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Home My WebLink About09-5842 SHANE TOOMBS, AND THERESA TOOMBS, Plaintiffs V. MIKE KALINICH, t/d/b/a K & M LANDSCAPING & CONSTRUCTION, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA :CASE NO. oq_, ; Cy-1, -/ : CIVIL ACTION - LAW NOTICE TO DEFEND AND CLAIM RIGHTS YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or y 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 SOUTH BEDFORD STREET CARLISLE PA 17013 (717) 249-3166 Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo at partir de to 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 defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y pueda entrar una orden contra usted sin previo aviso o notificacion y por cuatquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 SOUTH BEDFORD STREET CARLISLE PA 17013 (717) 249-3166 SHANE TOOMBS, AND THERESA TOOMBS, Plaintiffs V. MIKE KALINICH, t/d/b/a K & M LANDSCAPING & CONSTRUCTION, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CASE NO. CIVIL ACTION - LAW COMPLAINT AND NOW comes Plaintiffs, Shane Toombs and Theresa Toombs, by and through their counsel, Mark A. Mateya, Esquire, and in support avers the following: PARTIES 1. Plaintiffs are Shane Toombs and Theresa Toombs, (hereinafter referred to as "Toombs ") husband and wife, adult individuals, who presently reside at 658 Shannon Road, Boiling Springs, Cumberland County, Pennsylvania 17007. 2. All legal papers may be served upon Plaintiffs through their counsel, Mark A. Mateya, Esquire, P.O. Box 127, Boiling Springs, Cumberland County, Pennsylvania 17007. 3. Defendant is Mike Kalinich, t/d/b/a K & M Landscaping & Construction, (hereinafter referred to as "K & M") with a business address of 172 Mountain View Road, Mt. Holly Springs, Cumberland County, Pennsylvania 17065. OPERATIVE FACTS 4. On or about April 21, 2008, Toombs contracted with K & M to build a retaining wall at the side of their residence located at 658 Shannon Road, Boiling Springs, Pennsylvania. 5. Specific details of the work to be completed are partially laid out in the Contractors Invoice attached hereto as Exhibit "A". 6. The total amount due for the work scheduled as outlined in the aforementioned Contractors Invoice was $12,670.39, which was paid in full by Plaintiffs to K & M in two installment payments. 7. The work which K & M contracted to perform for Plaintiffs at their residence located at 658 Shannon Road, Boiling Springs, Pennsylvania, was not completed in a workmanlike manner. 8. As a result of the defective workmanship, the Plaintiffs have suffered damages which include: a. Multiple trees have died and now need to be removed, in addition to those now on the unstable embankment which threaten to fall; b. Dirt and debris continues to run from the top of the hill to the driveway, causing an unsightly and potentially dangerous situation in Plaintiffs' driveway; C. It will be necessary to either re-do the work already performed by K & M or do additional restorative work to compensate for the damages already done as a result of the work not being completed in a workmanlike manner. 9. Plaintiffs have contacted K & M multiple times in an attempt to either have him make the necessary repairs or to make some reparation to the Plaintiffs. 10. K & M agreed to discuss the matter with Plaintiffs but never followed through on his word. 11. On or about March 11, 2009, Plaintiffs, by and through Mateya Law Firm, made a demand on K & M regarding the necessary repairs and/or reparations due them. 12. K & M, through their counsel, Paul Orr, thereafter met with Plaintiffs and their counsel and K & M agreed to meet with the Plaintiffs within a specified amount of time to discuss the necessary repairs and/or reparations. 13. K & M thereafter failed to make themselves available to Plaintiffs for any meeting whatsoever. 14. The state of the initial work and the Plaintiffs' property affected thereby has deteriorated from the day the original work ceased up until the present, which deterioration was noted and reviewed with K & M at the aforementioned meeting held in March 2009. 15. Due to K & M's failure to address the issues raised in the meeting of March 2009, Plaintiffs have obtained an estimate from Ace of the Trades to make the repairs necessary which are due to K & M's unworkmanlike manner. The cost to make the necessary repairs is in the amount of $20,187.74. A copy of the estimate from Ace of the Trades is attached hereto as Exhibit "B." 16. K & M has not given Plaintiffs an estimate to make the necessary repairs, as K & M has failed to meet with Plaintiffs as he had agreed in order to inspect the property and his work. COUNT .-I - BREACH OF CONTRACT 17. Paragraphs 1 through 16 above are incorporated herein by reference. 18. K & M has failed to perform the work as outlined in the aforementioned Contractors Invoice dated April 21, 2008. 19. As a result and proximate cause of K & M's failure to perform the agreed upon work as outlined in the Contractors Invoice dated April 21, 2008, the Plaintiffs' property has suffered damages and continues to suffer damages to the present. WHEREFORE, Plaintiffs respectfully request that this Honorable Court award damages to Plaintiffs as follows: a. A return of Six thousand, three hundred and thirty-five dollars ($6,335.00), equal to one-half ('/2) of the amount paid by Plaintiffs to K & M as damages suffered; b. Award Plaintiffs the amount of Twenty thousand, one hundred eighty- seven dollars and seventy-four cents ($20,187.74), which represent the amount needed to effect the repairs as submitted by Ace of the Trades; Legal fees in the amount of one thousand dollars ($1,000.00); and d. Such other relief as this Honorable Court deems proper. COUNT II - UNJUST ENRICHMENT 20. Paragraphs 1 through 19 above are incorporated herein by reference. 21. K & M was paid in full in the amount of twelve thousand six hundred and seventy dollars and thirty-six cents ($12,670.36) for work to be performed on behalf of Plaintiffs. 22. K & M has not performed the duties in a workmanlike manner as outlined in the Contractors Invoice though he has been paid in full for such services. 23. As a result of K & M receiving full compensation from Plaintiffs', Plaintiffs suffer damages as a result of the unworkmanlike quality of the work performed by K & M. WHEREFORE, Plaintiffs respectfully request that this Honorable Court award damages to Plaintiffs as follows: a. A return of one-half ('/2) of the amount paid to K & M as damages suffered; b. Award Plaintiffs the amount of Twenty thousand, one hundred eighty- seven dollars and seventy-four cents ($20,187.74), which represent the amount needed to effect the repairs as submitted by Ace of the Trades; C. Legal fees of twelve hundred dollars ($1,200.00); and d. Such other relief as this Honorable Court deems proper. Date: 7 21 6 Respectfully submitted, UA-kc Mark A. Mateya, quire Attorney ID No. 78931 P.O. Box 127 Boiling Springs, PA 17007 (717) 241-6500 (717) 241-3099 - Fax VERIFICATION I, Theresa Toombs, verify that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. Theresa Toombs VERIFICATION I, Shane Toombs, verify that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. DATED: 21Z /A 7 Shane Toombs CONTRACTORS INVOICE X 172 MounjW' VWw Rd Y apt, PA 17M WORK PERFORMED AT 717-n"M r Cit. i r'? 3 <, P-i l as provided spe?cificat fns for the above work, and was ecompleted in a substantial workmanlike manner for the ag'eedhsum drawings --Dollars ($ _ y-- This is a ? Partial P Full invoice due and payable b EXHIBIT Day Year in accordance with our [AAgreement O, Propo $ A ated ?3E Montt Day Year TC8122 MADE IN MEXICO C (? 1_ S- J E Page 2 of 3 ...... _..... -- ACE OF THE TRADES Estimate Estimate x 788 05/17/09 Cugomec M243.34" Bru.T6 SNIP To: Shane & Theresa Toombs ACE OF THE TRAM 638 Shannon Rd Boiling Springs, PA 17007 7174024XM 831 KEYSTONE WAY NEWPORT, PA 17074 _._ ?r?e?loorr? _ _ RMw=ANM Customer m Daces Amount Dma Amount.Bndo"& Shane Toombs Toad Repal(yumbling earth and tree Install approx 120 ft x 7 foot max height by approx 2 ft min height tapered retail falling hanard Ing wall to match existing dakota and harvest Mend retaining wall beginning with Sl ight cw" slightly before existing wait . Wall WIN have matching caps as the - bottom. Trees and stumps will be removed as necessary for proper s;;;;; .f ground and safety. Reber footing and cement will be used to help msirraln vgff structure. All materials will be provided as well as tree stump excess dirt and cut wall pieces will be removed from site. New wall will be above existing approx a ft back Caution will be used to try and save newly planted shrubbery . Any necessary permits or local fees will also be due immediately N and when required. There are several trees that should be removed before fall rains or damage to house or neighboring property could occuril - - SUBTOTAL 17,187.74 HALF DOWN HALF DUE IMMEDIATELY UPON COMPLETION BALANCE D(HIBR 6/18/2009 ??ARX 20119 AOG 25 AM 11 IVY 7 v- s--d ?? 3 3? SHANE TOOMBS, AND THERESA TOOMBS, Plaintiffs V. MIKE KALINICH, t/d/b/a K & M LANDSCAPING & CONSTRUCTION, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CASE NO. 09-5842 CIVIL ACTION - LAW AFFIDAVIT OF SERVICE AND NOW, this 15th day of September, 2009, comes Mark A. Mateya, Esquire, Attorney for Plaintiff, who, being duly sworn according to law, deposes and says that: 1. A Civil Complaint for Breach of Contract and Unjust Enrichment was filed to the above term and number on August 25, 2009. 2. On September 12, 2009, a certified copy of the Complaint was served upon an adult individual on behalf of the Defendant by PA Constable William D. Hesse. A copy of the Constable Hesse's Certificate of Service is attached hereto as Exhibit "A" and is incorporated herein by reference. 3. On August 28, 2009, a certified copy of the Complaint was set to the Defendant via Certified Mail, Restricted Delivery as well as by way of first class mail, postage prepaid. A copy of the Certified Mail Receipt and Certificate of Mailing is attached hereto as Exhibit `B' and is incorporated herein by reference. 4. On or about September 15, 2009, undersigned counsel for Plaintiff viewed the track and confirm with the U.S. Postal Service and the Certified Mail which had been previously sent to the Defendant had been unclaimed. The envelope indicated that the postal service had attempted the delivery of the Certified Mail on August 29, 2009. A copy of the detailed results from the Track & Confirm for the attempted deliveries of the Certified Mail is attached hereto as Exhibit "C" and is incorporated herein by reference. Respectfully submitted, A-, 6?-kj Mark A. Mateya, E quire Attorney I.D. No. 78931 P.O. Box 127 Boiling Springs, PA 17007 (717) 241-6500 (717) 241-3099 Fax Attorney for Plaintiff a•e` .?PIlIl.S'hCbNlllN ?U118'tNUCP 11 I \\r?? At.un ti?firt I" I Ir shuru. PA 171) (717) 790-9026 William A Hesse, PSC Certificate of Service I hereby certify that, on September 12, 2009 at approximately] 0:00 AM, did serve upon one Mike Kalinich, t/d/b/a K & MLandscaping & Construction of 172 Mountain View Rd Mt. Holly Springs, PA 17065-1524. Accepting for defendant a white female adult member of household, over the are of 21, named Kim. Who agreed to give Service to Mike Kalinich upon his arrival home. Service of Process was a true and correct copy of Civil Action- Law Case Number 09- Sworn to this Saturday, September 12, 2009. L'it??! V William D. Hesse #B00025' 77 PA State Certified Constable 411 West Main Street 1St Flr Mechanicsburg, PA 17055-3242 717-790-9626 Office/Home 717-790-0512 Fax 717-226-6261 Cell lntet'rity, Rcsrcct and satCtN • • S. POSTAL SERVICE CERTIFICATE OF MAILING MAY BE USED FOR DOMESTIC AND INTERNATIONAL MAIL, DOES NOT PROVIDE FOR INSURANCE-POSTMASTER Received From: ATFVA A W Ile M d? lad -BoiLw& PA 17007 One piece of or 1 ary mail addresse to: -7 W C14 d Al LAnlD?CJ A6 .f (a.ysreuCT)n/-l i I6k -7)1,p u J1 A (A) V/ cJ k-D 0LLV ?5 6P QLN6S PA 1'70 6? ?c 0 0 N C3 ? D N W o o _ D r C C3 DG? Z N ?• °c'wovfDv CD ?.?,r Z- 000 i -I •V? N ? p W ED z :c, L7 L7 cn m X> D PS Form 3817, Mar. 1989 0 0 r-i ti .a r-l 0 .A q ra 0 0 0 ra co ti go 0 Q N - Home I He Track & Confirm Track & Confirm Search Results Label/Receipt Number: 7008 2810 0001 1660 1621 ........ _._.......... __.._. ............... Class: First-Class Mailo Track & Confirm Service(s): Certified MailTM Enter Label/Receipt Number. - Restricted Delivery I Return Receipt Status: Unclaimed Your item was returned to the sender on September 15, 2009 because it was not claimed by the addressee. Detailed Results: ¦ Unclaimed, September 15,2009,10:16 am, MOUNT HOLLY SPRINGS, PA • Notice Left, August 29,2009,11:03 pm, MOUNT HOLLY SPRINGS, PA 17065 ¦ Acceptance, August 28, 2009, 11:24 am, BOILING SPRINGS, PA 17007 Notificatian Options Track & Confirm by email Get current event information or updates for your item sent to you or others by email. Go> Site Map Customer Service Forms Gov't Services Careers Copyright@ 2009 LISPS. All Rights Reserved. No FEAR Act EEO Data FOIA Privacy Policy Terms of Use Business Customer Ga! is 11:1 W - FLE, i OF 7-I 2009 SEP 17 PH 2: 0 7 SHANE TOOMBS, and THERESA TOOMBS, Plaintiff's VS. MIKE KALINICH, t/d/b/a K & M LANDSCAPING & CONSTRUCTION, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.: 09-5842 CIVIL TERM DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT JURY TRIAL DEMANDED AND NOW, this /5 day of October, 2009, comes the Defendant, Mike Kalinich, t/d/b/a K & M Landscaping & Construction by and through his attorney, Paul Bradford Orr, Esquire, and files the within Answer to Plaintiff's Complaint as follows: 1. Admitted. 2. Admitted. 3. Admitted 4. Admitted. 5. Admitted. 6. Admitted. 7. Denied. Defendant after reasonable investigation is without knowledge as to the truth of this averment. 8. Denied. Defendant after reasonable investigation is without knowledge as to the truth of this averment. 9. Denied. Defendant after reasonable investigation is without knowledge as to the truth of this averment. 10. Admitted in Part. Denied in Part. As way of further explanation, it is Admitted that Defendant agree to discuss the matter with Plaintiff's. It is Denied in part because Defendant and his Attorney did in fact meet with Plaintiff's and their Attorney to discuss resolving this matter. 11. Denied. Defendant after reasonable investigation is without knowledge as to the truth of this averment. 12. Admitted. 13. Denied. It was not the Defendant intentions to not be available to make repairs. By way of further explanation, whenever Defendant would have availability in his calendar, a weather situation or emergency happened. Defendant did keep in touch with the Plaintiff's about scheduling an appointment until Defendant was served with said Complaint on behalf of the Plaintiff's. 14. Denied. Defendant after reasonable investigation is without knowledge as to the truth of this averment. 15. Denied. Defendant after reasonable investigation is without knowledge as to the truth of this averment. 16. Denied. Defendant after reasonable investigation is without knowledge as to the truth of this averment. 17. No response needed. 18. Denied. Defendant after reasonable investigation is without knowledge as to the truth of this averment. 19. Denied. Defendant after reasonable investigation is without knowledge as to the truth of this averment. 20. No response needed. 21. Denied. Defendant after reasonable investigation is without knowledge as to the truth of this averment. 22. Denied. Defendant after reasonable investigation is without knowledge as to the truth of this averment. 23. Denied. Defendant after reasonable investigation is without knowledge as to the truth of this averment. WHEREFORE, Appellant requests that this Honorable Court enter judgment in favor of the Appellant. Respectfully Submitted, Pgul Bradford Orr, Esquire Attorney for Appellant 50 East High Street Carlisle, PA 17013 (717) 258-8558 Supreme Court ID # 71786 VERIFICATION I verify that I am the defendant and that the statements made in the foregoing Answer to Complaint are true and correct. I understand that false statements herein are made subject to the penalties of Pa. C.S. § 4904, relating to unsworn falsification to authorities. DATE: l Mike Kalinich t/d/b/a K & M Landscaping & Construction SHANE TOOMBS, and THERESA TOOMBS, Plaintiff's VS. MIKE KALINICH, t/d/b/a K & M LANDSCAPING & CONSTRUCTION, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.: 09-5842 CIVIL TERM CERTIFICATE OF SERVICE I, Paul Bradford Orr, Esquire, attorney for Defendant, does hereby certify that a true and correct copy of the within Answer to Plaintiff's Complaint, Jury Trial Demanded, was served upon the following individual on the below date, by First Class Mail as follows: Mark A. Mateya, Esquire P.O. Box 127 70 7 t Boiling Springs, PA 1 Date: V BY: J Paul Bradford Orr, Esquire i t? AA L- -7-0 0In 85) A)-b r-k EsA Toom8Sj V.5, rn E 44, 1- !A1 i e-4) -E1d.1b1#, K ?_ Av-D 6CA PEA) ?- C ofJ 5rR- U eTl on! IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. D R - 58 4,-)- 20Qq ll,EFFtiDgN i RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the Following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: r D 1 /?? 41.?dA counsel for the plaintiff4Wfendai- in the above action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of plaintiff in the action is "76 The counterclaim of the defendant in the action is The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, l`?Kk' VS14 ORDER OF COURT AND NOW, , 200___, in consideration of the foregoing petition, Esq., and Esq., and Esq., are appointed arbitrators in the above captioned action (or actions) as prayed for. By the Court, EDGAR B. BAYLEY F -( =u I HONIOTARY 2009 NOY 24 A 9: 22 CUr',? 44 4. oo ijftSYVM.4v, etx "8 krt a34afo 5~.~~. ~~~ ~R~~ O~i~l~ g- Def " ~ ~ C~ dV~'~2.er ~~ dU In The Court of CommonPSl~ea~s of Cumtb' erland County, Pennsylvania No.y- t - ~ "l2 Civil Action -Law. Oath We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office with fidelity .. ~'----- Signature Si Signature W ~u-ft~t cR. t~~lt-V Name (Chairman) Address ~S ~ ~~ coo C3 city, zip ~~ ~~ k~t~ ~~C~~ ~ Se~~ ~- Name Name Law Firm Address ~~~, ~- ~~a~~ City, Zip J G~-~ t . ~~~,,, ~.~ ref {^r'`''~- LawFirm ~~`~"~~ L L~ .~s ~ c~.~s4.,~.X ~~Vl~~ Address 5 u ;' f-~ ~. - L! 0 0 M~r~;Gti'~' l'~- ~ 70 5 S ~t / ~ ~! Qp C~ts-, ~ zm j~~ lUS'~~o Award ~~ .~.~1 G/~Z/lU We, the undersigned arbitrators, having been duly appomted and sworn (or affumed), make the .~'~ ~ 1 p Now, the ~~ day cif ~~ ~ 2A _ #~'C~. , at j/• !S , ~.M., the above award was entered upon the docket and no~iC~"t ' ~ ~ ~by mail=t~ the parties or their attorneys. Arbitrators' compensation to be=paid upoi~`sp~al;:~~'~~. av ..__ By: Prothonotary Deputy Doti/c/~f ~tt~y-vf Award ' f ~9 . Arbitrator, dissents. (Insert name if atrolicable.l