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HomeMy WebLinkAbout04-2113CC)~IMONWE'ALTH OF PENNSYLVANIA COURT OF COMMON PLEAS C L~i~ ERLAND COUNTY JUDICIAL NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT NOTICE OF APPEAL /Y~a~/ 13, RO0~/ Notfl:e is given that the appellant has filed in the above Court of Common Pleas cm appeal from the judgment rendered by the Distr/ct Justice on the date and in the case mentioned below. Harry C. Barrick, Jr. Harry C. Barrick, Jr. 455 Center Road Newville April 30, 2004 W.W. Enterprises CvLT 0000075-04 This block will be dgned ONLY when this notation is required unde~ Pa. R.C.PJ~'. Nb 1008B. This Notice of Appeal. when rece/ved by the District Justice, will operate as a SUPERSEDEAS to the judgment for possess/on in this case Signature of Prott~no,'ary or Oeputy 09-3-05 (Gayle A. Elder) PA 17241 Harry C. Barrick, If appellant was CLAIMANT (s 'R.C.P.J.P. No. 1 O01 (6) in action before District Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section o1 focn to be used ONLY when appellant was DEFENDANT (see Pa. R.C.P.J.P. 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 Pratho~otary En~r rule upon W.W. Enterprises N~me of appellee(s) (Common Pleos No, RULE: To W. W. Enterprises Ne~e of a~oellee(s) , appellee(s), to file a complaint in this appeal , appe~ee(s). (1) You am notified that a rule is hereby entered upon you to file a com~aint 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 OI= NON PROS WILL BE ENTERED AGAINST YOU. (3) The dote of service of thls rule/f service was by mail is the dote of mailing.~ Date: May I~, 2004 AOPC 312-90 COURT FILE TO BE FILED WITH PROTHONOTARY PROOF OF SERVICE OF NOTICE OF APPEAL AND RULETO FILE COMPLAINT (This proof of service t/,U87 BE FILED WT}tlN TEI'~ lO, L;;A~rb A .... , ~ COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I hereby swear or affrm that I serve [~] a copy ct the Notice of Appe~ Common PUas: No recebt attached hereto and upon the appel ee. ?ame~ ~ by personal semce [[] ~y celt[fled {registered ~a:/, senders recept attac ~ed beret ~ and Jurther that J served the Rule to F~e a Complaint accompamqng the above Not~ce o AppeaJ .pot the ap~eJJee{s} to wsom the Rule was addressed on mai senders receipt attached hereto. .AFFIRMEu AND our.}$uF ~¢, B,.FO ~L ~ T/-qS q ' r~' COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CU~ERLAND 09 -3 -05 GAYLE A. ELDER ^~,~s~: 507 N. YORK ST. MECHANICSBURG, PA (717) 766'4575 17055 HARRY C. BAR_RICK JR 455 CENTER ROAD NEWVILLE, PA 17241 NOTICE OF JUDGMENT/TRANSCRIP'I CIVIL CASE PLAINTIFF: N^ME and ADORESS rW W ENTERPRISES - 315 E ALLEN STREET MECHANICSBURG, PA 17055 L - VS. DEFENDANT: NAME aha ADDRESS ~BARRICK JR, HARRY C 455 CENTER ROAD NEWVILLE, PA 17241 L _ Docket No.: CV-0000075- 04 Date Filed: 3/19/04 THIS IS TO NOTIFY YOU THAT: Judgment: ~ Judgment was entered for: (Name) I X__] Judgment was entered against: (Name/ in the amount of $ I, Ogq. O0 on: ] Defendants are jointly and severally liable. ] Damages will be assessed on: ]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 $ FOR PT.ATNTIFF (Date of Judgment) (Date & Time) Amount of Judgment $ 1,000.00 Judgment Costs $ 69 o 00 Interest on Judgment $ .00 Attorney Fees $ .00 Total $ 1,069.00 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAE-WITHIN30'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 DISTRICT JUSTICES, 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 DISTRICT JUSTICE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY PILE A REQUEST FOR ENTRy OF SATISFACTION WITH THE DISTRICT JUSTICE IF THE JUDGMENT DESTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. ,~-//,,.~O/O/f~Date ~ ~,. 0d~.--7 , District Justice I certify that this is a true and correct copy of the record of the proceedings containing the judgment. Date , District Justice My commission expires first Monday of January, 2006 . SEAL PROOF OF SERVICE OF NOTICE OF APPEAL AN[) RULE TO FILE COMPLAINT (This prool of service MUST BE FILED W/THIN TEN ('10) DAYS AFTER Iih'ng the notice of appeal, Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ; S$ AFFIDAVIT: I hereby swear or affirm that I served acopyof he Not ce of Appeai, OommonPeasNo04-2113 ¢±v±]_ [] [date ofsemce) May 12, 2004 -- ~ ~-,,;';-;,7,:~.,..~ f;.~,,' upq~th,e D?rl,~! Ju,?ce ?slgn. ated !herein on ieee nf 2tt~nhcd ~7~;....;5-.%~;. ;E2L----:--;F ..... , u *'Y Fc,~u,,aJ ~ervtce L~ Dy (cer[mea} iregJsterea/ mail, sender's ~ and further that I served the Rule to File a Complaid accompanying the above Notice of Appeal upon the appellee(s) to whom the Rule was addressed on ~a~ z2, 2004 ~ by personal servce ~ by (certified) (registered) mae sender's receipt attache8 ~-¢~{~ ............ SWORN (AFFIRMED) AND SUBSCRIBED EFORE M~ THIS z_.. 2_t h DAYOF May, 2004 Certified Fee2.3~' 31~ (Endorsement R, 1 o 7~" 75 Here Re~.~edDelive~Fe $(I.I)0 "AY 1 2 2004 ~: (Endo~ement Requi~ r ~ ~:~ 5---~a~--~% ~ ~.-~.~ E ............................ ~ [or~xNo. Mechanicsbur~, PA 17055 / ........................................................................... (Endorsement Fi (Endorsement I NOTICE OF APPEAL OMMONWEALTN OF pENNSYLVANIA COURT OF COMMON PLEAS C'o3~ER~A~I) COI~ JUDICIAL DISTI~ICT FROM DISTRICT JUSTICE JUDGMENT c.,,,,o.,,.,AS N-- /': 13 C; NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice an the date and in the case mentioned below. Marry C. Barrick. Jr. Ha~r¥ C. ~arrickt Jr. 0~-3-C, 5 (C~yle A. Elder) New~/ille PA 17941 455 Cente~ Road A~i 30, 2004 W.W. Enterprises S~N*TUaE O~ ~W O~ H~HarrY, T~v ~C'~T~rrick' Jr. Thh ~ck will ~ ~ ~LY ~n this ~ is m~ui~ ~ P~ R.C~J~. ~ ff ~ll~t ~s CLAIMANT (8~ ~. ~,O. FJ, F ~o. l~8& 1 O01 (6) in ~ti~ ~ D~ict J~tice, ~ MUST ~s ~ of A~I, w~ ~ei~ by t~ ~strid Jus~e, will ~te m ~ ~PERSEDEAS ~ ~ j~ ~= p~s~ in ~is cm~ FILE A COMPLAINT within twenty ( 20 ) da~ after filing his ~TICE of A~EAL. Si~m of ~ot~y ~ D~ty PRAEClPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section ot form to be used ONLY when appellant was DEFENDANT (see Pa. R.C.P.J.P. No. 1001 (7) in action before District Justice. IF NOT USED, detach Icom copy of notice of appeal to be sen/ed upon appellee). PRAECIPE: To Prothonotary Enter rule upon W.W. Enterpl:iaes , appellee(s), to file a complaint in this app~ (Common Pleas ~ 0~-'~ Jt"~ ~.~ v, [ ) within twenty (20) days after service of rule or suffer entry of judge, t of non pec~ RULE: To W.W. Enterprises , appeSlee(s). Na. ne ol appel~s) (1) You am 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 pe~sanal se*vice o¢ by certified or registered mail. (2) If y~ d~,r~,t file a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU. COURT FILE AOPC 312-90 KENNETH F. LEWIS, ESQUIRE Attorney I.D. No. 69383 1101 North Front Street Harrisburg, PA 17102 (717) 234-3136 WILLIAM G. WISE, : Plaintiff : : v. : : HARRY C. BARRICK, JR., : IN THE CO~URT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-2113 CIVIL TERM CIVIL ACTION - LAW NOTICE TO DEFEND TO THE DEFENDANT NAMED HEREIN: 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 is served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without 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 1-800-990-9108 WILLIAM G. WISE, Plaintiff v. HARRY C. BARRICK, JR., : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-2113 CIVIL TERM CIVIL ACTION - LAW COMPLAINT William G. Wise, by his attorney, Kenneth F. Lewis, files this Complaint and avers as follows: 1. Plaintiff, William G. Wise, resides at 315 E. Allen Street, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Defendant, Harry C. Barrick, Jr., resides at 455 Center Road, Newville, Cumberland County, Pennsylvania 17241. 3. In addition to a personal, friendly relationship, Plaintiff had Defendant had a business relationship going back to 1986, whereby Plaintiff would build engines for Defendant. 4. In 1999, Plaintiff began building a 3208 pulling engine at the request of Defendant. 5. The agreed-upon price was approximately $8,500.00 (including labor). The final cost of the job, excluding special parts that Defendant decided to add, was $8,582.09. 6. Defendant paid various payments to Plaintiff totaling $4,215.00 in cash and merchandise toward the job. 7. Plaintiff would "front,, monies to purchase parts and Defendant would reimburse him. 8. By the summer and fall of 2001, Defendant had stopped reimbursing Plaintiff the monies he was spending for parts. 9. In November of 2001, Plaintiff told Defendant he would finish the job, but only if Defendant paid what was owed. 10. On December 3, 2001, an agreement was reached between the parties that Defendant would give Plaintiff a specified enclosed trailer, while Plaintiff would accept as the full $5,100.00 then due him, provided he got the trailer by the end of the year. 11. At year's end, Defendant notified Plaintiff that there was a delay in the manufacturing of the trailer and that he would have it by January 20, 2002. 12. At the time of the discussion mentioned in paragraph #11, the Defendant paid Plaintiff $1,000.00 "good faith,, money. 13. On January 20, 2002, when Plaintiff telephoned to inquire as to the status of the enclosed trailer, Defendant admitted he never ordered the trailer and demanded that Plaintiff send him a billing statement. 14. Prior to January 20, 2002, Defendant had never once questioned any of Plaintiff,s bills. 15. The work done by Plaintiff was "custom made" to Defendant,s order. Plaintiff could not sell the engine (which is in Defendant,s possession) item to a third party. 16. After Plaintiff sued Defendant at the District Justice Office (the Honorable Gayle A. Elder) and Defendant filed a counter-suit,, the parties entered into an agreement (copy attached) whereby Defendant would pay Plaintiff all the monies due except $1,300.00. The $1,300.00 would be held until Defendant "confirms the engine starts and runs.,, 17. Plaintiff delivered the engine to Defendant. The Defendant, before District Justice Elder, admitted the engine was installed in the chassis and "ready to start.', The Defendant never once argued or advised Plaintiff or the District Justice that the engine did not work. 18. Defendant refused and continues to refuse to pay the remaining $1,300.00 due. WHEREFORE, Plaintiff requests judgment in the amount of $1,300.00, plus a Pennsylvania sales tax exemption form (or 6% tax on the total value of the project); plus $107.50 filing fees and such further relief as this Honorable Court deems just. Respectfully submitted, KE~NE'i~ F. LEWIS, ESQUIRE Attorney for Plaintiff Attorney I.D. No. 69383 1101 North Front Street Harrisburg, PA 17102 (717) 234-3136 VERIFICATION I hereby verify that the statements made in the foregoing Amended Complaint 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. CERTiFiCaTE OF SERV~E I hereby certify that I have served a true and correct copy of the within Complaint upon the Defendant by mailing same this date by U.S. Mail, postage prepaid at Harrisburg, Pennsylvania addressed to: Mr. Harry Barrick, Jr. 455 Center Road Newville, PA 17241 KE~ET~ F. LEWIS, ESQ. W. W. ENTERPRISES, VS. HARRY C. BARRICK, JR., Plaintiff Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO: 04-2113-CIVIL TERM CIVIL ACTION - LAW PRAECIPE FOR ENTRY OF JUDGMENT OF NON PROS TO THE PROTHONOTARY: Kindly enter judgment of non pros in favor of appellant, Harry C. Barrick, Jr., and against W. W. Enterprises, for failure of W.W. Enterprises to file a Complaint within the time limitations imposed by Pa. R.C.P.D.J.No. 1004 B. The entity named in the District Justice proceeding has not flied a Complaint in this matter. LAW OFFICES Date: June 4, 2004 Respectfully submitted, SNELBAKER, BRENNEMAN & SPARE, P.C. By: P~S~e Pa. Supreme Ct. I.D. # 65200 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 (717) 697-8528 Attorneys for Appellant, Harry C. Barrick, Jr. CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true and correct copy of the within Praecipe For Entry of Judgment of Non Pros upon the entity listed below by sending the same by first- class mail postage paid, addressed as follows: W. W. Enterprises 3 l 5 East Allen Street Mechanicsburg, PA 17055. I hereby certify that I am also this date sending a courtesy copy of the within Praecipe to the attorney listed below, addressed as follows: Kenneth F. Lewis, Esquire 1101 North Front Street Harrisburg, PA 17102. Date: June 4, 2004 Pa. Supreme Ct. I.D. # 65200 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 (717) 697-8528 Attorneys for Appellant, Harry C. Barrick, Jr. L~W OFFICES Snek~ak~r. BRENNEMAN WILLIAM G. WISE, Plaintiff HARRY C. BARRICK, JR. , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-2].13 CIVIL TERM CIVIL ACTION - LAW PETITION TO OPEN JUDGMENT OF NON PROS and/or PETITION TO STRIKE JUDGMENT OF NON PROS William G. Wise, by his attorney, Kenneth F. Lewis, files this Complaint and avers as follows: 1. On or about May 12, 2004, the above-mentioned defendant appealed from a District Justice verdict against him. 2. On May 26, 2004, within the twenty day filing period, Plaintiff, William G. Wise, filed his Complaint. 3. On June 4, 2004, defendant filed a Praecipe for Judgment of Non Pros as William G. Wise was ]Listed as the plaintiff as opposed to W.W. Enterprises. This was received June 7, 2004. 4. The Praecipe for Entry of Judgment of Non Pros does not contain the 10 day notice as required by Pa. Rule 237.1. 5. William G. Wise does business under the name of W.W. Enterprise. The business is not incorporated, nor is anyone else affiliated with such business. The address for the business is Mr. Wise's home address, 315 E. Allen Street, Mechanicsburg, PA 17055. WHEREFORE, Plaintiff requests the following relief: a) that the Praecipe for Judgment of Non Pros be stricken; or b) that the Praecipe for Judgment of Non Pros be opened and Plaintiff be permitted to amend his Complaint. Respectfully submitted, Attorney for Plaintiff Attorney I.D. No. 69383 1101 North iFront Street Harrisburg, PA 17102 (717) 234-3136 VERIFICATION I hereby verify that the statements made in the foregoing ~A ...... -=~ ~.~iaint 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. Dated: ~ ~L~' ~. WISE CERTIFICATE OF SERV?CE I hereby certify that I have served a true and correct copy of the within Complaint upon defendant's counsel by mailing same this date by U.S. Mail, postage prepaid at Harrisburg, Pennsylvania addressed to: Philip H. 44 West Main St. P.O. Box 318 Mechanicsburg, PA Spare, Esq. 17055-0318 ESQ. WILLIAM G. WISE, Plaintiff HARRY C. BARRICK, : JR., : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-2113 CIVIL TERM ORDER OF COURT AND NOW, this 15th day of June, 2004, upon consideration of Plaintiff's Petition To Open Judgment of Non Pros and/or Petition To Strike Judgment of Non Pros, it is ordered that: 1. A Rule is issued upon Defendant to show cause why Plaintiff is not entitled to the relief requested; 2. Defendant shall file an answer to the petition within 21 days of the date of this order; 3. The petition shall be decided under Pa. R.C.P. 206.7; 4. Depositions shall be completed within 49 days of the date of this order; 5. Argument shall be held on Monday, August 23, 2004, at 1:30 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. 6. Briefs shall be submitted at least seven days prior to argument. BY THE COURT, , / , Ji Wesley Oler, Y~., J. Kenneth F. Lewis, Esq. 1101 N. Front Street Harrisburg, PA 17102 Attorney for Plaintiff Philip Spare, Esq. 44 W. Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 Attorney for Defendant :rc SPARE W.W. ENTERPRISES, Plaintiff VS. HARRy C. BARRICK, JR., : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO: 04-2113 CIVIL TERM : : CIVIL ACTION - LAW Defendant DEFENDANT,S RESPONSE TO PETITION TO OPEN JUDGMENT OF NON PROS AND/OR PETITION TO STRIKE JUDGMENT OF NON PROS AND NOW, comes thc Defendant, Harry C. Barrick, Jr., by his attorneys, Snelbakcr, Brenneman & Spare, P.C., and responds to the above-referenced Petition as follows: 1. Admitted. 2. Admitted. By way of further response, il; is averred that the Plaintiff in the District Justice Action was W.W. Enterprises, not Willimn G. Wise. 3. Admitted in part and denied in part. It is admitted that on June 4, 2004, Defendant filed a Praecipe for Judgment Non Pros. Defendant is without knowledge or information sufficient to form a belief as to when Plaintiff received the Praecipe, therefore, same is deemed to be denied. 4. Admitted. It is admitted that the Praecipe for Entry of Judgment of Non Pros does not obtain the ten-day notice as required by the Pennsylwmia Rules of Civil Procedure 237.1. 5. Admitted. WHEREFORE, Defendant does not oppose the Plaintiff's efforts to strike the Judgment of Non Pros entered without the ten-day notice required Pa. R.C.P. 237.1. SPARe July 6, 2004 Respectfully submitted, SNELBAKER, BRENNEMAN & SPARE, P.C. Philip 1~I. ~pare squire Pa. Supreme Ct. I.D. # 65200 44 West Main Street P.O. Box 318 Mechanicsburg, pA 17055-0318 (717) 697.-8528 Attorneys for Defendant, Harry C. Barrick, Jr. CERTIFICATE OF_ SERVIC~EE I hereby certify that I am this date serving a true and c, orrect copy of the within Defendant's Response To Petition To Open Judgment Of Non Pros And/Or Petition To Strike Judgment Of a~°dnrePs;~ u, sP°fonltlhoew] ..tt°mey listed bel°w bY sending the same by first.class mail postage paid, Kenneth F. Lewis, Esquire 1101 North Front Street Harrisburg, PA 17102. Date: July 6, 2004 --~Ipare, Es~ Pa. Supreme Ct. I.D. # 65200 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 (717) 697-8528 Attorneys far Defendant, Harry C. Barrick, Jr. KENNETH F. LEWIS, ESQUIRE Attorney I.D. #69383 1101 North Front Street Harrisburg, PA 17102 (717) 234-3136 Attorney for Plaintiff W.W. ENTERPRISES, Plaintiff HARRY C. BARRICK, JR., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 04-21121 CIVIL TERM : : CIVIL ACTION - LAW TO THE HONORABLE j. WESLEY OLER, JR., JUDGE OF SAID COURT: mOTION TO MAKE RULE ABSOLUTE AND NOW, this 20th day of July, 2004, comes the Plaintiff, W.W. Enterprises, by its attorney, Kenneth F. Lewis, who files this Motion to Make Rule Absolute of which the following is a statement: On June 8, 2004, Plaintiff filed a Petition to Open and/or Strike Judgment of Non Pros; On June 15, 2004, the Honorable j. Wesley Oler, Jr. entered a Rule upon Defendant to show cause why the relief requested should not be granted. On July 6, i ' · 2004, the Defendant filed a response ndlcatlng "Defendant does not oppose the Plaintiff,s efforts to strike the Judgment of Non Pros." [Copy of relevant portion is attached hereto.] WHEREFORE, Petitioner respectfully requests your Honorable Court to enter an Order striking the Judgment of Non Pros and permitting Plaintiff/Petitioner to amend his Complaint. Respectfully Submitted, KENNETH/F.~LEWIS, ESQUIRE Attorney for Plaintiff 1101 North Front Street Harrisburg, Pa 17102 (717) 234-3136 Atty. I.D. No. 69383 VERIFICATION I verify the statements made in Complaint are true and correct. herein are made subject 4904, relating to unsworn Dated: 7/19/04 the foregoing Amended I understand that false statements to the penalties of 18 Pa.C.S. Section falsification to authorities. KENNETH LEWIS, ESQ. CERTIFICATE OF SERVICE I hereby certify that on July 20, 2004 I served a true copy of the within document upon defendant,s counsel by mailing same by U.S. Mail, postage prepaid at Harrisburg, PA addressed to: Philip H. Spare, Esq. 44 West Main St. P.O. Box 318 Mechanicsburg, PA 17055-0318 ESQ. W.W. ENTERPRISES, Plaintiff VS. HARRy C. BARRICK, JR., : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO: 04-2113 CIVIL TERM : : CIVIL ACTION - LAW Defendant · A~U/OR ~ETITION TO AND NOW, crimes ~e De/end~t , ~ ~- ~c~, Jr., oy ms atto~s, ~elb~er, Bre~em~ & Sp~e, P.C., ~d responds to the above-refi~renced Petition as follows: 1. Admitted. 2. Admitted. By way of further response, it is averred that the Plaintiff in the District Justice Action was W.W. Enterprises, not William G. Wise. 3. Admitted in part and denied in part. It is admitted that on June 4, 2004, Defendant filed a Praecipe for Judgment No~ Pros. Defendant is without knowledge or information sufficient to form a belief as to when Plaintiff received the Praecipe, therefore, same is deemed to be denied. 4. Admitted. It is admitted that the Praecipe for Entry of Judgment of Non Pros does not obtain the ten-day notice as required by the Pennsylvania Rules of Civil Procedure 237.1. 5. Admitted. WHEREFORE, Defendant does not oppose the Plaintiff's efforts to strike the Judgment of Non Pros ent.ered without the ten-day notice required Pa. R.C.P. 237.1. KENNETH F. LEWIS, ESQUIRE Attorney I.D. #69383 1101 North Front Street Harrisburg, PA 17102 (717) 234-3136 Attorney for Plaintiff W.W. ENTERPRISES, Plaintiff HARRY C. BARRICK, JR., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-2113 CIVIL TERM : : CIVIL ACTION - LAW TO THE HONORABLE J. WESLEY OLER, JR., JUDGE OF SAID COURT: MOTION TO MAKE RULE ABSOLUTE AND NOW, this 20th day of July, 2004, comes the Plaintiff, W.W. Enterprises, by its attorney, Kenneth F. Lewis, who files this Motion to Make Rule Absolute of which the following is a statement: On June 8, 2004, Plaintiff filed a Petition to Open and/or Strike Judgment of Non Pros; On June 15, 2004, the Honorable J. Wesley Oler, Jr. entered a Rule upon Defendant to show cause why the relief requested should not be granted. On July 6, 2004, the Defendant filed a response indicating "Defendant does not oppose the Plaintiff's efforts to strike the Judgment of Non Pros." [Copy of relevant portion is attached hereto.] WHEREFORE, Petitioner respectfully requests your Honorable Court to enter an Order striking the Judgment of Non Pros and permitting Plaintiff/Petitioner to amend his Complaint. Respectfully Submitted, KEN~ETH/F. LEWIS, ESQUIRE Attorney for Plaintiff 1101 North Front Street Harrisburg, Pa 17102 (717) 234-3136 Atty. I.D. No. 69383 VERIFICATION I verify the statements made in the foregoing Amended Complaint 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. KENNETH EWIS, ESQ. CERTIFICATE OF SERVICE I hereby certify that on July 20, 2004 I served a true copy of the within document upon defendant's counsel by mailing same by U.S. Mail, postage prepaid at Harrisburg, PA addressed to: Philip H. 44 West Main St. P.O. Box 318 Mechanicsburg, PA Spare, Esq. 17055-0318 ESQ. SNELBAKER, BRENNEMAN SPARE W.W. ENTERPRISES, Plaintiff VS. HARRY C. BARRICK, JR., 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO: 04-2113 CIVIL TERM CIVIL ACTION - LAW Defendant : ~!...-f! ~c.~ ~i~_ DEFENDANT'S RESPONSE TO PETITION TO OPEN JUDGME .1~,~ OF lq~ON AND/OR PETITION TO STRIKE ~IDGMENT OF NO~eRo~z AND NOW,' c~mes ~e Defender, H~y C. B~icE, Jr., by his attor~s, Brc~cm~ ~ Sp~c, P.C., ~d responds to the abovc-:m~crcnccd Petition as fo[lows: 1. Admi~ed. 2. Admi~ed. By way of ~her response, it is ave~ed that the Plaintiff in the District Justice Action was W.W. Ente~rises, not Willim G. Wise. 3. Admi~ed in p~ ~d denied in pa~. It is admitted that on June 4, 2004, Defend~t filed a Praecipe for Judgment No~ Pros. Defendant is without knowledge or info~ation sufficient to fo~ a belief as to when Plaintiff received the Praecipe, therefore, same is deemed to be denied. 4. Admitted. It is admitted that the Praecipe for Ent~ of Judgment of Non Pros does not obtain the ten-day notice as required by the Pe~sylv~ia Rules of Civil Procedure 237.1. 5. Admitted. WHE~FO~, Defend~t does not oppose ~e, PlaintiWs effoffs to strike the Judgment of Non Pros em~red without the ten-day notice required Pa. R.C.P. 237.1. W.W. ENTERPRISES, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : NO. 04-2113 CIVIL TERM : HARRY C. BARRICK, JR., : CIVIL ACTION - LAW ORDER OF COURT AND NOW, this ~ day of July, 2004, upon consideration of Plaintiff's Motion to Make Rule Absolute, IT IS HEREBY ORDERED that the Judgment of Non Pros is hereby stricken and Plaintiff is permitted to amend his Complaint. BY THE COURT: J//I~ESLEY O~ER, JR'. ,~f. ~ DISTRIBUTION: Kenneth F. Lewis, Esq., 1101 N. Front St., Hbg., PA 17102 Philip Spare, Esq., 44 W. Main St., PO Box 318, Mech, PA 17055-0318 WILLIAM G. WISE, Plaintiff 1N THE COURT OF COiMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HARRY C. BARRICK, JR., Defendant NO. 04-2113 CIVIL TElq~M ORDER OF COURT AND NOW, this 29th day of July, 2004, upon consideration of Plaintiff's Motion to Make Rule Absolute filed July 22, 2004, striking the judgment non pros and allowing Plaintiff to amend the complaint, the argument previously scheduled in this matter for August 23, 2004, is cancelled. BY THE COURT, Kenneth F. Lewis, Esq. 1101 N. Front Street Harrisburg, PA 17102 Attomey for Plaintiff Philip Spare, Esq. 44 W. Main Street P.O. Box 318 Mechanicsburg, PA 1705: Attorney for Defendant irc ,.'/ ~t/c//~1 j. J/d/Wesley O c~Jr.., -0318 KENNETH F. LEWIS, ESQUIRE Attorney I.D. No. 69383 1101 North Front Street Harrisburg, PA 17102 (717) 234-3136 WILLIAM G. WISE, Plaintiff v. HARRY C. BARRICK, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 04-2113 CIVIL TERM : JR., : CIVIL ACTION - LAW NOTICE TO DEFEND TO THE DEFENDANT NAMED HEREIN: 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 is served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without 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 C~N GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 1-800-990-9108 W.W. ENTERPRISES, Plaintiff Ve HARRY C. BARRICK, JR., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 04-2113 CIVIL TERM : : CIVIL ACTION - LAW AMENDED COMPLAINT W.W. Enterprises, by its attorney, Kenneth F. Lewis, files this Complaint and avers as follows: 1. Plaintiff, W.W. Enterprises is a company owned solely by William G. Wise. The address of both the company and Mr. Wise is 315 E. Allen Street, Mechanicsburg, Cumberland County, PA 17055. 2. Defendant, Harry C. Barrick~, Jr., resides at 455 Center Road, Newville, Cumberland County, Pennsylvania 17241. 3. In addition to a personal, friendly relationship, William Wise and Defendant had a business relationship going back to 1986, whereby Mr. Wise would build engines for Defendant. 4. In 1999, Mr. Wise began building a 3208 pulling engine at the request of Defendant. 5. The agreed-upon price was approximately $8,500.00 (including labor). The final cost of the job, excluding special parts that Defendant decided to add, was $8,582.09. 6. Defendant made various payments to plaintiff totaling $4,215.00 in cash and merchandise toward the job. 7. Plaintiff would "front" monies to purchase parts and Defendant would reimburse him. 8. By the summer and fall of 2001, Defendant had stopped reimbursing Plaintiff the monies he was spending for parts. 9. In November of 2001, Mr. Wise told Defendant he would finish the job, but only if Defendant paid what was owed. 10. On December 3, 2001, an agreement was reached between the parties that Defendant would give Plaintiff a specified enclosed trailer, which Plaintiff would accept as the full $5,100.00 then due him, provided he got the trailer by the end of the year. 11. At year's end, Defendant notified Plaintiff there was a delay in the manufacturing of the trailer and that he would have it by January 20, 2002. 12. At the time of the discussion mentioned in paragraph #11, the Defendant paid Plaintiff $1,000.00 "good faith" money. 13. On January 20, 2002, when Plaintiff telephoned to inquire as to the status of the enclosed trailer, Defendant admitted he never ordered the trailer and delmanded that Plaintiff send him a billing statement. 14. Prior to January 20, 2002, Defendant had never once questioned any of Plaintiff's bills. 15. The work done by Plaintiff 'was "custom made" to Defendant's specifications. Plaintiff could[ not sell the engine (which is in Defendant's possession) item to a third party. 16. After Plaintiff sued Justice Office (the Honorable Gayle A. a counter-suit, the parties entered Defendant at the District Elderll and Defendant filed into an agreement (copy attached) whereby Defendant would pay Plaintiff all the monies due except $1,300.00. The $1,300.00 would be held until Defendant "confirms the engine starts and runs." 17. Plaintiff delivered the engine to Defendant. The Defendant, before District Justice Elder, admitted the engine was installed in the chassis and "ready to start."' The Defendant never once argued or advised Plaintiff or the District Justice that the engine did not work. 18. Defendant refused and continues to refuse to pay the remaining $1,300.00 due. WHEREFORE, Plaintiff requests judgment in the amount of $1,300.00, plus a Pennsylvania sales tax exemption form (or 6% tax on the total value of the project); plus $107.50 filing fees and such further relief as this Honorable Court deems just. Respectfully submitted, DATE: 7/28/04 KE~NETH/F. LEWIS, ESQUIRE Attorney for Plaintiff Attorney I.D. No. 69383 1101 North Front Street Harrisburg, PA 17102 (717) 234-3136 Feb 03 03 09:50a NRVICP (7171805-7428 81/28/2883 15:48 7172348288 LEWIS LaW OFFICE On ~his day, B~C~ is paying WIS~ ~ n' ~on~V due is ~in,g withh~ld The r~ai ~ -~-- starts a~d runs VERIFICATION I hereby verify that the document are true and correct. herein are made subject to the penalties .of 18 Pa.C.S. 4904, relating to unsworn falsification to authorities. Dated: ~/?~6/~ WI£LY M G. statements made in the foregoing I understand that false statements Section CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the within Amended Complaint upon the Defendant by mailing same this date by U.S. Mail, postage prepaid at Harrisburg, Pennsylvania addressed to his attorney to: Philip H. Spare, Esq. 44 West Main St. P.O. Box 318 Mechanicsburg, PA 17055-0318 DATED: 7/28~04 ESQ.