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HomeMy WebLinkAbout09-0238Carlisle Cement Products Company, Plaintiff vs. Smith Landscape Construction, LLC, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . No. OQ- 038 Ctvi,~ i~w CIVIL ACTION NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice aze served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You aze wazned 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. Pennsylvania Lawyer Referral Service 100 South Street Harrisburg, PA 17108-0186 (800)692-7375 IN THE COURT OF COMMON PLEAS OF Carlisle Cement Products Company, :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff Smith Landscape Construction, LLC, :CIVIL ACTION Defendant COMPLAINT AND NOW, comes the Plaintiff, Cazlisle Cement Company, by and through its counsel, Melissa K. Dively, Esquire of the law firm of SALZMANN HUGHES, P.C., and respectfully represents as follows in support of this Complaint: 1. Plaintiff is Cazlisle Cement Products Company, a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, located at 510 East North Street, Cazlisle, with a mailing address of P.O. Box 6I7, Carlisle, PA 17013 Pennsylvania (hereinafter referred to as "Plaintiff'). 2. Defendant is Smith Landscape Construction, LLC, a limited liability company, with its registered office located at 113 Airport Road, New Cumberland, Cumberland County, Pennsylvania, (hereinafter referred to as "Defendant"). 3. Plaintiff operates a business which supplies cement and masonry related products to retailers, contractors, and consumers. 4. Defendant requested that Plaintiff extend credit to Defendant to accommodate the Defendant's purchase for Plaintiff's products. (A copy of the credit application submitted by Defendant is attached hereto and incorporated herein as Exhibit "A"). 5. Plaintiff granted Defendant's request for credit and established a credit account for Defendant. 6. From approximately June 2006 to approximately July 2007, Defendant requested that Plaintiff supply the Defendant with products, the cost of which was billed to Defendant's credit account. 7. The products were delivered in the quantities and for the prices set forth on invoices provided to the Defendant. (A copy of an invoice provided to the Defendant is attached hereto and incorporated herein as Exhibit "B"). 8. Said invoices were provided to Defendant upon delivery of products and a summary of the charges were included in a billing statement. 9. Defendant received and continues to receive monthly billing statements reflecting the invoiced amounts. (A copy of one of Defendant's monthly billing statement reflecting the overdue balance is attached hereto as Exhibit "C" and incorporated herein by reference.) 10. The prices that Plaintiff charged Defendant for its products are fair, reasonable market prices and they are the prices, which Defendant agreed to pay. 11. The balance due and owing on the account of the Defendant as reflected in Exhibit "B" is the sum of Sixty Nine Thousand Dollars ($69,000.00). 12. Although demand has been made, Defendant has failed to make payment of the amount due and owing. 13. Defendant has at no time disputed the amount due or made a claim to Plaintiff that the products that the Plaintiff provided were in any way unacceptable. 14. Defendants further agreed in the Credit Application, attached hereto as Exhibit A, that in the event Plaintiff finds it necessary to place the account for collection, the Defendant agrees to pay the cost of collection including attorney fees incurred in said collection. 15. Fifteen (15%) percent of the amount due and owing by Defendants on the revolving credit account in the amount of Ten Thousand, Three Hundred Fifty Dollars ($10,3350) is reasonable cost for attorney's fees. 16. The total amount due from Defendant to Plaintiff is Seventy Nine Thousand, Three Hundred Fifty Dollars ($79,350.00) plus the costs of collection. WHEREFORE, Plaintiff demands judgment in its favor and against Defendant in the amount of Seventy Nine Thousand, Three Hundred Fifty Dollars ($79,350.00) plus the costs of collection. Respectfully submitted, SALZMANN HUGHES, P.C. Date: l ~~ ~ g BY: Attorney ID# 36780 79 St. Paul Drive Chambersburg, PA l (717) 263-2121 Counsel for Plaintiff VERIFICATION I verify that all the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief and that any false statements made are subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Date: 1 ~ O By: Its: ~~ MAlLiNG ADD_Ft_E_SS t)irFICE/P_LANT P.O. BOX 6'17 ~1Q [=~. NORTH ST. ~7'~ T) 243-,gi323 3~e~3^i!"J~ACTiJ@~l6~es ~T~7) 243-922 ~=~~ d "s`' ~ ~) ~ X33-Cat504 Comz~any Narne --- ` Address __ ~ ~ ~__ _~1~~02~--1~~-fFl~___ _ ------- - _- ---_ t __----___ - _--- Primary Pho~~ _~ ~ ~ - ~?_~ `f_~1~b_ Il~ir.F,ile _~(~ -'~'~y -"'L[ (( Fax ~'_I__}7' ~'~ `1`'G ~I 3 ~ Contact Name 0~- ~ ~J..JI~-- Tax Status TAXAB ~~::'~{E~~~PT(Sigr; ~~i c~xem;~i«r~ c;~srtificate required) Tax ID #/ ------~o ~ 3~1_Z `~_~_ ~, 3 PO Required YES )~fU Tyne of Busirges; SOtE PRs,.~!''R=Ew'o'irR ~=~=„~Tld'=~#~r-3if' r`~£~rit~. NaturE i~f Busietess _ - _ ---- --j_ - - ---- -- ------- ------ -_ _ --- Name of Owner/President lam- ~-~ 0 -~'~-~-- ~ ~-'~ ~`t ~~ Years in Busiraesy _-- ~___-- I:)esirec~ tine o, ~:s-~~c4it __ _ ---___ -- Bank Name/Contaci: C ` '~ ~ Z~ v~S ~ G-~ Phone #IFax # EXHIBIT _.A_ ~.....i',,`,~.~_jS~...E ~~,'~~".; *~~~ t~R~s~,?',~~ ' "-~ x.._4_1., ~N~.. MAlI.ING a~®~'~~~ P.O. BOX 617 +ta~1Ri.ISLE PA °~sY~ll. ®FFICE ~"T°17) X43-532 . ' ~'i1X t R' ~ `~ ~4~-liCt3~ 9Fl=1CElP1.ANT ~~6 E. NORTH ST. ` -- !1) ~GOmEaa~~E"~~~#act ---~ z-?C~c~~_~ _ ____ o _ ___ __-_ - _ r7 2 ,._. ~ Addrt;sslP~ionelFax __.----1__J_~ -_~-~?_ _- __ ___ __ ACCOtJtlt # __ ---_ _ - --- ----- -- - ---_ .r" --- -- (2) C;Ompar2~Jl~;Ontact --- ---~`~`~~~---~v- -~.` - __ ---- AddresslPc7~~~~'1Fax _ _._ .. ---- - -- --- AccOUnt # (3) GOmPan~fCcntact AddresslP~ -c~t tr~lFax Account # _ - _~ ~~C,~~e~.,,,,,n~. ~~es-.u-~.~e.ut~-_ ~~ ~~~~ The undersigned atfisms that the inr`ormation t,at7viried is cornpi~ae, tnre.Gan:; :: n~,•: ci. the un c~r:,iyned is authorized to obtain credit on behalf of the COMF'l>,NY and grants authorization to GARL!'"i!_F CEMPN i PRODUCTS ~~ investigate the. reierene~e:~ wrr,H;drd, tt is agree ± thatthc: r'; 2~'1"!~ti1`!Y'arit{ n~•ike payment promptly according to the terms itemized are ~;ach invoice. The COMPANY ~.rncier etands that ii an accotmt. is established, the credit tine Is subject to periodic review. 5hiprnenis may be held :f the account is delinquent or exceeds the estrrbiished line of credit The ~:ON19P'ANY agrees ~•a pay a financr~ charge of the lesser of 12 !~ per month or the maximum permitted by taw for any unpaid balances beyond its teams. The f;~OMPANY agrees to pay a Returned Check Fee of $25.00 for any check that is not hanurect by its bank. In the event CARLISLE CEMENT PROD#Jt;TS finds it. necessary to place the account far collection, the COMPANY agrees to pay all collection costs and attorney's fees. Resolution fior any dispute related to tine account shall be the exclusive jurisdiction of the courts in Cumhe: land County Pennsylvania. ft i5 agreed that any rights under ARUSLE CEMENT this agreement Gr^ non-transferable and that written notice is to be provided to C PRODUCTS 30 days before the transferor sale of any substantial part of the tuCfMPANY'S business. Authorized Sigti:~i.erlre ~::t i~~ Jari~e ! ~;~~,~ t:~ate Carlisle Cement Products, Inc. PO Box 617 Carlisle, PA 17013-0617 717-243-5323 Bill To: SMITH LANDSCAPE CONSTRUCTION RANDY SMITH 113 AIRPORT ROAD NEW CUMBERLAND, PA 17070 (717)215-4824 Reference: Comment: WELSHINS Item Lookup Code Description BRE020011 STN HANSON STONE Thank you for shopping Carlisle Cement Products, Inc. Please come again! Ship To: EXHIBIT Invoice Transaction #: 47700 Account #: 1397 Page: 3 of 3 Date: 7/3/2007 Time: 11:44:42 AM Cashier: KEITH Register #: 2 SMITH LANDSCAPE CONSTRUCTION RANDY SMITH 113 AIRPORT ROAD NEW CUMBERLAND, PA 17070 (717)215-4824 Qu>~n~ity Price Extended 1 $52.00 $52.00 Sub Total $52.00 Sales Tax $3.12 Total $55.12 Store Account $55.12 Change Due $0.00 Carlisle Cement Products, In Account Statement PO Box 617 Carlisle, PA 17013-0617 Account Number: 1397 717-243-5323 Due Date: Net 30 Balance: $69,000.00 Minimum Payment: $0.00 SMITH LANDSCAPE CONSTRUCTION SMITH LANDSCAPE CONSTRUCTION/ON HOLD Amount Enclosed: RANDY SMITH 113 AIRPORT ROAD NEW CUMBERLAND, PA 17070 111111 111111 INII IIIII IIIII II Please detach and enclose top portion wrth payment. Account Summary ___ _ _ _ ___ Summary Informs#on _ __ Account Number: 1397 Closing Date: Name: SMITH LANDSCAPE CONSTR Due Date: SMITH LANDSCAPE CONSTR RANDY SMITH 113 AIRPORT ROAD 11 /25/2008 Net 30 NEW CUMBERLAND, PA 170 Previous Balance: $69,000.00 New Charges: $0.00 Credits /Payments: $0.00 New Balance: $69,000.00 Current ?- 9 30 Days _ , ' 31 - 60 Days __ i 61 - 8f~ Days .Over 90 t~~rs Bai~nce Due $0.00 $0.00 $0.00 $0.00 $69,000.00 $69,000.00 Account Activity _ _ _ _, _ Date _! Account Activity _ _ _ ~ __ Charges ~. Credits *** No account activity during this period *** EXHIBIT Account Number: 1397 l ~ Page 1 of 1 ~ ~ ~ ~ n ~ ~0 ~ ~ _ ~.. ' ~ ~ ~ ~ _.. '- r - t7l r.. ,~, ~.:s ~:= O°l f ..~ ~ ' ~_.~ ~~ .~~ ~ ~ %r -W IN THE COURT OF COMMON PLEAS OF Carlisle Cement Products Company, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff VS. No. 09-238 ' -az _ `3 Smith Landscape Construction, LLC, CIVIL ACTION ? q Fri °n -n -•C y' N ?? ' Defendant Q t J -jca ? rv PRAECIPE TO ENTER JUDGMENT BY DEFAULT TO THE PROTHONOTARY: Please enter judgment by default against the above named Defendant Smith Landscape Construction, LLC in the amount of Fifty Seven Thousand Seven Hundred Seventy Two Dollars and Fifty Cents ($57,772.50) plus interests and costs. Respectfully submitted, SALZMANN HUGHES, P.C. By: Samuel , er, Jr., Esquire Attorn203665 79 St. Paul Drive Chambersburg, PA 17201 (717) 263-2121 Counsel for Plaintiff C .?asae?5 `., H CERTIFICATE OF SERVICE I hereby certify that on the day of December 2010, I served a true and correct copy of the foregoing document via United States mail, first class mail, postage prepaid, and addressed as follows: Smith Landscape Construction, LLC 113 Airport Road New Cumberland, PA 17070 Robert E. Chemicoff, Esquire Cunningham & Chernicoff, P.C. P.O. Box 60457 Harrisburg, PA 17106-0457 Salzmann Hughes, P.C. By: S ue E. Wiser r Esquire Carlisle Cement Products Company, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. Smith Landscape Construction, LLC, Defendant : No. 09••238 CIVIL ACTION TO: Smith Landscape Construction, LLC 113 Airport Road New Cumberland, PA 17070 DATE OF NOTICE: 64L-`-T IMPORTANT NOTICE n r- ^' ° O S. w ? T t ? ." j y m N ?(;7 jrn 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 OT 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 PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LANVYER. 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. Pennsylvania Laywer Referral Service 100 South Street Harrisburg, PA 17108-1086 (800) 692-7375 Respectfully submitted, SALZMANN HUGHES, P.C. By:- Melissa K. Dively, Esquire Attorney ID# 36780 79 St. Paul Drive Chambersburg, PA 17201 (717) 263-2121 Counsel for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on the y(?1 day of June 2009, I served a true and correct copy of the foregoing document via United States mail, first class mail, postage prepaid, and addressed as follows: Smith Landscape Construction, LLC 113 Airport Road New Cumberland, PA 17070 Robert E. Chernicoff, Esquire Cunningham & Chernicoff, P.C. P.O. Box 60457 Harrisburg, PA 17106-0457 Salzmann Hughes, P.C. By: Melissa If; Dively, Esquire IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION PRAECIPE FOR WRIT OF EXECUTION CARLISLE CEMENT PRODUCTS COMPANY Plaintiff Confessed Judgment X Other V. File No. 09-238 Amount Due $57,772.50 Interest $ SMITH LANDSCAPE. Atty's Comm $ CONSTRUCTION, LLC Defendants TO THE PROTHONOTARY OF THE SAID COURT: The undersigned hereby certifies that the below does not arise out of a retail installment sale, contract, or account based on a confession of judgment, but if it does, it is based on the appropriate original proceeding filed pursuant to Act 7 of 1966 as amended; and for real property pursuant to Act 6 of 1974 as amended. Issue writ of execution in the above matter to the Sheriff of York County, for debt, interest and costs, upon the following described property of the defendant(s): Any and all personal property located at 113 Airport Road New Cumberland, Pennsylvania 17070. PRAECIPE FOR ATTACHMENT EXECUTION Issue writ of attachment to the Sheriff of York County, for debt, interest and costs, as above, directing attachment against the above-named garnishee(s) for the following property (if real estate, supply six copies of the description; supply four copies of lengthy personalty list) N/A and all other property of the defendant(s) in the possession, custody or control of the said garnishee(s). X Index thi writ against the defendant, Smith Landscape Construction, LLC Attorney I, 0365 I G G? i? IU,G? c? 4',W .66 ff Aj &?f Qv 0(10 Awil?u Date <3 SALZ UGH, P.C. S uel E. W'2 er, Jr ,Esquire 79 St. Paul rive Chambersburg, PA 17201 (717) 263-2121 Counsel for Plaintiff s? Ac ? C? c mM : N -n rn cc i -v c..n -?1 -+C:) ;? C3 7 CARLISLE CEMENT PRODUCTS COMPANY Plaintiff VS. SMITH LANDSCAPE CONSTRUCTION, LLC Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, : PENNSYLVANIA : No. 09-238 : CIVIL ACTION WRIT OF EXECUTION - NOTICE This paper is a Writ of Execution. It has been issued because there is a judgment against you. It may cause your property to be held or taken to pay the judgment. You may have rights to prevent your property from being taken. A lawyer can advise you more specifically of these rights. If you wish to exercise your rights, you must act promptly. The law provides that certain property cannot be taken. Such property is said to be exempt. There is a debtor's exemption of $300.00. There are other exemptions, which may be applicable to you. Attached is a summary of some of the major exemptions. You may have other exemptions or other rights. If you have an exemption, you should do the following: (a) Fill out the claim form and demand a prompt hearing. (b) Deliver the form or mail it to the Sheriffs Office at the address noted. You should come to the court ready to explain your exemption. If you do not come to court and prove your exemption, you may lose some of your property. This and any future communication from our debt collection firm are attempts to collect a debt and information obtained will be used for that purpose. 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 32 South Bedford Street Carlisle, PA 17013 Telephone No. (717) 249-3166 r CARLISLE CEMENT PRODUCTS COMPANY Plaintiff VS. SMITH LANDSCAPE CONSTRUCTION, LLC Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : No. 09-238 : CIVIL ACTION MAJOR EXEMPTIONS UNDER PENNSYLVANIA AND FEDERAL LAW (1) $300.00 statutory exemption (2) Bibles, school books, sewing machines, uniforms and equipment (3) Most wages and unemployment compensation (4) Social Security benefits (5) Certain retirement funds and accounts (6) Certain veteran and armed forces benefits (7) Certain insurance proceeds (8) Such other exemptions as may be provided by law CLAIM FOR EXEMPTION TO THE SHERIFF: 1. The above-named defendant claims exemption of property from levy or attachment: (1) From my personal property in my possession which has been levied upon: (a) I desire that my $300.00 statutory exemption be: [ ] I. Set aside in kind (specify property to be set aside in kind): [ ] IL Paid in cash following the sale of the property levied upon; or [ ] III. I claim the following exemption (specify property and basis of exemption): (2) From my property which is in the possession of a third party, I claim the following exemptions: (a) My $300.00 statutory exemption: [ ] in cash; [ ] in kind (specify property): (b) Social Security benefits on deposit in the amount of. $ (c) Other (specify amount and basis of exemption): I request a prompt court hearing to determine the exemption. Notice of the hearing should be given to me at: Address Telephone Number I verify that the statements made in this Claim for Exemption are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Date: Defendant: THIS CLAIM TO BE FILED WITH THE OFFICE OF THE SHERIFF OF YORK COUNTY. WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 09-238 Civil CIVIL ACTION - LAW TO THE SHERIFF OF YORK COUNTY: To satisfy the debt, interest and costs due CARLISLE CEMENT PRODUCTS Plaintiff (s) From SMITH LANDSCAPE CONSTRUCTION, LLC AT 113 AIRPORT ROAD, NEW CUMBERLAND, PA 17070 (1) You are directed to levy upon the property of the defendant (s)and to sell ANY AND ALL PERSONAL PROPERTY LOCATED AT 113 AIRPORT ROAD, NEW CUMBERLAND, PA 17070. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the gamishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $57,772.50 L.L. $.50 Interest Atty's Comm % Due Prothy $2.00 Atty Paid $288.00 Other Costs Plaintiff Paid Date: February 7, 2011 Davi 11, Prothonot (S'eal) By: Deputy REQUESTING PARTY: Name SAMUEL E. WISER, JR, ESQUIRE Address: 79 ST. PAUL DRIVE CHAMBERSBURG, PA 17201 Attorney for: PLAINTIFF Telephone: 717-263-2121 Supreme Court ID No. 203665 Richard P Keuerleber Sheriff Reuben B Zeager Chief Deputy, Operations SHERIFF'S OFFICE OF YORK COUNTY ..n PETER J. MANGAN, ESQ. Solicitor Richard E Rice, 11 Chief Deputy, Administration CARLISLE CEMENT PRODUCTS COMPANY vs. Case Number SMITH LANDSCAPE CONSTRUCTION, LLC 2011-SU-807-41 SHERIFF'S RETURN OF SERVICE 05/09/2011 DEFENDANT NOT FOUND IN YORK COUNTY. SHERIFF COST: $51.39 May 18, 2011 91- o7,3? SrR?l, RICHA D P K RLEBER, SHERIFF --t Zrn Z'0 r xo• rnr= -0M N -<D MC) rv =° zo C>-n D? ?M --f NOTARY Affirmed and subscribed to before me this 18TH day of MAY 2011 LISA L. THORPE, NOTARY PUBLIC CITY OF YORK, YORK COUNTY MY COMMISSION EXPIRES AUG. 12, 2013 CARLISLE CEMENT PRODUCTS COMPANY vs. SMITH LANDSCAPE CONSTRUCTION, LLC Case Number 2011-SU-807-41 SHERIFF'S RETURN OF SERVICE 05/09/2011 DEFENDANT NOT FOUND IN YORK COUNTY. SHERIFF COST: $51.39 SO ANSWERS, Aau?7tol-??? May 18, 2011 RICHARD P KEUERLEBER, SHERIFF ?or;rt Suite :yhrsr? <,e:iz:;`i, 'nc: