana Plumbing & Heating, Inc. & No. 5419 2008 Term James Lagana, Individually 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): nPfPndant.1sPrP1 iminariE 0.1-'Jact ions 2. Identify all counsel who will argue cases: (a) for plaintiffs: Charles Rector, Esquire (Name and Address) 1104 Fernwood Avenue, Ste. 203, Camp Hill, PA 17011 (b) for defendants: Lawrence M. Klemow, Esquire (Name and Address) 81 N. Laurel Street, Ste. 201, Hazleton, PA 18201 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Date: 11 /16/09 Signature Charles Rector, Esquire Print your name rneyfor laintiff INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. OF AW' ?TARY 2019 NOV 18 PH 4 . 0 8 cumkI. NTY PRAECIPE FOR LISTING CASE FOR ARGUMENT CA/AL (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) ------------------------------------------------------------------------------------------------------ CAPTION OF CASE -------------- (entire caption must be stated in full) ? DriveKore, Inc. -.. ter- Z M 1 vs. rte me -4 E co O Jim Lagana Plumbing & Heating, Inc. & Jim Lagana, 5419 2008 ca Individually No. T errv 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections 2. Identify all counsel who will argue cases: (a) for plaintiffs: Charles Rector, Esquire, 1104 Fernwood Avenue, Ste. 203, Camp Hill, PA 17011 (Name and Address) (b) for defendants: Lawrence M. Klemow, Esquire (Name and Address) 81 N. Laurel Street, Ste. 201, Hazleton, PA 18201 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: February 17, 2010 Signature Charles Rector, Esquire-? Print your name Date: January 4, 2010 for P]fint(iff INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. DRIVEKORE, INC., Plaintiff VS. JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA, Individually, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 0 CIVIL ACTION - LAW rT" NO. 08-5419 CIVIL E CIO . ,.- a IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS ORDER N 0 0 r s cn AND NOW, this 'q"' day of March, 2010, this matter being submitted on briefs, the preliminary objection of the defendants on the ground of improper venue is DENIED. The cause of action for breach of contract for nonpayment occurred in Cumberland County. See Lucas Enterprises, Inc. v. Paul C. Harman Co., 417 A.2d 720 (Pa.Super. 1980). In any event, the contract contains a valid form selection clause. The preliminary objections asserting insufficient specificity, lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action having to do with the individual liability of James Lagana are DENIED. The complaint clearly alleges that the individual defendant personally guaranteed amounts due under the contract. BY THE COURT, Charles Rector, Esquire For the Plaintiff ? ?Laence M. Klemow, Esquire For the Defendants t DES eTu'? .?/It l I a " -/ (' - /'7 /1' Kevin . Hess, J. Fn- r "? ? ^t 7"j7: KLEMOW LAW FIRM LAWRENCE M. KLEMOW, ESQUIRE 81 NORTH LAUREL STREET, SUITE 201 HAZLETON, PA 18201 (570) 501-1771 ID NO. 15313 Attorney for Defendant DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiff VS. JIM LAGANA PLUMBING & CIVIL ACTION - LAW HEATING, INC. and JAMES LAGANA, Individually, . Defendants NO. 08-5419 PETITION TO WITHDRAW APPEARANCE TO THE HONORABLE, THE JUDGES OF SAID COURT: fhe Petition of Lawrence M. Klemow, Esquire, respectfully represents: i . That the above proceeding was initiated by a Complaint filed on March 17, 2008. 2. That your Petitioner has represented the Defendants in numerous court appearances. 3. That there are insurmountable and irreconcilable differences between the Petitioner and the Defendants regarding the representation of the Defendant in this matter. 4. That the Defendants have failed to satisfy their financial obligations to the Petitioner. 5. That your Petitioner has concluded that these differences make representation impossible and impractical and your Petitioner no longer wishes to represent the Defendants. WHEREFORE, the Petitioner prays for an order from this Honorable Court allowing the Petitioner to withdraw his appearance as counsel for the Defendants. VERIFICATION Lawrence M. Klemow, Esquire, being duly sworn according to law, deposes and says that the facts set forth in the foregoing Petition are true and correct to the best of his knowledge. information and belief. Dated: ?? ?0 FlLF-D-OFFICE (fir THc P,-.,, - 2010 P°'?.., x, ?• 57 KLEMOW LAV LAWRENCE M 81 NORTH LAL HAZLETON, PE (570) 501-1771 ID NO. 15313 Attorney for Def DR1 VEKORE, JIM LAGANA P HEATING, INC. LAGANA, Indiv Defendants NO. 08-5419 o'clock M., FIRM KLEMOW, ESQUIRE REL STREET, SUITE 201 18201 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiff VS. ,UMBING & CIVIL ACTION - LAW and JAMES dually, RULE NOW, this ZS day of 2010, at consideration of the foregoing Petition and on motion of Lawrence N4. Klemow, Esquire, Rule is hereby issued upon the Defendants, Jim Lagana Plumbing, & Jeating, Inc. and James Lagana. individually, to show why the appearance of Lawrence k.l. Klemow, Esquire, r said Defendant should not be withdrawn. RULE 7 BLE in C'otrtr?>om _ _-, e, One C6 t }(? E? i c' J . jugy:zu'-, BY THE COURT,, E;t3 C-. 26 10 Mr, I; 30- i 10: G 1 CLIM"ttiY KLEMOW LAW FIRM LAWRENCE M. KLEMOW, ESQUIRE 81 NORTH LAUREL STREET, SUITE 201 HAZLETON, PA 18201 (570) 501-1771 ID NO. 15313 Attorney for Defendants DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiff VS. JIM LAGANA PLUMBING & CIVIL ACTION - LAW HEATING, INC. and JAMES LAGANA, Individually, Defendants NO. 08-5419 •• t. •. •. •...•.••,u ..• a .•.• N.• H•••..••.••.•!•.•••.•.••.• CERTIFICATE OF SERVICE I, LAWRENCE M. KLEMOW, ESQUIRE, hereby certify that on March 26, 2010, I served a Rule issued upon the Petition to Withdraw filed in the above-captioned matter by mailing the same by United States First Class Mail, postage prepaid, on the following persons: Jim Lagana 386 Airport Road, Smite 3 Hazle 1'ownship, PA 18202 Dated: March 26, 2010 Charles Rector, Esquire 104 Fernwood Avenue, Ste. 203 Camp Hill, PA 17011-6912 %fly Laffana Plumbinff & Ileating Inc. *La9ana Construction Services 146 Airport Beltway, Suite 3, Hazleton, Pa. 18202 - Ph. 570.455.5450 - Fax. 570.455.6324 Pennsylvania and New Jersey Registered Business L ° March 25 2010 , -73 Prothonotary's Office cr? 1 Courthouse Sq. ` - Z - =' _T i Suite 100 Carlisle, PA 17013 r L cr; Re: Withdraw Appearance Consideration of Lawrence M. Klemow, Esquire - Doc No. 08-5419, DriveKore, Inc., Plaintiff vs. Jim Lagana Plumbing & Heating, Inc., Defendant. Dear Honorable Judge Hess: I am writing regarding the Petition to Withdraw by my counsel Lawrence M. Klemow, Esquire pertaining to the above referenced legal matter. I received from Attorney Klemow the Rule Notice which indicates a Rule Returnable within 20 days. Jim Lagana Plumbing & Heating, Inc. hereby objects to the withdraw of Attorney Klemow based upon the following: Mr. Klemow has indicated in is motion that there are insurmountable and irreconcilable difference, and my firm has failed to satisfy its financial obligations. I would like to explain to your honor the reason for the dispute between Attorney Klemow and my firm after 34 years of a business relationship. Mr. Klemow's law firm failed to file a legal document timely pertaining to a legal matter which has prevented my firm from settlement of the case, and leaving my firm owed over $200,000.00. Although Mr. Klemow has forwarded this matter to his malpractice insurance carrier, and it is in Commonwealth Court awaiting a settlement conference pertaining to the late filing of the legal documents by Mr. Klemow's office, this error has placed an extreme hardship on my firm. Attorney Klemow permitted to withdraw from this case will only further place additional hardship on my firm during these bad economic times. I am extremely disappointed by Mr. Klemow requesting his withdraw from this legal matter knowing the financial impact already created by the late filing of legal documents. Your consideration regarding this matter would be greatly appreciated. yelly Submitted, Cc: Mr. Lawrence Klemow, Klemow Law Firm KLEMOW LAW FIRM LAWRENCE M. KLEMOW, ESQUIRE 81 NORTH LAUREL STREET, SUITE 201 HAZLETON, PA 18201 (570) 501-1771 ID NO. 15313 Attorney for Defendants DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiff VS. JIM LAGANA PLUMBING & CIVIL ACTION - LAW HEATING, INC. and JAMES LAGANA, Individually, Defendants NO. 08-5419 ???? ??[( RULE AND NOW, this Zw4ay of 02? 2010, at o'clock M., upon consideration of the foregoing Petition and on motion of Lawrence \11. Klemow, Esquire, a Rule is hereby issued upon the Defendants, Jim Lagana Plumbing & Heating, Inc. and James Lagana. individually. to show why the appearance of Lawrence M. Klemow, Esquire, for said Defendant should not be withdrawn. 4he dity of 2910 at RULE RETURNABLE o2 b 0.ZYS aZ?'+F1L S'FJ4v?t, BY THE COURT, P.J. cF THE ?TARY KLEMOW LAW FIRM LAWRENCE M. KLEMOW, ESQUIRE 81 NORTH LAUREL STREET, SUITE 201 HAZLETON, PA 18201 (570) 501-1771 ID NO. 15313 Attorney for Defendants 2010 MAY 11 PM 2= 41 CUMBERLAND 0010 FeWMaaNA DRIVEKORE, INC., Plaintiff VS. JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA, Individually, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - LAW Defendants NO. 08-5419 ................................................................................................................ MOTION FOR RULE ABSOLUTE AND NOW, this day of 2010, at o'clock .M., upon consideration of the Petition to Withdraw Appearance and on motion of Lawrence M. Klemow, Esquire, a Rule is hereby issued upon the Defendants, Jim Lagana Plumbing & Heating, Inc. and James Lagana, as follows: (1) On March 16, 2010, the undersigned filed a Petition to Withdraw Appearance as counsel for the Defendant in the above-captioned matter. (2) On March 26, 2010, the Court issued a Rule Returnable twenty (20) days after service. (3) On April 6, 2010, the Defendant caused to be filed a letter dated March 25, 2010, addressed to the Prothonotary's Office. The contents of said letter actually provided additional support for the granting of the Petition to Withdraw Appearance. (4) The undersigned served a copy of the Petition and Rule on Attorney Charles Rector and Jim Lagana on March 26, 2010. A copy of the Certificate of Service is attached hereto. WHEREFORE, the Petitioner respectfully requests that the Court issue a Rule Absolute. VERIFICATION Lawrence M. Klemow, Esquire, being duly sworn according to law, deposes and says that the facts set forth in the foregoing Motion are true and correct to the best of his knowledge, information and belief Dated: S`5 %. 0 r-a o N ca ? v t? ? :=f i' KLEMOW LAW FIRM UIRE -T' ca LAWRENCE M. KLEMOW, ESQ 81 NORTH LAUREL STREET, SUITE 201 HAZLETON, PA 18201 i; It (570) 501-1771 4! ID NO. 15313 I Attorney for Defendants i IN THE COURT OF COMMON PLEAS DRIVEKORE, P,?FC., : OF CUMBERLAND COUNTY l Plaintiff vs. JIM LAGANA PLUMBING & CIVIL ACTION - LAW HEATING, INC. and JAMES LAGANA, Individually, Defendants NO. 08-5419 CERTIFICATE OF SERVICE 1, LAWRENCE M. KLEMOW, ESQUIRE, hereby certify that on March 26, 2010, I served a Rule issued upon the Petition to Withdraw filed in the above-captioned matter by mailing the same by United States First Class Mail, postage prepaid, on the following ji, persons: dim Lagana. 386 Airport Road, Suite 3 Hazle Township, PA 18202 Dated: March 26, 2010 Charles Rector, Esquire 104 Fernwood Avenue, Ste. 203 Camp Hill, PA 17011-6912 DRIVEKORE, INC., Plaintiff VS. JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA, Individually, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-5419 CIVIL IN RE: PETITION TO WITHDRAW AS COUNSEL ORDER AND NOW, this Z g - day of June, 2010, a brief argument on the motion to withdraw as counsel is set for Thursday, July 8, 2010, at 4:00 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. Charles Rector, Esquire For the Plaintiff ? Lawrence M. Klemow, Esquire For the Defendants Jim Lagana, President Jim Lagana Plumbing & Heating, Inc. 146 Airport Beltway, Suite 3 Hazleton, PA 18202 :rlm n of Z N r.? C?3 C.` C,' Yll BY THE COURT, F1LF, 4TRY -ap N.. 2010 JU"IL -2 PM 3* tiZ CUM DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA VS. : NO. 08-5419 CIVIL TERM CIVIL ACTION - LAW JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA, Defendants. PRAECIPE TO ENTER APPEARANCE Please enter my appearance as co-counsel for the Plaintiff, DriveKore, Inc., in the above-captioned matter. narl??1yVire 6D# 206894) Cl stina A. HuAha s ctor, Esquire, P.C. La V! Offices of r e 1104 Fernwood Avenue, Ste. 203 Camp Hill, PA 17011-6912 (717) 761-8101 Date: G /.3 0 C-.-) DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA ; V. NO. 08-5419 CIVIL TERM T'LA' ?- JIM LAGANA PLUMBING & CIVIL ACTION - LAW" 71 HEATING, INC. and JAMES - LAGANA Defendants ?= = r Date of Notice: July 12, 2010 To: Jim Lagana Plumbing & Heating, Inc. & James Lagana 386 Airport Road, Ste. 3 Hazel Township, PA 18202 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST 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 YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 BY: Charles Rector, Esquire 1104 Fernwood Avenue, Ste. 203 Camp Hill, PA 17011-6912 (717) 761-8101 Attorney for the Plaintiff DRIVEKORE, INC., Plaintiff VS. JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA, Individually, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-5419 CIVIL IN RE: PETITION TO WITHDRAW AS COUNSEL ORDER AND NOW, this Z 1. day of July, 2010, the appearance of Lawrence m. Klemow, Esquire, as counsel for the defendants is deemed withdrawn. BY THE COURT, ?Charles Rector, Esquire For the Plaintiff .,?awrence M. Klemow, Esquire For the Defendants un Lagana, President Jim Lagana Plumbing & Heating, Inc. 146 Airport Beltway, Suite 3 Hazleton, PA 18202 :rlm r 'q't" Ls'-L a "-Z/q a {- '-"- -'ate -71 c r;U- 7 ?Y f t 2 Jl!t» 2 b.7 KOPE & ASSOCIATES, LLC BY: SHANE B. KOPE, ESQUIRE ATTORNEY ID 92207 395 St. Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 sbkope@kopelaw.com Attorney for Defendants DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 08-1.8'1 CIVIL TERM JIM LAGANA PLUMBING & HEATING CIVIL ACTION - LAW INC. and JAMES LAGANA, Defendants. PRAECIPE TO ENTER APPEARANCE To: David D. Buell, Prothonotary Please enter the appearance of the undersigned counsel on behalf of Defendants, Jim Lagana Plumbing and Heating, Inc., and James Lagana, in the above- captioned matter. Respectfully Submitted, Date: T 7 2C1? J;? Cu ,.., ? t 7 KOPE & ASSOCIATES, LLC BY: SHANE B. KOPE, ESQUIRE ATTORNEY ID 92207 395 St. Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 sbkope@kopelaw.com Cul 1, Attorney for Defendants DRIVEKORE, INC., Plaintiffs vs. JIM LAGANA PLUMBING & HEATING INC. and JAMES LAGANA, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-48'3'1 CIVIL TERM CIVIL ACTION - LAW ANSWER AND NEW MATTER AND NOW come Defendants, Jim Lagana Plumbing and Heating, Inc. and Jim Lagana (hereinafter "Defendant" and/or "Defendants"), by their counsel, Kope & Associates, LLC, and file the following Answer and New Matter to Plaintiff's Complaint: 1. Admitted. 2. Admitted. 3. Admitted in part and denied in part. It is admitted that Defendant is Jim Lagana Plumbing & Heating, Inc. It is denied that Jim Lagana, the adult individual, is a Defendant in this matter. On the contrary, the Defendant is Jim Lagana Plumbing & Heating, Inc. only, not any of its individual members/officers. 4. The averments in Paragraph 4 are a series of legal conclusions, which require no response. By way of further response, it is averred that the Application for Credit attached as Exhibit "A" speaks for itself and should be considered in its entirety; Defendants aver that any inconsistent characterizations of the document's terms are strictly denied. 5. The averments in Paragraph 5 are Plaintiffs summary of the contents of the Application for Credit including a series of legal conclusions, which require no response and are therefore deemed denied. By way of further response, it is averred that the Application for Credit attached as Exhibit "A" speaks for itself and should be considered in its entirety; Defendants aver that any inconsistent characterizations of the document's terms are strictly denied. 6. Denied. It is denied that Defendant Jim Lanaga, the adult individual, personally guaranteed any credit granted by Plaintiff. As a response to the contrary, the matters set forth in Paragraph 3 above are incorporated herein by reference. It is denied that credit was granted to the Defendants for the purchase of equipment because of the Application for Credit. On the contrary, credit was granted to the Defendant for the purchase of equipment based primarily on the parties' mutual expectation of reimbursement to the Defendant from its insurance carrier for the loss of a pipe laser; when that reimbursement did not occur, Plaintiff refused to renegotiate the price of the pipe laser as previously agreed between the parties. It is denied that Plaintiff performed any services for Defendant. On the contrary, Defendant had to hire another company to perform said services. By way of further response, any remaining averments / implications contained in Paragraph 6 are Plaintiffs summary of the contents of the Application for Credit, Invoices and Statement, including a series of legal conclusions, which require no response and are therefore deemed denied. By way of further response, it is averred that the Application for Credit, Invoices and Statement attached as Exhibits 'A," "B," "C," and "D," respectively, speak for themselves and should be considered in their entirety; Defendants aver that any inconsistent characterizations of the documents' terms are strictly denied. 7. The averment contained in Paragraph 7 is a legal conclusion that requires no response. By way of further response, the averment contained in Paragraph 7 refers to the Invoice attached to the Complaint at Exhibit "B," which is a written document that speaks for itself; Defendants aver that any inconsistent characterizations of the document's terms are strictly denied. 8. Denied. It is denied that Plaintiff repaired Defendant's drain cleaner. As a response to the contrary, the matters set forth in Paragraph 6 above are incorporated herein by reference. By way of further response, the averment contained in Paragraph 8 refers to the Invoice attached to the Complaint at Exhibit "C," which is a written document that speaks for itself; Defendants aver that any inconsistent characterizations of the document's terms are strictly denied. 9. Denied. It is denied that Defendants have failed/refused to pay Plaintiff the amount of $5,894.29 contained in the invoices, as Defendant does not owe Plaintiff said amount. As a response to the contrary, the matters set forth in Paragraph 6 above are incorporated herein by reference. By way of further response, any remaining averments / implications contained in Paragraph 9 are Plaintiff's summary of the contents of the Application for Credit, Invoices and Statement, including a series of legal conclusions, which require no response and are therefore deemed denied. By way of further response, the averments contained in Paragraph 9 refer to the Invoices and Statement attached as Exhibits "B," "C," and "D," respectively, which are written documents that speak for themselves and should be considered in their entirety; Defendants aver that any inconsistent characterizations of the documents' terms are strictly denied. 10. The averments contained in Paragraph 10 are a series of legal conclusions, which require no response. By way of further response, it is averred that Exhibits "A," `B," and "C" are documents that speak for themselves and should be considered in their entirety; Defendants aver that any inconsistent characterizations of the documents' terms are strictly denied. 11. The averments contained in Paragraph 11 are a series of legal conclusions, which require no response. By way of further response, it is averred that Exhibit "A" is a document that speaks for itself and should be considered in its entirety; Defendants aver that any inconsistent characterizations of the document's terms are strictly denied. 12. The averment contained in Paragraph 12 is a legal conclusion, which requires no response. By way of further response, the averment contained in Paragraph 12 refers to the Application for Credit and Invoices attached as Exhibits "A" "B," and "C," respectively, which are written documents that speak for themselves and should be considered in their entirety; Defendants aver that any inconsistent characterizations of the documents' terms are strictly denied. 13. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments and, therefore, such allegations are deemed to be denied and strict proof thereof is demanded. 14. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of these averments and, therefore, such allegations are deemed to be denied and strict proof thereof is demanded. NEW MATTER 15.Answering Defendants incorporate paragraphs 1 through 14 above by reference, as though fully set forth at length herein. 16. The price of the pipe laser was conditionally based on Defendant receiving full retail reimbursement from its insurance company from the loss of its own pipe laser. It was agreed between the parties that if the Defendant did not receive full retail reimbursement, Plaintiff would renegotiate the price of the pipe laser. 17. The Defendant was not reimbursed for its pipe laser by its insurance company. 18. The Plaintiff refused to renegotiate the price of the pipe laser with the Defendant in contradiction of its agreement to do so. 19. The Defendant returned the pipe laser to the Plaintiff as a result of Plaintiff's failure to abide by the parties agreement concerning price. 20.The Plaintiff did not perform any drain cleaning services for the Defendant despite being requested to do so by the Defendant. 21.The Defendant had to hire another company to perform said drain cleaning services. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE 22. Plaintiffs Complaint fails to state a claim against Defendants upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE 23. Plaintiff's claims against Defendants are barred by the applicable statues of limitations. THIRD AFFIRMATIVE DEFENSE 24. Plaintiff's claims are barred by the Doctrine of Estoppel or Waiver. FOURTH AFFIRMATIVE DEFENSE 25. To the extent that Plaintiff asserts a breach of contract claim against Defendants, such claims are barred for lack of timely notice of any alleged breach and/or lack of privity. WHEREFORE, Defendants respectfully request that this Court enter judgment in their favor and against the Plaintiff, together with costs, interest and any other fees the Court deems appropriate. Respectfully Submitted, Date: ?17'C-17'616 07/26/2010 07:02 5704553442 LAGANA INC PAGE 12/13 07/25/2610 21:42 717-761-7572 KOPE & 45500ATES PAGE 12/13 VERIFICATION I verify that the statements made in the foregoing Answer are true and correct. I understand that false statements herein are made subject to the penafties of 18 Pa. C. 8. § 4904 relating to unswrorn falsification to suftdtie5. r? -ej , ?. 6 Jim a", Owner/Operator Date : ?IZC?Lt?o KOPE & ASSOCIATES, LLC BY: SHANE B. KOPE, ESQUIRE ATTORNEY ID 92207 395 St. Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 sbkope@kopelaw.com Attorney for Defendants DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 08-1851 CIVIL TERM JIM LAGANA PLUMBING & HEATING CIVIL ACTION - LAW INC. and JAMES LAGANA, Defendants. CERTIFICATE OF SERVICE 1, Shane B. Kope, Esq., do hereby certify that on this 26th day of July, 2010, 1 served a true and correct copy of the foregoing Answer with New Matter via First Class Mail, postage prepaid, addressed as follows: Christina A. Huffman, Esquire 1104 Fernwood Ave., Suite 203 Camp Hill, PA 17011-6912 Attorney for Plaintiff DRIVEKORE, INC., Plaintiff V. JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA Defendants IN THE COURT OF COMMON P~~ CUMBERLAND COUNTY, PENN.S~Yk~~NI~ ~~ 3: ~ $ NO. 08-5419 CIVIL TERM ; au ~~:} ~~JUt~ ~~P'EN1~3SYLVANlA CIVIL ACTION -LAW AND NOW, comes the Plaintiff, DriveKore, Inc. by and through their attorney, Charles Rector, Esquire, and files the following Answer to Defendant's New Matter and Affirmative Defenses: 15. No answer required. New Matter 16. Denied. It is denied that the pipe laser price was conditionally based on Defendant receiving full retail reimbursement from its insurance company for the loss of its' own pipe laser and proof thereof is demanded and the same is deemed denied. By way of further answer, it is specifically denied that Plaintiff would renegotiate its' price with Defendant based upon whether or not Defendant received insurance reimbursement and proof thereof is demanded and the same is deemed denied. 17. Denied. Plaintiff is without sufficient information or knowledge to form a belief as to the truth of the averments contained in Paragraph 17 and proof thereof is demanded and the same are deemed denied. 18. Denied. Paragraph 18 constitutes a legal conclusion which requires no answer and is deemed denied. To the extent that any further answer is required, Plaintiff at no time agreed to negotiate price reductions based upon Defendants' insurance claim(s) and proof thereof is demanded and the same is deemed denied. 19. Denied. It is specifically denied that Defendant returned a pipe laser to Plaintiff and proof thereof is demanded and the same is deemed denied. 20. Denied. It is denied that Plaintiff performs drain cleaning services and further denied that Plaintiff was requested by Defendant to perform such services and proof thereof is demanded and the same is deemed denied. 21. Denied. Plaintiff is without sufficient knowledge or information to form a belief as to the truth of this averment and proof thereof is demanded and the same is deemed denied. Affirmative Defenses 22. - 25. Paragraphs 22 through 25 constitutes legal conclusions which require no answers and are deemed denied. WHEREFORE, Plaintiff respectfully requests your Honorable Court to dismiss with prejudice Defendants' New Matter and "Affirmative Defenses" and to grant Plaintiff judgment, with attorneys fees, interest and costs and for such other relief as the Court seems just and appropriate. Date: ~ ~ ~~ RESPECTFULLY SUBM ~Ck~arles Rector/Esquire '- 1104 Fernwood Avenue, Ste. 203 Camp Hill, PA 17011 (717) 761-8101 Attorney for Plaintiff 1 verify that the statements made herein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. G~~- K ~n Craig DriveKore, Inc. Date: 3i t~ y ~. CERTIFICATE OF SERVICE I, Charles Rector, Esquire, do hereby certify that on the 1st day of September 1, 2010, I caused a true and correct copy of the within to be served upon the following persons by depositing same in first class, United States mail, postage paid, in Camp Hill, Pennsylvania: Shane B. Kope, Esquire 395 St. Johns Church Road, Ste. 101 Camp Hill, PA 17011 .....~ By: ~ ~-~- r+es Rector, E uire 1104 Femwood venue, Ste. 203 Camp Hill, PA 17011-6912 (717) 761-8101 Date: ~ °~ ~~ I~~ I t; ~ D-~O^ F F I G~y~ p ~y ~~'ID C~.T 2 I PSI 2~ I KOPE 8~ ASSOCIATES, LLC BY: SHAN~ B. KOPE, ESQUIRE ATTORNE'I~ ID 92207 395 St. Johns Church Road, Suite 101 Camp Hill, ~ A 17011 (717) 761- 573 sbkope@k' pelaw.com DRIVEKOH~E, INC., j Plaintiffs vs. JIM LAGAMIA PLUMBING & HEATING INC. and JAMES LAGANA, Defendants. ''~J~~~~E~LA~i~D G~~~J~~i~L. ~~~-.~~P~~Y! ~'J~!dlfi=, Attorney for Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-~-8~5-1~CIVIL TERM CIVIL ACTION -LAW PETITION TO WITHDRAW APPEARANCE TO THE H~NORABLE, THE JUDGES OF SAID COURT: ANa NOW, comes Shane B. Kope, Esq., and files the following Petition for permission~ito withdraw as counsel and in support thereof avers as follows: 1. The Defendants hired the undersigned counsel on July 16, 2010. 2. ' A retainer fee of $2,500 was paid on August 5, 2010 by personal check. 3. Based on the Defendants' representations that they were going to pay the retainer fed with valid funds, an Answer with New Matter was filed in the above captioned base on July 26, 2010. 4. 'i It was necessary to file the Answer with New Matter immediately after Defendant retained this law firm in order to stop the entry of a Default Judgment that could have been filed against Defendants as early as July 23, 2010. 5. I After filing the Answer with New Matter in the above captioned case, the 'I Defendant ' retainer to this law firm was returned for insufficient funds as stated. 6. ', Since providing this firm a bad check, the Defendants have refused to contact thi~ law firm despite repeated calls to Defendants' office. 7. ! Petitioner, therefore, respectfully requests that he be allowed to withdraw his appeart~nce as counsel for Respondent in this matter. WH~REFORE, Petitioner, Shane B. Kope, Esq., respectfully requests that this '~ Honorable~Court permit his withdrawal as counsel for Jim Lagana Plumbing & Heating Inc. and James Lagana, Defendants. Respectfully Submitted, Date: j $ ~ 0 LO VERIFICAT{ON Shad a B. Kope, Esquire, being duly sworn according to law, deposes and says that the fa is set forth in the foregoing knowledge information and belief. Dated: '~ ~~j C l ~ vL c~ Petition are true and correct to the best of his ~ ~ KOPE 8~ SSOCIATES, LLC BY: SHA E B. KOPE, ESQUIRE ATTO R N YID 92207 395 St. Ja ns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761 » 573 sbkoaeCa~ oaelaw.com Attorney for Defendants DRIVEKO E, INC., IN THE COURT OF COMMON PLEAS Plaintiffs :CUMBERLAND COUNTY, PENNSYLVANIA I . ~~ NO. 08-1851 CIVIL TERM vs. , JIM LAGA ~, A PLUMBING & HEATING :CIVIL ACTION -LAW INC. and J MES LAGANA, Defendants. ~' CERTIFICATE OF SERVICE I, S ANE B. KOPE, ESQUIRE, hereby certify that on October 18, 2010, I served a Rule iss ' d upon the Petition to Withdraw filed in the above-captioned matter by mailing the same by United States First Class Mail, postage prepaid, on the following persons: Jim Lagan 386 Airport Road, Suite 3 Hazle Tow ship, PA 18202 Dated: L ~~~~ra Charles Rector, Esquire 104 Fernwood Avenue, Ste. 203 Camp Hill, PA 17011-6912 KOPE & ASSOCIATES, LLC B IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DriveKore, Inc. S41~1 Plaintiff N ~ C1V11 20 Og c~ -,.~ C ~, VS ° -rt . ~ o - ~ r~ c a Jim Lagana Plumbing & Heating, Inc., and James Lagana ~ -"~ r "~~ ~ ~ Defendant ~ ~ ~ ~~ p RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially it ~-,n ~ Following form: Ac o ~~ PETITION FOR APPOINTMENT OF ARBITRATORS -°~ _ TO THE HONORABLE, THE JUDGES OF SAID COURT: Charles Rector, Esquire counsel for the plaintiff/defendant in the above action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. ~,~~.~ ~ f 2. The claim of plaintiff in the action is $ 5,894.29 ea4'f/ The counterclaim of the defendant in the action is 0.00 ~~9 ~aSo2~l~ The following attorneys are interested in the case(s) as counsel or aze otherwise disqualified to sit as arbitrators: Charles Rector, Esquire and Shane Kope, Esquire WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, ~--~ ~ `117 ORDER OF COURT AND NOW, petition, 200 , in consideration of the foregoing Esq., and Esq., and captioned action (or actions) as prayed for. Esq., are appointed arbitrators in the above By the Court, Kevin A. Hess, P.J. ~, `. KOPE ~ ASSOCIATES, LLC BY: SHANE B. KOPE, ESQUIRE ATTORNEY ID 92207 395 St. Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 sbkope@kopelaw.com Attorney for Defendants OCT 2.22010 0 -~ -~~ _-~ ~~ ~ ~~ ~~ ~ ~~ o --n ~c ~~ ~ -~~ ~ ~., --~: DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS Plaintiffs :CUMBERLAND COUNTY, PENNSYLVANIA tq vs. NO. 08- 1 CIVIL TERM JIM LAGANA PLUMBING & HEATING :CIVIL ACTION -LAW INC. and JAMES LAGANA, Defendants. RULE AND NOW, this 2 6• day of CX,~bb~r' , 2010, at o' clock _ .M., upon consideration of the foregoing Petition and on motion of Shane B. Kope, Esquire, a Rule is hereby issued upon the Defendants, Jim Lagana Plumbing & Heating, Inc. and James Lagana, individually, to show why the appearance of Shane B. Kope, Esquire, for said Defendants should not be withdrawn. Rule Returnable t~i~ ~+~~~ ^f :,~1 A at ., e, service. Co ies Mailed: torney C. Rector ,/J~Lagana eo ~ t'f..s .-r,~ ~~d~ ro ~?~iv ~r/~ BY THE COURT, . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Inc. S4~°I DriveKore , N C1V11 20 ~g Plaintiff n ~ ~ ~ -Tt vs. ~ . ~w o ~ ,~ Jim Lagana Plumbing & Heating, Inc., and James Lagana ~7 // ~ ~ ~ !/ ' ~_ ~ ~ Defendant ~ ~ ;,~ ~'~ ' ~ o RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially ic> ~_ ~ -Ts ~ Foliowiag fcrr.: y.~ ° ~~ c~ ~ PETITION FOR APPOINTMENT OF ARBITRATORS ~ -<: TO THE HONORABLE, THE JUDGES OF SAID COURT: _Charles Rector, Esquire ,counsel for the action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. z. The claim of plaintiff in the action is $ 5,894.29 The counterclaim of the defendarn in the action is 0.00 ~'~~(.b0 t~c~, ~ t.~r9 EZ-~-aSos~~ The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as azbitrators: Charles Rector, Esquire and Shane Kope, Esquire WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) azbitrators to whom the case shall be submitted. plaintiff/defendant in the above Respectfully submitted, J Lam...-.....,._ ~ ~, ~ ORDER OF COURT AND NOW, ~~,tL7')'1,~tQ/\~ / , 20frd , in consideration of the foregoing petition, 1 -~w .e Esq., and Esq., and Esq., are appointed arbitrators in the above ned action (or actions) as prayed for. capt~IO ~; _ ~ '~ w- n • ~ ~ . . ' ~,.i r 'f"' ~~~ I~~ 'L ~f° ts.,. .SJ ..., b 1 ~ ~ _ ~ r r / W By the Court, Kevin A. s, P.J. C ? KOPE & ASSOCIATES, LLC 't7 3 r:r v x --4 BY: SHANE B. KOPE, ESQUIRE =;a < -,r-- ATTORNEY ID 92207 00 395 St. Johns Church Road, Suite 101 <o Camp Hill, PA 17011 xQ = z- (717) 761-7573 °ns sbkope@kopelaw.com Attorney for Defendants -< DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA VS. NO. 08- CIVIL TERM JIM LAGANA PLUMBING & HEATING CIVIL ACTION - LAW INC. and JAMES LAGANA, Defendants. MOTION TO MAKE RULE ABSOLUTE AND NOW, comes Petitioner, Shane B. Kope, Esquire, and Kope & Associates, LLC and motions this Court to make absolute the Order that it issued in this matter on October 26, 2010, and in support of said Motion states as follows: 1. Defendants hired the undersigned counsel on July 16, 2010. 2. A retainer fee of $2,500 was paid on August 5, 2010 by personal check which was later returned for insufficient funds. 3. Since providing the undersigned law firm with a bad check, Defendants have refused to contact this law firm despite repeated calls. 4. Accordingly, on October 21, 2010, Petitioner filed a Petition to Withdraw Appearance. 5. An Order of Court and Rule was issued by the Honorable Kevin A. Hess on October 26, 2010 requesting the Defendants to show cause why the appearance of Shane B. Kope, Esquire, for said Defendants should not be withdrawn. See attached Order as Exhibit "A." 6. The Order/Rule was returnable within twenty (20) days of service. 7. It is past the required twenty (20) days and the Defendant has not answered the Rule to Show Cause. WHEREFORE, Petitioner respectfully requests that this Court make absolute the Rule to Show Cause it issued on October 26, 2010 and grant their Motion for Order of Petition to Withdraw Appearance. Respectfully Submitted, LLC Shane B. Kope, Date: Z`1 IZ4 16 KOPE & ASSOCIATES, LLC BY: SHANE B. KOPE, ESQUIRE ATTORNEY ID 92207 395 St. Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 sbkope@kopelaw.com Attorney for Defendants DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA x q I? vs. NO. 08-+&J T CIVIL TERM JIM LAGANA PLUMBING & HEATING CIVIL ACTION - LAW INC. and JAMES LAGANA, Defendants. RULE AND NOW, this ',ze day of ??&L , 2010, at o' clock M., upon consideration of the foregoing Petition and on motion of Shane B. Kope, Esquire, a Rule is hereby issued upon the Defendants, Jim Lagana Plumbing & Heating, Inc. and James Lagana, individually, to show why the appearance of Shane B. Kope, Esquire, for said. Defendants shout not be withdrawn. Rule Returnable rhT%e. -day of , O'clock • 1 O' , 1 One Courthouse Square, Carlisle, Pennsylvania twenty days after service. BY THE COURT, 'Ze?__da 'dS'j P.J. Copies Mailed: Attorney C. Rector J. Lagana CERTIFICATE OF SERVICE I, Shane B. Kope, Esquire, of Kope & Associates, LLC, hereby certify that on November 22, 2010, a true and correct copy of the foregoing Motion to Make Rule Absolute was served upon the below-referenced individual at the address listed by way of first class mail, postage pre-paid: Jim Lagana Jim Lagana Plumbing & Heating, Inc. 146 Airport Road, Suite 3 Hazelton, PA 18202 TES, LLC B. Kope, Johns Church Pbad- Suite 101 Camp Hill, PA 1 (717) 761-7573 I.D. 92207 I a , w a i . KOPE & ASSOCIATES, LLC BY: SHANE B. KOPE, ESQUIRE ATTORNEY ID 92207 395 St. Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 sbkope@kopelaw.com Attorney for Defendants DRIVEKORE, INC., IN THE COURT OF COMMON PL S o Plaintiffs CUMBERLAND COUNTY, PENN VANIA? 541 ma M- vs. NO. 08-46& CIVIL TERM - r'' c-s -,rn > OQ JIM LAGANA PLUMBING & HEATING CIVIL ACTION - LAW rp s ° INC. and JAMES LAGANA n -,V 6 ? , Defendants. 5? rv ?rn -- 4 ORDER -< L^ rn -< AND NOW, this i day of , 2010, upon consideration of the Petitioner's Motion to Make Rule Absolute, and upon Respondents' failure to answer the Rule to Show Cause issued in the above captioned matter, it is hereby ORDERED and DIRECTED that Petitioner's Motion to Make Rule Absolute is GRANTED. Petitioner, Shane B. Kope, shall be allowed to withdraw his appearance in the above- captioned case. eo iFS ma? 6.. R+? BY THE COUIRT- KOPE & ASSOCIATES, LLC BY: SHANE B. KOPE, ESQUIRE ATTORNEY ID 92207 395 St. Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 sbkope@kopelaw.com Attorney for Defendants DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 08-5419 CIVIL TERM -, C r.5 r JIM LAGANA PLUMBING & HEATING CIVIL ACTION - LAW mW FR n INC. and JAMES LAGANA, ? Defendants. -<> co CD p PRAECIPE TO WI 2 THDRAW AS COUNSEL 71_ TO THE CLERK OF COURTS: Please kindly withdraw Shane B. Kope as counsel for the Defendants in the above-captioned case as per the order signed by the Honorable Kevin A. Hess on December 1, 2010. Respectfully Submitted, Date: lZIG?ZII?o KOPE & ASSOCIATES, LLC BY: SHANE B. KOPE, ESQUIRE ATTORNEY ID 92207 395 St. Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 sbkope@kopelaw.com Attorney for Defendants DRIVEKORE, INC., IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA vs. : NO. 08-5419 CIVIL TERM JIM LAGANA PLUMBING & HEATING CIVIL ACTION - LAW INC. and JAMES LAGANA, Defendants. CERTIFICATE OF SERVICE I, SHANE B. KOPE, ESQUIRE, hereby certify that on December 6, 2010, 1 served a Praecipe to Withdraw as Counsel filed in the above-captioned matter by mailing the same by United States First Class Mail, postage prepaid, on the following persons: Jim Lagana 386 Airport Road, Suite 3 Hazle Township, PA 18202 Dated: 2f G ?ZO/ ? Charles Rector, Esquire 104 Fernwood Avenue, Ste. 203 Camp Hill, PA 17011-6912 KOPE & ASSOCIATES, LLC KOPE & ASSOCIATES, LLC BY: SHANE B. KOPE, ESQUIRE ATTORNEY ID 92207 395 St. Johns Church Road, Suite 101 Camp Hill, PA 17011 (717) 761-7573 sbkope@kopelaw.com DRIVEKORE, INC., Plaintiffs vs. JIM LAGANA PLUMBING & HEATING INC. and JAMES LAGANA, Defendants. Attorney for Defendants IN THE COURT OF COMMON PLEATS CUMBERLAND COUNTY, PENNS YLVANIA _ —, NO. 08 -.CIVIL TERM -:) r, -, Cr31 i o _ o, :CIVIL ACTION -LAW =-' ?o ?o z-? -? F - CD C_' j =-; c , ORDER AND NOW, this 1 day of 2010, upon consideration of the Petitioner's Motion to Make Rule Absolute, and upon Respondents' failure to answer the Rule to Show Cause issued in the above captioned matter, it is hereby ORDERED and DIRECTED that Petitioner's Motion to Make Rule Absolute is GRANTED. Petitioner, Shane B. Kope, shall be allowed to withdraw his appearance in the above- captioned case. BY THE CnIJRT- ?rlYIAJC-l Tj 0_1 LC AI PM til%f /j + 17t& fi J rnas LcXl?C'anq Defendant 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 with fidelity. Ts Sig ature Signature Si ature "OL 1-eer\ ?tcuJl ?s i 1N /1? c ?S Name (Chairman) Name S)-\O, U 1 k S I.-a u) Law Firm P- i zZq Address GrA\sIc PA (7015' City, Zip Law Firm i,J L1,Ev'.I 57 " Address City, Zip ?Name U, - Law Firm' Address motile Pe- 0013 City, Zip 83 qc 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.) !a trator, dissents. (Insert name if Date of Hearing: okYwa 2-7i 2.01 Date of Award: (?a Q 1 ©l In The Court of Common Pleas of Cumberland County, Pennsylvania No. CO / 9 Civil Action - Law. Notice of Entry of Award Now, the Z74?-day of , 2`1 at ?_.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: $ • aC? By: Prothonotary Deputy FILED=OF RCF OF THE PROTHONOTAR 2011 JAN 27 PM 1: 42 CUMBERLAND COUNT' PENNSYLVANIA .'es ,n ZiLl LECL ?r? Lagana Total Due Principle Interest (1.5% x 38 months) Court Costs Attorney Fees $ 5,894.29 $ 3,359.75 $ 50.75 $5,296.25 TOTAL DUE $14,601.01 DRIVEKORE, INC VS JIM LAGANA PLtJM61NG &; HEA77NG rNC & JAMES LAGANA IN THE OF UM ECRLAND CO COMMON PLEAS UNTY, PENNSYLVANIA NO. 08-5419 NOTICE OF APPEAL c° FROM AWARD OF BOARD OFAREIITRATORS TO THE PROTHONOTARY: Notice is given that JAMES LAGANA r...a CZ) rn co `a the award of the board of arbitrators entered in appeals from this case on 1/27/11 A jury trial is demanded 11 (Check box if a jury trial is demanded. Otherwise Jury trial is waived,) I hereby certify that Z1• the compensation of the arbitrators has been paid, or ?2• application has been made for permission to proceed in forma Pauperis• {Strike out the inapplicable clause.) clt Appellant or Atturn NOTE: r Appellant The demand for jury trial on appeal from compulsory arbitration is governed by Rule 1007.1 (b). No affidavit or verification is required. A35?i co ' -?VYYl?!? U`I1ii 7l-f.,ad a? I ` J ~rl tiJ="a -FFICE PRAECIPE FOR LISTING CASE FOR TRfAV ELI' O TH O TAB R '( (Must be typewritten and submitted in triplijN? JUL 18 AM 11: 01 TO THE PROTHONOTARY OF CUMBERLAND COUNTY CUMBERLAND COUNTY Please list the following case: PENNSYLVANIA ? for JURY trial at the next term of civil court. ?X for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) DriveKore, Inc. (Plaintiff) (other) vs. Jim Lagana Plumbing & Heating, Inc., and James Lagana (check one) ? Civil Action - Law 0 Appeal from arbitration The trial list will be called on 8/23/11 and Trials commence on 9/19/11 (Defendant) Pretrials will be held on 9/7/11 VS. (Briefs are due 5 days before pretrials No. 08-5419 Civil Term Indicate the attorney who will try case for the party who files this praecipe: Charles Rector, Esquire and Christina Israel, Esquire for Plaintiff Indicate trial counsel for other parties if known: Allen B. Dubroff, Esquire for Defendant This case is ready for trial. Date: 7/14/11 Signed: Print Name: Charles Rector, Esquire Attorney for: Plaintiff -A /I DRIVEKORE, INC. IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA JIM LAGANA PLUMBING Mrn c & HEATING, INC., AND S JAMES LAGANA, na DEFENDANT NO. 08-5419 CIVIL -o IN RE: NON-JURY TRIAL ORDER OF COURT AND NOW, this 28th day of July, 2011, the non-jury trial in the above referenced case has been assigned to this Court. Prior to setting an actual trial date, IT IS HEREBY ORDERED AND DIRECTED that the parties in this case file a pre-trial memorandum with the Court on or before August 31, 2011, in the following format: 1. A concise statement of factual issues to be decided at trial. II. A list of witnesses the party intends to call at trial along with a concise statement of their anticipated testimony. III. A list of all exhibits each party anticipates presenting at trial. IV. A statement of any legal issues each party anticipates being raised at trial along with copies of any cases which may be relevant to resolution of the stated issue. V. An estimate of the anticipated time needed for the party to present its case. Upon receipt and review of these memorandums, the Court will set a trial date for this case. arles Rector, Esquire -Christina Israel, Esquire Counsel for Plaintiff . eo a es?e < C?i? By the Court, V?\ -? ?a._ M. L. Ebert, Jr., J. Allen B. Dubroff, Esquire Counsel for Defendant bas DRIVEKORE, INC. IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. JIM LAGANA PLUMBING rn -- & HEATING, INC., AND > -?rT, JAMES LAGANA, DEFENDANT NO. 08-5419 CIVIL r-M ?° .'c-; a IN RE: NON-JURY TRIAL ft: rv n --3 ORDER OF COURT " $. AND NOW, this 8th day of September, 2011, the non-jury trial in the above captioned case will be held on Tuesday, January 10, 2012 at 9:00 a.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, M. L. Ebert, Jr., Charles Rector, Esquire ,/Christina Israel, Esquire Counsel for Plaintiff ,/Allen B. Dubroff, Esquire Counsel for Defendant 0 . md? bas DRIVEKORE, INC. Plaintiff V. JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA, Individually, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-5419 CIVIL CIVIL ACTION -LAW PLAINTIFF'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW PROPOSED FINDINGS OF FACT n c -?3 me =rn Mz? ,Ar- r-? A -C N 0 MW ME m f_r1 N rn v'ra 1. Plaintiff, Drivekore, Inc. (hereinafter referred to as "Drivekore"), is a business located in Mechanicsburg, Pennsylvania, which provides tools, machinery, and other products and supplies, as well as a variety of services, to contractors and individuals. 2. On March 13, 2003, James Lagana completed an Application for Credit with Drivekore. 3. The application was completed on behalf of his company, Jim Lagana Plumbing & Heating, and signed by Jim Jagana on March 13, 2003. 4. The Application for Credit signed by Jim Lagana provides: Charge privileges are hereby applied for and it is understood and agreed that the terms of payment are net 30 days. Delinquent accounts are subject to a 1 '/z % per month late charge in the event of default. The applicant agrees to pay all reasonable attorney's fees, collection costs, and costs associated with the collection of any delinquent or deficient balance. Any and all disputes related to this application or any transactions arising from it shall be litigated in Cumberland County, Pennsylvania. I hereby guarantee all amounts due under this contract and promise to pay all amounts due on demand. I understand Drivekore may seek payment from me without exhausting all of its remedies against the applicant first. (Emphasis added.) 1 5. Based upon Mr. Lagana's personal guarantee, credit was granted to Defendants for the purchase of equipment and for services from Drivekore. See Application for Credit, Plaintiff's Exhibit 111.11 6. On February 7, 2007, Defendants purchased a Spectra pipelaser and cradle from Drivekore at a cost of $5,369.01. See Invoices, Plaintiff's Exhibit 112." 7. On April 13, 2007, Drivekore repaired Defendants' drain cleaner, at a cost of $525.28. See Invoices, Plaintiff s Exhibit 112." 8. Drivekore sent Defendants a billing statement for the products and service on October 5, 2007. See Statement, Plaintiff's Exhibit "3". 9. To date, Defendants have failed to remit payment for the Spectra pipelaser and cradle and repair service to Drivekore. 10. To date, Defendants have failed to return the Spectra pipelaser or cradle in good condition to Drivekore. 11. On September 23, 2008, Drivekore filed a Complaint with the Court of Common Pleas of Cumberland County against the Defendants, Jim Lagana Plumbing & Hearing, and James Lagana, individually, for recovery of payments owed by the Defendants for the purchase of equipment and services provided by Drivekore to Defendants, along with cost of collection, interest, and attorneys fees. 12. On October 9, 2009, Defendants filed Preliminary Objections to Drivekore's Complaint. 13. All of Defendants' Preliminary Objections were denied by Court Order on March 4, 2010. The Court Order stated that "[t]he preliminary objections asserting insufficient specificity, lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action having to do with the individual liability of James Lagana are DENIED. The complaint 2 clearly alleges that the individual defendant personally guaranteed amounts due under the contract." 14. Drivekore subsequently requested this case be scheduled before a board of Arbitrators in Cumberland County, Pennsylvania. 15. Arbitration was held on January 27, 2011. 16. The Board of Arbitrators found in favor of Plaintiff. 17. Defendants appealed the arbitration award, and Drivekore listed this case for trial in Cumberland County. PROPOSED CONCLUSIONS OF LAW 1. The personal guarantee signed by Defendant James Lagana is enforceable and entitles Drivekore to a verdict against Mr. Lagana personally. 2. The Superior Court has upheld a personal guarantee similar to the one in the case at bar. In Denlinger, Inc. v. Dendler, 415 Pa. Super. 164, 608 A.2d 1061 (1992), the court concluded that the individual defendant could not avoid personal liability on the guaranty merely because he signed the agreement in his corporate capacity. Id. at 1069. 3. James Lagana signed the Application for Credit, which contained a provision stating: "I hereby guarantee all amounts due under this contract and promise to pay all amounts due on demand." The language of the Application for Credit, signed by Mr. Lagana, clearly establishes that Mr. Lagana is personally liable for any amount owed to Drivekore, including costs of collection, attorney's fees and interest, and that personal liability is enforceable by the Court. 4. Drivekore's civil action was brought well-within the four-year statute of limitations because Drivekore's Complaint in the Court of Common Pleas was filed approximately a year and a 3 half after the Spectra pipelaser and cradle were sold to Defendants, and less than a year and a half after the service of repairing Defendants' drain cleaner was performed. 5. Defendants have no applicable or valid affirmative defenses. 6. Defendants have not plead a defense of unconscionability, and therefore the defense is waived. "[T]he party challenging the contract or provision bears the burden of affirmatively pleading and proving the unconscionability." Denlinger Inc., 608 A.2d at 1067 (emphasis added). The Defendants have not plead unconscionability, and have therefore not met their burden and cannot pursue the claim as a defense. 7. Nevertheless, neither the Application for Credit, nor any portion therein, is unconscionable. "[A] contract or term is unconscionable, and therefore avoidable, where there was a lack of meaningful choice in the acceptance of the challenged provision and the provisions unreasonable favors the party asserting it." Bayne v. Smith, 965 A.2d 265, 267 (Pa. Super. 2009); see also Salley v. Option One Mortg. Corp., 592 Pa. 323; 925 A.2d 115 (2006). At no time were the Defendants denied meaningful choice in the acceptance of the challenged provision, nor do the terms unreasonably favor Drivekore. Mr. Lagana chose to purchase products and services from Drivekore on credit and chose to fax in the Application rather than discuss it with Drivekore. The language in the Application is reasonable and has been upheld in lower courts and appellate courts. 8. The Application for Credit is not a contract of adhesion. An adhesion contract is defined as a "standard form contract prepared by one parry, to be signed by the party in a weaker position, [usually] a consumer, who has little choice about the terms." Bayne v. Smith, 965 A.2d 265, 267 (Pa. Super. 2009); quoting Robson v. EMC Ins. Cos., 785 A.2d 507, 510 (Pa. Super. 2001). The Court in Denlinger Inc. analyzed a credit application similar to the one at issue, 4 and found that the contract was neither a contract of adhesion or unconscionable. 608 A.2d 1061. The personal guarantee signed by Defendant James Lagana in the Application for Credit is enforceable and entitles Drivekore to a verdict against Mr. Lagana personally. In Denlinger, Inc. v. Dendler, 415 Pa. Super. 164, 608 A.2d 1061 (1992), the court addressed claims by a materials seller against a building contractor personally, based upon a credit agreement with the contractor's insolvent corporation. The plaintiff alleged that the purchasing corporation had failed to pay for the materials. The defendant principal of the corporation signed the credit agreement for the corporation, in which the individual defendant guaranteed prompt and full payment of sums owing by the corporation under the agreement. 608 A.2d at 1065. The court noted that the individual defendant signed the agreement only in his corporate capacity: About the time he formed Blue Mountain, Dendler discussed opening a credit account at Denlinger with one of Denlinger's salesmen, Robert Witmer. Witmer gave Dendler a blank credit application form. Several weeks later, Dendler returned the completed application to Witmer who then forwarded it to the credit manager, Robert Hamor. The credit application consists of an 8 %2 inch by 14 inch two-sided form which is used for corporations, partnerships or individual applicants. On the face of the form all printing is in upper case block letters one-eighth inch high. Beneath the Denlinger logo and address at the top center, the first line reads "name of applicant." Dendler inserted "Blue Mountain Development Co., Inc." in large capital letters. Dendler completed the "corporation" section and left blank the sections for individuals and partnerships. He also supplied the financial information requested on the face of the form. The reverse side of the form, which is captioned "Terms and Conditions" in bold letters, contains six individually numbered paragraphs, set off from one another by double spacing. Each paragraph outlines a separate term governing credit accounts at Denlinger. See n. 2 & 3, supra. The printing, in upper and lower case letters, is only marginally 5 smaller than that on the face of the form. The lower half of the page contains designated areas for up to four separate parties to sign. Dendler signed "Blue Mountain Development Corp., Inc. By Brad Dendler, Pres." in proper corporate form on the appropriate lines. Id. at 1064. (Emphasis added.) The court specifically stated that one of the issues it had to resolve was: 2. Does Pennsylvania law require a separate signature in an "individual capacity" for a personal guarantee to be effective, even though the individual signing in a representative capacity has unequivocally agreed to be personally liable; and does Pennsylvania law require a contracting party to explain to another business person the effect of a personal guarantee? Id. at 1063. The court answered these questions in the negative, holding that the guaranty was clear as to the personal liability of the individual defendant. The court concluded that the individual defendant could not avoid personal liability on the guaranty merely because he signed the agreement in his corporate capacity. Id. at 1069. Likewise, in the case at bar, James Lagana signed the Application for Credit, which contained a provision stating "I hereby guarantee all amounts due under this contract and promise to pay all amounts due on demand." Mr. Lagana signed the Application for Credit, appending his title as corporate president. Denlinger, Inc., supra, leaves no doubt as to a corporate principal's individual liability under such circumstances. The language of the Application for Credit, signed by Mr. Lagana, clearly establishes that Mr. Lagana is personally liable for any amount owed to Drivekore, including costs of collection, attorney's fees and interest. See Plaintiffs Exhibit "I". Furthermore, Defendants do not have any applicable affirmative defenses to Drivekore's action, and Drivekore is entitled to judgment against Defendants in this matter. Defendants 6 plead a number of affirmative defenses in its Answer and New Matter, however, Defendants fail to provide any supporting facts or documentation. In fact, these alleged defenses are specious and devoid of merit. Because Defendants have no applicable or valid affirmative defenses, Drivekore is entitled to judgment in its favor as a matter of law. Defendant's argument in his Pre-Trial Memorandum that the Application for Credit, or any portion thereof, is an adhesion contract and unconscionable, is without merit. First, Defendants have failed to plead unconscionability in any of their pleadings throughout this case, and was not raised until Defendants' Pre-Trial Memorandum. "[T]he party challenging the contract or provision bears the burden of affirmatively pleading and proving the unconscionability." Denlinger Inc., 608 A.2d at 1067 (emphasis added). The Defendants have not plead unconscionability, and therefore have failed to meet their burden and the argument is waived. Nevertheless, the contract in the case at bar is clearly not unconscionable, nor is any portion thereof. In Pennsylvania, it is well established that "a contract or term is unconscionable, and therefore avoidable, where there was a lack of meaningful choice in the acceptance of the challenged provision and the provisions unreasonable favors the parry asserting it." Bayne v. Smith, 965 A.2d 265, 267 (Pa. Super. 2009); see also Salley v. Option One Mortg. Corp., 592 Pa. 323; 925 A.2d 115 (2006). "The aspects entailing lack of meaningful choice and unreasonableness have been termed procedural and substantive unconscionability, respectively." Id. See generally 17A Am. Jur. 2d Contracts § 278 (2006). "The burden of proof generally concerning both elements has been allocated to the party challenging the agreement, and the ultimate determination of unconscionability is for the courts." Id. It must be noted that the language quoted by Defendants regarding the law of unconscionability comes from a dissenting 7 opinion in Denlinger Inc. Defendants' language has not been reaffirmed by any later appellate court, and is therefore not an accurate representation of the law of unconscionability in Pennsylvania. An adhesion contract is defined as a "standard form contract prepared by one party, to be signed by the party in a weaker position, [usually] a consumer, who has little choice about the terms." Bayne v. Smith, 965 A.2d 265, 267 (Pa. Super. 2009); quoting Robson v. EMC Ins. Cos., 785 A.2d 507, 510 (Pa. Super. 2001). "Our supreme court, and the federal courts of Pennsylvania, have refused to hold contracts unconscionable simply because of a disparity in bargaining power." Id. at 1067. The Court in Denlinger Inc. analyzed a credit application similar to the one at issue, and found that the contract was neither a contract of adhesion or unconscionable. In the case at bar, the Application for Credit is neither a contract of adhesion or unconscionable. The Application for Credit is clear. The document itself is short, one-page in length, and easy to read. There is no technical terminology in the contract, and because the Application is only one-page in length, the language regarding personal liability is clear. Mr. Lagana is a businessman who freely signed the Application for Credit in order to obtain products and services from the Plaintiff. Mr. Lagana faxed in the Application rather than seeing an employee of the Plaintiff in person to discuss or challenge the terms, nor did he challenge the terms in the four years since he signed the application before defaulting on payment. Without choosing to discuss the terms with Drivekore, and instead choosing to simply sign and fax the form, it is impossible for Mr. Lagana to claim he did not have any meaningful choice on the acceptance of the terms. In the alternative, Mr. Lagana could have purchased the products and services with cash, or he could have utilized another company for the products and services for 8 his business, however, he chose to obtain the products and services from Drivekore on credit. The language in the Application for Credit providing for personal liability is clear and has been upheld by lower courts and appellate courts. See Denlinger Inc., 608 A.2d at 1066-70. A party is "legally bound to know the terms of the contract in which he himself engaged." Id., quoting Montgomery v. Levy, 406 Pa. 547, 550, 177 A.2d 488, 450 (1962). "It is well established that one having the capacity to understand a written document ... who signs it, is bound by his signature. Id. at 1070, quoting 13 Williston on Contracts, § 1577 (3`d ed. 1970). The law on this issue clearly establishes that the Application for Credit is valid and enforceable against Mr. Lagana personally. CONCLUSION The contract speaks for itself. The language in the Application for Credit with Drivekore clearly delineates that Defendant James Lagana is personally responsible under the contract as a matter of law. Defendants failed to remit payment for the products and services purchased from Drivekore, and never returned the products. Because the Defendants have no pertinent defenses, Drivekore is entitled to judgment in its favor as a matter of law. Date: -"0 Z l i ti '" A. I#ael; EsWre (f206894) w ffices of Charles Rect , Esquire 1104 Fernwood Avenue, Ste. 03 Camp Hill, PA 17011-6912 717-761-8101 717-761-2161(Fax) 9 DRIVEKORE, INC. Plaintiff V. JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA, Individually, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08-5419 CIVIL CIVIL ACTION - LAW CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a true and correct copy of the foregoing Plaintiffs Proposed Findings of Fact and Conclusions of Law was served on Mlen-B. Date: 16 6#62 10 1104 Fernwood Avenue, Ste. 203 Camp Hill, PA 17011-6912 Attorney for Plaintiff DRIVEKORE, INC. IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. JIM LAGANA PLUMBING o -' & HEATING, INC., AND rnoo c s - -v JAMES LAGANA, z? cn -- im, C ' DEFENDANT NO. 08-5419 CIVIL -t o ~ ORDER OF COURT c a AND NOW, this 101h day of January, 2012, this being the time and place set for-ilon jury trial in this matter and the parties having reached an agreement and having requested the Court to reduce the agreement to an Order of Court; IT IS HEREBY ORDERED AND DIRECTED that: 1. A Default judgment shall be entered against Jim Lagana, individually and Jim Lagana Plumbing and Heating, Inc. in the amount of $13,000.00. 2. A payment of $4,000.00 toward this judgment will be made on or before February 5, 2012. 3. The Defendant shall make six (6) monthly payments in the amount of $1,500.00 beginning on or before March 15, 2012 and continue through August 15, 2012 for a total payment to the Plaintiff of $13,000.00 4. Upon receipt of payment in full by the Plaintiff, the Plaintiff will file appropriate satisfaction documents. By the Court, Charles Rector, Esquire Christina Israel, Esquire Counsel for Plaintiff Allen B. Dubroff, Esquire Counsel for Defendant M. L. Ebert, Jr., V- 46 bas 1? 1A DRIVEKORE, INC. Plaintiff V. JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA, Individually, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-5419 CIVIL CIVIL ACTION -LAW PLAINTIFF'S PETITION FOR CIVIL CONTEMPT ^r AND NOW, comes the Plaintiff, Drivekore, Inc., by and through its attorney, Christina A. Israel, Esquire, who submits the following Plaintiff's Petition for Civil Contempt: 1. On September 23, 2008, Plaintiff, Drivekore, Inc., filed a Complaint with the Court of Common Pleas of Cumberland County against the Defendants, Jim Lagana Plumbing & Hearing, and James Lagana, individually, for recovery of payments owed by the Defendants for the purchase of equipment and services provided by Drivekore to Defendants, along with cost of collection, interest, and attorneys fees. 2. On January 27, 2011, a Board of Arbitrators found in favor of Plaintiff against Defendants after a full hearing. Defendants appealed the award. 3. A non jury trial was scheduled for January 10, 2012 before the Honorable M.L. Ebert, Jr. 4. The total amount Plaintiff was seeking at trial was $17,352.26, which included the principal amount due for the products and services, interest, court costs and attorney's fees. A Summary of the Total Amount Due to Plaintiff through January 2012 is incorporated herein and attached hereto as Plaintiff's Exhibit "1." 5. Plaintiff and the Defendants were represented by counsel on the date of the trial. 6. Before the trial commenced, the parties came to an agreement. 7. As a result of Defendants' promise to make payments, the Plaintiff agreed to accept over $4,000.00 less than Plaintiff is entitled to as a matter of law, for a total of $13,000, to be made by way of seven (7) payments. 8. The first $4,000.00 payment was due on or before February 5, 2012, and the remaining $9,000.00 balance was to be made in six (6) monthly payments of $1,500.00 commencing on or before March 15, 2012. 9. The parties' agreement was memorialized by the Honorable M.L. Ebert, Jr. in the January 10, 2012 Order of Court. The January 10, 2012 Order of Court is incorporated herein and attached hereto as Plaintiff's Exhibit "2." 10. Defendants have purposefully and willfully failed to make any payments towards the agreed- upon amount due to Plaintiff consistent with the January 10, 2012 Order of Court. 11. Plaintiff's counsel has attempted to contact Defendant's counsel by both telephone and written correspondence on numerous occasions, without success. 12. It is highly inequitable for Defendants to make an agreement resulting in a judgment for a lesser amount and then willfully fail to abide by the terms of that agreement and Court Order. 13. Following the parties' agreement, Plaintiff has incurred additional counsel fees, and is owed additional interest fees pursuant to the Application for Credit. The Application for Credit is incorporated herein and attached hereto as Plaintiff's Exhibit "3 14. As a result of Defendant's contemptuous failure to pay Plaintiff, Plaintiff is entitled to a judgment for the full amount currently due to Plaintiff from Defendants, including the additional. interest, costs and counsel fees. A Summary of the Total Amount Due to Plaintiff in March 2012 is incorporated herein and attached hereto as Plaintiff's Exhibit "4." 2 15. As a result of Defendant's contemptuous failure to make any payment, Defendant should be incarcerated until such time as Defendant pays Plaintiff. See Sinaiko v. Sinaiko, 445 Pa. Super. 56, 74-75, 664 A.2d 1005, 1015 (1995) ("Husband's debt to her arose as a result of a court order-not just a private agreement between the parties. The court had the power to enforce its order by means of contempt and incarceration.") 16. Plaintiff expended reasonable counsel fees in the making of the agreement resulting in the January 10, 2012 Order of Court, the numerous attempts to contact counsel for Defendants regarding payment, and in the preparation and anticipated litigation of this Petition. Plaintiff is entitled to an award of counsel fees pursuant to 42 Pa.C.S. § 2503 in the amount of $1,000. WHEREFORE, Plaintiff respectfully requests this Honorable Court find Defendants in civil contempt, and Order Defendants to pay Plaintiff $18,114.09 plus additional counsel fees for the costs of preparation and litigation of this Petition, remand Defendant, James Lagana, to the Cumberland County Prison until such time as he makes payment to Plaintiff, as well as penalties and other remedies and as the Court deems appropriate. Date: y <? - 2 VA. Urael, Fi?squire (#21%894) L wOo iffices of Charles Rector, Esquire 1104 Fernwood Avenue, Ste. 203 Camp Hill, PA 17011-6912 717-761-8101 717-761-2161 (Fax) Attorney for Plaintiff 3 DRIVEKORE, INC. IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 08-5419 CIVIL JIM LAGANA PLUMBING & CIVIL ACTION - LAW HEATING, INC. and JAMES LAGANA, Individually, Defendants CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a true and correct copy of the foregoing Plaintiff's Petition for Civil Contempt was served on the other party by first class mail. Allen B. Dubroff, Esquire Kami Miller, Esquire Two Penn Center 1500 J.F.K. Boulevard Suite 1030 Philadelphia, PA 19102 Date: A\46, hiYa A. Ifrael,/Esgtiire 206894) ?hr L'dv Offices of Charles Rect r, Esquire 1104 Fernwood Avenue, Ste. 203 Camp Hill, PA 17011-6912 717-761-8101 717-761-2161 (Fax) Attorney for Plaintiff 4 Drivekore, Inc. v. Lagana Case no. 08-5419 Principle Interest (1.5% x. 50 months) Court Costs Attorney Fees TOTAL TOTAL AMOUNT DUE $5,894.29 $4,420.72 $75.75 $6,961.50 $17,352.26 January, 2012 EMBiT DRIVEKORE, INC. IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. JIM LAGANA PLUMBING & HEATING, INC., AND JAMES LAGANA, DEFENDANT NO. 08-5419 CIVIL ORDER OF COURT AND NOW, this 10th (jay of January, 2012, this being the time and place set for non-jury trial in this matter and the parties having reached an agreement and having requested the Court to reduce the agreement to an Order of Court; IT IS HEREBY ORDERED AND DIRECTED that: 1. A Default judgment shall be entered against Jim Lagana, individually and Jim Lagana Plumbing and Heating, Inc. in the amount of $13,000.00. 2. A payment of $4,000.00 toward this judgment will be made on or before February 5, 2012. 3. The Defendant shall make six (6) monthly payments in the amount of $1,500.00 beginning on or before March 15, 2012 and continue through August 15, 2012 for a total payment to the Plaintiff of $13,000.00 4. Upon receipt of payment in full by the Plaintiff, the Plaintiff will file appropriate satisfaction documents. Charles Rector, Esquire Christina Israel, Esquire Counsel for Plaintiff Allen B. Dubroff, Esquire Counsel for Defendant By the Court, M. L. Ebert, Jr., bas EXHIBIT . __ C. .'• _.... 1( J f ljl+j:iO044 LitiU{;INrA HAUE 02 .1-- 136169 D,RzvE,,KORE INC. APPLICATIO PLEASE PRl"_F N FOR COED PE T; kijo??j 8 10! NAIllk STRCET AC) RFS$ AND I AODRES $MPFMNIG ADDRESS (NO F!f_?. EIOX PLEASE) l c? l 1 sr? zA' CODE CITY STATE ZIP com 1'7 / :. 1 o? _ ?may 101 Wesley Drive .O. box 2004 MechanicsbuPrg. PA 1706.5 (717) 766-7636 (8M) 382-1311 Fax: (717) 766-1101 www, drivekore, com FAMNT COMPANY & ADDRESS: PLEASE ANSWER ALL APPLICABLE QUESTIONS, FAILURE TOtDO S MAY RESULT IN DELAY OR DENIAL OF CREDIT. 3 TEI.6PN-IONE NUMBER: AREA. CODE S-1O NUMBER W 4 I'AX NUMBER AR C NUMBE Yl. 5 D&B RATING; 6 TYPE OF BUSINESS ,N ? A ONE I I .mw THIS OCA71gN YEARS 7 SALES TAX EXEMPTION NUM ER (COPY OFTAX EXEMPT CERTIFICA E •f?EATTACI? Leh TL•?? 8 HAVE HAD CREDIT WITH DxrrxXojtlt mm, PRFVIOLJ$L)T YES NO--?-- 9 IN IVIDUAI CARNERSHIP PARTNERSHIP CORPORATION ... IL FRANCHISE FOR INDIVIDUAL PARTNERSHIP PLEASE INCLUDE SSN.-, IF CORPORATION, PROVIDE FEDERAL TAX n 10 If' INDIVIDUAL. OWI%*R OR PAKINERSHIPCOMPI FTE NAME(S), HOMF n0[3RESS(ES),ANDTELEPHONF. NUMBER(S) BELOW: IF CORPORATION, LIST 041CERSYPRINCIPAI_S' NAMES AND TITLES LCL'LOW: NAME I 1 1? A g? T? ?p ?1 Ali n. La'trQ %A 92 _ A. o.rTI.ln_?7 YL? ADgo!(al%A T7 ??Tf L 10A ie_TELEPHONE# I I BUSINESS REFERENCES (Give 3) . MINIMUM (AcIftonal refrrctian may be listed on the Luck) k J_ COMPANY NAME fg ADDRESS (CITT S7 T ZIP CODE) TELEPHONE 0 12 RANK REFERENCE OFRCER CHARCH PRMLEGES ARE HEREBY APPLIED FOR AND IT IS UNDERSTOOD AND A AFFA THAI IHE TERMS OF PAYMENT ARE NEI 30 DAPS gF.UN TO A 1.117% PER MONTI'•I LATE CHARCE IN THE EVENT OF DEFAULT.THE APPLICANT A=F; , r? PAY ALL REASONABLE,y?O?FYS FEES, COLLECTION COSH C-r 51FCT N`r Of ANY DELINQUT OR DEFICIR FROM IT SHAL -I THE L BE I.ITIIGATrG? UMBERL M.3 rA-A))NNTY, PENN$YL ANIAB?E%br ANY A?i EALL AMOUNTS DUE UI?DZATEACONIfTiArT ANANY D TRANSAAM _7_75 rnGNS ARIr AMOUNTS DUE ON DEMMIt7, ! UNDERSTAND TT IAT Dnrvicg*P a MAY SCr!C PAYMENT FROM ME VA f HOJT [X!•iAUST1NG ALL Or ITS REMLC)I(S AGAINST THE APPLICUANT PAYALL T. I HERFBY (fRTIFY f}IAT THE INFORMATION PRCNIDED HEREIN FOR THE PURPOSE OF OBTAINING CREI)rr FROM YOUR C:OM NY IS TRUE AND rflE INDICATED 8Y MY 51a1ESSA IN 0I AND TDIj Ct INVES CISDERTRTD ESTA&KTABRI_ISH H AND CORK-(."T rO THE BEST OF MY KNOWLEDGE AND BELIEF. n MAINTAIN A A OR EDIT LDIT I NECESSARY IN INE WITH YOUR COMPANY a APPLICANT SIC;NATURI TITI.[ DATF CREDIT DEPARTMENT USE ONLY I. C 1.4TOMF_R NUMBER ASSIGNED 7 SALES TAX CXEMP [ION INFORf- ?IION RECEIVED: YES APPLICA'I ICON CHFCKED AND APPROVF_O BY; _ SALESMAN NIJMBER ASSIGNED _ NO ClJ$TQMER FAY; TAXES; YES DATE:__ SALES • REPAIR • RENTAL • SHARPENING a CONCRETE SAWING 3 D°-- t Drivekore, Inc. v. Lagana Case no. 08-5419 Principle Interest (1.5% x. 50 months) Court Costs Attorney Fees TOTAL TOTAL AMOUNT DUE $5,894.29 $4,597.55 $75.75 $7,546.50 $18,114.09 March, 2012 EXHIBIT q r DRIVEKORE, INC. PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. JIM LAGANA PLUMBING & HEATING, INC., AND JAMES LAGANA, DEFENDANT : NO. 08-5419 CIVIL ORDER OF COURT AND NOW, this 23 Id day of March, 2012, upon consideration of the forgoing Plaintiff's Petition for Civil Contempt, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Respondent to show cause why the Petitioner is not entitled to the relief requested; 2. The Respondent shall file an Answer to the Petition within 20 days of receipt of this Order; 3. The petition shall be decided under PA.R.C.P. No. 206.5; 4. Depositions shall be completed within 60 days of this date; 5. Hearing/argument on the matter shall be held on Wednesday, July 11, 2012, in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania; 6. Notice of the entry of this Order shall be provided to all parties by the Petitioner. ? ka ? 0-? 'c s n-( Cka- les .r, A11e,, A 1)u4rr, By the Court, j ' , . 7 ^~ ] M. L. Ebert, Jr., J. 'r Oct) i,,,-< , l? 34//2. A-w Christina Israel, Esquire Attorney for Plaintiff Allen B. Dubroff, Esquire Attorney for Defendant bas DRIVEKORE, INC. IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. JIM LAGANA PLUMBING & HEATING, INC., AND JAMES LAGANA, DEFENDANT NO. 08-5419 CIVIL ORDER OF COURT AND NOW, this 14th day of May, 2012, the Order of Court dated March 23, 2012, regarding Plaintiff's Petition for Civil Contempt is amended to provide that the time of the hearing scheduled on July 11, 2012 is 10:30 a.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. The remainder of the Order shall be in full force and effect. By the Court, For M. L. Ebert, Jr., J. Christina Israel, Esquire .Zharles Rector, Esquire Attorney for Plaintiff vlen B. Dubroff, Esquire Attorney for Defendant bas V . D c-r _ x °r c-n DRIVEKORE, INC. Plaintiff V. JIM LAGANA PLUMBING & HEATING, INC. and JAMES LAGANA, Individually, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLV. NO. 08-5419 CIVIL CIVIL ACTION -LAW PRAECIPE TO WI7ZWRAWAPP?CE Please withdraw my appearance on behalf of the Plaintiff, Drivekore, Inc., as in the above-captioned matter. Date: Z_ PRAECIPE TO ENTER APPEARANCE C rn w zrn CA ?c 0 3> C: _: C.r C r s. ?.n Please enter my appearance on behalf of the Plaintiff, Drivekore, Inc., as co-counsel in the above-captioned matter. Claire L. Ghrgiulo, E ire (# 311108) Law Offices of Char Rector, Esquire, P.C. 1104 Fernwood Avenue, Ste. 203 Camp Hill, PA 17011-6912 (717) 761-8101 p`rt r o n Date: big s DRIVEKORE, INC., PLAINTIFF V. JIM LAGANA PLUMBING & HEATING, INC., AND JAMES LAGANA, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANI : NO. 08-5419 CIVIL IN RE: PETITION FOR CONTEMPT ORDER OF COURT C'7 r- -02 rr W =M2: r- Q z" c? AND NOW, this 11th day of July, 2012, upon consideration of the Plaintiff's C- G r- W -D 3 N c,a Petition for Civil Contempt and the court noting that respondent Jim Lagana Plumbing Heating, Inc. and Jim Lagana failed to file an answer to the Petition as directed by Or( of Court dated March 23, 2012, and failed to appear at the hearing/argument on this matter held this date; IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon Jim Lagana Plumbing & Heating, Inc. and James Lagana to show cause why attachment should not issue; 2. Jim Lagana Plumbing & Heating, Inc. and James Lagana shall file an An to the Rule on or before July 31, 2012; 3. A hearing on the Rule will be held on Tuesday, August 14, 2012, at 8:30 a.m in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. 4. Should the Defendants fail to appear for the scheduled hearing, a warrant shall issue for their arrest. ?Claire L. Gargiulo, Esquire Attorney for Plaintiff By the Court, M. L. Ebert, Jr., rTt--- r X -?, c S'i ,4 Allen B. Dubroff, Esquire Attorney for Defendant i/ Jim Lagana Plumbing & Heating, Inc. James Lagana 146 Airport Road Suite 3 Hazelton, PA 18202 bas 4 ;?'s, DRIVEKORE, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V JIM LAGANA PLUMBING & HEATING, INC., and JAMES LAGANA, Defendants 08-5419 CIVIL TERM IN RE: PETITION FOR CONTEMPT ORDER OF COURT AND NOW, this 11th day of July, 2012, this being tle time and place set for a hearing on Plaintiff's Petition for Civil Contempt, and the defendants having received notice of t hearing and having failed to appear, IT IS HEREBY ORDERED AND DIRECTED that judgment will be entered on behalf of the plaintiff's in the amount of $18,994.23. Christina A. Israel, Esquire Claire L. Gargiulo, Esquire For the Plaintiff i1 Allen B. Dubroff, Esquire For the Defendant mt f 4p f e5 Ma , ed 7//3//a x g& By the Court, M. L. Ebert, Jr., I ? °v i° I L E 0- 0 F F 1. `E I= kE PROTHON01'A 'DRIVE KORE, INC 2012 JUL 3 I :ANIQ?;??'2t4 COURT OF COMMON PLEAS OF Plaintiff fits BERLANIj 6 tYRLAND COUNTY, PENNSYLVANIA v. PENNSYLVANIA JIM LAGANA PLUMBING & HEATING INC., and JAMES LAGANA NO. 08-5419 CIVIL Defendants DEFENDANT'S RESPONSE TO PETITION FOR CIVIL CONTEMPT AND NOW, comes DEFENDANT, JAMES LAGANA, by and through its attorneys, Allen B. Dubroff, Esq. & Associates LLC, and responds to Plaintiff's Petition for Contempt as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted to the extent that the matter settled on the day of trial. Howe?: er, Defendant is unable to aver to the exact amount of the compromise taken by Plaintiff versus the amount it believed that it was owed. Defendant's actual damages were never tried, agreed upon' or assessed. The matter was settled based upon Defendant's ability to pay and in the interests I of resolving the matter and moving forward. 8. Admitted. By way of further answer, Defendant, James Lagana, did agree to jay these amounts, because he believed that he would be receiving the proceeds of a large debt refinance. However, this refinance is quite complicated and has been delay. Defendant, Janes 1 Lagana, expects the closing to take place in the next few months. He intends to pay the full balance the settlement amount to Plaintiff from the proceeds of this refinance. j 9. Admitted. 10. Denied. Defendant, James Lagana, did not purposefully or willfully fail to m ke payments per this Agreement/ Order. At the time he agreed to the payment schedule, he honestly believed that he would be receiving the proceeds of a large debt refinance in a few weeks. Howe r, this refinance is quite complicated and has been delay. Defendant, James Lagana, expects the closing to take place in the next few months. He intends to pay the full balance the settlement amount to Plaintiff from the proceeds of this refinance 11. Admitted. By way of further answer, Defendant, James Lagana, did not have the funds to make any payments or agreements. 12. Denied. By way of further answer, Defendant, James Lagana, did not intend to cause Plaintiff further time and cost. He did not intend to cause inequity to Plaintiff. Defendant, James Lagana, truly believed that he would be receiving the funds to make these payments to Plaintiff for a refinancing the few months. Defendant intends to pay the full balance owed to Plaintiff when the proceeds from his refinance are received. 13. Denied. It is denied that Plaintiff is entitled to additional attorney's fees and/or co t. 14. Denied. It is denied that Plaintiff is entitled to additional attorney's fees and/or co t. 15. Denied. It is strongly denied that Mr. Lagana should be incarcerated. He is a prominent business owner and must be available to work and care for his ill Wife. If Mr. Laga a were to be incarcerated, the funds for settlement would not be made available. Mr. Lagana mu t remain credit worthy in order to successfully complete the refinance process and obtain the funds to pay the DriveKor settlement. 2 16. Denied. It is denied that Plaintiff is entitled to additional attorney's fees and/or coat. WHEREFORE, Defendant, James Lagana, respectfully requests that this Honorable Court denies the relief requested by Plaintiff. Respectfully Submitted, ALLEN B. DUBROFF, ESQ., & ASSOCIATES, LLC By: Allen B. Dubroff, Esquire (Id # 04686) Suite 1030 1500 JFK Boulevard Philadelphia, PA 19102 (215) 568-2770 Attorney for Plaintiff Date: 7/27/12 3 VERIFICATION I, JAMES LAGANA, individually, verify that the statements made in the foregoing Respons to Petition for Contempt are true and correct. I understand that false statements herein are m de subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Date: 7/30/12 JAMES LAG-49#(,)DEFENDANT 4 DRIVEKORE, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V JIM LAGANA PLUMBING and 08-5419 CIVIL TERM HEATING, INC. and JAMES LAGANA,: Defendants IN RE: CONTEMPT OF COURT ORDER ORDER OF COURT AND NOW, this 14th day of August, 2012, after hearing in the above-captioned matter, the court does find the defendant, Jim Lagana, to be credible and that his failure to make the previous payments was not in contempt of the Court's previous Order of January 10, 2012. However, the defendant did fail to appear as directed and did fail to file an Answer as directed by previous Order of Court. Consequently, counsel fees for the plaintiff will be awarded in the amount of $1000.00. IT IS FURTHER ORDERED AND DIRECTED that the defendant shall provide documentation regarding the IRS attachments, the receivership his properties are currently in, and an entire list of real estate properties which he has title to at this time. Counsel will every two weeks provide counsel for Drivekore with the status of the re-financing. By the Court, 4'*"Claire Gargiulo, Esquire For the Plaintiff 1/ Kami Miller, Esquire For the Defendants mtf ? P;cs Act, fir' L. Ebert M _- , . DRIVEKORE, INC., Plaintiff V. 1 !I ` PRO T HO 1." , SNS YJD COUNTY IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08-5419 CIVIL TERM JIM LAGANA PLUMBING & : CIVIL ACTION — LAW HEATING, INC. and JAMES LAGANA Defendants SATISFACTION TO THE PROTHONOTARY OF SAID COURT: You are hereby notified to mark the judgment filed in the above -captioned matter against Jim Lagana Plumbing & Heating, Inc., and James Lagana as SATISFIE, d paid in full. Date: lo l BY: Eharles Rector, quire 1104 Fernwood Avenue, Ste. 203 Camp Hill, PA 17011-6912 (717) 761-8101 Attorney for Plaintiff