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HomeMy WebLinkAbout09-5907IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVIA WILLIAM R. BALABAN AND ROBIN E. BALABAN, 312 North 26th Street, Camp Hill, PA 17011, Plaintiffs, V. MITCHELL CLUCK AND JOANNE CLUCK t/d/b/a STRICTLY CONCRETE, 801 Marie Avenue Lewisberry, PA 17339, Defendants. Case No. 0 9 _ 59? 7 Civil Term Civil Action PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY/CLERK OF SAID COURT: Please issue a Writ of Summons in the above-captioned action. Writ of Summons shall be issued and forwarded to the Sheriff of York County, Pennsylvania for Service on the Defendants. Respectfully submitted, ELLIOTT GREENLEAF Date: August 28, 2009 By: -00* L L. r+4C.- Matthew D. Coble, Esquire Pa. I.D. #89603 Governors' Row 27 N. Front Street P.O. Box 1284 Harrisburg, PA 17108-1284 (717) 234-3282 - voice (717) 233-4264 - facsimile mdc )elliottgreenleaf.com D OF ? -far 2009 A G 28 AIN G.- i; CUn? ? ; 5-6 ? any CkA 0 V cal a?'? ??_µ / Q G rCow?? 7 CQ-?°j ? m, PIS, rs, j o c??ne C I u c i? F /d./b Ja WRIT OF SUMMONS y Lo? S-I rac-f I c r e-1 TO THE ABOVE NAMED DEFENDANT(S): YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAS/HAVE COMMENCED AN ACTION AGAINST YOU. Date: a aQ? ?! BY THE PROTHONOTARY Sheriffs Office of Cumberland County F1l.El? -?,11? iC? R Thomas Kline Y??•- PsZ r?7 qtr., I TY Sheriff y?„t?rtrf,r? 2?9 Ski 1 ?3 2? ?? 1 Ronn R Anderson Chief Deputy ti Jody S Smith C???' , r l r , Civil Process Sergeant C FiCE CF TNS $r,,ERIFF It $1,i ?{ . a L.? .? Edward L Schorpp Solicitor William R. Balaban vs. Mitchell Cluck SHERIFF'S RETURN OF SERVICE Case Number 2009-5907 08/28/2009 R. Thomas Kline, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Mitchell Cluck t/d/b/a Stictly Concrete, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of York County, PA to serve the within Writ of Summons according to law. 08/28/2009 R. Thomas Kline, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Joanne Cluck t/d/b/a Stictly Concrete, but was unable to locate her in his bailiwick. He therefore deputized the Sheriff of York County, PA to serve the within Writ of Summons according to law. 09/04/2009 06:07 PM - York County Return: And now September 4, 2009 at 1807 hours I, Richard P. Keuerleber, Sheriff of York County, Pennsylvania, do herby certify and return that I served a true copy of the within Writ of Summons, upon the within named defendant, to wit: Mitchell Cluck t/d/b/a Strictly Concrete by making known unto Joanne Cluck, wife of defendant at 801 Marie Avenue Lewisberry, PA 17339 its contents and at the same time handing to her personally the said true and correct copy of the same. 09/04/2009 06:07 PM - York County Return: And now September 4, 2009 at 1807 hours I, Richard P. Keuerleber, Sheriff of York County, Pennsylvania, do herby certify and return that I served a true copy of the within Writ of Summons, upon the within named defendant, to wit: Joanne Cluck t/d/b/a Strictly Concrete by making known unto herself personally, at 801 Marie Avenue Lewisberry, PA 17339 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $53.44 September 17, 2009 INE, SHERIFF COUNTY OF YORK l O F OFFICE OF THE SHERIFF 45 N. GEORGE ST., YORK, PA 17401 SHERIFF SERVICE PROCESS RECEIPT and AFFIDAVIT OF RETURN 1 PLAINTIFF/S/ WILLIAM R. & ROBIN E. BALABAN SERVICE CALL, (717) 771-9601 PLEASe TYM ONLY 1 THRU 12 DO WT MT ?Iiri : Ct?P1ES 1 2 COURT NUMBER 2009-5907 3. DEFENDANTlSI +. irc Ur vvn1I Un t1UMrVMP1 MITCHELL CLUCK & JOANNE CLUCK t/d/b/a STRICTLY WRIT OF SUMMONS W 0 SUM CONCRETE SERVE 5 NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC TO SERVE OR DESCRIPTION OF PROPERTY TO BE'LEVIED, ATTACHED, OR SOLD MITCHELL CLUCK t/d/b/a STRICTLY CONCRETE 6. ADDRESS (STREET OR RFO WITH BOX NUMBER, APT NO, CITY. BO Q?TVyPYSTAT AND ZIP CODE) AT -8M MARIE AVENUE LEWISBERRY, PA 17339 Cv"` U 7. INDICATE SERVICE U PERSONAL U PERSON IN CHARGE 30 DEPUTIZE , C IL O 1 ST CLASS MAIL U POSTED U OTHER NOW AUGUST 28 2009 I, SHE COUNTY P , d ereby deputize the sheriff of YORK COUNTY to execute t P- rMu th ording to law. This deputization being made at the request and risk of the plaintiff., SHER{f F 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE OUT OF CO CUMBERLAND AUV FEE PAID BY WILLIAM R. BALBAN GENERAL ACCOUNT NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any bas, destruction, or removal of any property before sheriffs sale thereof. 1. DATE FILED 9. TYPE NAME and ADDRESS of ATTORNEY J ORIGINATOR and SIGNATURE 10. TELEPHONE NUMBER f8/28/09 MATTHEW D. COBLE 27 N. FRONT STREET 1717-234-3282 P.O. BOX 1284 HARRISEUM, PA 17108 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed it notice is to be mailed) CUMBERLAND OOUNTY SHERIFFS OFFICE 1 COURTHOUSE SQUARE, ROOM 303 CARLISLE, PA 17013 r1NRF1RT,AM M g14FRTFF OF TIE $ HER" - 13. 1 acknowledge receipt of the writ 14 DATE RECEIVED 15 Expiration/Hearing Date or complaint as indicated above. C K E II E r L F R E B /_E G I L L M-30 R-11-1 q 9-27-09 _ 16. HOW SERVED: PERSONAL( ) RESIDENCE #-• POSTED( ) POE( ) SHERIFF'S OFFICE ( ) OTHER( ) SEE REMARKS BELOW 17. O hereby cw* and return a NOT FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.) 1 AND TIT OF INDIVID ED I LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 19. Date of Service 20 ime e CI-r) vkrc- ?. K _ , ?1-cam 2 . ATTEMPTS ate Time In . ate Time Miles Int. Date Time Miles Int. Date Time Miles IM. Date Time Miles Int. Dale Time Miles Int. 22. 23. Advance Costs 24 Service Costs 25 N!F 26. Mileage 27. Postage 28. Sub Total 29. Pound 30 Notary 31. Surchg. 32. Tot. Costs 3, Costs Due Refund Check No. 11400 /9- os' 1-L-C-) ?©o 1, 9 yjoqq 34. m Carun Costs 35. Advance Costs 36 Service Costs 37 Notary Cert 38. MileagelPastagelNot Found 39. Tote Coslc 1" Ad Refund ANSWERS 41. of AFFIRMED - beWe me this 44. Signature of w. 4 %T 42. day day of Dep. Sheriff RY 46 Signature of York NOTARIAL SEAL County Sheriff 4.7, GATE LISA L, THORPE, NOTARY PUBLIC CITY OF YORK, YORK COUNTY RICHARD P. AFB , FF ,, MY COt,1t,tISSION EXPIRES AUG. 12, 2013 48 Signature of Foreign 4"ATE County Sheriff - 50. 1 ACKNOWLEDGE RECEIPT OF THE SHERIFF'S RETURN SIGNATURE 51 DATE RECEIVED OF AUTHORIZED ISSUING AUTHORITY AND TITLE 1. WHITE - Issuing Authority 2. PINK - Attorney 3. CANARY . Sheriffs Office 4. BLUE - Shenffs Office COUNTY OF YORK 2 OF 2 OFFICE OF THE SHERIFF 45 N. GEORGE ST., YORK, PA 17401 SERVICE CALL. (717) 771-9601 SHERIFF SERVICE 111, trim PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASE TYPE OWY L 1 THRU 12 DO MW DETACH ANY, COPIES " WILLIAM R. & ROBIN E. BALABAN 3. DEFENDANT/S/ MITCHELL CLUCK t/d/b/a STRICTLY CONCRETE 2 COURT NUMBER 2009-5907 4. TYPE OF WRIT OR COMPLAINT iRIT OF SUMMONS WOSUM SERVE s NAME OF INDIVIDUAL, COMPANY. CORPORATION. ETC TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD ,j,,AANNE CLUCK t/d/b/a STRICTLY CONCRETE 6. ADDRESS (STREET OR RFO WIT:E OX NUMBER, APT NO, CITY, B TATE A O ZIP CODE) AT MARIE AVENUE LEWIRRY, PA 17339 7. INDICATE SERVICE O PERSONAL U PERSON IN CHARGE 3L DEE PUTIZU .MAIL U 1ST CLASS MAIL U POSTED '? OTHER NOW AUGUST 28 _2009 _ I, SHER COUNTY, PA, do hereby deputize the sheriff of YORK COUNTY to execute ake return t r according to law. This deputization being made at the request and risk of the plaintiff., - ---- --- - SHERIFF ?..•%-? ••.v •..vv • •v.w v.? v ncn In'%im m I IVN I MA I VVILL ASJ1S I IN tAYtUt l ING SERVICE ADV FEE PAID BY WILLIAM R. BALABAN, GENERAL ACCOUNT OUT OF CUMBERLAND COUNTY NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman. in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before sheriffs sale thereof. 9. TYPE NAME and ADDRESS of ATTORNEY 1 ORIGINATOR and SIGNATURE 10. TELEPHONE NUMBER 11 DATE FILED MATTHEW D. COBLE 27 N. FRONT STREET 17-234-3282 P? _At7x 19AA NAPPTCRTTRr- DA 1 amino 8/28/09 F Y?C9 ftT? A0N?SS BELOW: (This area must be completed if notice is to be mailed) , nr' l 1 CVJRTHOUSIE SQUARE, ROOM 303 CARLISLE, PA: 17013 CUMBERALND CO SHERIFF SPACE BELOW FOR USE OF THE %*W - DO NOT WRITE BELOW THIS LINE 13. 1 admowbdge receipt of the writ 14. DATE RECEIVED 15, ExpiralionlHearing Date ofcomwaintas ind"tedabove. Mj mcgill yCSO 8-31-09 9M-27-09 16. HOW SERVED: PERSONAL RESIDENCE ( ) POSTED( ) POE( ) SHERIFF'S OFFICE ( ) OTHER( ) SEE REMARKS BELOW 17. 0 t hereby ceioty and return a NOT FOUND because I am unable to locate the individual, company, etc named above. (See remarks below.) E AND TITLE OF INDIVIDUAL SERVED / LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) Date of Service 20 Ti of 2f A Date Time Miles Int. Date Time Miles t. Date Time Miles W Date Time Miles Int. Datjiiiw Miles Int. Date Time Miles Int. ?. 23. Advance Costs 24 Service Costs 25 NIF 26. Mileage 27. Postage 28. Sub Total 29. Pound 30 Notary 31. Surchg. 32 Tor. Costs 33 Costs Due of Refund Check No 34. Foreign County Costs 35. Advance Costs 36 Service Costs 37 Notary Cert. 38. Mileage/Postage/Not Found 39 Total Costs -40 Costs Due or Refund 41. AFFIRMED and subscribed to bet me this '! LI1 ANSWEIW 42. day Of S' X020 0g L 41. Dep. Sheri 5g.ShenRof _*f L 1VyM ., 46. Signature of York 47. DA E NOTARIAL SEAL County Sheriff LISA L. THORPE, NOTARY PUBLIC RICHARD P. , $ I 9-14-09 CITY OF YORK, YORK COUNTY I- I 48 Signature of Foreign 49 DATE MY COMMISSION EXPIRES AUG. 12, 2013 County Sheriff 50. 1 ACKNOWLEDGE RECEIPT OF THE SHERIFF'S RETURN SIGNATURE 51 DATE RECEIVED OF AUTHORIZED ISSUING AUTHORITY AND TITLE 1. V041TE - Issuing Authority 2. PINK - Attorney 3. CANARY - Sheriffs Office 4. BLUE - Shergrs Office F t r J. ? C3.. SG. r UA ri M l;2 L7 } U ? U- C=l v p F. s•. WILLIAM R. BALABAN IN THE COURT OF COMMON PLEAS and ROBIN E. BALABAN, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs vs. MITCHELL CLUCK and JOANNE CLUCK, t/d/b/a STRICTLY CONCRETE, Defendants. Case No. 09-5907 Civil 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE COURT ADMINISTRATOR Carlisle, PA 17013 (717) 240-6200 e~ ~ _~ ~T --- ~ ~ -;- ; c:... -~ i._. N -r' i- ~-, - ~ • s =ry WILLIAM R. BALABAN IN THE COURT OF COMMON PLEAS and ROBIN E. BALABAN, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs vs. MITCHELL CLUCK and JOANNE CLUCK, t/d/b/a STRICTLY CONCRETE, Defendants. Case No. 09-5907 Civil NOTICIA Le han demandado a usted en la torte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dies de plazo al partir de la fecha de la demanda y la notification. Usted debe presenter una apariencia escrita o en persona o por abogado y archivar en la torte en forma escrita sus defenses o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la torte tomra medidas y puede entrar una Orden contra usted sin previo aviso 0 notification y por cualquier queja o alivio que es pedido en la petition de demanda. Usted puede perder dinero o sus propriedades o otros derechos importantes pare usted. LLEVE ESTA DEMANDA A UN ABODAGO 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 PARR AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE COURT ADMINISTRATOR Carlisle, PA 17013 (717) 240-6200 WILLIAM R. BALABAN IN THE COURT OF COMMON PLEAS and ROBIN E. BALABAN, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs . vs. MITCHELL CLUCK and JOANNE CLUCK, t/d/b/a STRICTLY CONCRETE, Defendants. Case No. 09-5907 Civil VERIFIED COMPLAINT AND NOW comes, William R. Balaban and Robin E. Balaban, Plaintiffs in the captioned matter, by and through their attorneys, Elliott Greenleaf & Balaban, and state as follows in support of their Complaint against the Defendants: THE PARTIES 1. Plaintiffs, William R. Balaban and Robin E. Balaban ("Plaintiffs"), are husband and wife residing at 312 North 26~' Street, Camp Hill, Cumberland County, PA. 2. Defendants, Mitchell Cluck and Joanne Cluck, individually, and jointly and severally (collectively "Defendants"), are husband and wife residing at 810 Marie Avenue, Lewisberry, York County, PA. 3. Together, Defendants own, operate and manage a concrete business trading and doing business as Strictly Concrete, wherein they hold themselves out as experts in the installation of patio decks, pool decks, stamped concrete pool decks, walk ways, drive ways, side walks, steps, etc. VENUE 4. In accordance with Pa R.C.P. No. 1006, venue is proper in Cumberland County because this is the County where the transaction or occurrence took place out of which the captioned case arose. -1- FACTUAL BACKGROUND 5. Plaintiffs contacted Defendants in March of 2007 regarding the installation of a stamped concrete pool deck to be located at Plaintiffs residence, 312 North 26`x' Street, Camp Hill, Cumberland County, PA. 6. Shortly thereafter, Plaintiffs met personally with Defendant Mitchell Cluck at their residence, 312 North 26~' Street, Camp Hill, Cumberland County, PA to discuss the stamped concrete pool deck size that they desired Defendants to design, construct and install for them. 7. After several personal meetings and telephone calls with Defendants, Plaintiffs entered into a contract with Defendants on July 18, 2007 for the design, construction and installation of a stamped concrete pool deck located at their residence, 312 North 26~' Street, Camp Hill, Cumberland County, PA, a copy of which is attached hereto, made a part hereof and marked Exhibit "A". 8. Defendants were fully aware that Plaintiffs had no experience with stamped concrete pool decking prior to retaining Defendants for the job, and that consequently Plaintiffs would rely entirely on Defendants advice, knowledge, guidance and self-proclaimed expertise in connection with Defendants' performance under the parties' agreement. 9. Defendants routinely characterize themselves in local newspapers and periodicals as having a "specialty" in stamped concrete, including stamped concrete decking in pool applications. 10. The contract (Exhibit "A") was amended by the parties on September 21, 2007 as a result of changes requested by Plaintiffs, a copy of such amendment in attached hereto, made a part hereof and marked Exhibit «B„ 11. Plaintiffs paid Defendants a total of $9,650.00 for the installation of the stamped concrete pool deck which payments were made in the following installments: A. $1,875.00 on July 18, 2007 B. $1,875.00 on Septemberl2, 2007 C. $1,575.00 on September 21, 2007 D. $4,325.00 on October 11, 2007 12. Defendants commenced installation of the above-mentioned stamped concrete pool deck on or about September 12, 2007 and completed it on or about October 10, 2007. -2- 13. Defendants drafted the contract and amendment to the contract (Exhibits "A" and "B") and contained among others the following requirements: (a) Use of ten gauge wire and rebar where needed (b) Use expansion and saw cuts for expansion as needed 14. On or about April 18, 2008, Plaintiffs opened their pool, which consisted among other things of the removal of the winter pool cover which covered the entire pool and spa including the coping tiles and part of the stamped concrete pool deck where it joins the pool coping tiles and spa coping tiles. 15. Upon the removal of the winter pool cover, Plaintiffs discovered significant damage caused by expansion and contraction, including numerous damaged pool coping tiles and spa coping tiles. 16. That same day (April 18, 2008), Plaintiffs telephoned Defendants and left a voice message on their answering machine regarding the damaged pool coping tiles and spa coping tiles and requested that Defendants contact Plaintiffs in order to inspect the damaged tiles and to resolve this problem. 17. Despite numerous telephone calls by Plaintiffs to Defendants, Defendants refused and continued to refuse to contact Plaintiffs regarding the damaged pool and spa coping tiles. 18. On or about April 26, 2008, Plaintiff, William R. Balaban, personally visited Defendants at their residence/place of business located at 810 Marie Avenue, Lewisberry, York County, PA, because Defendants refused to communicate with Plaintiffs. 19. During the above meeting, Defendant, Mitchell Cluck, agreed to contact Plaintiff, William R. Balaban, to set up a meeting to inspect the damaged pool and spa coping tiles. 20. Thereafter, a meeting was scheduled on May 5, 2008 for Defendants to meet with Plaintiffs at their residence along with representatives of Anthony & Sylvan, Plaintiffs pool contractor, to inspect the damaged pool and spa coping tiles and to reach a resolution of this problem. 21. Prior to the above scheduled meeting, Defendants called and cancelled their attendance at the meeting and refused, and continue to this day to refuse, to setup and schedule a meeting to review and inspect the damaged pool coping tiles and spa coping tiles. -3- 22. Since the Spring of 2008, the condition of the pool and spa coping tiles, as well as the entire stamped concrete pool deck, has noticeably deteriorated with each season. 23. The ongoing damage to the pool and spa coping tiles caused by the expansion and contraction of the stamped concrete pool deck has and will continue to damage the pool itself and the tiles installed below the pool coping tiles and spa coping tiles at the water-line. 24. Additionally, the stamped concrete pool deck installed by Defendants has chipped, heaved and cracked in such a fashion that the strength of the stamped concrete has diminished and the deck has quickly deteriorated. 25. Defendants failed to install a membrane between the cement pool cover housing and the stamped concrete pool deck, which has resulted in part of the stamped concrete pool deck adhering to the cement pool cover housing and the balance of the stamped concrete pool deck breaking-off, separating and floating away from the part that is adhering to the cement pool cover housing. 26. The lack of appropriate and necessary expansion joints as indicated in the Contract has caused (and continues to cause) the stamped concrete pool deck to expand and damage such coping tiles and the tiles installed below the pool coping tiles and spa coping tiles at the water-line. 27. Plaintiffs have discovered and personally observed the heaving of the stamped concrete pool deck at points between pours where joints should have been installed, resulting in a deterioration of the stamped concrete pool decks' strength and integrity. 28. Defendants' failures to install expansion joints and saw cuts joints has resulted in a significant deterioration of the stamped concrete pool deck's strength and integrity, as well as other damage as more fully described herein. 29. Defendants also failed to install (and failed to recognize the need to install) a membrane between the cement pool cover housing and the stamped concrete pool deck, causing a part of the stamped concrete pool deck to adhere to the cement pool cover housing and the balance of the stamped concrete pool deck to break-off, separate and float away. 30. Defendants' overall design and installation of the stamped concrete pool deck is of such a faulty and defective nature that it will continue to worsen, resulting in a pool deck which is unsightly, unusable and unsafe. -4- 31. The negligence, breaches and failure to exercise proper care in the design and installation of Plaintiffl s stamped concrete pool deck, such pool deck has and will continues to deteriorate in its strength, integrity, appearance and safety. 32. In connection with their improper and faulty installation of the stamped concrete pool decking at Plaintiff s residence, Defendants also punctured an underground spa air line, causing damage at Plaintiffs' spa. 33. All underground plumbing lines and electrical lines were marked by orange flags. 34. When confronted by Plaintiffs regarding the puncture air line, Defendants unreasonably refused to acknowledge and take responsibility for their actions in causing the damage. COUNT I -BREACH OF CONTRACT 35. Plaintiffs incorporate by reference as if set forth in their entirety paragraphs 1 through 34 above. 36. Plaintiffs and Defendants entered into an agreement under which Defendants agreed to provide, and Plaintiffs agreed to pay for, Defendants' expert concrete knowledge, experience and skill in designing and installing the stamped concrete pool decking. 37. Defendants promised to install expansion and saw cut joints but failed to do so in accordance with the Contract, and to perform under the Contract in the manner reasonably expected by an expert in the area, with reasonable and ordinary care (Exhibits "A" and "B"). 38. Plaintiffs have performed all conditions, covenants, and promises required of them in accordance with the terms and conditions of the parties' agreement (Exhibit "A" and Exhibit "B"). 39. Defendants' failures to adequately perform under the parties' agreement, (Exhibit "A" and Exhibit "B") as well as their failures to exercise reasonable and ordinary care, as more fully described above resulted in material breaches of the parties' agreement (Exhibit "A" and Exhibit "B"). 40. Defendants have no viable defense for their blatant failures to fulfill the obligations incumbent upon them under the parties' agreement (Exhibit "A" and Exhibit "B"). -5- 41. As a result of Defendants' material breaches of the agreement (Exhibit "A" and Exhibit "B") between the parties, Plaintiffs have suffered monetarily, the loss of full use and enjoyment of their pool, and have incurred legal fees, costs and expenses. WHEREFORE, Plaintiffs request that as a result of Defendants' breach(es) of contract, the Court enter judgment in favor of Plaintiffs and against Defendants in an amount in excess of $35,000.00, which amount exceeds the amount in controversy requiring reference to compulsory arbitration, together with interest, and all costs and such other and further relief as this Court deems appropriate. COUNT II -FRAUDULENT MISSREPRESENTATION 42. Plaintiffs incorporate by reference as if set forth in their entirety paragraphs 1 through 41 above. 43. Defendants knowingly and specifically represented to the Plaintiffs during their meetings held in March through July 2007 prior to execution of the contract (Exhibit "A") and commencement of the project that they were experts in the design, construction and installation of stamped concrete pool decking and equipped, qualified and prepared to provide stamped concrete pool deck services to Plaintiffs in the manner desired by Plaintiffs. 44. Defendants' knowing representations concerning its expertise and capability with respect to the design, construction and installation of stamped concrete pool decking were material to the transaction since the project involved the design, construction and installation of a stamped concrete pool deck for Plaintiff s pool. 45. Defendants' knowing and specific representations concerning its expertise and capability with respect to the design, construction and installation of stamped concrete pool decking were made falsely and with knowledge of its falsity or recklessness as to whether the representations were true or false. 46. Defendants' knowing and specific representations were intended to mislead and to induce Plaintiffs' into relying upon Defendants' self- proclaimed expertise and capability with respect to the design, construction and installation of stamped concrete pool decking. 47. Plaintiffs justifiably relied on Defendants' knowing false representations because they, unlike Defendants, had no knowledge of or experience with respect to the design, construction and installation of a stamped concrete pool deck. -6- 48. The damages caused to Plaintiffs' stamped concrete pool decking and pool were proximately caused by Defendants' knowing material misrepresentations insofar as Plaintiffs would not have hired Defendants to perform the work if they had known Defendants lacked the expertise and capability they purported to have with respect to the design, construction and installation of a stamped concrete pool deck around Plaintiff's pool. WHEREFORE, Plaintiffs request that as a result of Defendants' fraudulent misrepresentation, the Court enter judgment in favor of Plaintiffs and against Defendants in an amount in excess of $35,000.00, which amount exceeds the amount in controversy requiring reference to compulsory arbitration, together with interest, attorney fees and all costs and such other and further relief as this Court deems appropriate. COUNT III -NEGLIGENCE 49. Plaintiffs incorporate by reference as if set forth in their entirety paragraphs 1 through 48 above. 50. Defendants represents to the public generally, and represented to the Plaintiffs in particular, that they were equipped, qualified and prepared to provide concrete services to Plaintiffs in the manner desired by Plaintiffs. 51. At all materials times, there existed between Plaintiffs and Defendants a relationship of trust based on Defendants being an expert in concrete pool decking and Plaintiffs' comparative lack of experience and knowledge regarding concrete, imposing upon Defendants a duty to exercise due care, reasonable diligence, and inform Plaintiffs with respect to matters about which they otherwise were not knowledgeable. 52. Consistent with this duty, Defendants were required to provide Plaintiffs with qualified and competent workmen and staff who would perform the job in accordance with the agreement and due care, and was required to render competent and professional work, as it held itself as being willing and able to do. 53. Defendants failed to exercise the ordinary, skill, knowledge and care ordinarily expected of another under similar circumstances. 54. Defendants' actions and/or failures to act were negligent. 55. As a direct consequence of the foregoing acts and/or omissions, Plaintiffs have suffered monetarily, the loss of full use and enjoyment of their pool, and have incurred legal fees, costs and expenses 7- WHEREFORE, Plaintiffs request that as a result of Defendants' negligence, the Court enter judgment in favor of Plaintiffs and against Defendants in an amount in excess of $35,000.00, which amount exceeds the amount in controversy requiring reference to compulsory arbitration, together with interest, and all costs and such other and further relief as this Court deems appropriate. Respectfully submitted, ELLIOTT GREENLEAF & BALABAN By' t,~ 't~ ~' ~ - '~" " L Dated: July 26, 2010 Matthew D. Coble, Esquire Pa. I.D. #89603 Kathryn L. Mason, Esquire Pa. I.D. #306779 27 N. Front Street P.O. Box 1284 Harrisburg, PA 17108-1284 717-234-3282 -voice 717-233-4264 -facsimile m~elliottgreenleaf.com klm(a,elliottgreenleaf.com Attorneys for Plaintiffs, William R. Balaban and Robin E. Balaban -8- VERIFICATION William R. Balaban, a Plaintiff in the foregoing compliant, hereby states, subject to the penalties contained in 18 Pa. C.S. §4904 relating to unsworn falsification to authorities, that the facts set forth in the foregoing are true and correct to the best of my knowledge, information and belief. William R. Balaban Robin E. Balaban, a Plaintiff in the foregoing compliant, hereby states, subject to the penalties contained in 18 Pa. C.S. §4904 relating to unsworn falsification to authorities, that the facts set forth in the foregoing are true and correct to the best of my knowledge, information and belief. E~J~,U ~ .~ °°'~,.,CJ G..~,~ Robin E. Balaban -9- Exhibit "A" STRICTLY CONCRETE COLORED SIDEWALK * STAMPING * DRIVEWAY-ALL TYPES MITCHELL CLUCK LEWISBERRY, PA. 717-938-2134 PROPOSAL Attention: Robin Balaban Date:Apri125, 2007 312 North 26th. Street Job: Stamped Pool Decking Area. Camp Hill Pa. 17011 Date to start: Will be set when we Phone: (717) 737-9701 recieve signed proposal with deposit. I HEREBY SUBMIT SPECIFICATIONS AND ESTIMATE FOR: A. To excavate area as needed and Onal grade area. Form area for new concrete pour. Pool area: Four feet by ten feet five inches. Twenty nine feet by four feet. Thirty eight feet by seven feet. Eight feet by four feet. Thirty eight feet by four feet. Sixteen feet by twenty nine feet. Fifteen feet by fourteen feet. Approximately one thousand one square feet. Design will be layed out as customer request. 1.4000 PSI concrete. Concrete will be four inches thick. 2. Stone as needed up to four inches. 3. Reinforced with ten gauge wire and rebar where needed. 4. To use expansion and saw cuts for expansion joints as needed. B. Stamp in design pattern of choice. Will be add on rnst for stamps we need to rent. C. Solomon Internal Color (1 % loading dose). Solomon Color is mined in concrete truck for about ten urinates. Brickform Ezternal Releasing Agent is put on top as second color and releasing agent for stamp. D. Acid wash and seal with Regal Gloss Non Yellowing Pnre Acrylic Sealer. Shark Grip will be added as non-skid agent. NOTE: NOT RESPONSIBLE FOR SALT, CALCIUM OR DEICER DAMAGE, CHEMICAL OF ANY KIlVD, OIL, FERTILIZER ETC. ROCK CLAUSE (LF UPON EXCAVATION WE RUN INTO ROCKS, THERE WILL BE ADDITIONAL COST). BECAUSE OF ROCK IT MAY CHANGE SIZE AND DEPTH OF JOB DEPENDING ON HOW FAR WE CAN GO DOWN. WILL BE ADD ON COST FOR CHANGES TO PROPOSAL, OR ADD ON OF SQUARE FEET FOR COST OF MATERIALS AND LABOR NOT RESPONSIBLE FOR RESEEDING YARD AREAS. CONCRETE WORK IS NOT GAUARANTEED AGAIIYST CRACKS. THIS IS CAUSED BY EXPANSION AND CON- TRACTIONS. IT DOES NOT AFFECT THE STRENGTH OF THE CONCRETE. PERMIT: J08 MAY REQUIRE A PER- MIT FROM THE TOWNSHIP. THIS PROPOSAL DOES NOT INCLUDE PERMIT FEES. PLEASE SECURE YOUR PER- MIT BEFORE WE START THE WORK. CLISTOMER WILL PAY TWENTY PER-CENT CANCELLATION FEE. SCHEDULE DATE TO START WORK CAN CHANGE DUE TO WEATHER AND CIRCUMSTANCES OUT OF OUR CONTROL. STRICTLY CONCRETE PROPOSAL TO: ROBIN BALABAN WE HEREBY PROPOSE TO FURNISH MATERIAI. AND LABOR ACCORDING TO THE ABOVE SPECIFICATIONS FOR THE SUM OF: FOR THE SUM OF: 57,500.00 PAYMENT TO BE MADE: 25% DEPOSIT WITH SIGNED PROPOSAL, 25% WHEN START OF JOB. BALANCE DUE: UPON COMPLETI OF JOB. PROPOSED BY: Mitchell Cluck ACCEPTED BY: ~~" Rabin alaban DATE OF ACCEPTANCE: d IF THIS PROPOSAL IS ACCEPTED PLEASE SIGN DATE AND RETURN ONE COPY WITH DEPOSIT TO• Strictly Concrete C/O Mitchell Cluck 810 Marie Ave. Lewisberry Pa. 17339 ?1?-938-2134 This Qronosal maybe withdrawn if not accented within sizty days. Thank von for the oauortunity to quote this iob. Exhibit "B" STRICTLY CONCRETE 810 MARIE AVEUNE LEWISBERRY PA. 17338 ATTENTION: Robin Balaban J B SITE: 312 North 26th. St. Camp Hill Pa. PHONE: (717) 737-8701 PHONE: (717) 938-2134 FAX: (717) 932-8889 FROM: MITCHELL CLUCK DATE SENT: 08/21/2007 RE: Amendment to Proposal. Square Foot add: One hundred ninety suc square feet. 5'x.150.00 deposit require 575.00 Micro Drain: Fifty feet of drain 5500.00 Stamp Rental Fee: 5250.00 a day Deposit Required X18-21-07: If you ag this amendment sign and date with deposit. Signature ~~ d'am'' Date: o-? () THANK YOU: MITCHELL CLUCK AT STRICTLY CONCRETE CC: STRICTLY CONCRETE STRICTLY CONCRETE COLORED SIDEWALK * STAMPING * DRIVEWAY-ALL TYPES MITCHELL CLUCK LEWISBERRY, PA. 717-938-2134 PROPOSAL Attention: Robin Balaban Date:April 25, 2007 312 North 26th. Street Job: Stamped Pooi Decking Area. Camp Hill Pa. 17011 Date to start: Will be set when we Phone: (717) 737-9701 recieve signed proposal with deposit. I HEREBY SUBMIT SPECIFICATIONS AND ESTIMATE FOR: A. To excavate area as needed and final grade area. Form area for new concrete pour. Pool area: Four feet by ten feet five inches. Twenty nine feet by four feet. Thirty eight feet by seven feet. Eight feet by four feet. Thirty eight feet by four feet. Sixteen feet by twenty nine feet. Fifteen feet by foarteen feet. Approximately one thousand one sgaare feet. D4ejga will be laved out as customer request. 1.4000 PSi concrete. Concrete will be four inches thick. 2. Stone as needed up to four ;aches. 3. Reinforced with ten gauge wire and rebar where needed. 4. To use ezpansion and saw cuts for expansion joints as needed. B. Stamp in design pattern of ttlsice. Will be add on cost for stamps we need to rent, C. Solomon Internal Color (1 % loading dose). Solomon Color is mixed in concrete truck for about ten miautes. Brickform External Releasing Agent is put on top as second color and releasing agent for stamp. D. Acid wash and seal with Regal Gloss Non Yellowing Pure Acrylic Sealer. Shark Grip wiilie added as non-skid agent. NOTE: NOT RESPONSIBLE FOR SALT, CALCIUM OR DEICER DAMAGE, CHEMICAL OF ANY KIND, O!}., FERTILIZER ETC. ROCK CLAUSE (H' UPON EXCAVATION WE RUN INTO ROCKS, THERE W[LL BE ADDITIONAL COST} BECAUSE OF ROCK IT MAY CHANGE SIZE AND DEPTH OF JOB DEPENDING ON HOW FAR WE CAN GO DOWN. WILL BE ADD ON COST FOR CHANGES TO PROPOSAL, OR ADD ON OF SQUARE FEET FOR COST OF MATERIALS AND LABOR NOT RESPONSIBLE FOR RESEEDING YARD AREAS. CONCRETE~WORK IS NOT GAUARANTEED AGAINST CRACKS. THLS IS CAUSED BY EXPANSION AND CON- TRACTIONS. IT DOES NOT AFFECT THE STRENGTH OF THE CONCRETE. PERMIT: JOB MAY REQUIRF, A PER- MIT FROM THE TOWNSHIP. THIS PROPOSAL DOES NOT INCLUDE PERMIT FEES. PLEASE SECURE YOUR PER- MTT BEFORE WE START THE WORK. CUSTOMER WILL PAY TWENTY PER-CENT CANCELLATION FEE. 3CHEDULF, DATE TO START WORK CAN CHANGE DUE TO WEATHER AND CIRCUMSTANCES OUT OF OUR CONTROL. WILLIAM R. BALABAN and ROBIN E. BALABAN, Plaintiffs vs. MITCHELL CLUCK and JOANNE CLUCK, t/d/b/a STRICTLY CONCRETE, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Case No. 09-5907 Civil CERTIFICATE OF SERVICE I, Matthew D. Coble, Esquire, hereby certify that I served a true and correct copy of the foregoing Complaint by way of First Class U.S. Mail, postage prepaid on the parties designated below: DEFENDANTS Mitchell Cluck and Joanne Cluck 810 Marie Avenue Lewisberry, PA 17339 Attorney for Defendants, Mitchell Cluck and Joanne Cluck, trading to do business as Strictly Concrete Dated: July 26, 2010 (, ~ , Matthew .Coble, Esquire -10- 26?011:.'G 13 ,2010 A V G 13 ?M I- T7 JOHNSON, DUFFE:, STEWART & WEIDNER By: John R. Ninosky, Esquire I. D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Phone: (717) 761-4540 Fax: (717) 761-3015 E-mail: jm&dsw.com WILLIAM R. BALABAN and ROBIN E. BALABAN, Plaintiffs Counsel for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-5907 Civil V. MITCHELL CLUCK and JOANNE CLUCK, t/d/b/a STRICTLY CONCRETE, Defendants CIVIL ACTION -LAW JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of the undersigned on behalf of the Defendants, Mitchell Cluck and Joanne Cluck t/d/b/a Strictly Concrete, in the above-captioned matter. Respectfully submitted, JOHNSM,UFFIE, STEWART & WEIDNER By: J n R. Nnosky, Esquire Attorney I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants Date: August 11, 2010 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Praecipe for Entry of Appearance has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on August 11, 2010: Matthew D. Coble, Esquire Kathryn L. Mason, Esquire Elliott, Greenleaf & Balaban 27 North Front Street P.O. Box 1284 Harrisburg, PA 17108-1284 JOHNSON, DUFFLE, STEWART &i WEIDNER By: lf,614? JJoh`h R. Ninosky JOHNSON, DUFFIE, STEWART & WEIDNER By: John R. Ninosky, Esquire I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Phone: (717) 761-4540 Fax: (717) 761-3015 E-mail: jrn@jdsw.com WILLIAM R. BALABAN and ROBIN E. BALABAN, Plaintiffs V. MITCHELL CLUCK and JOANNE CLUCK, t/d/b/a STRICTLY CONCRETE, Defendants NOTICE TO PLEAD TO: Plaintiffs William R. Balaban and Robin E. Balaban c/o Matthew D. Coble, Esquire NO. 09-5907 Civil CIVIL ACTION - LAW JURY TRIAL DEMANDED YOU ARE REQUIRED to plead to the within Answer with New Matter within 20 days of service hereof or a default judgment may be entered against you. Date: August 26, 2010 Counsel for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHNSON, DUFFIE, STEWART & WEIDNER By: 44 zz??? JJot-di R. Ninosky, Esquire Attorney I.D. No. 78000 Attorney for Defendants - ?14 ILI c, 7 0 -r? p FILED-0' JOHNSON, DUFFIE, STEWART & WEIDNER By: John R. Ninosky, Esquire I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Phone: (717) 7614540 Fax: (717) 761-3015 E-mail: jrn@jdsw.com 50 ? , ;JvhiY Counsel for Defendants PEIVI'OUVANIA WILLIAM R. BALABAN and ROBIN E. BALABAN, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-5907 Civil V. MITCHELL CLUCK and JOANNE CLUCK, t/d/b/a STRICTLY CONCRETE, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANTS' ANSWER WITH NEW MATTER AND NOW, come the Defendants, Mitchell and Joanne Cluck t/d/b/a Strictly Concrete, by and through their counsel, Johnson, Duffie, Stewart & Weidner, P.C., who file this Answer with New Matter by respectfully stating the following: 1. Admitted. 2. Admitted. 3. Denied. The averments contained in this paragraph contain conclusions of law and fact to which no response is required. If a response is deemed required, the averments contained herein are denied. By way of further Answer, Strictly Concrete is a sole proprietorship operated by Mitchell Cuck. 4. Admitted. 5. Denied. It is denied that Plaintiffs contacted Defendants in March of 2007 regarding the alleged project. 6. Admitted in part; denied in part. It is admitted that Plaintiffs met with Mitchell Cluck at 312 North 26th Street in Camp Hill. The remainder of this allegation is denied in that it contains conclusions of law and fact to which no response is required. If a response is deemed required, the averments contained herein are denied. 7. Admitted in part; denied in part. It is admitted that Plaintiffs entered into a contract with Mitchell Cluck to perform concrete work at 312 North 26th Street, Camp Hill, Pennsylvania. The remainder of this allegation is denied in that it contains conclusions of law and fact to which no response is required. If a response is deemed required, the averments contained herein are denied. By way of further answer, Exhibit A speaks for itself. 8. Denied. The averments contained in this paragraph contain conclusions of law and fact to which no response is required. If a response is deemed required, the averments contained herein are denied. 9. Admitted. 10. Admitted. 11. Admitted in part; denied in part. It is admitted that Plaintiffs made payment of $1,875 on July 18, 2007; $1,875 on September 12, 2007; and $1,575 on September 21, 2007. The remainder of this allegation is denied. By way of further answer, the file payment from October 11, 2007 was $3,825. 12. Admitted. 13. Admitted. 14. Denied. After reasonable investigation, Defendants are without sufficient knowledge or information to form a belief as to the truth of this averment. The same are therefore denied, and strict proof demanded at the time of trial. 15.-19. Denied. The averments contained in these paragraphs contain conclusions of law and fact to which no response is required. If a response is deemed required, the averments contained herein are denied. 20. Admitted in part; denied in part. It is admitted that Mitchell Cluck scheduled a meeting with Plaintiffs and representatives, Anthony and Sylvan. The remainder of this allegation is denied in that it contains conclusions of law and fact to which no response is required. If a response is deemed required, the averments contained herein are denied. 21. Denied. The averments contained in this paragraph contain conclusions of law and fact to which no response is required. If a response is deemed required, the averments contained herein are denied. 22. Denied. After reasonable investigation, Defendants are without sufficient knowledge or information to form a belief as to the truth of this averment. The same are therefore denied, and strict proof demanded at the time of trial. 21-34. Denied. The averments contained in these paragraphs contain conclusions of law and fact to which no response is required. If a response is deemed required, the averments contained herein are denied. COUNT I - BREACH OF CONTRACT 35. Defendants incorporate herein by reference their answers to paragraphs 1 through 34 above as if fully set forth at length. 36. Admitted in part; denied in part. It is admitted that Plaintiffs entered into an agreement with Mitchell Cluck for concrete services at Plaintiffs' home. The remainder of this allegation is denied in that it contains conclusions of law and fact to which no response is required. If a response is deemed required, the averments contained herein are denied. 37.-41. Denied. The averments contained in these paragraphs contain conclusions of law and fact to which no response is required. If a response is deemed required, the averments contained herein are denied. WHEREFORE, Defendants respectfully request that Plaintiffs' Complaint be dismissed and that judgment be entered in their favor. COUNT II - FRAUDULENT MISSREPRESENTATION 42. Defendants incorporate herein by reference their answers to paragraphs 1 through 41 above as if fully set forth at length. 43.-48. Denied. The averments contained in these paragraphs contain conclusions of law and fact to which no response is required. If a response is deemed required, the averments contained herein are denied. WHEREFORE, Defendants respectfully request that Plaintiffs' Complaint be dismissed and that judgment be entered in their favor. COUNT III - NEGLIGENCE 49. Defendants incorporate herein by reference their answers to paragraphs 1 through 48 above as if fully set forth at length. 50.-55. Denied. The averments contained in these paragraphs contain conclusions of law and fact to which no response is required. If a response is deemed required, the averments contained herein are denied. WHEREFORE, Defendants respectfully request that Plaintiffs' Complaint be dismissed and that judgment be entered in their favor. NEW MATTER 56. Plaintiffs' Complaint fails to state a claim upon which relief may be granted. 57. Plaintiffs failed to mitigate their damages, if any, with any responsibility or liability on the part of the Defendants being expressly denied. 58. Plaintiffs' claims and/or alleged losses are barred by their own comparative negligence, with any liability or responsibility on the part of the Defendants being expressly denied. 59. At all times material hereto, Strictly Concrete provided services to Plaintiffs which were consistent with the attached Contracts and which were performed in a workmanlike and reasonable manner. WHEREFORE, Defendants respectfully request that Plaintiffs' Complaint be dismissed and that judgment be entered in their favor. Respectfully submitted, JOHNSON, D FIE STEWART & WEIDNER By: John . Ninosky, Esquire Attor ey I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Defendants Date: August 26, 2010 VERIFICATION We, Mitchell Cluck and Joanne Cluck of Strictly Concrete, verify that we are authorized to make the statements herein and that the statements made in the foregoing Answer with New Matter to Plaintiffs' Complaint are true and correct to the best of our knowledge, information and belief. We understand that false statements made herein are subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn,falsification to authorities. Dated: g a ll.> ' %' Yl? ell uc Dated: 110 Joa a Cluck CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Answer with New Matter has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on August 26, 2010: Matthew D. Coble, Esquire Kathryn L. Mason, Esquire Elliott, Greenleaf & Balaban 27 North Front Street P.O. Box 1284 Harrisburg, PA 17108-1284 JOHNSON, DUFFIE, STEWART & WEIDNER I f By: g'6444A John R. Ninos y ELLIOTT, GREENLEAF & BALABAN By: Matthew D. Coble, Esquire (Pa. I.D. # No. 89603) (mdc(aelliottgreenleaf com) Kathryn L. Mason, Esquire (Pa. I.D. # No. 306779) (klm(a7,elliottgreenleaf.com) 27 N. Front St., P.O. Box 1284 Harrisburg, PA 17108-1284 Voice: 717-234-3282 Facsimile: 717-233-4264 WILLIAM R. BALABAN and ROBIN E. BALABAN, Plaintiffs VS. MITCHELL CLUCK and JOANNE CLUCK, t/d/b/a STRICTLY CONCRETE, Defendants. 17 u.'_'? 3 ! H1 3: 33 MAE. PENNSYLVANIA Attorneys for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Case No. 09-5907 Civil PLAINTIFFS' REPLY TO NEW MATTER Plaintiffs, William R. Balaban and Robin E. Balaban, by and through their undersigned attorneys, Elliott Greenleaf & Balaban, reply to Defendant's New Matter as follows: 56. The averments set forth in paragraph 56 are a conclusion of law to which no answer is deemed necessary. If an answer is deemed necessary, then the averments are specifically denied, and strict proof is demanded at trial. 57. The averments set forth in paragraph 57 are a conclusion of law to which no answer is deemed necessary. If an answer is deemed necessary, then the averments are specifically denied, and strict proof is demanded at trial. 58. The averments set forth in paragraph 58 are a conclusion of law to which no answer is deemed necessary. If an answer is deemed necessary, then the averments are specifically denied, and strict proof is demanded at trial. 59. The averments set forth in paragraph 59 are a conclusion of law to which no answer is deemed necessary. If an answer is deemed necessary, then the averments are specifically denied, and strict proof is demanded at trial. WHEREFORE, Plaintiffs respectfully request that judgment be entered in their favor and against Defendants, together with interest, and all costs and such other and further relief as this Court deems just and appropriate under the circumstances. Respectfully submitted, ELLIO ITT?lGREENLEAF & BALABAN By: " Dated: August 31, 2010 Matthew D. Coble, Esquire Pa. I.D. #89603 Kathryn L. Mason, Esquire Pa. I.D. #306779 27 N. Front Street P.O. Box 1284 Harrisburg, PA 17108-1284 717-234-3282 - voice 717-233-4264 - facsimile mdcL&elliottgreenleaf.com klm(aielliott?reenleaf.com Attorneys for Plaintiffs, William R. Balaban and Robin E. Balaban VERIFICATION William R. Balaban, a Plaintiff in the foregoing compliant, hereby states, subject to the penalties contained in 18 Pa. C.S. §4904 relating to unsworn falsification to authorities, that the facts set forth in the foregoing are true and correct to the best of my knowledge, information and belief. t William R. Balaban Robin E. Balaban, a Plaintiff in the foregoing compliant, hereby states, subject to the penalties contained in 18 Pa. C.S. §4904 relating to unsworn falsification to authorities, that the facts set forth in the foregoing are true and correct to the best of my knowledge, information and belief'. Robin E. Balaban WILLIAM R. BALABAN and ROBIN E. BALABAN, Plaintiffs VS. MITCHELL CLUCK and JOANNE CLUCK, t/d/b/a STRICTLY CONCRETE, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Case No. 09-5907 Civil CERTIFICATE OF SERVICE I, Kathryn L. Mason, Esquire, hereby certify that I served a true and correct copy of the foregoing Reply to Defendant's New Matter by way of First Class U.S. Mail, postage prepaid on the parties designated below: John R. Ninosky, Esquire Law Offices of Johnson Duffie 301 Market Street P.O. BOX 109 Lemoyne, PA 17043-0109 Attorney for Defendants Dated: August 31, 2010 q ToptL-Lo Kathryn L. Mason, Esquire WILLIAM BALABAN & ASSOCIATES, LLC BY: Matthew D. Coble, Esquire Attorney I.D. No. 89603 Governors' Row 27 North Front Street Harrisburg, PA 17101-1606 (717) 695-2901 (phone) (717) 695-7914 (fax) mcoble@balabanandassociates.com WILLIAM R. BALABAN and ROBIN E BALABAN, PLAINTIFFS, V. MITCHELL CLUCK and JOANNE CLUCK, t/d/b/a STRICTLY CONCRETE, DEFENDANTS c 1i? t ROTH 0 2f112 AUG -I PM 1: 5 CUMBERLAND COU, 1 PENNSYLVANIA IN THE COURT OF COMMON PLEAS Of CUMBERLAND COUNTY, PENNSYLVA CIVIL ACTION - LAW NO. 09-5907 PRAECIPE TO DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above-captioned action settled, discontinued and ended with prej Date: August 1, 2012 WILLIAM BALABAN & ASSOCIATES, LLC By:. A Gds L& , GU id, Mahew D. Coble, Esquire Attorneys for Plaintiffs CERTIFICATE OF SERVICE I, Matthew D. Coble, Esquire, do hereby certify that I served a true and correct con of the foregoing Praecipe to Discontinue and End by way of e-mail and First Class U.S. postage prepaid, on the parties designated below: John R. Ninosky, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street - P.O. Box 109 Lemoyne, PA 17043-0109 Email: j> jdsw.com Attorneys for Defendants Dated: August 1, 2012 M* L 6. C_ Matthew D. Coble