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HomeMy WebLinkAbout10-2324CnM:nNWFALTN nF PFNNSYLVANIA COU RT OF COMMON PLEAS NOTICE OF APPEAL Judicial District, County Of FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. /0 - .2-3 .7- L/ cfv, NOTICE OF APPEAL .01 d to, Pr am ri< 7-16 n j Notice i given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice o the date and in the case referenced below. NAME OF A Ns PPELLANT PF+2cs /c- MAG. DIST. NO. 05-3 '_ Oq NAME OF D.J. T-ka aS A. ?iaC@ ADDRESS 6,37 F APPELLANT CITY APPELLANT SAVIWE 404-21 Sre- STATE ZIP CODE k-*- 1-705-1 DATE OF t'?Cfi /z' DGMENT !0 20 r p IN THE CASE OF (Phwdr) P4610V5yLyA1VZ"-4 'PeRcS (DNftndsdY eve.. REST(ticc t-i4 eycxv4r"& PVC. DOCKET N o. ' TURE OF APPELLANT OR ATTORNEY OR AGENT - 0,0 0 0&3 S- 01 PA r? L2g6 This blo ck will be signed ONLY when this notation is required under Pa. If appellant was Claimant (s a. R.C.P.D.J. No. 1001(6) in act' R.C.P. .J. No. 10086. This No Jce of Appeal, when received by the District Justice, will operate as a before a District Justice, A COMPLAINT MUST BE FILED within twenty SUPER EDEAS to the judgment for possession in this case. (20) days after filing the NOTICE of APPEAL. sooft - of Pmomhonotary - D*P* 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. To Prothonotary Enter rule upon appellee(s), to file a complaint in this appeal Name of apWee(s) Pleas No. ) within twenty (20) days after service of rule or suffer entry of judgment of non pros. Signature ofaWeHant or atbmey or agent To , appellee(s) Name Of 4A09#"(8) (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 ?ule upon you by personal service or by certified or registered mail. If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. The date of service of this rule if service was by mail is the date of the mailing. Date: I 20 Signature of Prodmd y or Deputy MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENTfrRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC r 2 WHITE- COURT FILE TO BE FILED WITH PROTHONOTARY GREEN - COURT FILE YELLOW - APPELLANTS COPY PINK -COPY TO BE SERVED ON APPELLEE GOLD -COPY TO BE SERVED ON DISTRICT JUSTICE PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED 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 of official before whom affidavit was made TWO Of official My commission expires on ? co e 0 CV ?C t X r C V L O ;ice r. a u 20 Signature ofalGant to "k COMMON%JEALTH OF PENNSYLVANIA COUNTY C F: CMMERLAND Ma9. Dist, Na: 09-3-04 MDJ Name: H n. TJ ION&S A. PLACEY Address- 1(14 S SPORTING HILL RD PD.-CHANICSSURG, PA Telaphwe: ("17) 761-8230 17050 PENNSYLVANIA PZRCS, INC. 6375 EUZEHORE ROAD APT/STE 8 MBCHAN::CSBURG, PA 17050 NOTICE OF JUDGMENTMANSCRIPT CIVIL CASE PLAINTIFF; NAME and ADDRESS f-PENNSYLVANIA PBRCS, INC. 6375 BASEHORE ROAD APT/S'TE 8 MECHANICSBURG, PA 17050 L - - J VS. DEFENDANT; NAME and ADDRESS rRESTUCCIA EXCAVATING, INC. 55 DALLAS DRIVE C/O JOEY'RESTUCCIA DALLAS TOWN, PA 17313 DocketNo.: CV-0000635-09 Date Filed; 11/02/09 (Date of Judgment) 3/10/10 ® Judg rent was entered for: (Name) RESTUCCIA EXCAVATING, INC THIS IS TO NOTIFY. YOU THAT: Judo rent: FOR DEFENDANT Judc ment was entered against: (Name} PENNSYLVANIA PERCS,, INC . in tho amount of $ 0 F1 Defe-idants are jointly and severally liable. I-1 Dam ages will be assessed on Date & Time This case dismissed without prejudice. Amo ant of Judgment Subject to Attachment/42 Pa.C.S. § 8127 F1 Portic n of Judgment for physical damages arising out of residt :ntial lease $. Amount of Judgment $ .00 Judgment Costs 00 . $ Interest on Judgment $ 00 Attorney Fees Total $ .00 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PART1 HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL V'ITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUI E A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT At OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGMENT H OLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM rHE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS TI- E JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST F OR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. y //!NK pate , Magisterial District Judge I certify th it this is a true a e pr edings containing the judgment. Date Magisterial District Judge My comm ssion expires first Monday of January, 2016 SEAL J AOPC 315-C 7 L36-3 fi O MOd 6ZL-1 ii£9996LLIL S31@d Vd-WOd3 ZT : £T 01,-LI-£0 John M. Ogden, Esquire 34 North Queen Street York, PA 17403 (717) 846-0550 F (717) 846-0687 PA Supreme Court ID# 67940 Email: OgdenjmGgmail. com rii, _ ~r .i _. 1r ~_ flv~ ti P~ ~a:~ ~S.~i~; _ ~~,..,_ IN THE COURT OF COMMON PLEAS OF YORK COUNTY PENNSYLVANIA PENNSYLVANIA PERCS, INC. NO. 2010-2324 Plaintiff, RELATED CASE: None ASSIGNED JUDGE: None v. CIVIL ACTION -LAW RESTUCCIA EXCAVATING, INC. Defendant. ANSWER & NEW MATTER Submitted by: John M. Ogden, Esquire For the Defendant FOR THE PLAINTIFF: FOR THE DEFENDANT: ANDREW C. SHEELY, ESQUIRE 127 SOUTH MARKET STREET PO BOX 95 MECHANICSBURG, PA 17055 (717) 697-7050 F (717) 697-7065 Email: AndrewC.SheelvC~verizon.net JOHN M. OGDEN, ESQUIRE 34 NORTH QUEEN STREET YORK, PA 17403 (717) 846-0550 F (717) 846-0687 PA SUPREME COURT ID# 67940 Email: OgdenjmC~gmail. com John M. Ogden, Esquire 34 North Queen Street York, PA 17403 (717) 846-0550 F (717) 846-0687 PA Supreme Court ID# 67940 Email: OgdenjmC~gmail. com IN THE COURT OF COMMON PLEAS OF YORK COUNTY PENNSYLVANIA NOTICE TO PLEAD TO: ANDREW C. SHEELY, ESQUIRE 127 SOUTH MARKET STREET PO BOX 95 MECHANICSBURG, PA 17055 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM THE SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. DA7ED: ~ ~Q~~10 _ BY Pa. R. C. P. 237.1(a)(2) Respectfully Submitted, John M. Ogden, Esquire 34 North Queen Street York, PA 17403 (717) 846-0550 F (717) 846-0687 PA Supreme Court ID# 67940 Email: OgdenjmC~gmail. com IN THE COURT OF COMMON PLEAS OF YORK COUNTY PENNSYLVANIA PENNSYLVANIA PERCS, INC. NO. 2010-2324 Plaintiff, RELATED CASE: None ASSIGNED JUDGE: None v. CIVIL ACTION -LAW RESTUCCIA EXCAVATING, INC. Defendant. ANSWER & NEW MATTER NOW COMES the Defendant, RESTUCCIA EXCAVATING, INC., by its counsel, John M. Ogden, of the Law Firm of Holt & Ogden, LLP and files this ANSWER & NEW MATTER to the Complaint, alleging the following facts: 1. Denied. After reasonable investigation the Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. Strict Proof Demanded at Trial. 2. Denied. After reasonable investigation the Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. Strict Proof Demanded at Trial. 3. Denied. After reasonable investigation the Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. Strict Proof Demanded at Trial. 4. Denied. After reasonable investigation the Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. Strict Proof Demanded at Trial. 5. Admitted. 6. Denied. After reasonable investigation the Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. Strict Proof Demanded at Trial. 7. Denied. After reasonable investigation the Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. Strict Proof Demanded at Trial. 8. Denied. After reasonable investigation the Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. Strict Proof Demanded at Trial. 9. Denied. The Defendant did comply with PA One Call. All of the lines which were required to be marked under PA One Call were marked with various paint colors and flags. The Defendants adhered to all PA One Call standards and standards in the excavating industry. Strict Proof Demanded at Trial. 10. Denied. The Defendant was not negligent in any way. The Defendant complied with all Pa One Call standards and standards in the excavating industry. The Defendant had a "ground man" at the scene guiding the excavation. The conduit were struck by the heavy equipment because the conduit were not set into the ground in accordance with Pa One Call standards. Moreover, the conduit was damaged as the result of heavy equipment being driven over the driveway where the shallow lines were set. Strict Proof Demanded at Trial. 11. Denied, The Defendant did not operate the equipment in a negligent manner. The Defendant operated its equipment in a reasonable and workmanlike manner and complied with all standard in the industry. The Defendant complied with all PA One Call standards and markings. The shallow conduit was improperly set. The wires and conduit should have been at least 21" below the surface. Instead the lines were too shallow. Compliance with Pa One Call would not prevent the conduit from being hit. The curbs were set by another contractor. The Defendant has instructions to excavate a certain distance to allow for a stone base followed by blacktop. There should have been no shallow conduit or exposed wires or conduit. Strict Proof Demanded at Trial. COUNT I -NEGLIGENCE COMMON LAW TORT 12. No response is required. 13. Denied. The Defendant was no negligent in any manner whatsoever. The Plaintiff was not hired by the general contractor to repair the signal light, but rather by the Township "road boss, "who was alerted that the light was out. The Defendant was negligent in failing to relocate the conduit lines which were set too shallow and failed to meet job specifications and PennDot specifications. Strict Proof Demanded at Trial. 14. Denied. The Defendant did not act in a negligent manner and therefore is not liable for any damages sustained as a result of improperly placed wires and conduit. Strict Proof Demanded at Trial. 15. Denied. The Defendant did not act in any way negligently and did not breach the standard of care of a reasonable excavator. The conduit was set too shallow for the specifications for the intersection excavation. The Defendant was not on notice that the conduit was too shallow and would interfere with the excavating. The area where the conduit was broken was used as a construction entrance where heavy equipment would pass over the lines on a regular basis. Strict Proof Demanded at Trial. WHEREFORE, the Defendant respectfully requests that this Honorable Court dismiss the complaint. COUNT II -VIOLATION OF PA ONE CALL LAW, 73 P.S. 176, ET SEQ NEGLIGENCE PER SE 16. No response is required. 17. Denied. The Defendant did comply with the Pa One Call, 73 P.S. 176, Et. Seg., as amended. The lines were marked with paint and flags. However, the paint and the flags were not able to be seen because the intersection being used a construction entrance with heavy equipment constantly driving over the area where the lines were located. There was nothing to indicate the depth of the conduit. There was no way of knowing that the wire and conduit was not to specifications. Strict Proof Demanded at Trial. 18. Denied. The Defendant had the job superintendent, Hogg Construction Company, Inc., contact PA One Call and the lines were marked. 73 P.S. 180. There was no mark over the broken line. Strict Proof Demanded Trial. 19. Denied. The Defendant had the job superintendent, Hogg Construction Company, Inc., contact PA One Call and the lines were marked. 73 P.S. 180. There was no mark over the broken line. Strict Proof Demanded Trial. 20. Denied. The Defendant did not violate the underground utility line protection law. A. Denied. The Defendant did adhere to all specifications. The Defendant did employ prudent excavation techniques to ascertain the exact location of underground conduit lines. B. Denied. The Defendant did take all reasonable steps to avoid damages to the conduit lines. The conduit lines damages were not owned by the Plaintiff. The Plaintiff did not know that the lines were located in that location. The Plaintiff should have relocated the conduit lines because they were set too shallow and constituted a hazard. The Defendant then assisted the Plaintiff is relocating the conduit to the proper depth. Strict Proof Demanded at Trial. C. Denied. The conduit lines were set too shallow and it was unknown by the Plaintiff and the Defendant. The Defendant was not negligent in that the conduit lines had to be relocated once it was discovered that they were too shallow. Strict Proof Demanded at Trial. D. Denied. The Defendant did have a ground man to dig by hand but there were no markings at all where the conduit line was broken. Strict Proof Demanded at Trial. E. Denied. The Defendant did have a ground man to dig by hand but there were no markings at all where the conduit line was broken. Strict Proof Demanded at Trial. 21. Denied. The Defendant took all reasonable steps and worked with the general contractor to locate all underground utility lines. Strict Proof Demanded at Trial. 22. Denied. The Defendant took all reasonable steps and worked with the general contractor to locate all underground utility lines. The conduit lines were set too shallow and did not meet the specifications for the job. The Plaintiff was in violation of the job specifications which caused the injury to the conduit. Strict Proof Demanded at Trial. 23. Denied. The Defendant took all reasonable steps and worked with the general contractor to locate all underground utility lines. The conduit lines were set too shallow and did not meet the specifications for the job. The Plaintiff was in violation of the job specifications which caused the injury to the conduit. Strict Proof Demanded at Trial. WHEREFORE, the Defendant respectfully requests that this Honorable Court dismiss the complaint. NEW MATTER 24. The conduit would have been damages had the excavator not discovered the Shallowness of the wire and conduit. If the blacktop had been poured, given the shallowness of the wire and conduit, it would have been damaged from the traffic at the intersection, causing more expenses to repaid the wire and conduit. 25. The Plaintiff was negligent in allowing the conduit line at the intersection to be set too shallow and in violation of the specifications. 26. The Defendant discovered that the conduit line was too shallow and once that discovery was made, the Plaintiff was under an obligation to relocate the conduit line in accordance with the job specifications and with PennDot specifications. 27. The Plaintiff has failed to state a cause of action for which relief may be granted. 28. The Plaintiff has no standing to file suit against the Defendant as the Plaintiff was not hired by the Defendant and has no privity of contract with the Defendant. 29. The Plaintiff was hired by the Township to repair the traffic signal and was not hired by the Defendant or the general contractor. 30. The Plaintiff was negligent in allowing underground conduit lines which failed to meet the depth requirement to be left in the ground, to be driven over by heavy equipment and to be prepared to be covered by ballast stone and blacktop, thus causing the light at the intersection to fail in the future. 31. The Plaintiff has no jurisdiction over the Defendant as the applicable statute of limitations had expired. WHEREFORE, the Defendant respectfully requests that this Honorable Court dismiss the complaint. Respectfully Submitted, H T & OGDEN, LLP DATED: O BY: . Ogden John M. Ogden, Esquire 34 North Queen Street York, PA 17403 (717) 846-0550 F (717) 846-0687 PA Supreme Court ID# 67940 Email: OgdenjmC~gmail. com IN THE COURT OF COMMON PLEAS OF YORK COUNTY PENNSYLVANIA PENNSYLVANIA PERCS, INC. NO. 2010-2324 Plaintiff, RELATED CASE: None ASSIGNED JUDGE: None v. CIVIL ACTION -LAW RESTUCCIA EXCAVATING, INC. Defendant. VERIFICATION The statements contained in this Motion are those of my attorney, however, I have reviewed the Motion and verify that the averment or denial contained therein are true and correct to the best of my personal knowledge or information and belief. The undersigned understands that false statements herein are made subject to the penalties of 18 Pa.C.S. Sec. 4904, relating to unsworn falsification. Date: l b John M. Ogden, Esquire 34 North Queen Street York, PA 17403 (717) 846-0550 F (717) 846-0687 PA Supreme Court ID# 67940 Email: OgdenjmC~3gmail. com IN THE COURT OF COMMON PLEAS OF YORK COUNTY PENNSYLVANIA PENNSYLVANIA PERCS, INC. NO. 2010-2324 Plaintiff, RELATED CASE: None ASSIGNED JUDGE: None v• CIVIL ACTION -LAW RESTUCCIA EXCAVATING, INC. Defendant. CERTIFICATION OF SERVICE I am the attorney for the above captioned party in this action, and hereby certify that on this date, I served a true and correct copy of a ANSWER & NEW MATTER through the U.S. Postal Service with the proper postage to the Defendant at the following address: ANDREW C. SHEELY, ESQUIRE 127 SOUTH MARKET STREET PO 95 MECHANICSBURG, PA 17055 DATED: OpI~II~U BY: Andrew C. Sheely, Esquire 127 S. Market Street P.O. Box 95 Mechanicsburg, PA 17055 PA ID NO. 62469 717-697-7050 (Phone) 717-697-7065 (Fax) andrewc.sheely@verizon.net PENNSYLVANIA PERCS, INC., a Pennsylvania Corporation, Plaintiff VS. RESTUCCIA EXCAVATING, INC., a Pennsylvania Corporation, Defendant ,r OF 74, PEWNS'YIVANto IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 10 - 2324 CIVIL ACTION - LAW PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER Plaintiff, Pennsylvania PERCS, Inc., by and through counsel of Andrew C. Sheely, Esquire, hereby files Plaintiff's Reply to Defendant's New Matter, and respectfully states as follows: 24. Denied, and strict proof thereof demanded at arbitration or trial. By way of further reply, Plaintiff has no knowledge as to when Defendant discovered the shallowness of wire and conduit at the intersection and therefore Plaintiff is unable to admit or deny the allegation in Paragraph 24 of Defendant's New Matter. 25. Denied, and strict proof thereof demanded at arbitration or trial. By way of further reply, Plaintiff only installed a portion of the conduit line at the intersection and the new conduit line and wire installed by Plaintiff was placed in accordance with job specifications and PennDOT specifications. 26. Denied, and strict proof thereof demanded at arbitration or trial. Plaintiff has no knowledge as to when Defendant discovered the depth the wire and conduit and therefore is unable to admit or deny the allegation in Paragraph 26 of Defendant's New Matter. By way of further reply, the new conduit installed by Plaintiff was placed in accordance with job specifications and PennDOT specifications in a safe and reasonable manner. 27. Denied, and strict proof thereof demanded at arbitration or trial. By way of further Reply, the allegations of Paragraph 27 of Defendant's New Matter are conclusions of law to which no reply is necessary. 28. Denied, and strict proof thereof demanded at arbitration or trial. By way of further reply, the allegations of Paragraph 28 of Defendant's New Matter are conclusions of law to which no reply is necessary. 29. Denied, and strict proof thereof demanded at arbitration or trial. To the contrary, Plaintiff was employed by Hogg Construction, Inc. to relocate an existing pole supporting traffic control devices, install a new pole supporting traffic control devices, install new conduit to the new pole and maintain the traffic control devices during the intersection repairs. 2 30. Denied, and strict proof thereof demanded at arbitration or trial. By way of further reply, Plaintiff only installed a portion of the conduit line at the intersection and the conduit installed by Plaintiff was placed in accordance with job specifications and PennDOT specifications. Plaintiff's damages occurred due to the negligent actions of Defendant and not any action or inaction of Plaintiff. 31. Denied, and strict proof thereof demanded at arbitration or trial. By way of further Reply, Plaintiff: only installed a portion of the conduit line at the intersection and the conduit installed by Plaintiff was placed in accordance with job specifications and PennDOT specifications in a safe and reasonable manner. WHEREFORE, Plaintiff respectfully requests the dismissal of Defendant's New Matter and respectfully requests the entry of a judgment in favor of Plaintiff and against Defendant for -the reasons and the amounts set forth in Plaintiff's Complaint. Respectfully submitted, August L-e3, 2010 By: Andrew C. Sheely, Es Pa. ID No. 62469 127 S. Market Street P.O. Box 95 Mechanicsburg, PA 17055 717-697-7050 Attorney for Plaintiff, Pennsylvania PERCS, Inc. 3 VERIFICATION I verify that the statements made in this Plaintiff's Reply to New Matter are true and correct. I understand that false statements herein are made subject to penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. 7 r Date: August 16 2010 1-6, a A, - V f " .1 , Shiron Pellm n, Presid t PENNSYLVANIA PERCS, INC. CERTIFICATE OF SERVICE I, Andrew C. Sheely, Esquire, hereby certify that I am this day serving the foregoing Plaintiff's Reply to New Matter upon the following named individual this day by depositing same in the United States Mail, First Class, postage prepaid, at Mechanicsburg, Pennsylvania, addressed as follows: John M. Ogden, Esquire Holt & Ogden, LLP 24 N. Queen Street York, PA 17403 Date: August -3U , 2010 Andrew C. Sheely, Esq-' John M. Ogden, Esquire 34 North Queen Street York, PA 17403 (717) 846-0550 F (717) 846-0687 PA Supreme Court ID# 67940 Email: Ogdenjm@gmail. com ~'ILED-OFFIGE OF THE PROTHONOTARY 2U{0 OCT 26 AM 8~ 59 CUMBERLAND COUNTY PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF YORK COUNTY PENNSYLVANIA PENNSYLVANIA PERCS, INC. NO. 2010-2324 Plaintiff, RELATED CASE: None ASSIGNED JUDGE: None v. CIVIL ACTION -LAW RESTUCCIA EXCAVATING, INC. Defendant. MOTION TO WITHDRAW APPEARANCE OF COUNSEL Submitted by: John M. Ogden, Esquire FOR THE PLAINTIFF: ANDREW C. SHEELY, ESQUIRE 127 SOUTH MARKET STREET PO BOX 95 MECHANICSBURG, PA 17055 (717) 697-7050 F (717) 697-7065 Email: AndrewC.SheelUG~verizon.net FOR THE DEFENDANT: JOHN M. OGDEN, ESQUIRE 34 NORTH QUEEN STREET YORK, PA 17403 (717) 846-0550 F (717) 846-0687 PA SUPREME COURT ID# 67940 Email: Oc~denjmG~gmail. com John M. Ogden, Esquire 34 North Queen Street York, PA 17403 (717) 846-0550 F (717) 846-0687 PA Supreme Court ID# 67940 Email: OgdenjmC~gmail. com IN THE COURT OF COMMON PLEAS OF YORK COUNTY PENNSYLVANIA PENNSYLVANIA PERCS, INC. NO. 2010-2324 Plaintiff, RELATED CASE: None ASSIGNED JUDGE: None v. CIVIL ACTION -LAW RESTUCCIA EXCAVATING, INC. Defendant. MOTION TO WITHDRAW APPEARANCE OF COUNSEL NOW COMES the Petitioner, Holt & Ogden, LLP, and files this MOTION TO WITHDRAW APPEARANCE OF COUNSEL to the Complaint, alleging the following facts: 1. The Petitioner filed an Answer & New Matter on August 11, 2010 on behalf of the Defendant. 2. The Petitioners have had no contact with the Defendant since that time in connection with the above matter. 3. The Defendant has communicated, through a paralegal, that they no longer wish to employ the services of Holt & Ogden, LLP in this matter. IN WITNESS WHEREOF, the Movant respectfully requests that this Honorable Court grant leave to the Law Firm of Holt & Ogden, LLP and John M. Ogden to withdraw. as counsel of record for the Defendant. Respectfully Submitted, ~~J v`' DATED: ~_ HOLT & OGDEN, LLP BY: Jon .Ogden John M. Ogden, Esquire 34 North Queen Street York, PA 17403 (717) 846-0550 F (717) 846-0687 PA Supreme Court ID# 67940 Email: Ogdenjm~gmail. com IN THE COURT OF COMMON PLEAS OF YORK COUNTY PENNSYLVANIA PENNSYLVANIA PERCS, INC. NO. 2010-2324 Plaintiff, RELATED CASE: None ASSIGNED JUDGE: None v. CIVIL ACTION -LAW RESTUCCIA EXCAVATING, INC. Defendant. CERTIFICATION OF SERVICE I am the attorney for the above captioned party in this action, and hereby certify that on this date, I served a true and correct copy of a MOTION TO WITHDRAW APPEARANCE OF COUNSEL through the U.S. Postal Service with the proper postage to the Defendant at the following address: ANDREW C. SHEELY, ESQUIRE 127 SOUTH MARKET STREET PO 95 MECHANICSBURG, PA 17055 ,~~~v ~p~ DATED: BY: Respectfully Submitted, HOLT & OGDEN. LLF Ogden f PENNSYLVANIA PERCS, IN THE COURT OF COMMON PLEAS OF INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION - LAW IZESTUCCIA EXCAVATING, INC., Defendant NO. 10-2324 CIVIL TERM IN RE: MOTION TO WITHDRAW APPEA NCE OF COUNSEL ORDER OF COURT AND NOW, this 3Ca day of November, 2010, upon consideration of the Motion To Withdraw Appearance of Counsel, a Rule is hereby issued upon Plaintiff and Defendant to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of the date of this c BY THE COURT, ,.,,,Andrew C. Sheely, Esq. 127 South Market Street P.O. box 95 Mechanicsburg, PA 17055 Attorney for Plaintiff ohn M. Ogden, Esq. 34 North Queen Street York, PA 17403 Attorney for Defendant 1---'46e-stuccia Excavating, Inc, 55 Dallas Drive Dallastown, PA 17313 tom' rn,?c ?_ t Andrew C. Sheely, Esquire 127 S. Market Street P.O. Box 95 Mechanicsburg, PA 17055 PA ID NO. 62469 717-697-7050 (Phone) 717-697-7065 (Fax) andrewc.sheely@verizon.net PENNSYLVANIA PERCS, INC., a Pennsylvania Corporation, Plaintiff VS. RESTUCCIA EXCAVATING, INC., a Pennsylvania Corporation, Defendant FILEO.OFFICE OF THE PROTHONOTARY 1010 NOV 23 PM 2: 34 CUM?ERLANO COUNTY P NNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 10 - 2324 CIVIL ACTION - LAW ANSNZR TO RULE IN RS: MOTION TO WITHDRAN APPSARANCH OF COUNSEL Plaintiff, Pennsylvania PERCS, Inc., by and through counsel of Andrew C. Sheely, Esquire, hereby files this Answer to the Rule dated November 3, 2010 and respectfully states as follows: 1. Admitted. 2. Plaintiff is without sufficient information to admit or deny the allegations set forth in paragraph 2 of the Motion to Withdraw therefore they are denied. By way of further reply, Plaintiff has no objection to the requested relief in the Motion to Withdraw. 3. Plaintiff is without sufficient information to admit or deny the allegations set forth in paragraph 2 of the Motion to withdraw and therefore they are denied. By way of further reply, Plaintiff has no objection to the requested relief set forth in the Motion to Withdraw. WHEREFORE, Plaintiff has no objection to the requested relief set forth in the Motion to Withdraw. Respectfully submitted, November 9 , 2010 By: 41)6?j Q And a C. Sheely, Esq ire PA ID No. 62469 127 South Market Street P.O. Box 95 Mechanicsburg, PA 17055 717-697-7050 Attorney for Plaintiff, Pennsylvania PERCS, Inc. 2 CERTIFICATE OF SERVICE I, Andrew C. Sheely, Esquire, hereby certify that I am this day serving the foregoing Plaintiff's Answer to Rule upon the following named individual this day by depositing same in the United States Mail, First Class, postage prepaid, at Mechanicsburg, Pennsylvania, addressed as follows: John M. Ogden, Esquire Holt & Ogden, LLP 24 N. Queen Street York, PA 17403 Date: November 2,) , 2010 176 A/,/CNM-447f . /6.,c5 /0- cR3a1f vs Pla-t7 t4> Case No. nn C) r ' . & i f cC r 4- C-Xed-✓)fTa/6 I Thic rn CO c) ..{ s ale/1 can --1 C)' Statement Intention to Proceed ^'f r_:47 To the Court: °n q . % 27. //S t/ ti 5 Dv(' . intends to proceed with the above captrolied iwtter;;„ Print Name dcvi 0! - Sign Name r Date: (V2-5/.26/ • Attorney for /wit/mil Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. I.Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice,preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v.Eagle,551 Pa. 360,710 A.2d 1104 (1998) in which the court held that"prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision(a)of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity,the course of the procedure is with the parties. If the parties do not wish to pursue the case,they will take no action and"the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter,he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d)for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket,subdivision(d)(2)provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period,subdivision(d)(3)requires that the plaintiff must make a showing to the court that the petition was promptly filed and that there is a reasonable explanation or • legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision(d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2.