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HomeMy WebLinkAbout09-5389fH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of CUMBERLAND Carlisle DISTRICT JUSTICE JUDGMENT I COMMON PLEAS No. 07 53i-? 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 on the date and in the case referenced below. CPI. Inc. 1524 East Commerce Avenue DATE Of JUDGMENT IN THE G CV-000065-09 NOTICE OF APPEAL FROM Paula P. Correal PA 17013 E. Powell This block will be signed ONLY when this notation is required under Pa. R.C.P.D.J. No. 10086. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. rs CPI. Inc. was Claimant (see Pa. R.C.P.D.J. No. 1001(6) in action before a District Justice, A COMPLAINT MUST BE FILED within twenty (20) days after fling the NOTICE of APPEAL. sgrfure of Pmdwwtwy or D" 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 Marshall E. Powell, Sr. appellee(s), to file a complaint in this appeal Name Of BA"I e(s) (Common Pleas No. within twenty (20) days after service of rule or suffer entry of judgment of non pros. ure of t orettomey or agent RULE: To Marshall E. Powell, Sr. , appellee(s) Name of appeMee(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 YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: JqU _ .20 (fg Lrl `??'// ?' a w oep?ry 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 jP V PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN `(10) 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 ofa/Fiant Signature of official before whom affidavit was made Tide of official My commission expires on 20 a n -n At, V fi iV t - 60MMONWEALTH OF PENNSYLVANIA COUNTY OF: CU=ZRL M Mall. Dist. No.: 09-2-01 MDJ Name: Non. PAULA P- CORREAL Address: 2260 SPRANG RD SUITE #3 CARLISLE, PA Telephone: (717) 218-5250 17013-0000 CPI INC 1524 R COMUMCE AVE ATTN: MIKE JWRRISOiN CARLISLE, PA 17013 THIS IS TO NOTIFY YOU THAT: NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS rPOWELL Sit, illlllMOMML E 191 CIIAUSS GAP RD CARLISLE, PA 17013 L J VS. DEFENDANT: NAME and ADDRESS rCPI INC 7 1524 E COMORCS AVZ ATTIN: MIKE 1E02RISON LCARLISLE, PA 17013 J Docket No.: CV-0000065-09 Date Filed: 6/16/09 Am, - & VJVQFAFPGW Judgment: FOR PLAINTIFF (Date of Judgment) 7/21/09 a Judgment was entered for: (Name) PONZLL OR, KARSBALL S © Judgment was entered against: (Name) CPI INC in the amount of $ 1, 540.4 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 $ 1,459.42 Judgment Costs $81$ Interest on Judgment $ .00 Attorney Fees $ .00 Total $ 1,540.42 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. Date Magisterial District Judge I certify that this is a true and correct copy of the record of the proceedings containing the judgment. Date My commission expires first Monday of January, 2012 , Magisterial District Judge SEAL AOPC 315-07 FLED- I ; =?=iCE OF THE 2009 AUG -6 P11°? '" 35 CIJ ? -.l .1 INTY PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWE ki OF PENNSYLVANIA COUNTY OF ( 1? d ; ss AFFIDAVIT: I hereby (swear) (affirm) that I served Ra a copy of the Notice of Appeal, Common Pleaso,7,,5M upon the District Justice designated therein on 24-0 3_1 ? by personal service by (certified) (registered) mail, (date of service) -'? "'L t' - sen er's receipt attar. d hereto, and upon the appellee, (name) on 14 -? ?)001 ? by personal service (&by (certified) (registered) mail, send is receipt attached hereto. (SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME / THIS 20Dq Signature of affiant Notarial Title of official My commission ra E" M Ln I L)l1Pl - a,Y l . M Postage O Certified Fee M C3 Return Receipt Fee O (Endorsement Required) O Restricted Delivery Fee O (Endorsement Required) -0 Total Postage & Fees ru r% 0 0 171-- 18,2011 Er I _n (Domestic Mail Only; No i Ln DGM - CPI, Inc. M Postage $ O rr1 Certified Fee r-3 ? Return ceiptFee (EndorsemeRnteRequired) O _ Restricted Delivery Fee p (Endorsement Required) CO - ti Total Postage & Fee s ent o - c3 MDJ Paula P. Co p $`treet, AF£Nd.; ----------------- N L'218®°Xftriniz Roa D o «rj UN1114k) N1?++ Urnv P s9arn ? ao ere Vl N O rQ /t D D Q 9 n 0 z O I ?Q al -? 0 COMMONWEALTH OF PENNSYLVANIA F COURT OF COMMON PLEAS r' NOTICE OF APPEAL Judicial District, County Of CUMBERLAND FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No NOTICE OF APPEAL 1109 1 Marshall E. Powell, Sr. CV-000065-09 This block will be signed ONLY when this notation is required under Pa. R.C.P.D.J. No. 1008B. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. signature ofPffl ionotary or Deputy (20) days after filing the NOTICE of APPEAL. 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. 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. PRAECIPE: To Prothonotary i Eater rule upon i (Common Pleas No Name of appe#ee(s) 1 - within twenty (20) days after service of rule or suffer entry of judgment of non pros. Signature of appellant or attomey or agent RULE: To Marshall E. Powell, Sr. , appellee(s) Name of appelleefs) (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 your t )r?onal service or by certified or registered mail. (2) g u gnl ffle' 9 ipt within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. ( the date bf servustf of th if service was by mail is the date of the mailing. Dater y 2 •? ', zww i ,' s: ure orP?ofh ,y or Deputy 1 w ,]r Ri ? ?? _ , YO'ljiOl ST INCLu0F"4 .QTY OF THE NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 Marshall E. Powell, Sr. vs CPT, Inc. If appeflabt was Claimant (see Pa. R.C.P.D.J. No. before a District Justice, A COMPLAINT MUST BE FILED within twenty appellee(s), to file a complaint in this appeal 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 1524 East Commerce Avenue - - Carlisle PA 17013 DOUGLAS C. LOVELACE, JR., Esquire Attorney I.D. No. 83889 36 Donegal Drive Carlisle, PA 17013 (717) 385-1866 MARSHALL POWELL V. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL ACTION - IN LAW CARLISLE PETROLEUM, INC. Defendant To The Prothonotary: : NO. 2009-5389 PRAECIPE TO ENTER APPEARANCE Kindly enter my appearance as attorney for Plaintiff, Marshall Powell, in the above captioned matter. Date: August 2009 i DOUGLAS C. LOVELACE, JR., Esquire Attorney I.D. No. 83889 36 Donegal Drive Carlisle, PA 17013 (717) 385-1866 Attorney for Plaintiff FILr..d OF Vc? 2009 AUG 2S AM S. v o' CUl,u DOUGLAS C. LOVELACE, JR., Esquire Attorney I.D. No. 83889 36 Donegal Drive Carlisle, PA 17013 (717) 385-1866 : IN THE COURT OF COMMON PLEAS MARSHALL POWELL : CUMBERLAND COUNTY, Plaintiff : PENNSYLVANIA V. : CIVIL ACTION - IN LAW CARLISLE PETROLEUM, INC. Defendant : NO. 2009-5389 NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO, THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 (717) 249-3166 NOTICIA LE HAN DEMANDADO A USTED EN LA CORTE. SI USTED QUIERE DEFENDERSE DE ESTAS DEMANDAS EXPUESTAS EN LAS PAGINAS SIGUIENTES, USTED TIE-NE VIENTE (20) DIAS DE PLAZO AL PARTIR DE LA FECHA DE LA DEMANDA Y LA NOTIFICACION. USTED DEBE PRESENTAR UNA APARIENCIA ESCRITA O EN PERSONA O POR ABOGADO Y ARCHIVAR EN LA CORTE EN FORMA ESCRITA SUS DEFENSES 0 SUS OBJECTIONS A LAS DEMANDAS EN CONTRA DE SU PERSONA. SEA AVISADO QUE SI USTED NO SE DEFIENDE, LA CORTE TOMARA MEDIDAS Y PUEDE ENTRAR UNA ORDEN CONTRA USTED SIN PREVIO AVISO O NOTIFICACION Y POR CUALQUIER QUEJA O ALIVO QUE ES PEDIDO EN LA PETICION DE DEMANDA. USTED PUEDE PERDER DINERO O SUS PROPIEDADAS O OTROS DERECHOS HAPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA UN PERSONA O LLAME POR TELEPHONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 (717) 249-3166 DOUGLAS C. LOVELACE, JR., Esquire Attorney for Plaintiff Attorney I.D. No. 83889 36 Donegal Drive Carlisle, PA 17013 (717) 385-1866 2 DOUGLAS C. LOVELACE, JR., Esquire Attorney I.D. No. 83889 36 Donegal Drive Carlisle, PA 17013 (717) 385-1866 IN THE COURT OF COMMON PLEAS MARSHALL POWELL : CUMBERLAND COUNTY, Plaintiff : PENNSYLVANIA V. CIVIL ACTION - IN LAW CARLISLE PETROLEUM, INC. Defendant : NO. 2009-5389 COMPLAINT AND NOW comes Plaintiff, Marshall Powell, by and through his undersigned attorney, Douglas C. Lovelace, Jr., Esquire, and respectfully represents as follows in support of this Complaint: Parties and Personal Jurisdiction 1. Plaintiff, Marshall Powell, is an adult individual residing at 191 Crains Gap Road, North Middleton Township, Cumberland County, Pennsylvania 17013. 2. Defendant, Carlisle Petroleum, Inc., (hereafter "CPI") purports to be a Pennsylvania Corporation, with its corporate office and principal place of business located at 1524 East Commerce Avenue, Carlisle, Cumberland County, Pennsylvania. Subiect Matter Jurisdiction 3. The court has jurisdiction over the subject matter of this suit because the parties, in Cumberland County, Pennsylvania, on or about July 16, 2005, entered into a verbal agreement, memorialized in writing on or about July 19, 2005, by which Defendant promised to repair Plaintiff's residential central air conditioning system, in return for Plaintiff's promise to pay Defendant for such repairs. A copy of the memorialized agreement is attached hereto as Exhibit A. 4. The court has jurisdiction over the subject matter of this suit because Defendant performed work on Plaintiff` residential central air conditioning system at plaintiff's home, located in Cumberland County, Pennsylvania. 5. T'he court has jurisdiction over the subject matter of this suit because Plaintiff avers that Defendant breached the terms of its agreement with Plaintiff in Cumberland County, Pennsylvania. Factual Averments 6. On or about July 16, 2005, Plaintiff's HAM radio antenna tower attached to his residence was struck by lightning. 7. Shortly after the aforementioned lightning strike Plaintiff noticed that his home central air conditioning system no longer produced cool air. 8. On or about July 19, 2005, Defendant told Plaintiff that his home's central air conditioning system's condenser (hereafter "outside unit") was damaged in that the compressor and various other components were burnt (sic). 9. Plaintiff questioned Defendant's claim that the outside unit was damaged because it continued to run properly, could be controlled by the thermostat, and the only problem appeared to be that the air conditioning system did not produce cool air. One of Defendant's technicians who inspected the system agreed with Plaintiff and opined that the air conditioning system just seemed to be out of refrigerant gas. 10. On or about July 19, 2005, Defendant replaced Plaintiff s outside unit with a new unit. 2 11. Believing that the replaced outside unit had been operating properly, Plaintiff requested that Defendant leave the replaced outside unit with Plaintiff, if Plaintiff's insurance company did not want it. 12. Plaintiff contacted his insurance company who stated to Plaintiff and to Defendant that it did not want the replaced outside unit. 13. Rather than leaving Plaintiffs replaced outside unit at Plaintiffs residence, Defendant removed the unit to Defendant's place of business. 14. On or about July 20, 2005, upon discovering that Defendant's technicians had removed his replaced outside unit, Plaintiff contacted Defendant in an attempt to retrieve the old unit. Immediately thereafter, Plaintiff went to Defendant's place of business to retrieve the unit, but when he arrived, Defendant informed Plaintiff it no longer had the unit and could not retrieve it from where Defendant had disposed of it. 15. Plaintiff demanded that Defendant pay Plaintiff for the old outside unit Defendant removed from Plaintiff s residence, but Defendant refused. 16. Within a few hours after Defendant replaced Plaintiff s air conditioning system's outside unit, the system again failed to cool properly. 17. Upon further investigation, Defendant found holes in the air conditioning system's refrigerant gas lines that allowed refrigerant to escape from the system. Without the refrigerant, the system could not cool properly. 18. Defendant made repairs to the refrigerant line and refilled the system with refrigerant. 3 19. Defendant did not pump cleaning gas through the system to purge it of contamination caused by the line leaks or Defendant's use of a metal bonding torch and material to repair the damaged line. 20. Defendant did not install a filter dryer on Plaintiffs central air conditioning system, which would have been consistent with industry standards whenever repairs of the nature Defendant made are performed. 21. The manufacturer of the outside unit provided the new outside unit free of charge to Plaintiff. 22. Defendant charged Plaintiff $1,432.80 to install the replacement outside unit. 23. Defendant charged Plaintiff an additional $56.50 for a service call the day following Defendant's installation of the new outside unit. 24. Plaintiff paid Defendant the billed $1,432.80 and $56.50. 25. On or about July 27, 2005, Plaintiff's home central air conditioning system again ceased to function properly. Frustrated with Defendant's failure to properly repair the system and faced with the critical need to provide a cool living environment for his special needs child, Plaintiff purchased four portable window air conditioning units from Lowes and installed them in his home. 26. On or about August 7, 2006, Plaintiff again contacted Defendant to report that Plaintiff's central air conditioning system had not been functioning properly. 27. On or about August 7, 2006, Defendant performed work on Plaintiffs central air conditioning system, adding four units of refrigerant and one unit of dye, in order to find a leak in the system. Defendant charged and Plaintiff paid $203.26 for this work. 4 28. On or about August 7, 2006, Defendant did not install a filter dryer on Plaintiff s central air conditioning system. 29. On or about April 28, 2009, Plaintiff contacted SECCO, another heating, ventilation, and air conditioning (HVAC) company for a diagnosis of Plaintiffs central air conditioning system. SEECO found and reported numerous defects in the system. SECCO charged and Plaintiff paid $263.19 for the diagnosis. 30. On or about May 21, 2009, Plaintiff sought a 2"d opinion from H&H Services Company, Inc., another HVAC company, regarding the problems with Plaintiff's central air conditioning system. H&H Services Company, Inc. reported that the system was contaminated with green slime, had high moisture content, had high acid content and could not be cleaned up. 31. The aforementioned contamination was a direct result of Defendant's failure to purge and decontaminate the system and install a filter dryer when it worked on the system. 32. Since the system's contamination could not be cleaned, Plaintiff, on or about May 21, 2009, was forced to have H&H Services Company, Inc. replace the central air conditioning system, including the outside unit, inside unit, and lines, at a cost to Plaintiff of $806.17. Count I Plaintiffs Private Action for Defendant's Violation of Pennsylvania Consumer Protection Laws Under the Provisions of 73 P.S. &201-9.2 and 73 P.S. 4 201-2 (4) (av). 33. The defendant incorporates herein by reference the averments contained in paragraphs 1 through 32, inclusive, as fully as though the same were set forth herein at length. 34. Pennsylvania Title 73, "Trade and Commerce," "Chapter 4, Fair Trade and Business Practices Unfair Competition, Acts or Practices," 73 P.S. § 201-1, et seq., short title, "Unfair Trade Practices and Consumer Protection Law," (hereafter "UTPCPL") provides a private cause of action against a commercial entity that engages in unfair methods of competition or unfair or deceptive acts or practices. 35. Pennsylvania Title 73 P.S. § 201-9.2 provides a private cause of action for any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of the act. Such person may bring a private action to recover actual damages or one hundred dollars ($ 100), whichever is greater. 36. The UTPCPL, 73 P.S. § 201-1, et seq., applies to protect Plaintiff regarding his agreement with Defendant for Defendant to repair Plaintiff s home central air conditioning system, since Plaintiff purchased such services primarily for personal, family or household purposes 37. The UTPCPL declares "unfair or deceptive acts or practices in the conduct of any trade or commerce" unlawful; 73 P.S. § 201-3. 38. Under the UTPCPL, unfair or deceptive acts or practices are defined to include, "[k]nowingly misrepresenting that services, replacements or repairs are needed if they are not needed;" 73 P.S. § 201-2 (4) (xv). 39. Defendant replaced Plaintiff s central air conditioning system's outside unit when Defendant knew or should have known that the outside unit did not require replacement. 40. By replacing Plaintiff's central air conditioning system's outside unit when Defendant knew or should have known that the outside unit did not require replacement, Defendant violated the UTPCPL, specifically, 73 P.S. § 201-2 (4) (xv). 6 41. As a result of Defendant's violation of the UTPCPL, Plaintiff suffered damages of $1,432.00, the amount charged by Defendant and paid by Plaintiff for the unnecessary replacement of the outside unit of Plaintiff's residential central air conditioning system. 42. Under the provisions of 73 P.S. § 201-9.2 (a), the Court may award to Plaintiff up to three times the actual damages sustained, Plaintiffs costs and reasonable attorney fees, plus additional relief as the Court deems necessary or proper. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in his favor and against Defendant for damages in the amount of three times $1,432.00, plus accrued interest, award Plaintiff reasonable attorney fees and costs, and grant such other relief as the Court deems necessary or proper, an amount that does not exceed the jurisdictional amount for compulsory arbitration in accordance with local rule. Count II Plaintiffs Private Action for Defendant's Violation of Pennavlvania Consumer Protection Laws Under the Provisions of 73 P.S. 6201-9.2 and 73 P.S & 201-2 (4) (xvi). 43. The defendant incorporates herein by reference the averments contained in paragraphs 1 through 42, inclusive, as fully as though the same were set forth herein at length. 44. Pennsylvania Title 73, "Trade and Commerce," "Chapter 4, Fair Trade and Business Practices Unfair Competition, Acts or Practices," 73 P. S. § 201-1, et seq., short title, "Unfair Trade Practices and Consumer Protection Law," (hereafter "UTPCPL") provides a private cause of action against a commercial entity that engages in unfair methods of competition or unfair or deceptive acts or practices. 45. Pennsylvania Title 73 P.S. § 201-9.2 provides a private cause of action for any person who purchases or leases goods or services primarily for personal, family or household 7 purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of the act. Such person may bring a private action to recover actual damages or one hundred dollars ($ 100), whichever is greater. 46. The UTPCPL, 73 P.S. § 201-1, et seq., applies to protect Plaintiff regarding his agreement with Defendant for Defendant to repair Plaintiff's home central air conditioning system, since Plaintiff purchased such services primarily for personal, family or household purposes 47. The UTPCPL declares "unfair or deceptive acts or practices in the conduct of any trade or commerce" unlawful; 73 P.S. § 201-3. 48. Under the UTPCPL, unfair or deceptive acts or practices are defined to include, "[m]aking repairs, improvements or replacements on tangible, real or personal property, of a nature or quality inferior to or below the standard of that agreed to in writing;" 73 P.S. § 201-2 (4) (xvi). 49. Defendant's repairs of Plaintiffs residential central air conditioning system were of a nature or quality inferior to or below the standard of what Defendant and Plaintiff agreed to, in that Defendant failed to purge and decontaminate the air conditioning system and install a filter dryer, after it replaced the outside unit and repaired the damaged refrigerant line. 50. By performing repairs of a nature or quality inferior to or below the standard of what Defendant and Plaintiff agreed to, Defendant violated the UTPCPL, specifically, 73 P.S. § 201-2 (4) (xvi). 8 51. As a result of Defendant's violation of the UTPCPL, Plaintiff suffered damages of $2,861.12, the total amount Plaintiff had to pay to Defendant and other HVAC companies to have his residential central air conditioning system repaired. 52. Under the provisions of 73 P.S. § 201-9.2 (a), the Court may award to Plaintiff up to three times the actual damages sustained, Plaintiff's costs and reasonable attorney fees, plus additional relief as the Court deems necessary or proper. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in his favor and against Defendant for damages in the amount of three times $2,861.12, plus accrued interest, award Plaintiff reasonable attorney fees and costs, and grant such other relief as the Court deems necessary or proper, an amount that does not exceed the jurisdictional amount for compulsory arbitration in accordance with local rule. Count In PlaintiWs Private Action for Defendant's Violation of Pennsvivania Consumer Protection Laws Under the Provisions of 73 P.S. 4201-9.2 and 73 P.S. 4 201-2 (4) (tail. 53. The defendant incorporates herein by reference the averments contained in paragraphs 1 through 54, inclusive, as fully as though the same were set forth herein at length. 54. Pennsylvania Title 73, "Trade and Commerce," "Chapter 4, Fair Trade and Business Practices Unfair Competition, Acts or Practices," 73 P.S. § 201-1, et seq., short title, "Unfair Trade Practices and Consumer Protection Law," (hereafter "UTPCPL') provides a private cause of action against a commercial entity that engages in unfair methods of competition or unfair or deceptive acts or practices. 55. Pennsylvania Title 73 P.S. § 201-9.2 provides a private cause of action for any person who purchases or leases goods or services primarily for personal, family or household 9 purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of this act. Such person may bring a private action to recover actual damages or one hundred dollars ($ 100), whichever is greater. 56. The UTPCPL, 73 P.S. § 201-1, et seq., applies to protect Plaintiff regarding his agreement with Defendant for Defendant to repair Plaintiffs home central air conditioning system, since Plaintiff purchased such services primarily for personal, family or household purposes 57. The UTPCPL declares "unfair or deceptive acts or practices in the conduct of any trade or commerce" unlawful; 73 P.S. § 201-3. 58. Under the UTPCPL, unfair or deceptive acts or practices are defined to include, "[e]ngaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding;" 73 P.S. §§ 201-2 (4) (xxi). 59. Defendant's told Plaintiff that Plaintiff needed to have the outside unit of Plaintiff's residential central air conditioning unit replaced when such was not true, and all that was required to repair Plaintiff's central air conditioning system was repair of a leaking refrigerant line, purging and decontamination of the system and installation of a filter dryer. 60. By telling Plaintiff that Plaintiff needed to have the outside unit of Plaintiff's residential central air conditioning unit replaced when such was not true, and all that was required to repair Plaintiff s central air conditioning system was repair of a leaking refrigerant line, purging and decontamination of the system and installation of a filter dryer, Defendant violated the UTPCPL, specifically, 73 P.S. § 201-2 (4) (xxi). 10 61. As a result of Defendant's violation of the UTPCPL, Plaintiff suffered damages of $2,861.12, the total amount Plaintiff had to pay to Defendant and other HVAC companies to have his residential central air conditioning system repaired. 62. Under the provisions of 73 P.S. § 201-9.2 (a), the Court may award to Plaintiff up to three times the actual damages sustained, Plaintiffs costs and reasonable attorney fees, plus additional relief as the Court deems necessary or proper. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in his favor and against Defendant for damages in the amount of three times $2,861.12, plus accrued interest, award Plaintiff reasonable attorney fees and costs, and grant such other relief as the Court deems necessary or proper, an amount that does not exceed the jurisdictional amount for compulsory arbitration in accordance with local rule. Count IV Breach of Contract 63. Plaintiff incorporates herein by reference the averments contained in foregoing paragraphs I through 62, inclusive, as fully as though the same were set forth herein at length. 64. Defendant entered into a verbal agreement with Plaintiff, which was memorialized in writing, by which Defendant would repair Plaintiff s residential central air conditioning system. 65. Defendant failed to repair Plaintiffs residential central air conditioning system. 66. Notwithstanding repeated demands by Plaintiff, Defendant refused to repair Plaintiffs residential central air conditioning system, forcing Plaintiff to have the system . repaired by another HVAC company, at an increased cost to Plaintiff 67. By failing and refusing to repair Plaintiffs residential central air conditioning system, Defendant breached the terms of its agreement with Plaintiff. 11 68. Plaintiff performed fully under the terms of his agreement with Defendant, paying Defendant $1,691.76, the total amount Defendant billed Plaintiff. 69. As a result of Defendant's breach of its agreement with Plaintiff, Plaintiff suffered damages of $2,861.12, the total amount Plaintiff had to pay to Defendant and other HVAC companies to have his residential central air conditioning system repaired. WHEREFORE, Plaintiff respectfully requests this honorable Court to enter judgment in his favor and against Defendant in an amount of $2,861.12 plus accrued interest, reasonable attorney fees, costs, and grant other relief as the Court deems just and appropriate, an amount that does not exceed the jurisdictional amount for compulsory arbitration in accordance with local rule. Count V Unjust Enrichment In the event it is determined that no agreement existed in fact or law between Plaintiff and Defendant, as alleged in Count IV, Plaintiff alleges as follows: 70. Plaintiff incorporates herein by reference the averments contained in foregoing paragraphs 1 through 69, inclusive, as fully as though the same were set forth herein at length. 71. By accepting payment from Plaintiff of $1,691.76 but failing and refusing to repair Plaintiffs central air conditioning system, Defendant improperly received a benefit of $1,691.76. 72. In failing and refusing to repair Plaintiff's central air conditioning system, Defendant knew it would realize the benefit of the $1,691.76 Plaintiff paid to Defendant. 73. Defendant continued to refuse to repair Plaintiffs central air conditioning system. 74. Acceptance and retention of the $1,691.76 paid to Defendant by Plaintiff, under the circumstances described in the foregoing paragraphs, would be inequitable, unless Defendant refunds the $1,691.76 Plaintiff paid to Defendant. 12 WHEREFORE, Plaintiff respectfully requests this honorable Court to enter judgment in his favor and against Defendant in the amount of $1,691.76 plus accrued interest, reasonable attorney fees, and costs, and grant other relief as the Court deems just and appropriate, an amount that does not exceed the jurisdictional amount for compulsory arbitration in accordance with local rule. Count VI N ence 75. Plaintiff incorporates herein by reference the averments contained in foregoing paragraphs 1 through 74, inclusive, as fully as though the same were set forth herein at length. 76. By agreeing to repair Plaintiff's residential central air conditioning system, Defendant accrued a duty to repair Plaintiff's central air conditioning system in a good and workmanlike manner, in accordance with industry standards. 77. Defendant, by act or omission, breached his duty to Plaintiff by failing to purge and decontaminate Plaintiff's central air conditioning unit and install a filter dryer. 78. As a direct and proximate cause of Defendant's breach of his duty to Plaintiff, Plaintiff suffered a loss of $2,861.12 the total amount Plaintiff had to pay to Defendant and other 1 VAC companies to have his residential central air conditioning system repaired. WHEREFORE, Plaintiff respectfully requests this honorable Court to enter judgment in his favor and against Defendant in the amount of $2,861.12 plus accrued interest, reasonable attorney fees, and costs, and grant other relief as the Court deems just and appropriate, an amount that does not exceed the jurisdictional amount for compulsory arbitration in accordance with local rule. 13 Respectfully submitted, • 'CSC' lI '' DOUGLAS C. LOVELACE, JR., Esquire Attorney for the Plaintiff Attorney Identification Number: 83889 36 Donegal Drive Carlisle, PA 17013 (717) 385-1866 Dated: August 25, 2009 14 Dare bwoice # 07/1W5 7308 07119/06 REPLACE LENNOX CONDENSER HS29-M STRUCK BY LIGHTNING COMPRESSOR AND VARIOUS COMPONENTS BURNT 1 HS-29-030 LENNOX A/C @ 1432.00 1,432.00 SUB-TOTAL PARTS: 1,432.00 INVOICE SUB-TOTAL- 1,432.00 CARLISLE PETROLEUM INC 2745 INVOICE TOTAL 1,432.00 On balances of 30 days or over we will compute a FINANCE CHARGE OF 1.50 % PER MONTH, WHICH IS 18.0 % ANNUAL PERCENTAGE RATE. PAY THIS AMOUNT ?- 1,432,00 A EXHIBIT A IN THE COURT OF COMMON PLEAS MARSHALL POWELL : CUMBERLAND COUNTY, Plaintiff : PENNSYLVANIA V. CIVIL ACTION - IN LAW CARLISLE PETROLEUM, INC. Defendant : N0.2009-5389 VERIFICATION Marshall Powell hereby states that he is the Plaintiff in this action and that the statements of fact made in the foregoing Complaint are true and correct to the best of his personal knowledge, information, and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. Date: August a r , 2009 ? /a, 4 & 4, pa? Wr hall Powell aintiff MARSHALL POWELL Plaintiff V. CARLISLE PETROLEUM, INC. Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL ACTION - IN LAW : NO. 2009-5389 CERTIFICATE OF SERVICE I, Douglas C. Lovelace, Jr., attorney for Plaintiff, Marshall Powell, hereby certify that on August 25, 2009, I served a true and correct copy of the foregoing Plaintiff's Complaint upon the below named individual by depositing the same in the United States mail, first class, postage prepaid, at Carlisle, Cumberland County, Pennsylvania. SERVED UPON: Douglas G. Miller, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 A ?e 14 .1 Douglas C. Lovelace, Jr., Esquire Attorney Identification Number: 83889 36 Donegal Drive Carlisle, PA 17013 (717) 385-1866 CIF THE 6' i' ! Y 2 0 0 9 UU 2 J l ? 1 CU MARSHALL POWELL Plaintiff, V. CARLISLE PETROLEUM, INC. Defendant. Marshall Powell c/o Douglas C. Lovelace, Jr., Esquire 36 Donegal Drive Carlisle, PA 17013 : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2009 - 5389 CIVIL TERM CIVIL ACTION JURY TRIAL DEMANDED NOTICE YOU ARE HEREBY NOTIFIED that you must responsively plead to the within New Matter of the Defendants, pursuant to Pa. R.C.P. 1026, within twenty (20) days after service, or a default judgment may be entered against you. IRWIN & McKNIGHT, P.C. Date: October 1, 2009 By: AA Doug as G. filler, Esquire Supreme Court I.D. No: 83776 60 West Pomfret Street Carlisle, PA 17013 717-249-2353 Attorney for Defendant MARSHALL POWELL Plaintiff, V. CARLISLE PETROLEUM, INC. Defendant. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2009 - 5389 CIVIL TERM CIVIL ACTION JURY TRIAL DEMANDED ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT AND NOW this 1St day of October, 2009, comes the Defendant, Carlisle Petroleum, Inc., by and through its attorneys, Irwin & McKnight, P.C., and respectfully files this Answer with New Matter to the Plaintiff's Complaint, and in support thereof avers as follows: 1. The averments of fact contained in paragraph one (1) of the Plaintiffs Complaint are admitted. 2. The averments of fact contained in paragraph two (2) are admitted. 3. The averments in paragraph three (3) are conclusions of law to which no response is required. To the extent that a response is required, the averments are denied as stated. It is admitted that the Plaintiff or his spouse contacted the Defendant in order to inspect a malfunctioning outside condenser unit that had been struck by lightning. The remaining averments of paragraph three (3) are specifically denied and strict proof thereof is demanded at trial. 4. The averments in paragraph four (4) are conclusions of law to which no response is required. 5. The averments in paragraph five (5) are conclusions of law to which no response is required. 6. The averments in paragraph six (6) are admitted in part and denied in part. It is admitted that the Plaintiff's residence suffered a lightning strike. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining averments contained in paragraph six (6), so they are therefore specifically denied and strict proof thereof is demanded at trial. 7. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph seven (7) so they are therefore specifically denied and strict proof thereof is demanded at trial. 8. The averments in paragraph eight (8) are denied as stated. It is admitted that on July 16, 2009, Defendant's employee determined that the lightning strike had damaged the outside condenser unit. The remaining averments of paragraph eight (8), including any inference that the outside condenser unit was not damaged, are specifically denied and strict proof thereof is demanded at trial. 9. The averments in paragraph nine (9) are specifically denied and strict proof thereof is demanded at trial. By way of further answer, it was Plaintiff that had contacted Defendant because of the lightning strike and malfunctioning air conditioning system. Defendant's employee confirmed in fact that the outside condenser unit had been struck by lightning, burning interior components of the unit and damaging the outside condenser. 10. The averments of fact contained in paragraph ten (10) are denied as stated. It is admitted that Defendant removed the damaged unit and installed the replacement outside unit on July 20, 2005. 11. The averments in paragraph eleven (11) are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Plaintiff was present when Defendant's employees replaced and tested the new condenser unit, and when the damaged unit was loaded onto a truck for disposal. If Plaintiff or his insurance company had requested the damaged condenser unit it would have been left at the Plaintiff's residence. 12. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph twelve (12) so 2 they are therefore specifically denied and strict proof thereof is demanded at trial. By way of further answer, upon information and belief Plaintiff's insurance company reimbursed him for the cost of the new outside condenser unit and its installation. 13. The averments contained in paragraph thirteen (13) are denied as stated. It is admitted that Defendant removed the damaged unit, placed it on a truck in the presence of Plaintiff, and properly disposed of it. The remaining averments of paragraph thirteen (13), including any inference that Plaintiff communicated his desire to retain the damaged unit prior to its disposal, are specifically denied and strict proof thereof is demanded at trial. 14. The averments in paragraph fourteen (14) are denied as stated. It is admitted that on August 3, 2005, Plaintiff came to the office of the Defendant to retrieve the damaged unit that had been removed some two (2) weeks before. It is further admitted that the damaged unit had already been properly disposed of and was no longer in the possession of Defendant. The remaining averments in paragraph fourteen (14) are specifically denied and strict proof thereof is demanded at trial. 15. The averments in paragraph fifteen (15) are denied as stated. It is admitted that Plaintiff made demand for monetary payment over and above the replacement of the damaged condenser unit for which he was reimbursed by his insurance company. The remaining averments in paragraph fifteen (15), including any inference that Defendant received monetary compensation for the disposal of the damaged unit or that Plaintiff is entitled to compensation in addition to his insurance coverage payment, are specifically denied and strict proof thereof is demanded at trial. 16. The averments in paragraph sixteen (16) are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Defendant's technician properly tested the new condenser unit as part of its installation on July 20, 2005. At the time of testing, additional damage to the existing refrigerant line was discovered requiring further parts and labor to repair. 3 17. The averments in paragraph seventeen (17) are denied as stated. It is admitted that Defendant's technician properly tested the new condenser unit as part of its installation on July 20, 2005. At the time of testing, additional damage to the existing refrigerant line was discovered requiring further parts and labor to repair. The remaining averments in paragraph seventeen (17), including any inference that the unit was not installed properly or that a subsequent service call was required shortly after the installation, are specifically denied and strict proof thereof is demanded at trial. 18. The averments in paragraph eighteen (18) are denied as stated. It is admitted that Defendant's technician properly tested the new condenser unit as part of its installation on July 20, 2005. At the time of testing, additional damage to the existing refrigerant line was discovered requiring further parts and labor to repair. The remaining averments in paragraph eighteen (18), including any inference that the unit was not installed properly or that a subsequent service call was required shortly after the installation, are specifically denied and strict proof thereof is demanded at trial. 19. The averments in paragraph nineteen (19) are denied as stated. The Defendant properly installed the new condenser unit, tested the unit in accordance with industry standards, discovered and repaired the additional damage to the existing piping, retested the unit in accordance with industry standards, and ensured that the new unit was operating properly on July 20, 2005. The remaining averments contained in paragraph nineteen (19) are specifically denied and strict proof thereof is demanded at trial. 20. The averments in paragraph twenty (20) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, the Defendant's work on July 20, 2005 was in accordance with industry standards. 21. After reasonable investigation, Defendant is without knowledge or information sufficient to know either what Plaintiff is talking about or to form a belief as to the truth of the 4 averments contained in paragraph twenty-one (21) so they are therefore specifically denied and strict proof thereof is demanded at trial. 22. The averments in paragraph twenty-two (22) are denied as stated. It is admitted that Defendant billed Plaintiff $1,432.00 for the cost of the new condenser unit for which Plaintiff was reimbursed by his homeowners' insurance company. The remaining averments in paragraph twenty-two (22) are specifically denied and strict proof thereof is demanded at trial. 23. The averments in paragraph twenty-three (23) are denied as stated. It is admitted that Defendant billed Plaintiff an additional $56.50 for the labor and materials needed to repair the additional damage to the existing line as a result of the lightning strike, which work was done on the same day that the new outside condenser unit was installed. The remaining averments in paragraph twenty-three (23) are specifically denied and strict proof thereof is demanded at trial. 24. The averments in paragraph twenty-four (24) are denied as stated. It is admitted that Plaintiff paid a total of $1,488.50 for the cost and installation of the new outside condenser unit and labor and materials to repair the damaged refrigerant line, all of which work was performed on July 20, 2005. The remaining averments in paragraph twenty-four (24) are specifically denied and strict proof thereof is demanded at trial. 25. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph twenty-five (25) so they are therefore specifically denied and strict proof thereof is demanded at trial. By way of further answer, Plaintiff never contacted Defendant again in 2005 to advise that he was having any problems with his central air conditioning system. 26. The averments in paragraph twenty-six (26) are denied as stated. It is admitted that on August 6, 2006, Plaintiff's wife called Defendant on a Sunday to report a problem with the air conditioning system. It is further admitted that Defendant sent a technician on the same day to check and repair the system, and then on August 10`h to recheck the system. Plaintiff was beyond the one (1) year warranty for labor, but the part was covered, and Defendant was billed 5 only for the labor on August 6, 2006. The remaining averments in paragraph twenty-six (26) are specifically denied and strict proof thereof is demanded at trial. 27. The averments in paragraph twenty-seven (27) are denied as stated. It is admitted that on Sunday, August 6, 2006, Defendant sent a technician to check and repair the Plaintiff's system, and then again on August I Oa' to recheck the system. Plaintiff was beyond the one (1) year warranty for labor, but the part was covered, and Defendant was billed only for the labor on August 6, 2006, for a total of $203.26. The remaining averments in paragraph twenty-seven (27) are specifically denied and strict proof thereof is demanded at trial. 28. The averments in paragraph twenty-eight (28) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, the Defendant's work on August 6, 2006, and August 10, 2006, was appropriate and in accordance with industry standards. 29. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph twenty-nine (29) so they are therefore specifically denied and strict proof thereof is demanded at trial. By way of further answer, between the installation of the unit on July 20, 2005, and the present date, Plaintiff and his wife only called Defendant one (1) time for service with regard to the installed unit. 30. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph thirty (30) so they are therefore specifically denied and strict proof thereof is demanded at trial. By way of further answer, between the installation of the unit on July 20, 2005, and the present date, Plaintiff and his wife only called Defendant one (1) time for service with regard to the installed unit. 6 31. The averments in paragraph thirty-one (31) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, the Defendant's work on July 20, 2005, August 6, 2006, and August 10, 2006, was appropriate and in accordance with industry standards. 32. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph thirty-two (32) so they are therefore specifically denied and strict proof thereof is demanded at trial. By way of further answer, between the installation of the unit on July 20, 2005, and the present date, Plaintiff and his wife only called Defendant one (1) time for service with regard to the installed unit. COUNT I 33. The averments contained in the Defendant's Answers, paragraphs one (1) through thirty-two (32) inclusive, are incorporated herein by reference and are made part hereof as though fully set forth at length. 34. The averments in paragraph thirty-four (34) are conclusions of law to which no response is required. 35. The averments in paragraph thirty-five (35) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied as applicable to this case and strict proof thereof is demanded at trial 36. The averments in paragraph thirty-six (36) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 37. The averments in paragraph thirty-seven (37) are conclusions of law to which no response is required. 7 38. The averments in paragraph thirty-eight (38) are conclusions of law to which no response is required. 39. The averments in paragraph thirty-nine (39) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Plaintiff was reimbursed by his insurance for the replacement of the condenser unit and repair of the existing line. 40. The averments in paragraph forty (40) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 41. The averments in paragraph forty-one (41) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 42. The averments in paragraph forty-two (42) are conclusions of law to which no response is required. WHEREFORE, Defendant respectfully requests that this Honorable Court enter a judgment in its favor and against Plaintiff in this matter, together with reasonable costs and such other and further relief as this Court deems reasonable and just. COUNT II 43. The averments contained in the Defendant's Answers, paragraphs one (1) through forty-two (42) inclusive, are incorporated herein by reference and are made part hereof as though fully set forth at length. 8 44. The averments in paragraph forty-four (44) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 45. The averments in paragraph forty-five (45) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied as applicable to this case and strict proof thereof is demanded at trial. 46. The averments in paragraph forty-six (46) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 47. The averments in paragraph forty-seven (47) are conclusions of law to which no response is required. 48. The averments in paragraph forty-eight (48) are conclusions of law to which no response is required. 49. The averments in paragraph forty-nine (49) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 50. The averments in paragraph fifty (50) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 51. The averments in paragraph fifty-one (51) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 52. The averments in paragraph fifty-two (52) are conclusions of law to which no response is required. 9 WHEREFORE, Defendant respectfully requests that this Honorable Court enter a judgment in its favor and against Plaintiff in this matter, together with reasonable costs and such other and further relief as this Court deems reasonable and just. COUNT III 53. The averments contained in the Defendant's Answers, paragraphs one (1) through fifty-two (52) inclusive, are incorporated herein by reference and are made part hereof as though fully set forth at length. 54. The averments in paragraph fifty-four (54) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 55. The averments in paragraph fifty-five (55) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied as applicable to this case and strict proof thereof is demanded at trial. 56. The averments in paragraph fifty-six (56) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 57. The averments in paragraph fifty-seven (57) are conclusions of law to which no response is required. 58. The averments in paragraph fifty-eight (58) are conclusions of law to which no response is required. 59. The averments in paragraph fifty-nine (59) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 10 60. The averments in paragraph sixty (60) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 61. The averments in paragraph sixty-one (61) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 62. The averments in paragraph sixty-two (62) are conclusions of law to which no response is required. WHEREFORE, Defendant respectfully requests that this Honorable Court enter a judgment in its favor and against Plaintiff in this matter, together with reasonable costs and such other and further relief as this Court deems reasonable and just. COUNT IV 63. The averments contained in the Defendant's Answers, paragraphs one (1) through sixty-two (62) inclusive, are incorporated herein by reference and are made part hereof as though fully set forth at length. 64. The averments in paragraph sixty-four (64) are denied as stated. It is admitted that Plaintiff had contacted Defendant because of a lightning strike and malfunctioning air conditioning system. It is further admitted that Defendant's employee confirmed in fact that the outside condenser unit had been struck by lightning, burning interior components of the unit and damaging the outside condenser. It is further admitted that Defendant billed Plaintiff for the cost of the new unit and repair of the existing line, which amount was covered by Plaintiff's insurance carrier. The remaining averments in paragraph sixty-four (64) are specifically denied and strict proof thereof is demanded at trial. 11 65. The averments in paragraph sixty-five (65) are specifically denied and strict proof thereof is demanded at trial. 66. The averments in paragraph sixty-six (66) are specifically denied and strict proof thereof is demanded at trial. By way of further answer, on only one occasion since July 20, 2005, did Plaintiff or his wife contact Defendant in order to request service on their air conditioning system. 67. The averments contained in paragraph sixty-seven (67) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 68. The averments contained in paragraph sixty-eight (68) are conclusions of law to which no response is required. To the extent that a response is required, it is only admitted that Defendant paid Plaintiff a total of $1,691.76 from July 2005 through the present. The remaining averments in paragraph sixty-eight (68) are specifically denied and strict proof thereof is demanded at trial. 69. The averments contained in paragraph sixty-nine (69) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. WHEREFORE, Defendant respectfully requests that this Honorable Court enter a judgment in its favor and against Plaintiff in this matter, together with reasonable costs and such other and further relief as this Court deems reasonable and just. COUNT V 70. The averments contained in the Defendant's Answers, paragraphs one (1) through sixty-nine (69) inclusive, are incorporated herein by reference and are made part hereof as though fully set forth at length. 12 71. The averments contained in paragraph seventy-one (71) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 72. The averments contained in paragraph seventy-two (72) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 73. The averments in paragraph seventy-three (73) are specifically denied and strict proof thereof is demanded at trial. 74. The averments contained in paragraph seventy-four (74) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. WHEREFORE, Defendant respectfully requests that this Honorable Court enter a judgment in its favor and against Plaintiff in this matter, together with reasonable costs and such other and further relief as this Court deems reasonable and just. COUNT VI 75. The averments contained in the Defendant's Answers, paragraphs one (1) through seventy-four (74) inclusive, are incorporated herein by reference and are made part hereof as though fully set forth at length. 76. The averments contained in paragraph seventy-six (76) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 77. The averments contained in paragraph seventy-seven (77) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 13 78. The averments contained in paragraph seventy-eight (78) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. WHEREFORE, Defendant respectfully requests that this Honorable Court enter a judgment in its favor and against Plaintiff in this matter, together with reasonable costs and such other and further relief as this Court deems reasonable and just. NEW MATTER 79. The averments of fact contained in the Answers to the Plaintiff's Complaint are hereby incorporated by reference and are made part of this New Matter to the Complaint of the Plaintiff. 80. It was Plaintiff that had contacted Defendant because of the lightning strike and malfunctioning air conditioning system. 81. Defendant's technician determined on July 16, 2005, that the lightning strike had damaged the outside condenser unit to such an extent that it needed to be replaced. 82. Plaintiff agreed that the outside condenser unit should be replaced and advised that the cost of the unit and work would be submitted to his insurance carrier for coverage. 83. On July 20, 2005, Defendant's employees properly installed the new outside condenser unit, tested the unit in accordance with industry standards, discovered and repaired the additional lightning damage to the existing piping, retested the unit in accordance with industry standards, and ensured that the new unit was operating properly. 84. At all relevant times hereto, Plaintiff was at his home on July 20, 2005, when the then new condenser unit was installed and tested, and when it was determined that additional lightning damage was present to the existing piping. 14 85. Plaintiff was also present on July 20, 2005, when the old, damaged unit was loaded onto Defendant's vehicle. 86. At no time on July 20, 2005, did Plaintiff advise that he or his insurance company desired to keep or inspect the damaged unit. 87. Some two (2) weeks later, on August 3, 2005, is when Plaintiff came to the office of the Defendant requesting that he be permitted to retrieve the damaged condenser unit. 88. Defendant no longer had the damaged unit, and so advised the Plaintiff on August 3 r. 89. Defendant properly disposed of the damaged unit and did not receive any form of compensation or remuneration for the damaged unit. 90. Plaintiff in fact was compensated by his insurance company for the replacement of the condenser unit, and it did not require the damaged unit for inspection. A true and correct copy of the correspondence from Plaintiff's insurance company dated August 4, 2005 is attached hereto and incorporated herein as Exhibit "A." 91. After the installation, testing, and repair on July 20, 2005, Plaintiff did not contact the Defendant with any complaints about his air conditioning system for the remainder of 2005. 92. In fact, since July 20, 2005, the only request to Defendant for service upon Plaintiff's air conditioning system was on August 6, 2006. 93. Defendant promptly responded to the service call on August 6, 2006, performed additional repairs and maintenance to the system which was outside of the one (1) year labor warranty, and returned on August 10, 2006 in order to ensure that the repairs were sufficient. 94. Upon information and belief, Plaintiff did not request or have performed regular maintenance and testing of his air conditioning system. 95. Any additional problems that Plaintiff asserts he was having with his air conditioning system were not communicated to Defendant outside of the service call on August 6, 2006. 15 96. Upon information and belief, Plaintiffs alleged problems were due to his failure to regularly maintain and inspect his system and involved problems beyond the scope of the replacement and repairs performed by Defendant in 2005 to the outside condenser unit. 97. All or a portion of Plaintiff s claims may therefore be barred by the defense of the applicable statute of limitations. 98. All or a portion of Plaintiff s claims may also be barred by the defense of laches 99. All or a portion of Plaintiffs claims may also be barred and/or limited by his failure to mitigate or to properly mitigate his alleged damages. 100. Plaintiffs Complaint fails to state claims or causes of action upon which relief can be granted. WHEREFORE, Defendant respectfully request that this Honorable Court enter a judgment in its favor and against Plaintiff in this matter, together with reasonable costs and such other and further relief as this Court deems reasonable and just. Respectfully Submitted, IRWIN & McKNIGHT, P.C. By: Douglas . lmiller, squire Supreme ourt ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Dated: October 1, 2009 Attorney for Defendant 16 VERIFICATION The foregoing document is based upon information which has been gathered by corporate counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. CARLISLE PETROLEUM, INC. MICHAEL A. M RRISON Date: 10/1/09 EXHIBIT "A" 4?L 'Jb .;.4VAX 61U3btSyti 2 M't; V WjUU_ STA iE fAgM Tate Farm InsuranC.e Companies INS4tANCE Fire Claim Central August 2005 P.0 BOX 11 Concordville. PA 19331 .001 1 CPI 1524 E Commerce Ave Carlisle PA 17013 RE: Claim Number: 38-P750-914 Date of Loss: July 16, 2005 Our Insured; j=-1 /qu--sha 11 I c7t??t? (? Dear Linda: Per our conversation today Mr Powell was compensated for replacement of the AC unit $1432. We have agreed to replace AC unit and do not need to inspect the old unit nor do we need to take it for salvage. Sincerely, Theresa O'Conncr x7665 Claim Representative Fire Claim Central OFFICE NUMBER: 1-888-620-2650 FAX NUMBER: 1-888-620-2652 OFFICE HOURS Monday - Friday 7:00 am - 8:00 pm Saturday 9:00 am - 5:00 pm State Farm Fire and Casualty Company HOME OFFICES: BLOOMINGTON. ILLINOIS 61710.0001 CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: DOUGLAS C. LOVELACE, JR., ESQUIRE 36 DONEGAL DRIVE CARLISLE, PA 17013 Date: October 1, 2009 IRWIN & McKNIGHT, P.C. Douglas GfVliller, Esquire Supreme Court I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 RED-ORCE O M PPMMTi f 2009 OCT -I PM 4: 18 tJC1._=`?:,`a f 4+11.1 ?t1'i MARSHALL POWELL Plaintiff V. CARLISLE PETROLEUM, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - IN LAW : NO. 2009-5389 PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER AND NOW, November 3, 2009, comes Plaintiff, Marshall Powell, by and through his attorney, Douglas C. Lovelace, Jr., Esquire, and respectfully replies to Defendant's New Matter, as follows: REPLY TO NEW MATTER 79. The averments set forth in Plaintiffs Complaint are hereby incorporated by reference and are made a part of this Reply to New Matter, as if the same were set forth herein at length. 80. Admitted. 81. Denied. Defendant's technician asserted that the outside condenser unit needed to be replaced without properly determining whether it actually was damaged by the lightning strike and required replacement. By way of further answer, Plaintiff reasserts that the outside condenser unit was not damaged, that Defendant's technician incorrectly claimed it was damaged, and subsequent investigation revealed that the malfunctioning of Plaintiff's air conditioning was caused by entirely different damage to the system's refrigerant line. 82. Denied in part and admitted in part. Plaintiff denies agreeing that the outside condenser unit should be replaced. Plaintiff admits stating that if the outside condenser unit required replacement, Plaintiff would submit a claim to his insurance carrier for the cost of such replacement. By way of further answer, Plaintiff avers that he informed Defendant's employee that Plaintiff believed the outside condenser unit was functioning properly. One of Defendant's technicians agreed with Plaintiff that the outside condenser unit was functioning properly. Plaintiff specifically denies Defendant's characterization that Plaintiff in any way agreed with Defendant's incorrect and unworkmanlike diagnosis that the outside condenser unit required replacement or should be replaced. Plaintiff demands strict proof to the contrary at trial, if relevant. 83. Denied. The averments of paragraph 83 of Defendant's New Matter set forth incorrect conclusions of law to which no further response is required by the Pennsylvania Rules of Civil Procedure. In the event and to the extent the averments in paragraph 83 of Defendant's New Matter are determined not to be conclusions of law, Plaintiff avers that Defendant replaced Plaintiffs outside condenser unit on July 19, 2005, as evidenced by Defendant's Invoice No. 7308. By way of further answer, Plaintiff avers Defendant's July 19 replacement of Plaintiff's outside condenser unit did not cure the defect in Plaintiffs air conditioning. Consequently, Defendant returned to Plaintiffs residence on July 20, 2005 to work on Plaintiffs air conditioning system, as evidenced by Defendant's Invoice No. 7979. By way of further answer, Plaintiff avers that Defendant again returned to Plaintiffs residence on August 7, 2006 to attempt to repair Plaintiffs air conditioning system that had continued to malfunction since Defendant last worked on it. At that time Defendant suspected the system had been leaking refrigerant since Defendant last worked on it, added four units of refrigerant, and added refrigerant dye for the purpose of locating the refrigerant leak. Contrary to industry standards, Defendant did not return to plaintiffs residence to check for dye marks that would indicate where refrigerant had been leaking from Plaintiff's air conditioning system. By way of further answer, Defendant failed to purge Plaintiff's air conditioning system and install a filter dryer in accordance with industry standards. Consequently, Defendant caused additional severe damage to Plaintiffs air 2 conditioning system. 84. Denied. Plaintiff returned to his residence at approximately 3:30-4:00 P.M., on July 19, 2005, at which time Defendant's employees had already departed Plaintiffs residence with Plaintiff's original outside condenser unit. By way of further answer, Plaintiff specifically denies there was any lightning damage to Plaintiff's outside condenser unit, and strict proof of same is demanded at trial, if relevant. By way of further answer, Plaintiff specifically denies that Defendant replaced and tested Plaintiffs outside condenser unit on July 20, 2005. 85. Denied. Plaintiff specifically denies being present at the time Defendant's employees removed Plaintiff's original outside condenser unit from Plaintiff's residence. By way of further answer, Plaintiff incorporates his averments contained in paragraph 84 above, as though the same were set forth herein at length. 86. Denied. On or about July 20, 2005, upon discovering that Defendant's technicians had removed his replaced outside unit, Plaintiff contacted Defendant in an attempt to retrieve the old unit. Immediately thereafter, Plaintiff went to Defendant's place of business to retrieve the unit, but when he arrived, Defendant informed Plaintiff that Defendant no longer had the unit and could not retrieve it from where Defendant had disposed of it. 87. Denied. On or about July 20, 2005, upon discovering that Defendant's technicians had removed his original outside condenser unit, Plaintiff contacted Defendant in an attempt to retrieve the original unit. Immediately thereafter, Plaintiff went to Defendant's place of business to retrieve the unit, but when he arrived, Defendant informed Plaintiff it no longer had the unit and could not retrieve it from where Defendant had disposed of it. 88. Admitted in part and denied in part. Plaintiff admits that Defendant told Plaintiff that Defendant no longer had possession of Plaintiffs outside condenser unit. Plaintiff specifically 3 denies his outside condenser unit was damaged and strict proof to the contrary is demanded, at trial, if relevant. Plaintiff also specifically denies that Defendant did not inform Plaintiff that defendant no longer possessed Plaintiffs outside condenser unit until August 3rd, and strict proof to the contrary is demanded, at trial if relevant. 89. Denied. The averments of paragraph 89 of Defendant's New Matter set forth incorrect conclusions of law to which no further response is required by the Pennsylvania Rules of Civil Procedure. In the event and to the extent the averments in paragraph 83 of Defendant's New Matter are determined not to be conclusions of law, Plaintiff denies his original outside condenser unit was damaged and demands strict proof to the contrary at trial, if relevant. For the remainder of Defendant's averments, Plaintiff, after reasonable investigation, is without knowledge or information sufficient to form a belief as to their truth, and proof thereof is demanded, if relevant, at trial. 90. Denied. Plaintiff denies having been compensated for the total cost he bore for Defendant's unnecessary replacement of Plaintiffs properly functioning outside condenser unit. By way of further answer, Plaintiff objects to and denies Defendant's characterization of Exhibit "A" to defendant's New Matter. Said exhibit is a document that speaks for itself. 91. Denied as stated. Having justifiably lost confidence in Defendant's ability to properly repair Plaintiff's residential air conditioning system, Plaintiff was forced to purchase four window air conditioners to reliably provide a sufficiently cool living environment for Plaintiffs special needs child. Plaintiff denies Defendant's characterization that Plaintiff did not contact Defendant because Plaintiffs air conditioning system was functioning properly. 92. Admitted. Having justifiably lost confidence in Defendant's ability to properly repair Plaintiff's residential air conditioning system, Plaintiff was forced to purchase four 4 window air conditioners to reliably provide a sufficiently cool living environment for Plaintiffs special needs child. However, on or about August 7, 2006, Plaintiff resolved that it was Defendant's responsibility to correct the ineffective repairs Defendant had made to Plaintiff's air conditioning system. Plaintiff contacted Defendant at that time and Defendant again attempted to repair Plaintiff's malfunctioning air conditioning system. Defendant suspected the system had been leaking refrigerant since Defendant last worked on it, added four units of refrigerant, and added refrigerant dye for the purpose of locating the refrigerant leak. Contrary to industry standards, Defendant did not return to Plaintiffs residence to check for dye marks that would indicate where refrigerant had been leaking from Plaintiffs air conditioning system. By way of further answer, Defendant failed to purge Plaintiffs air conditioning system and install a filter dryer in accordance with industry standards. Consequently, Defendant caused additional severe damage to Plaintiff's air conditioning system. 93. Denied as stated. On or about August 7, 2006, Plaintiff again contacted Defendant to report that Plaintiff's central air conditioning system had not been functioning properly. On or about August 7, 2006, Defendant performed work on Plaintiff's central air conditioning system. Defendant suspected the system had been leaking refrigerant since Defendant last worked on it, added four units of refrigerant, and added refrigerant dye for the purpose of locating the refrigerant leak. Contrary to industry standards, Defendant did not return to Plaintiff's residence to check for dye marks that would indicate where refrigerant had been leaking from Plaintiffs air conditioning system. By way of further answer, Defendant failed to purge Plaintiffs air conditioning system and install a filter dryer in accordance with industry standards. Consequently, Defendant caused additional severe damage to Plaintiff's air conditioning system. In failing to follow-through to find the leak, Defendant exhibited workmanship below industry 5 standards, even though Defendant charged and Plaintiff paid $203.26 for this work. 94. Denied as stated. Plaintiff could not have regular maintenance performed on his air conditioning system because Defendant left it in a malfunctioning state. 95. Denied as stated. Plaintiff had communicated to defendant well before August 6, 2006 that Defendant had not properly repaired Plaintiff's air conditioning system. 96. Denied as stated. Plaintiff could not have regular maintenance performed on his air conditioning system because Defendant left it in a malfunctioning state. By way of further answer, the averments of paragraph 96 of Defendant's New Matter set forth an incorrect conclusion of law to which no further response is required by the Pennsylvania Rules of Civil Procedure. 97. Denied. The averment of paragraph 97 of Defendant's New Matter sets forth an incorrect conclusion of law to which no further response is required by the Pennsylvania Rules of Civil Procedure. In the event and to the extent Defendant's averment in paragraph 97 of Defendant's New Matter is determined to not be a conclusion of law, Plaintiff denies any of his claims are barred or in any way limited by any applicable statute of limitations. 98. The averment of paragraph 98 of Defendant's New Matter set forth an incorrect conclusion of law to which no further response is required by the Pennsylvania Rules of Civil Procedure. In the event and to the extent Defendant's averment in paragraph 98 of Defendant's New Matter is determined to not be a conclusion of law, Plaintiff denies any of his claims are barred or in any way limited by the doctrine of laches. 99. The averment of paragraph 99 of Defendant's New Matter set forth an incorrect conclusion of law to which no further response is required by the Pennsylvania Rules of Civil Procedure. In the event and to the extent Defendant's averment in paragraph 99 of Defendant's 6 New Matter is determined to not be a conclusion of law, Plaintiff denies any of his claims are barred or in any way limited by any alleged failure to mitigate his damages. 100. The averment of paragraph 100 of Defendant's New Matter set forth an incorrect conclusion of law to which no further response is required by the Pennsylvania Rules of Civil Procedure. In the event and to the extent Defendant's averment in paragraph 100 of Defendant's New Matter is determined to not be a conclusion of law, Plaintiff avers he states claims for which he properly maintains causes of action. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in his favor and against Defendant for damages in the amount of three times $2,861.12, plus accrued interest, award Plaintiff reasonable attorney fees and costs, and grant such other relief as the Court deems necessary or proper, an amount that does not exceed the jurisdictional amount for compulsory arbitration in accordance with local rule. Respectfully submitted, V. lot,// r - A& DOUGLAS C. LOVELACE, JR., Esquire Attorney for the Plaintiff Attorney Identification Number: 83889 36 Donegal Drive Carlisle, PA 17013 (717) 385-1866 Dated: November 3, 2009 7 IN THE COURT OF COMMON PLEAS MARSHALL POWELL CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. CIVIL ACTION - IN LAW CARLISLE PETROLEUM, INC. Defendant NO. 2009-5389 VERIFICATION Marshall Powell hereby states that he is the Plaintiff in this action and that the statements of fact made in the foregoing Plaintiffs Reply to Defendant's New Matter are true and correct to the best of his personal knowledge, information, and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. Date: November 3, 2009 C a hall Powell Pl intiff MARSHALL POWELL Plaintiff V. CARLISLE PETROLEUM, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - IN LAW NO. 2009-5389 CERTIFICATE OF SERVICE I, Douglas C. Lovelace, Jr., attorney for Plaintiff, Marshall Powell, hereby certify that on November 3, 2009, I served a true and correct copy of the foregoing Plaintiff's Reply to Defendant's New Matter, upon the below named individual by depositing the same in the United States mail, first class, postage prepaid, at Carlisle, Cumberland County, Pennsylvania. SERVED UPON: Douglas G. Miller, Esquire Irwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 & 6in e111, - Douglas C. Lovelace, Jr., Esquire Attorney Identification Number: 83889 36 Donegal Drive Carlisle, PA 17013 (717) 385-1866 FILED `Yl; I ?JF OF TNc PIROTH.' NOTARY 2009 NOV -3 PM 12: 10