Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
09-0752
t' ••` COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of CUMBERLAND COMMON PLEAS No. Oq- 752 NOTICE OF APPEAL NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. Dennis Burkett 09-3-02 Vivian Cohick ------- -- -- - ----- 13 Brookwood Avenue, Suite 1 Carlisle PA 17015 02/10/09 Whisler's Well Drilling H De nis B ett DOCKET No. CV-0000222-08 EOFAFtpE 77 AGENT - ?- This block will be signed ONLY when this notation is required under Pa. If appellant was Claimant (see Pa. R.C.P.D.J. No. 1001(6) in action R.C.P.D.J. No. 10088. This Notice of Appeal, when received by the District Justice, will operate as a before a District Justice, A COMPLAINT MUST BE FILED within twenty SUPERSEDEAS to the judgment for possession in this case. (20) days after filing the NOTICE of APPEAL. somb- of P?d?-wimy or DSPW PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon Whisler's Well Drilling appellee(s), to file a complaint in this appeal Name of appeiee(s) (Common Pleas No. P*thin twenty (20) days a e service?of rule u rent o judgment of non pros. Signature ofappadant oraMwney of agent RULE: To Whisler Is Well Drilling , appellee(s) Name of apWea(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) if you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST (3) The date of service of this rule if service was by mail is the date of the mailing. Date: a / I/ , 20Gq YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 WHITE- COURT FILE TO BE FILED WITH PROTHONOTARY GREEN - COURT FILE YELLOW- APPELLANTS COPY PINK - COPY TO BE SERVED ON APPELLEE GOLD - COPY TO BE SERVED ON DISTRICT JUSTICE PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED VATHIN TEN (W) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I hereby (swear) (affirm) that I served ? a copy of the Notice of Appeal, Common Pleas upon the District Justice designated therein on (date of service) 20 , ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name) , on ,20 ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto. (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF 20 Signature of official before whom affidavit was made Signature of affiant Title of official C7 P-1:0 My commission expires on 20 -13 UT- ,- -tab, w U r no n t r C - .y cz? r COMMONWEALTH OF PENNSYLVANIA COUNTY OF- CIJMERL71M Mag. Dist. No.: 09-3-02 MDJ Name: Hon. VIVIAN CORICS Address: 55 Pz= DR NENVILLE, PR Telephone: (717 ) 776-3187 17241 DE111NIS BDRICETT 13 HROOLNOOD im CARLISLE, PA 17013 THIS IS TO NOTIFY YOU THAT: Judgment: FOR PLAINTIFF rX1 Judgment was entered for: © Judgment was entered against: (Name) BURLETT, DEUIBIS in the amount of $ 7.709.1 Defendants are jointly and severally liable. Damages will be assessed on Date & Time This case dismissed without prejudice. Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 ? Portion of Judgment for physical damages arising out of residential lease $ Amount of Judgment $ 7,562.76 Judgment Costs $ 146.33 Interest on Judgment $ Attorney Fees $ -ITO Total $ 7,709.11 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 JUDGMENTITRANSCRIPT 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. ?710_C/ / Date .7/,," I certify that this is a true and correct copy of Date NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS ri!RISLER1S NELL DRILLING ? 366 GMNMMPRXNG RD ATTN: KZZ NEISLER LNENVILLE, PA 17241 J VS. DEFENDANT: NAME and ADDRESS rBORSETT D , NOWS 13 BROOKWOOD A?VE CARLISLE, PA 17013 L J Docket No.: CV-0000222-08 Date Filed: 12/11/08 L , Magisterial District Judge record of the proceedings containing the judgment. My commission expires first Monday of January, 2012 (Date of Judgment) 2/10/09 (Name) NSISLER' S NELL DRILLING , Magisterial District Judge SEAL AOPC 315-07 DATE PRINTED: 2/10/09 2:39:00 PM r~? r, Oky""M?pIT lYpNtES 02 lp 0 O a 02 1P $ k 000388-774 FLEE 7py 0003887774 FEB MAft_EtJ FRO LEDFROMZIPC Q07 4 wpm fl t` .? - w m m? lug U..? LL of LL LL. m LL d °° .?.?' V ,' • d ?' 7 m cT etl ' t H v a5 Z3 LL N. a m? .z° ° l;i a: Ee E. a Q n E 16) 12 I 4i W t E a 16 /1, 2h5h SDhZ 2000 091.2 900 h E S h S O h 1. 2000 0942 9004 ' OF NOTICE OF APPEAL AND RUL __ _ _.....?..•.. (TW prae ofswviae M./STBEFILED tMTH/N TEN (10) DAYS AFTER filing of the notice of Weal. Check appttaable boxes) COMWMVVEALTH OF PENNSYLVANIA COUkTY OF Cumberland ; ss AFfIDAVRfi l hereby (swear) (affirm) that 1 served 91 a copy of the Notice of Appeal, Common Pleas 09 - 5 2 , upon the District Justice designated therein on (SMI4 Nj (date of servicef ebr!uary 12 , 20 09 ? by personal service ® by {c+erMed) ) mail, sender's receipt attacked hereto, and upon the appellee, (name) Wh i s ler s Well Dr i l l i tt;% February 12 2009 ? by personal service Q by (certified) mail, sender's receipt attached hereto. ^MEMAND! SUBSCRIBED BEFOREDfE Fe ruatry DAY C7F ` 20 Signature of afftnt nvlwta 11 . ilMrtr ? t?aa. c t C d r1l t j r Pr3 M -c C:' r*j w My commission expires on 20 TH OF COURT OF COMMON PLEAS Judicial District, County of CUI SIRLAAND COMM PLEAS No. 04 I40TICE OF APPEAL Notice is given that the appellant has tiled in the above Court of Common pleas an appeal from the judgment rendered by the Did justice on the date and in the case referenced below. Dennis Burkett 13 Brookwood Avenue, Suite 1 Carlisle 02/10109 Whisler's Well Drilling CV-0000222-08 erns U10M will De ONLY when this notation is r9q*ed under Pa. R.C.P.D.J. No. 10086.E This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDERS to the judgment for Possession In this case. is Brett .r , w!as Vivian Cohick 1 before a Dlstrkot Justice, A COMPLAINT MUST BE FILED *Wdn twenty (20) days after Akv Me NOTICE of APPEAL. PRAECM'E TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when pe#ant was DEFENDANT )see Pe.R.C.P.D.J. No. 1009(7) in adt+im bef+:xe District Justice. IF NOT USED. detach ft (h coopy+ of notice ofappeaf to be sect upon appellee. PRAECIPE: To Enter rule upon (Common Pleas No. ;I-a-• J- ? -?-. + } y"4'y't ?`? f? a ). to Me a complaint in oft appeal "''? N?rtxdap?lAf?els) „' ? +? r+ 1 IYwithin twenty (20) days service,of er?tryli . 'Oer r;A % UIE: To Whltitler's Kell Drilling s?rc?or? . appellees) Nsn» of oppRM q) (1) You are notified that a rule is hereby entered upon you to fie a complaint in this appew * %?W4 gip) Oys aW the date of service this rule upon you by Personal service or by certified or registered mall. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS:MA?YSE iJW0JED.AG0MT YO? - It (3) The date of service of this rule if service was _ by mall is the date of the mfg. .200 i 21, fit IU MUST INCLUDE A COPY OF THE NOTICE OF JUD #T#TCRIPT FORM tllf?T ,;M*4l0416E OF APPEAL,. 12-02 WHITE - COURT FILE TO BE FILED WITH PROTHONOTARY GREEN - COURT FILE YELLOW - APPELLANTS COPT PINK - COPY TO t3E SERVED ON APPELLEE GOLD - COPY TO BE SERVED ON nice.,.._ OM & T'AB Nu ULAKIS Wayne Melnich Esquire Attorney I.D. No.: 53150 36 South Hanover Street Carlisle, Pennsylvania 17013 (717) 249-0900 WHISLER' S WELL DRILLING, INC Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. DENNIS BURKETT Defendant CIVIL ACTION LAW NO. 2009-752 Civil Term COMPLAINT AND NOW, comes the Plaintiff, Whisler's Well Drilling, Inc., a Pennsylvania Corporation, by and through its attorneys, Abom & Kutulakis, LLP, and makes the following Complaint against the Defendant, Dennis Burkett, as follows: 1. Plaintiff is Whisler's Well Drilling, Inc., a Pennsylvania Corporation with an address of 366-1 Green Springs Road, Newville, Pennsylvania 17241. 2. Defendant is Dennis Burkett, an individual, with an address of 13 Brookwood Avenue, Carlisle, Pennsylvania 17013. 3. The parties entered into an oral contract in December of 2007, for work, labor, equipment and materials related to excavation and pump installation on Defendant's property. 4. Under the terms of the oral contract, Defendant was to pay Plaintiff for time and materials, plus a 36% mark-up, for the necessary work to complete the project. Labor costs were quoted at $65 per hour. 5. Plaintiff did begin and complete trench excavation and installation of a well on Defendant's property. 6. On January 31, 2008, Plaintiff sent Defendant an invoice for a total amount of $35,241.12. (See attachment A). 7. The January 31, 2008, lists the description and price for all labor and materials and the hours of labor and hourly rates for the project. 8. On April 21, 2008, Defendant made a payment to Plaintiff in the amount of $27,678.36. 9. After credit for the April 21, 2008, payment, Defendant's balance with Plaintiff remains at $7,562.76. 10. The Plaintiff has made numerous demands for payment of the balance but no additional payments have been made toward that balance. 11. In addition to the amount owed for labor, materials and equipment on the project, the Defendant's owe interest on the unpaid balance. WHEREFORE, the Plaintiff demands Judgment against the Defendants in the amount of $7,562.76, plus reasonable legal fees, costs, and interest as permitted by law. Respectfully Submitted, ABOM & KUTULAKIS, LLP ayne Mel ck, Esquire Attorney I.D. 53150 36 South Hanover Street Carlisle, PA 17013 Attorney for Defendant VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of Pa.C.S. §4904, relating to unsworn falsification to authorities. 3 lo 9 Date Kenneth Whisler Whislers Well Drilling Ynce 366-1 Gmen Springs Road -Newville, Pa 17241 Phone: (717) 776-6211 Fax: (717) 7769441 Bill To DENNIS BURKEl-P 13 BROOKWOOD AVE CARLISLE, PA 17013 Ship To • Invoice E1 1 AJ Invoice # 7341 P.O. No, Ship Proje Due Date terms 1/3,/2oos 2/15/200$ Not t5 c lus"tity Item Code Desariptlon Price Each Amount WELL I I DR100 2 DR I00 2" PITI..ESS ADAPTER " 15 3 1 1 DR100 2 MIP X 2" 1NSTERT XL 2"INSBItTCOUP XL 2 . 1329 183,15 46.54 16 DR100 CLAMP t3.6 13.46 110 DRIOO 2" ROLL PIPE 160 PSI U 4 10.88 143 DR100 613 WIRE W/GROUND DOUBLE JACKET ,0 322 224.4 407 DRI00 613 WIRE W/GROUND DOUBLE JACKET 6 410.46 400 DRIOO 2" CERTALOK PIPE 3.92 1,310.54 21 DRIOO 2" CLR1AL OK COUPLING 96 4 1,984.10 4 2 DR I OO 2" CERTALOK SPLINE 1 39 .19 2 DRIOO 2" CERTALOK MIP ADAPTER .99 2.99 125 125.58 2 DR100 SPLICE KIT #6 126.00 352A0 2 DR100 WONDER TAPE 9.02 18.04 5 DR100 HOIST TRUCK 6.3$ 12.70 4 DR100 1 I/4" SCH 40 PIPE 75.00 375.00 19 DR100 2" COPPER PIPE 0. 1.64 1 DR100 2" 80E CHECK VALVE 36 13. 253.54 1 DRI00 2" COI'PLR MIP 53 74 .53 74.53 5 DR100 2" COPPER 90 17.33 1 7,33 5 DR100 ` STRUT 14 .55 4.00 5 DR 100 2" CLAMPS ? 0 2.80 1 14.00 14 DRI OQ 4 DlttOp 1 D / 2 i/8" PIPE INSULATION 2"X2"X3/4" COPPER TEE 1 .55 1.60 7.75 22.40 R100 1 DR100 2" COPPER SPLIT RING 2 . 97 ,88 5 1 DRIOO 3/8" SPLIT RING I)LATE 6 2 1.42 6.42 6.42 4 DR100 3/8" ALL THREAD 3/4" COPPER FiP VVV 1.75 0.88 1.75 0 98 1 DR 100 3/4" MOP BALL VALVE HOSE BIB 2.87 . 11.48 2 DR100 2" X 2" X I" COPPER TEE 10.78 10.78 1 DR100 1 DR100 2"X2"Xl 1/4" COPPER TEE 21.62 43.24 2" SWEAT BALL VALVE 24.00 24.00 1 DRIOO 1 DR100 314" X 1/2" BRASS BUSI4ING 45 .78 .78 1 DR100 3/4" X 1/4" BRASS BUSHIN 3 3.10 3 3.10 1 DR100 3/4" COPPER PIPE 3.71 3.71 1 1/4" COPPER FIP 4. 65 4.65 1 DR100 1 1/4" X I" BRASS BUSHING 4 I . 1 .24 1 DR100 5HP GRUNDFOS MOTOR 3PH 6 61 6. 6 6.61 1 DR 100 1 DR100 5HP 50GPM GRUNDPOS PUMP END 93 876.93 2 DR100 51-IP GRUNDFOS CONTROL BOX CU-321 326.64 1,326.64 1,3 .64 I" SWEET BALL VALVE 2,393. 93 2,393.23 OFFICE 14.005 5 28.10 Thank you Par your buisness Total Whislers Well Drilling Tnc.• 366-1 Grew Springs Road New ville, Pa 17241 Phone: (717) 7766211 Fax: (717) 776-9441 Bill To DENNIS BURKETT 13 BROOKWOOD AVE CARLISLE, PA 17013 $hip To r? LJ Invoice Date Invoice.# 1/31/2008 7345 P.Q. No, Ship Project Due Date Terms 1/31/2008 2/15/2008 Net 15 Quantity Item Code Description Price Each Amount I DRIOO LIQUID FILLED BACK MOUNT GAUGE 33.56 33.56 1 DRIOO 1" ADJUSTABLE RELIEF VALVE 81.94 81.94 1 DRIOO 3/4" PVC MIP ADAPTER 0.34 0.34 11 DRIOO 3/4" PVC 90 0.38 4.18 1 DRI00 3/4" PVC TEE 0.49 0.49 16 DRIOO 3/4" 2 HOLE STRAP 0.44 7.04 50 DRIOO 3/4" SCH 40 PVC PIPE 031 15.50 1 DRI 00 TANK 4.6 GAL 15X 12 9494 94.94 1 DRI00 BRACKET" KIT 36.08 36.08 WELL 2 1 DR100 2 PITLESSADAPTER 183.15 183.15 1 DR100 2" MIP X 2" INSTERT XL 23.27 23.27 4 DRIOO CLAMPS 0.68 172 190 DRIOO 2" ROLL PIPE 160 PSI. 2.04 387.60 225 DRIOO 6/3 WIRE W/GROUND DOUBLE JACKET 3.22 724.50 408 DRIOO 6/3 WIRE W/GROUND DOUBLE JACKET 3.22 1.313.76 400 DRI00 2" CERT'ALOK PIPE 4,96 1,984.00 21 DRI00 2" CERTALOK COUPLING 16.39 344.19 42 DRIOO 2" CERTALOK SPLINE 2.99 125.58 2 DR100 2" CERTALQK MIP 126.00 252.00 3 DR100 SPLICE KIT #6 9.02 27.06 2 DRIOO WONDFA TAPE 6.35 12.70 5 DR100 HOIST TRUCK 75.00 375.00 4 DRIOO 1 1/4" SCH 40 PIPE 0.41 1.64 9 DRIOO 2" COPPER PIPE 13.36 120.24 1 DR100 2" 80E CHECK VALVE 74.53 74.53 1 DR100 2" COPPER MIP 17,33 17.33 3 DR100 2" COPPER 90 14.91 44.73 1 DR100 2" COPPER 45 17,3$ 17.35 2 DR 100 STRUT 2.80 5.60 2 DRIOO 211 STRUT CLAMP 1.55 3.10 6 DR100 2 1/8" PIPE INSULATION 1.60 9.60 4 DR100 21IX2"X3/4" COPPER TEE 20.97 83.88 4 DR 100 314" COPPER 1:IP 2.87 11.48 1 DR100 3/4" COPPER PIPE 4.65 4.65 1 DR100 3/4" MIP BALL VALVE HOSE BIBB 10.78 10.78 1 DRIOO 2"X2" XI 1/4" COPPER TEE. 24.00 24.00 1 DRI W 2" SWEET BALL VALVE 45.78 45.78 1 DRIOO 3/4" X 1/2" BRASS BUSHING 3.10 3.10 1 DA 100 3/4" X 1/4" BRASS BUSHING 3.71 3.71 1 DR100 I t 1/4" COPPER FIP 10.24 10.24 OFFICE page 2 Thank you for your buisnm Total Whislers Well Drilling Inco 366-1 Green Springs Road NeW'ville, Pa 17241 Phone: (717) 776-6211 Fax: (717) 7769441 Bill To DENNIS BURKE'IT 13 BROOKWOOD AVE CARLISLE, PA 17013 Ship To • Invoice DErte Invoice # 1/31/?008 7345 P.O. No. Ship Project Due Date Terms 181/2008 2/15/2008 Not 15 Quantity Item Cade Description Price Each Amount I DR100 1 1/4" X 1" BRASS BUSHING 6.61 6.61 1 DR100 5KP GRUNDFOS MOTOR 876.93 876.93 1 OR100 514P SOGPM GRU DPOS PUMP END 1,326.64 1,326.64 1 DR100 SHP GRUNDFOS CONTROL BOX CU-321 2,393.23 2,393.23 1 DR100 UQUD FILLED BACK MOUNT GAUGE 33.56 33.56 1 13R100 V ADJUSTABLE RELIEF VALVE 81.94 81.94 1 DR1O0 TANK 4.6 GAL 15X12 94.94 94.94 1 DR100 BRACKET KIT 36.08 36.08 1 DR 100 2" COPPER TEE 27.75 27.75 1 DR100 2" COPPER PIP 21.76 21,76 817 DR100 6/3 WIRE W/GROUND DOUBLE JACKET 3.22 2,630.74 4 DRI00 1 1/4" ROMEX CONNECTOR 2.58 10.32 2 DR 100 518" ROMEX CONNECTOR 0.48 0.96 4 DR100 STAINLESS STEEL U-BOLTS 4.71 18.84 200 OR] W 2" PVC SCH 40 PIPE 0.84 168.00 10 DR100 2" PVC SCH 40 COUP 0.65 6.50 1 DRI00 GENERATOR RENTAL 1,832.76 1,832.76 1 DR100 STONE DUST / TRUCKING 351.22 351.22 103.5 DR100 LABOR 65.00 6,727.50 18.5 DR100 BACKHOE SERVICE 70.00 1,295.00 1 DR100 BACKHOE MOVING PEE 70.00 70.00 OFFICE Thank you for your buisnoas Total r ..v .0% - CERTIFICATE OF SERVICE AND NOW, I, Emily J. Filiberd, of ABOM & KUTULAKIS, LLP, hereby certify that I did serve or cause to be served a true and correct copy of the foregoing Complaint by First Class U.S. Mail at the following: David A. Baric, Esquire 19 West South Street Carlisle, PA 17013 DAM 3 W01 EmilY e e..a ??' ? ' ??`; - ?,. - ?'?`S p ? - ?? ?J WHISLER'S WELL DRILLING, INC., Plaintiff, V. : DENNIS BURKETT, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2009-752 CIVIL TERM CIVIL ACTION-LAW JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified that you have twenty (20) days in which to plead to the enclosed Answer, New Matter and Counterclaim or a Default Judgment may be entered against you. Date: b3 A164 BRIEN S ERER David A. Baric, Esquire I.D. # 44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 WHISLER'S WELL DRILLING, INC., Plaintiff, V. DENNIS BURKETT, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2009-752 CIVIL TERM CIVIL ACTION-LAW JURY TRIAL DEMANDED ANSWER, NEW MATTER AND COUNTERCLAIM NOW, comes Defendant, Dennis Burkett ("Burkett"), by and through his attorneys, O'BRIEN, BARIC & SCHERER, and files the within Answer, New Matter and Counterclaim and, in support thereof, sets forth the following: 1. After reasonable investigation, Burkett is without knowledge or information sufficient to form a belief as to the truth of these averments and they are, therefore, denied. 2. Denied. To the contrary, Burkett does not reside at the address given by Plaintiff.. 3. Denied. To the contrary, the parties entered into an agreement as reflected on Exhibit "1 " attached hereto and incorporated by reference. Moreover, Exhibit "1 " reflected a `not to exceed' amount for the services and materials to be provided by Plaintiff. 4. Denied. Burkett incorporates by reference his answer to paragraph 3 as though set forth at length. 5. Denied. To the contrary, Plaintiff never completed the work. Additionally, the work which was performed was not workmanlike or in accordance with standard and acceptable methods and means for the performance of such work. 6. Admitted in part and denied in part. Admitted only that Plaintiff send the invoice as attached. It is denied that such amount was due and owing or in accordance with the agreement of the parties. Moreover, the work which was performed was not workmanlike or in accordance with standard and acceptable methods and means for performance of such work. 7. Denied. The document is a writing which speaks for itself. It is denied that such amount was due and owing or in accordance with the agreement of the parties. Moreover, the work which was performed was not workmanlike or in accordance with standard and acceptable methods and means for performance of such work. 8. Admitted in part and denied in part. It is admitted only that Burkett sent a check to Plaintiff for the amount stated. It is denied that said amount was actually due and owing or in accordance with the agreement of the parties. Moreover, the work for which payment was being remitted was not performed in a workmanlike manner or in accordance with standard and acceptable methods and means for performance of such work. 9. Denied. It is denied that any amounts remains due and owing from Burkett to Plaintiff. To the contrary, Plaintiff owes money to Burkett because the amount paid was not in conformance with the agreement of the parties and work for which payment was made was not performed in a workmanlike manner or in accordance with standard and acceptable methods and means for performance of such work. Additionally, Plaintiff has failed to provide credit to Burkett for amounts agreed upon by the parties. 10. Admitted. 11. Denied. To the contrary, Plaintiff owes money to Burkett because the amount paid was not in conformance with the agreement of the parties and work for which payment was made was not performed in a workmanlike manner or in accordance with standard and acceptable methods and means of performance of such work. Additionally, Plaintiff has failed to provide credit to Burkett for amounts agreed upon by the parties. WHEREFORE, Defendant requests that judgment be entered in his favor and against Plaintiff together with costs and expenses. NEW MATTER 12. Burkett incorporates by reference his answers to paragraphs one through eleven as though set forth at length herein. 13. Plaintiff's claim fails to state a claim upon which relief may be granted. 14. Plaintiff s claim is barred by applicable statutes of limitation. 15. Plaintiff s claim is barred by the doctrines of laches, waiver and/or estoppel. 16. Burkett was at all times justified in his actions. 17. Plaintiff originally provided Burkett with a price quote of $32,941.00 for the work and materials to be provided as more fully set forth on Exhibit "2" which is attached hereto and incorporated by reference. 18. After discussions of the parties, Plaintiff revised its price quote for the work to $28,924.00 as reflected on Exhibit "I". This second quotation was presented to Burkett as being a `not to exceed' quotation from Plaintiff. 19. Plaintiff informed Burkett that Exhibit "2" reflected a cost plus 100% markup on labor and materials. 20. Plaintiff informed Burkett that Plaintiff would perform the work at cost plus 35% in lieu of a 100% markup. Such a recalculation would set the price of the work and materials to be provided at $22,235.18. 21. Plaintiff has invoiced Burkett for materials never provided including, but not necessarily limited to, 900 feet of copper wire at an invoiced amount of $2,898.00. 22. Plaintiff caused damages to Burkett's work site which will cost approximately $400.00 to repair. 23. Plaintiff agreed to supply Burkett with manuals, instructions and warranties for the equipment and materials provided. No such documents have ever been provided to Burkett. WHEREFORE, Burkett requests that judgment be entered in his favor and against Plaintiff together with costs and expenses. COUNTERCLAIM 24. Burkett incorporates by reference his answers to paragraphs one through eleven and his new matter at paragraphs twelve through twenty-three as though set forth at length herein. COUNT I-BREACH OF CONTRACT 25. Exhibit "2" reflected a `not to exceed' price quotation from Plaintiff to Burkett. 26. Burkett relied upon Plaintiff's representation that Exhibit "2" was a `not to exceed' amount' in agreeing to sign Exhibit "2". 27. Plaintiff agreed to provide labor and materials for the work at the rate of Plaintiff's cost plus an additional 35% markup. 28. The final invoice of Plaintiff breached the agreement of the parties in that it exceeded the amount set forth in Exhibit "2" and failed to be calculated at the agreed upon rate. 29. Every contract for the rendering of construction services and materials includes an implied covenant that the work and materials will be workmanlike and within acceptable standards of construction practice. 30. The work performed by Plaintiff breached the implied covenant of workmanship in each of the following, but not necessarily limited to, ways: (a) the system was to be installed below the natural frostline and Plaintiff failed to install the system in such a fashion; (b) the system was not operational after Plaintiff completed its work and (c) the work was not completed in such a fashion as to permit the township building codes department to accept the work. 31. Plaintiff has breached the agreement of the parties by invoicing Burkett for materials never supplied to the construction site including, but not limited to, a bill for copper wire in the amount of $2,898.00 which Plaintiff did not provide. 32. Plaintiff has breached the agreement of the parties by failing to provide work and materials which were workmanlike or in conformance with standard methods and means of performing such work. WHEREFORE, Burkett requests judgment be entered in his favor and against Plaintiff for the amount paid in excess of the amount due and owing according to proof at trial, for all costs of correction necessary to the work performed by Plaintiff, recovery of costs incurred to correct damages to the site and all other amounts deemed just and proper plus costs and expenses. COUNT II- UNFAIR TRADE PRACTICES CONSUMER PROTECTION LAW VIOLATIONS, 73 P.S. §201-1, et seq. 33. Burkett incorporates by reference his answers to paragraphs one through eleven, new matter at paragraphs twelve through twenty-three and paragraphs twenty-four through thirty- two of his Counterclaim as though set forth at length. 34. The work and materials furnished by Plaintiff were provided for personal, family or household purposes subject to 73 P.S. §201-1, et seq. The work and materials were provided for the construction of Burkett's residence. 35. Plaintiff has violated the provisions of the UTPCPL, to wit: (a) Plaintiff made false or misleading statement to Burkett concerning the existence of or amounts of price reductions it would provide to Burkett in violation of 73 P.S. §201-2(4)(xi); (b) Plaintiff provided services and materials which were to have "uses" and "benefits" which they did not have in violation of 73 P.S. §201-2(4)(v); and (c) Plaintiff's conduct was deceptive and caused confusion or misunderstanding as to the costs and expenses to be incurred by Burkett for the work and materials to be provided by Plaintiff in violation of 73 P.S. §201-2(4)(xxi). Moreover, Plaintiff's conduct was deceptive in that it attempted to invoice Burkett for materials never provided to the work site. 36. As a direct and proximate result of Plaintiff's aforesaid violations of the UTPCPL, Burkett has incurred damages including, but not limited to, the following: paying for work and materials in excess of the amount agreed upon by the parties, costs to correct the work improperly performed by Plaintiff, costs to complete the work which was not accomplished by Plaintiff and costs to correct damages to the work site caused by Plaintiff. 37. Burkett is entitled to trebling of his damages and the recovery of attorney fees and costs pursuant to 73 P.S. §201-9.2. WHEREFORE, Burkett requests judgment be entered in his favor and against Plaintiff for the amounts paid in excess of the amount agreed upon by the parties, for costs to correct the work improperly or incompletely performed by Plaintiff and costs to correct damages to the work site caused by Plaintiff and all other amounts deemed just and proper plus attorney fees and costs, expenses and interest. COUNT-III NEGLIGENCE 38. Burkett incorporates by reference his answers to paragraphs one through eleven, new matter at paragraphs twelve through twenty-three and paragraphs twenty-four through thirty- seven of his Counterclaim as though set forth at length. 39. Plaintiff had a duty to perform the work undertaken for Burkett in a workmanlike manner. 40. Plaintiff breached its duty to perform its work in a workmanlike manner in each of the following, but not necessarily limited to, ways: (a) the system was to be installed below the natural frostline and Plaintiff failed to install the system in such a fashion; (b) the system was not operational after Plaintiff `completed' its work; and (c) the system was not installed in a manner which is acceptable to local building code officials. 41. As a direct and proximate result of the negligence of Plaintiff, Burkett has incurred damages. 42. The damages caused by Plaintiffs negligence include, but are not necessarily limited to, the following: (a) payments made by Burkett to Plaintiff for work performed which does not function as intended; (b) costs to correct the work performed by Plaintiff improperly; and (c) costs to complete the system. WHEREFORE, Burkett requests judgment be entered in his favor and against Plaintiff for an amount not in excess of the jurisdictional limits requiring arbitration along with costs, expenses and interest. Respectfully submitted, O'BRIEN, BARIC & SCHERER or ` w David A. Baric, Esquire I.D.# 44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Defendant/Counter-Plaintiff dab. dir/litigation/bu rkett/whisler's/answernewmatter&counterclaim.pid 7172495755 rBS o?ac ;i The statements in the foregoing Answer, New Matter and Counterclaim arc based upon information which has been assembled by my attorney in this litigation. The lan$mgc of the statements is not my own. I have read the statements; and to the extent that they are based upor, information which, .l have given to my coumael, they are true and correct to the best o-'my knowledge, information and belief. I understand that Wse statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unswom ialsifcations to authorities. -N&& L,20 DATE. Dennis Burkett tU ° ?a U!? fem. 366-1 Gum" R"*? NewivA N 17241 P4, 017) 776-6211 F" (71)) 776-9441 EXCAVATION HEATING-Aft; C0ND1T10NING-PLUM$ING Estimate Page 1 of 2 Submitted to: Phone: Dennis Burkett Date: 12/6/2007 13 Brookwood Ave Job Name: Carlisle, Pa 17013 Job Location: We hereby submit specifications and estimates for: WELL #1 AND WELL #2 Pump Installation 2 Grundfos 40S50-15 Pump End 2 5HP Single PH Motor 2 5Hp Control Box 2 2" Pitless Adapter 4 2" Certalock MIP Adapter 800' 2" Certalock Pip ( in well 2 2" Cycle Stop Valve 400' 2" Sch 40 Pipe 2 202 Well X Trol Tank 4 2" Check Valve 2 Manifold 800' 4-3 Flat W/Ground 10 Hoist Truck Labor NOTE: Price Does Not Include Backhoe, Rock Breaking, Importing and/or Exporting of Material. NOTE: Whislers will not be responsible for obtaining or paying for any permits / applications to perform the above work. EXHIBIT "m" W aA44 W& /'NG. Estimate Page 2 of 2 NOTES ESTIMATED PRICE IS GOOD FOR 30 DAYS FROM DATE OF ESTIMATE. ESTIMATED PRICE DOES NOT INCLUDE BACKHOE, ROCK BREAKING, IMPORTING AND/OR EXPORTING OF MATERIAL. We Propose hereby to furnish material and labor complete in accordance with specifications on page 1, for the sum of. TWENTY EIGHT THOUSAND NINE HUNDRED TWENTY FOUR DOLLAR AND 00 CENTS PAYMENT IN FULL UPON COMPLETION OF WORK INTEREST CHARGES AT THE RATE OF 1.5% PER MONTH WILL BE CHARGED ON ANY BALANCE NOT PAID WITHIN 30 DAYS OF THE BILLING DATE. All agreements contingent upon strikes, accidents, or delays beyond our control. Owner to carry fire, tornado, and other necessary insurance. 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 1.5% per month late charge. In the event of default, the applicant agrees to pay all reasonable attorney's fees, collection cost, and costs associated with the collection of any delinquent or deficiency balance. Any and all disputes related to this application or any transactions arising from it shall be litigated in Cumberland County, Pennsylvania. Deposits can be returned, however, a fee of either 20% of the deposit or current job costs incurred whichever is higher will be retained. NOTE: THIS PROPOSAL MAY BE WITHDRAWN BY US IF NOT ACCEPTED WITHIN THIRTY (30) DAYS. (Authorized Signature: Acceptance of Proposal: The above prices, specifications, and conditions are hereby accepted. You are authorized to do the work as specified. Payment will be made as outlined above. Signature: Signature: (Date of Acceptance: -pia. !g 2D09 366-1 G Rid Nawvdk N 17241 Pd. 017) 776-6211 F" (717) 776-1441 EXCAVATION NEATrNG-A(R eONDrnONrWOLUM$rNG Estimate Page 1 of 2 Submitted to: Phone: Dennis Burkett Date: 12/6/2007 13 Brookwood Ave Job Name: Carlisle, Pa 17013 Job Location: We hereby submit specifications and estimates for: WELL #1 AND WELL #2 Constant Pressure Pump Installation 2 Grundfos 40S50-15 Pump End 2 5HP 3 PH Motor 2 5HP Controller 2 2" Pitless Adapter 4 2" Certalock MIP Adapter 800' 2" Certalock Pipe ( in well) 400' 2" Sch 40 Pipe 2 202 Well X Trol Tank 4 2" Check Valves 2 Manifold 800' 6-3 Flat W/Ground Double Jacket 10 Hoist Truck Labor NOTE: Price Does Not Include Backhoe, Rock Breaking, Importing and/or Exporting of Material. NOTE: Whislers will not be responsible for obtaining or paying for any permits / applications to perform the above work. EXHIBIT "2" W"Emss W& Dal4j ftic, Estimate Page 2 of 2 NOTES ESTIMATED PRICE IS GOOD FOR 30 DAYS FROM DATE OF ESTIMATE. ESTIMATED PRICE DOES NOT INCLUDE BACKHOE, ROCK BREAKING, IMPORTING AND/OR EXPORTING OF MATERIAL. We Propose hereby to furnish material and labor complete in accordance with specifications on page 1, for the sum of: THIRTY TWO THOUSAND NINE HUNDRED FORTY ONE DOLLARS AND 00 CENTS ($32,911.00) Payment to be made as follows: PAYMENT IN FULL UPON COMPLETION OF WORK INTEREST CHARGES AT THE RATE OF 1.5% PER MONTH WILL BE CHARGED ON ANY BALANCE NOT PAID WITHIN 30 DAYS OF THE BILLING DATE. All agreements contingent upon strikes, accidents, or delays beyond our control. Owner to carry fire, tornado, and other necessary insurance. 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 1.5% per month late charge. In the event of default, the applicant agrees to pay all reasonable attorney's fees, collection cost, and costs associated with the collection of any delinquent or deficiency balance. Any and all disputes related to this application or any transactions arising from it shall be litigated in Cumberland County, Pennsylvania. Deposits can be returned, however, a fee of either 20% of the deposit or current job costs incurred whichever is higher will be retained. NOTE: THIS PROPOSAL MAY BE WITHDRAWN BY US IF NOT ACCEPTED WITHIN THIRTY (30) DAYS. Authorized Signature: Acceptance of Proposal: The above prices, specifications, and conditions are hereby accepted. You are authorized to do the work as specified. Payment will be made as outlined above. Signature: Signature: Date of Acceptance: J? ?B 2?0? CERTIFICATE OF SERVICE I hereby certify that on March 1o , 2009, I, David A. Baric, Esquire of O'Brien, Baric & Scherer, did serve a copy of the Answer, New Matter and Counterclaim, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Wayne Melnick, Esquire Abom & Kutulakis 36 South Hanover Street Carlisle, Penns lvania 17013 N 41 ?I David A. Baric, Esquire C" > a c? OM CSC' LUTLULAKIS Wayne Melnicl; Esquire Attorney I.D. No.: 53150 36 South Hanover Street Carlisle, Pennsylvania 17013 (717) 249-0900 WHISLER'S WELL DRILLING, INC Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. DENNIS BURKETT Defendant CIVIL ACTION LAW NO. 2009-752 Civil Term ANSWER TO NEW MATTER AND NOW, comes the Plaintiff, Whisler's Well Drilling, Inc., a Pennsylvania Corporation, by and through its attorneys, Abom & Kutulakis, LLP, and makes the following Answer to Defendant's New Matter: 12. No answer required. 13. Denied as a conclusion of law. 14. Denied as a conclusion of law. 15. Denied as a conclusion of law. 16. Denied as a conclusion of law. 17. Admitted in part and Denied in part. Admitted that on or about December 6, 2007, Plaintiff provided Defendant with a cost estimate for the materials on the project as reflected in Defendant's `Exhibit 2.' It is denied that this was firm quote. 18. Admitted in part and Denied in part. Admitted that on or about December 6, 2007, Plaintiff provided Defendant with another cost estimate for the materials on the project as reflected in Defendant's `Exhibit 1.' It is denied that this was firm quote or that Plaintiff presented this estimate as a "not to exceed" quotation. 19. Denied. Plaintiff never advised Defendant that `Exhibit 2' reflected a cost plus 100% markup. The major difference between the cost estimates in `Exhibits 1 & 2' was in the materials to be installed, most notably the pump motor. 20. Denied. Plaintiff informed Defendant that Plaintiff would perform the work at the cost of material plus 36% plus labor. Plaintiff did not provide Defendant with a not to exceed amount. 21. Denied. Plaintiff has not invoiced Defendant for materials that were not purchased for the project. To the contrary, the copper wire was purchased in the minimum quantity available for sale from the supplier. Defendant was invoiced for the amount actually purchased for the project. The unused copper wire was to be the property of the Defendant. Plaintiff informed Defendant that the unused copper was removed from the job site to secure storage to reduce the risk of loss from theft. 22. Denied. After reasonable investigation Plaintiff is without sufficient knowledge or information as to the nature of Defendant's averment sufficient to form a belief as to the truth or accuracy of these allegations. To the extent an answer is required, it the averment should be deemed denied. 23. Admitted. All manuals, instructions, or warranties were to be provided to Defendant upon final payment. Final payment has not yet been received. Respectfully Submitted, ABOM & %UTULA%IS, LLP DAB: o YZI." / 4a?e`%4'elnick-,M-q--uirr-e Attorney I.D. 53150 36 South Hanover Street Carlisle, PA 17013 Attorney for Defendant VERIFICATION I verify that the statements made in the foregoing Answer to New Matter are true and correct. I understand that false statements herein are made subject to the penalties of Pa.C.S. §4904, relating to unsworn falsification to authorities. Date Kenneth Whisler .11 , R CERTIFICATE OF SERVICE AND NOW, 1,1 ?? '??? 1 f ABOM & KUTULAKIS, LLP, hereby certify that I did serve or cause to be served a true and correct copy of the foregoing Answer to New Matter by First Class U.S. Mail at the following: David A. Baric, Esquire 19 West South Street Carlisle, PA 17013 DATE: c.. r ` Avg OM & U ULAKIS Wayne Melnic% Esquire Attorney I.D. No.: 53150 36 South Hanover Street Carlisle, Pennsylvania 17013 (717) 249-0900 WHISLER'S WELL DRILLING, INC. Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. DENNIS BURKETT CIVIL ACTION LAW NO. 2009-752 Civil Term Defendant NOTICE TO PLEAD TO; David A. Baric, Esquire 19 West South Street Carlisle, PA 17013 YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN PRELIMINARY OBJECTIONS OF PLAINTIFF WITHIN TWENTY (20) DAYS OF THE DATE OF SERVICE OF THIS PLEADING. .- + OM & UTUI AKIS Wayne Melnick, Esquire Attorney I.D. No.: 53150 36 South Hanover Street Carlisle, Pennsylvania 17013 (717) 249-0900 WHISLER'S WELL DRILLING, INC. Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. DENNIS BURKETT Defendant CIVIL ACTION LAW NO. 2009-752 Civil Term PRELIMINARY OBJECTION TO DEFENDANT'S COUNTERCLAIM AND NOW, comes the Plaintiff, Whisler's Well Drilling, Inc., a Pennsylvania Corporation, by and through its attorneys, Abom & Kutulakis, LLP, and files the following Preliminary Objections to Defendant's Counterclaim pursuant to Pa.R.C.P. 1028 as follows: PRELIMINARY OBJECTION I-Insufficient Specificity of a Pleading (Unfair Trade Practices Consumer Protection Law) 1. Defendant has alleged in his Counterclaim that Plaintiff has violated the provisions of the Unfair Trade Practices Consumer Protection Law. 2. Defendant has alleged that Plaintiff made a false or misleading statement concerning the existence or amounts of price reductions it would provide. 3. Defendant fails to specify the facts that support the allegation that Plaintiff made a false or misleading statement concerning the existence or amounts of price reductions in violation of the Unfair Trade Practices Consumer Protection Law. 4. Defendant has alleged that Plaintiff provided services and materials which were to have services and benefits which they did not have in violation of the Unfair Trade Practices Consumer Protection Law. 5. Defendant fails to specify the facts that support the allegation that Plaintiff provided services and materials which were to have services and benefits which they did not have in violation of the Unfair Trade Practices Consumer Protection Law 6. The Counterclaim fails to provide sufficient specificity to Plaintiff in violation of Pa.R.C.P. 1028(a)(3). WHEREFORE, Plaintiff respectfully requests this Court to require Defendant to plead more specifically the averments of his Counterclaim. PRELIMINARY OBJECTION II -Insufficient Specificity of a Pleading (Negligence) 7. Defendant has alleged in his Counterclaim that Plaintiff was negligent in breaching a duty to perform work in a workmanlike manner. 8. Defendant has alleged that the system was not operational and was not acceptable to local code officials. 9. Defendant fails to specify the facts that support the allegation that the system was not operational and was not acceptable to local code officials. 10. Defendant fails to specify in what way the system was not operational or the reason or how it failed to meet the local code. 11. The Counterclaim fails to provide sufficient specificity to Plaintiff in violation of Pa.R.C.P. 1028(a)(3). WHEREFORE, Plaintiff respectfully requests this Court to require Defendant to plead more specifically the averments of his Counterclaim. Respectfully Submitted, ABOM & %UTULAKM, LLP Zaa? Wayne Melnick, Esquire Attorney I.D. 53150 36 South Hanover Street Carlisle, PA 17013 Attorney for Defendant . , . CERTIFICATE OF SERVICE AND NOW, ? l? Hof ABOM & KUTULAKIS, LLP, hereby certify that I did serve or cause to be served a true and correct copy of the foregoing Preliminary Objections to Defendant's Counterclaim by First Class U.S. Mail at the following: David A. Baric, Esquire 19 West South Street Carlisle, PA 17013 DATE: (r f , O go llw? C Im %3 0 OR ?-io o E WHISLER'S WELL DRILLING, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. DENNIS BURKETT, Defendant. : NO. 2009-752 CIVIL TERM CIVIL ACTION-LAW JURY TRIAL DEMANDED REPLY TO PRELIMINARY OBJECTIONS AND NOW, comes Defendant, Counter-Plaintiff, Dennis Burkett, by and through his attorneys, O'BRIEN, BARIC & SCHERER, and files the within Reply to Preliminary Objections and, in support thereof, sets forth the following: PRELIMINARY OBJECTION- INSUFFICIENT SPECIFICITY OF A PLEADING (UNFAIR TRADE PRACTICES CONSUMER PROTECTION LAW) 1. Admitted. 2. Admitted. 3. Denied. To the contrary, Defendant has set forth with the requisite particularity the facts supporting a claim under the UTPCPL. 4. Admitted. 5. Denied. To the contrary, Defendant has set forth with the requisite particularity the facts supporting a claim under the UTPCPL. 6. This averment is a conclusion of law to which no response is required. WHEREFORE, Defendant requests the Plaintiff's objection be overruled and Plaintiff be directed to answer the Counterclaim of Defendant. t PRELIMINARY OBJECTION II- INSUFFICIENT SPECIFICITY OF A PLEADING (NEGLIGENCE) 7. Admitted. 8. Admitted. 9. Denied. To the contrary, Defendant has alleged the material facts upon which a cause of action in negligence is based. 10. Denied. To the contrary, Defendant has alleged the material facts upon which a cause of action in negligence is based. 11. This is a conclusion of law to which no response is required. WHEREFORE, Defendant requests the Plaintiff's objection be overruled and Plaintiff be directed to answer the Counterclaim of Defendant. Respectfully submitted, O'BRIEN, BARIC & SCHE R David A. Baric, Esquire ID#44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Defendant CERTIFICATE OF SERVICE I hereby certify that on April 7, 2009, I, David A. Baric, Esquire of O'Brien, Baric & Scherer, did serve a copy of the Reply to Preliminary Objections, by first class U.S. mail, postage prepaid, to the party listed below, as follows: Wayne Melnick, Esquire Abom & Kutulakis 36 South Hanover Street Carlisle, Pennsy ania 17013 i David A. Baric, Esquire FILED-0c ??{ 'E OF THE FR OH' NOTA ?Y 2009 APP -7 Pli S: I ! 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) WHISLER'S WELL DRILLING, INC. Plaintiff vs. DENNIS BURKETT, Defendant No. 2009-752 Civil Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complpint, ptc. : Plaintif s Preliminary Objections To Counterclaim 2. Identify all counsel who will argue cases: (a) for plaintiffs: Wayne Melnick, Esq., 36 South Hanover St., Carlisle, PA 17013 (Name and Address (b) for defendants: David A. Baric, Esq., 19 West South St., Carlisle, PA 17013 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: April 29, 2009 Signature David A. Baric, Esquire Print your name Defendant April 7, 2009 Attorney for Date: 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. 4it RLE "PEKE OFTHE' 2009 APIR -7 PI°' v: 1 1 it-., ?.a ?, is ?! „ •i r, ?, .. WHISLER' S WELL DRILLING, IN THE COURT OF COMMON PLEAS OF INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. DENNIS BURKETT Defendant CIVIL ACTION NO. 2009-752 Civil Term IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S COUNTERCLAIM BEFORE HESS, OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this 27 h day of May, 2009, upon consideration of Plaintiff's preliminary objections to Defendant's counterclaim, and for the reasons stated in the accompanying opinion, the preliminary objections are denied. Plaintiff is afforded a period of twenty days from the date of this order within which to file a responsive pleading to Defendant's counterclaim. BY THE COURT, p° fr n` ^ // ' xf'l1r Js Wesley 01er r., /ayne Melnick, Esquire 36 South Hanover Street Carlisle, Pennsylvania 17013 Attorney for Plaintiff J?(avid A. Baric, Esquire 19 West South Street Carlisle, Pennsylvania 17013 Attorney for Defendant I ',' ? "; 1,ld L? A' 14 6001 1u`r1 (`. :a i ?j WHISLER'S WELL DRILLING, IN THE COURT OF COMMON PLEAS OF INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION DENNIS BURKETT Defendant : NO. 2009-752 Civil Term IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S COUNTERCLAIM BEFORE HESS, OLER and GUIDO, JJ. OPINION and ORDER OF COURT OLER, J., May 27, 2009. In this civil case involving a residential construction project in Cumberland County, Pennsylvania, Plaintiff Whisler's Well Drilling ("Whisler's" or "Plaintiff') filed a complaint against Defendant Dennis Burkett ("Burkett" or "Defendant") seeking recovery of payment allegedly due for work, labor, equipment and materials. In response, Defendant filed a counterclaim asserting breach of contract, negligence and violations of the Unfair Trade Practices Consumer Protection Law ("UTPCPL"). Plaintiff has filed preliminary objections to Defendant's counterclaim. In its preliminary objections, Plaintiff requests that Defendant plead with more specificity his claims of negligence and violations of the UTPCPL. The preliminary objections were argued before this court on April 29, 2009. For the reasons stated in this opinion, Plaintiff s preliminary objections will be denied. STATEMENT OF FACTS The allegations of Plaintiffs complaint may be summarized as follows:' Plaintiff Whisler, a Pennsylvania Corporation located in Newville, Pennsylvania,2 entered into an ' In summarizing these allegations, the court is in no way expressing an opinion as to their veracity. 2 Complaint, ¶I, filed March 3, 2009. oral contract3 with Defendant Burkett in December, 2007.4 Under the terms of the contract, Defendant was to pay Plaintiff for time and materials, plus a 36% mark-up, for the necessary work to complete the project.5 Plaintiff began and completed the trench excavation and installation of the pump.6 Thereafter, on January 31, 2008, Plaintiff sent . The invoice provided a description and price Defendant an invoice totaling $35,241.127 for all labor and materials used in the project.8 On April 21, 2008, Defendant made a payment to Plaintiff in the amount of $27,678.36.9 Plaintiff claims that Defendant still owes $7,562.76, plus interest.10 On March 12, 2009, in response to Plaintiffs complaint, Defendant filed an Answer, New Matter and Counterclaim. In it, Defendant asserts that Plaintiff never actually completed the excavation and installation of the pump, and that "the work which was performed was not workmanlike or in accordance with standard and acceptable methods and means for the performance of such work."" Thus, according to Defendant, Plaintiff is not entitled to the invoiced amount of $35,241.12.12 Defendant also asserts that, even if the work had been completed as expected, the invoiced amount of $35,241.12 is not in conformance with the amount agreed upon by the parties. 13 Defendant claims that, prior to Plaintiff's commencement of work on the 3 According to Defendant, the contract entered into by the parties was not an oral contract, but instead was a "written agreement," dated December 6, 2007. The agreement was titled "Estimate" and is included in Defendant's Answer as Exhibit 1. Answer, New Matter and Counterclaim, 13, filed March 12, 2009. 4 Complaint, ¶3. 'Complaint, ¶4. 6 Complaint, ¶5. Complaint, ¶6. 8 Complaint, 17. 9 Complaint, ¶8. 10 Complaint, ¶¶9-10. 11 Answer, ¶5. 12 Answer, ¶¶6-9. 13 Answer ¶¶6-9; New Matter ¶¶ 17-20. 2 project, Plaintiff presented Defendant with a price quote of $32,941.00,14 which reflected a cost plus one-hundred percent mark-up on labor and materials.15 After a discussion between the two parties, Plaintiff agreed to reduce the mark-up to thirty-five percent, and provided Defendant with a revised price quote of $28,924.00, according to Defendant. 16 Defendant asserts that the second price quote was presented to him as a "not to exceed" quotation from Plaintiff. 17 Additionally, Defendant claims that Plaintiff invoiced him for materials which were never provided to the work site, such as 900 feet of copper wire at an invoiced amount of $2,898.00.18 Defendant further claims that Plaintiff caused damages to the work site which will cost approximately $400.00 to repair, 19 and that Plaintiff agreed to give to Defendant the manuals, instructions and warranties for the equipment and materials provided, but that no such documents have been furnished."' Defendant's counterclaim consists of three counts - breach of contract, violations of the UTPCPL and negligence. In Count One for breach of contract, Defendant asserts the following in support of his claim: (1) the invoiced amount exceeded the amount set forth in the parties' agreement, and failed to be calculated at the agreed-upon rate; 21 (2) Plaintiff invoiced Defendant for materials never supplied to the construction site;22 and (3) the work performed by Plaintiff breached the implied covenant of workmanship as it was not installed below the natural frost line, the pump was not operational after Plaintiff completed its work, and the work was not completed in such a fashion as to permit the 14 New Matter, ¶17. 15 New Matter, ¶19. 16 New Matter, ¶¶17-18. 17 New Matter, ¶18. 18 New Matter, ¶21. 19 New Matter, ¶22. 20 New Matter, ¶23. 21 Counterclaim, ¶28. 22 Counterclaim, ¶31. 3 township building codes department to accept the work;23 and (4) Plaintiff failed to provide work and materials which were workmanlike or in conformance with standard methods and means of performing such work .24 Defendant's UTPCPL claim, Count Two, maintains that, in accordance with 73 P.S. §201-1, et seq., the work and materials furnished by Plaintiff were provided for personal, family or household purposes, and that Plaintiff violated the UTPCPL, as follows: (a) Plaintiff made false or misleading statement to [Defendant] concerning the existence of or amounts of price reductions it would provide to [Defendant] in violation of 73 P.S. §201-2(4)(xi); (b) Plaintiff provided services and materials which were to have "uses" and "benefits" which they did not have in violation of P.S. §201- 2(4)(v); and (c) Plaintiffs conduct was deceptive and caused confusion or misunderstanding as to the costs and expenses to be incurred by [Defendant] for the work and materials to be provided by Plaintiff in violation of 73 P.S. §201-2(4)(xxi). Moreover, Plaintiffs conduct was deceptive in that it attempted to invoice [Defendant] for materials never provided to the work site.zs Defendant asserts that, as a direct and proximate result of Plaintiffs aforementioned violations of the UTPCPL, he has incurred damages including, but not limited to, paying for work and materials in excess of the agreed upon amount, costs to correct the work improperly performed by Plaintiff, costs to complete the project and costs to correct damages to the work site caused by Plaintiff. 26 " Counterclaim, ¶30. 21 Counterclaim, ¶32. 21 Counterclaim, ¶35. 26 Counterclaim, ¶36. 4 Finally, in his claim for negligence, Defendant asserts that Plaintiff had a duty to perform the work undertaken on the project in a workmanlike manner, but breached its duty as follows: (a) the system was to be installed below the natural frost line and Plaintiff failed to install the system in such a fashion; (b) the system was not operational after Plaintiff `completed' its work; and (c) the system was not installed in a manner which [was] acceptable to local building code officials. 27 Defendant avers that, as a direct and proximate result of Plaintiff's negligence, Defendant has incurred multiple damages, including payments made by Defendant for work performed to install a pump which does not function as intended, costs to correct the work performed improperly by Plaintiff and costs to complete the project.28 Plaintiff has filed preliminary objections to Defendant's counterclaim pursuant to Rule 1028 of the Pennsylvania Rules of Civil Procedure relating to specificity of pleading.29 Plaintiff requests Defendant to plead more specifically the averments of his counterclaims for negligence 30 and violations of the UTPCPL.31 The preliminary objections were argued before this court on April 29, 2009. DISCUSSION The Commonwealth of Pennsylvania is a fact-pleading state "whereby the complaint must provide the defendant notice of the basis of the claim as well as a summary of the facts essential to support that claim." Latniak v. Iron Koch, 70 Pa. D. & C.4th 489, 494 (Lackawanna Co. 2004). "The purpose of the pleadings is to place the 27 Counterclaim, ¶40. 28 Counterclaim, 1141-42. 29 Preliminary Objection to Defendant's Counterclaim, filed April 1, 2009 (hereinafter Preliminary Objections). 30 Preliminary Objections, $$1-6. 31 Preliminary Objections, ¶¶7-11. 5 [defendant] on notice of the claims upon which [it] will have to defend." Yacoub v. Lehigh Valley Medical Associates P.C., 2002 Pa. Super. 251, T16,805 A.2d 579, 588. Pennsylvania Rule of Civil Procedure 1028(a)(3) allows a party to object to an opponent's pleading for "insufficient specificity." Pa. R.C.P. 1028(a)(3). As the Superior Court has stated, [t]he pertinent question under Rule 1028(a)(3) is `whether the complaint is sufficiently clear to enable the defendant to prepare his defense,' or `whether the plaintiff's complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense. Rambo v. Greene, 2006 Pa. Super. 231, ¶11, 906 A.2d 1232, 1236 (citing Ammlung v. City of Chester, 224 Pa. Super. 47, 302 A.2d 491, 498 n. 36 (1973)). In doing so, the court must not simply focus upon one portion of the complaint. Yacoub, 2002 Pa. Super. at ¶16, 805 A.2d 579, 589. "Rather, in determining whether a particular paragraph in a complaint has been stated with the necessary specificity, such paragraph must be read in context with all other allegations in that complaint." Id. In addition, a preliminary objection based on lack of specificity may, in certain cases, be denied on the ground that discovery is a more appropriate vehicle to resolve the matter. See 2 Goodrich-Amram 2d § 1017(b):24, at 268 (1991). The court finds unpersuasive Plaintiff's objections as to the sufficiency of the counterclaim with respect to its specificity. Plaintiff first contends that Defendant failed to plead with sufficient specificity his claim under the UTPCPL.32 Defendant's pleading sets forth the price quotes provided by Plaintiff for the project, a statement as to how the quotes were calculated and an explanation as to the alleged breach of the final price quote. To support his pleading, Defendant has appended copies of the quotations as exhibits. Moreover, Defendant has stated that Plaintiff failed to complete the project, the pump as installed is not operational and that he was billed for materials never provided to 32 Preliminary Objections, ¶1-6. 6 the worksite. Accordingly, Plaintiff has sufficient notice of the basis of Defendant's UTPCPL claim and on what grounds to prepare a defense- namely, Plaintiffs alleged false or misleading statements concerning the price quotes as well as Plaintiff's failure to adequately complete the project which resulted in the alleged injuries to Defendant listed in his counterclaim. 33 Similarly, Plaintiff argues that Defendant failed to plead with sufficient specificity his claim of negligence. However, Defendant has sufficiently identified the respects in which Plaintiffs work on the project was the product of carelessness. Defendant claims that the system was not installed below the natural frost line and was not operational at the time Plaintiff left the work site, and that township officials would not issue a permit for the work done by Plaintiff - all of which allegedly resulted in the injuries listed in Defendant's counterclaim. Ultimately, the counterclaim, when read as a whole, is sufficient to plead a course of conduct which may have been negligent and/or in violation of the UTPCPL. Therefore, Plaintiff has, in fact, been sufficiently apprised of the nature of the claims against it and has been provided with sufficient notice of those claims to allow it to prepare a defense. Further details with respect to the claims will be relegated to the discovery process and plaintiffs preliminary objections to Defendant's counterclaim will be denied. Based upon the foregoing, the following order will be entered: ORDER OF COURT AND NOW, this day of May, 2009, upon consideration of Plaintiff s preliminary objections to Defendant's counterclaim, and for the reasons stated in the accompanying opinion, the preliminary objections are denied. Plaintiff is afforded a period of twenty days from the date of this order within which to file a responsive pleading to Defendant's counterclaim. " Counterclaim, T36-37- 7 BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Wayne Melnick, Esquire 36 South Hanover Street Carlisle, Pennsylvania 17013 Attorney for Plaintiff David A. Baric, Esquire 19 West South Street Carlisle, Pennsylvania 17013 Attorney for Defendant ABOM & LITM AKIS Wayne Melnick, Esquire Attorney I.D. No.: 53150 36 South Hanover Street Carlisle, Pennsylvania 17013 (717) 249-0900 WHISLER'S WELL DRILLING, INC. Plaintiff V. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION LAW DENNIS BURKETT Defendant NO. 2009-752 Civil Term ANSWER TO COUNTERCLAIM AND NOW, comes the Plaintiff, Whisler's Well Drilling, Inc., a Pennsylvania Corporation, by and through its attorneys, Abom & Kutulakis, LLP, and makes the following Answer to Defendant's Counterclaim: 24. No answer required. 25. Denied. It is denied that this was a firm quote or that Plaintiff presented this estimate as a "not to exceed" quotation. 26. Denied. It is denied that Plaintiff represented Exhibit 2 as a "not to exceed" quotation. 27. Denied. Plaintiff informed Defendant that Plaintiff would perform the work at the cost of material plus 36% plus labor. 28. Denied as a conclusion of law. To the extent an answer is required, the final invoice from Plaintiff was calculated at the rate agreed upon by the parties. 29. Denied as a conclusion of law. 30. (a) Denied. Plaintiff installed its portion of the system as contracted and in a non negligent matter satisfying any implied covenant of workmanship. (b) Denied. Plaintiff's portion of the system was operational at the time Plaintiff completed its work. (c) After reasonable investigation, Plaintiff is without sufficient knowledge to admit or deny that the Township buildings codes department did or could accept the work. To the extent an answer is required, it should be deemed Denied. 31. Denied. The copper wire billed was purchased in the minimum quantity available for sale from the supplier. Defendant was invoiced for the amount actually purchased for the project. The unused copper wire was to be the property of the Defendant. Plaintiff informed Defendant that the unused copper was removed from the job site to a secure storage location to reduce the risk of loss from theft. The remaining copper wire is intended to be turned over upon final payment by Defendant. 32. Denied as a conclusion of law. 33. No answer required. 34. Denied as a conclusion of law. 35. (a) Denied as a conclusion of law. (b) Denied as a conclusion of law. (c) Denied as a conclusion of law. 36. Denied as a conclusion of law. 37. Denied as a conclusion of law. 38. No answer required. 39. Denied as a conclusion of law. 40. (a) Denied. Plaintiff installed its portion of the system as contracted and in a non negligent matter satisfying any implied covenant of workmanship. (b) Denied. Plaintiff's portion of the system was operational at the time Plaintiff completed its work. (c) After reasonable investigation, Plaintiff is without sufficient knowledge to admit or deny that the Township buildings codes department did or could accept the work. To the extent an answer is required, it should be deemed denied. 41. Denied as a conclusion of law. 42. (a) Denied. Plaintiffs work performed functioned as intended upon completion of that work. (b) Denied. Plaintiff completed all work under its contract with Defendant. (c) Denied. Plaintiff completed all work for the system contracted by Defendant. WHEREFORE, Plaintiff requests this Honorable Court dismiss Defendant's counterclaim with prejudice. Respectfully Submitted, ABOM & KUTULAKIS, LLP DATE: ?P V aWayne Attorney I.D. 53150 36 South Hanover Street Carlisle, PA 17013 Attorney for Defendant VERIFICATION I verify that the statements made in the foregoing Answer to Counterclaim are true and correct I understand that false statements herein are made subject to the penalties of Pa.C.S. §4904, relating to unsworn falsification to authorities. --T Date Kenneth Whisler CERTIFICATE OF SERVICE AND NOW, I, Wayne S. Melnick, Esquire, of ABOM & KUTULAKIS, LLP, hereby certify that I did serve or cause to be served a true and correct copy of the foregoing Answer to Counterclaim by First Class U.S. Mail at the following: David A. Baric, Esquire 19 West South Street Carlisle, PA 17013 DATF-: 6,71og Wayne S. Melnick OF { Hl_ F;.. d 200 jU1,1 17 P ; t=0