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HomeMy WebLinkAbout10-2607COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. 0 7 C NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. NAME OF APPELLANT cu ( ? I ?. MAG. . NO. D I NAME OF D J. C? G r la A C 1 c M ,4 r- ADDRESS OF APPELLAI -- CITY Ul I) Cc STATE ?? ZIP CODE /'7011 , ,,vt a DATE J DGMEN ?ti i p IN THE CASE OF (Plaintilf) u s IL d ?-r"rt?r )' ?J vt cGCJL' f N o l - M DOCKET No. ( / SIGNATURE OF APPELLANT OR ATTO ORAGENT . y -I Or This block will be signed ONLY when this notation is required under Pa. 1 If appellant was Claimant (see Pa. R.C.P.D.J. No. 1001(6) in action R.C.P.D.J. No. 1008B. This Notice of Appeal, when received by the District Justice. will operate as a before a District Justice, A COMPLAINT MUST BE FILED within twenty SUPERSEDEAS to the judgment for possession in this case. (20) days after filing the NOTICE of APPEAL. SOWft edProthonataryarDspdy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon 14 Stir' V ( c C S iZ, 6{ ? n 1 Q L,,, S(L' appellee(s), to file a complaint in this appeal Name of appeMee(s) (Common Pleas No. /0- c?_ eo Q -7 within twenty (20) days after service of rule or suffe ntry of judgment of non pros. IL S2rv Signature of appellant or attorney or agent RULE: To appellee(s) Name of appeltee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. r ??u:?X? Date: 20 / h W o - sow- of Prolf-dary or Deputy cvt YOU MUST MICLUDE A COPY OF THE NOTICE OF JUDGMENTITRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02? 2# sYO X70 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 ofafriant Signature of official before whom affidavit was made Title Of official My commission expires on 20 cm C l: a * Et Ck:: r.? Q LL o N U COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mag. Dist. No.: 09-1-01 NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS FEK SERVICES INC/KEN BEINHOWER SR 260 OLD YORK ROAD NEW CUMBERLAND, PA 17070 MDJ Name: Hon. CHARLES A. CLEMENT, JR Address. 400 BRIDGE ST OLDE TOWNE COMMONS -SUITE 3 NEW CUMBERLAND, PA Telephone: (717 ) 774 - 5989 17070 COAKLEYS C/O TIM HOGG 322 EQUUS DRIVE CAMP HILL, PA 17011-8380 THIS IS TO NOTIFY YOU THAT: Judgment: FOR PLAINTIFF (Date of Judgment) 3/22/10 ® Judgment was entered for: (Name) EK SERVICES INC/KEN, BEINHOWER Judgment was entered against: ((Name) COAKLEYS C/O TIM HOGG in the amount of $ 3, M.4 Defendants are jointly and severally liable. Damages will be assessed on Date & Time This case dismissed without prejudice. Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 Portion of Judgment for physical damages arising out of residential lease $___ Amount of Judgment $ 3,526.43 Judgment Costs $_ 125.00 Interest on Judgment $ -00 Attorney Fees $ Total $ 3,651.43 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. 1 /26 / Jot 0 Date ?d . _ , Magisterial District Judge I certify that this is a true an c rrect co y of t e re f the pr gs containing the judgment. APR 2 2010Date Magisterial District Judge My commission expires first Monday of January, 2014 SEAL AOPC 315-07 DATE PRINTED: 3/26/10 3:46:00 PM L J VS. DEFENDANT: NAME and ADDRESS rCOAKLEYS C/O TIM HOGG __1 322 EQUUS DRIVE CAMP HILL, PA 17011-8380 L J Docket No.: CV-0000065-10 Date Filed: 1/26/10 y, Fll.~t}-+~r'r ~ P~QtH~'~*~}TAF?Y 2Qfo nAr i 2 ~~ s~ ~9 '~~ 4J 'v'0~1(~Y ~~~~~~ E. K. SERVICES, INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 10-2607 TIM HOGG, t/d/b/a COAKLEY'S RESTAURANT . Defendant :CIVIL ACTION -LAW COMPLAINT AND NOW, comes Plaintiff, E. K. SERVICES, INC., by its attorneys, KUNDRAT & ASSOCIATES, and states the following cause of action: 1. Plaintiff, E. K. Services, Inc., is Pennsylvania corporation with offices located at 260 Old York Road, New Cumberland, Pennsylvania, 17070-3151. 2. Defendant, Tim Hogg, is an adult individual residing at 322 Equus Drive, Camp Hill, Pennsylvania, 17011. 3. Plaintiff is, and at all relevant times was; a contractor. 4. Defendant is, and at all relevant times was, an adult individual. 5. During all relevant times hereto, Defendant conducted business using the fictitious name Coakley's Restaurant. 6. On or about September 30, 2009, the parties entered into a contract for Plaintiff to furnish and install a 6" water line at Coakley's Restaurant located at 305 Bridge Street, New Cumberland, Pennsylvania, for the amount of $3,882.00, a copy of which contract is attached hereto as Exhibit "A". 7. Plaintiff completed the work on October 30, 2009 and hand-delivered an invoice to Defendant, a copy of which is attached hereto as Exhibit "B". 8. Pursuant to the terms and conditions of the contract attached as Exhibit "A", Plaintiff is entitled to receive a finance charge of 1.5% per month on past due amounts. 9. Pursuant to the terms and conditions of the contract, Defendant agreed to pay an additiona120% of the amount due if an attorney is required to collect this debt. 10. Plaintiff has retained the law firm of Kundrat & Associates. 11. Any and all conditions precedent to the bringing of this action have been performed by Plaintiff. 12. The amount in controversy is within the jurisdictional amount requiring compulsory arbitration. WHEREFORE, Plaintiff, E. K. SERVICES, INC., respectfully requests that judgment be entered in its behalf and against Defendant, TIM HOGG, t/d/b/a COAKLEYS RESTAURANT, in the amount of $3,882.00, interest at the rate of 1.5% per month from October 27, 2009, plus attorney's fees in the amount of $776.40, the costs of this action, and such relief as the court deems just and proper. KUNDRAT & ASSOCIATES By John S. t, Esquire 107 Bo Street Harrisburg, Pennsylvania 17102 (717) 232-3755 Attorney I.D. No. 24958 Attorney for Plaintiff Date: May 7, 2010 2 osal No. E09-2099 ~ Pro OS Q.I Prop p ~~// A ~ Price gaoted does not iadade the toIIowin~: R C E S 1. Permits or fees 2. Underground utility crossings, unusual debris, or any other unforeseen situation resulting iriloss of time. ~, Pioae: (717) 774.7913 Fas: (717) 774-7917 3. Any rock encountered that cannot be avoided or removed with a standard bucket on backhoe wIll be BILLED EX1RA. 260 Old York Road 4. landscape restoration. New Cumberland, PA 17070-3151 if you nave any questions concerning this Proposal contact Dan I~einbower, 7747913 or danbeinhare[9ekserviceinc.com JOB NAME: 6" Water Service Line JOB PHONE: 717-571-4900 JOB ADDRESS: 305 Bridge St., New Cumberland Coakley's Restaurant 305 Bridge St. New Cumberland, PA 17070 We hereby submit specifications and estimates for: RE: E.K Service inc. -will furnish a!I ec;!.fic~mPnt: labor, and ma=axial t~, ir+stali a &" tivater serviAe tine. Scope of work to include the following: 1. Remove 1 block of sidewalk and section of decorative wall. 2. Furnish and place 6" FLG x PED.1 pipe from curb stop to basement. 3. Furnish and place 6" FLG Gate Valve with hand wheel. 4. Backfill with stone and compact. 5. Restore 1 block of sidewalk and section of decorative wall. TOTAL COST $3,882.00 PA Certified contractor# PA023561 We Propose hereby to furnish material and labor -complete in accordance with above specifications. Payment to be made as follows: N/30, 1 ~i % Finance chazge per month. ~ due attorney's fees of 20%. If an attorney is required to collect this obligation, there shall be added to the amount All material is guaranteed to be as specified. All work to be complete in a workmanlike manner according to standazd Q - a9_ pq practices. Any alteration or deviation from above specifica- tions involving extra costs will be executed only upon writ- Authorized Signature and Date ten orders, and will become an extra charge over and above the estimate. All arrangements contingent upon strikes, Note: We may withdraw this proposal if not accepted accidents or delays beyond our control. Owner to carry ~~ 20 days. 8re, tornado and other necessary insurance. Our workers are full covered b Workman's Com ensation Insurance. Acceptance of Proposal -The above prices, sped- ~ fications and conditions are satisfactory and are hereby ~ ~ ~~ accepted. You aze authorized to do the work ass ecified. Payment will be made as outlines above. EXHIBI Signature and Date T Please retain one copy for one SIGNED copy with deposit ,.'°_~, 260 Old York Road gE K.E New Cumberland, PA 17070 717-774-7913 www.ekserviceinc.com "Building Infrastructure Today for a Better Tomorrow" Coakley's Restaurant 305 Bridge St. New Cumberland, PA 17070 3rd Street ~ New Cumberland Borough ~,\ r r ('js ~~ • Invoice 10/27/2009 E09-2099 ~~oti ~e N/30, 1.5% finance ch... ~ 11/26/2009 RE: Insta116" Fire service line from curb to building as stated on proposal E09-2099. 10/1/2009 Amount Due Amount due as per proposal 1 3,882.00 3,882.00 Adjustment ADJUSTMENT - Upon installing line we were not required to 1 -472.75 -472.75 install 6" FLG Gate Valve with hand whcel as stated on original proposal Adjustment ADJUSTMENT -Elevation ofPennsylvania-American Water 1 362.08 362.08 supply line was too low to facilitate entry to required area of basement. To correct elevation E.K. Services Inc. installed 2 - 45 degree bends and 4 mega lugs. This material was not included in original proposed price. Thank you for your business! EXHIBIT TOte1I ~ $3,771.33 PaymentslCredits so.oo Balance Due $3,771.33 ~,: 05-07-'10 09;13 FROM-E K SERVICE 717-779-7917 T-EQ4 F001f001 F-533 r a r r_ .~ c. .. V u .. 1" t"td`~ a7 i() lU:l1~/3 KU11A1'7aR. d t1550GId~-r`~ VE CATl4N 1, KEN BEINH0INER, authorized aseat of E. K. SERVICES, INC., do hereby verify that the facts stated in the foregoing instrumtnt are tsue and comcct to the Brest of my knowledge, information and belief. i undustaad that false statements herein are made subjoct to the penalties of t S Pa.C.S. §4904 relating to unswom falsification to authorities. :~ .- Ken Bcinhower nat~: 5 ~- i a CERTIFICATE OF SERVICE /,t.. AND NOW, this ~~ f day of ~~ , 2010, I, Anna M. Hause, secretary for the law firm of Kundrat & Associates, Counsel for Plaintiff, hereby certify that a true and correct copy of the foregoing Complaint was served via first class mail, postage prepaid addressed to the parties or counsel of record as follows: Tim Hogg 322 Equus Drive Camp Hill, PA 17011 and Tim Hogg c/o Coakley's Restaurant 305 Bridge Street New Cumberland, PA 17070 KUNDRAT & ASSOCIATES ~~~ ~ y~- Anna M. Hause 107 Boas Streets Harrisburg, PA 17102 717-232-3755 3 David J. Lanza Attorney I.D. No. 55782 2132 Market Street Camp Hill, PA 17011 (717) 730-3775 Attorney for Defendant E.K. SERVICES, INC. Plaintiff v. TIMOTHY J. NOGG t/d/b/a COAKLEY'S RESTAURANT Defendant i : ~+.. zoia ~u~~ -9 ~~~ ~: u ~ ~~i`~~ v~~~~'~~'e;'Jifi! IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-2607 CIVIL ACTION -LAW PRELIMINARY OBJECTIONS 1. Plaintiff has failed to state a claim upon which relief can be granted. 2. Plaintiff has attached a purported contract document that was not executed by Defendant. 3. Without an executed agreement, Plaintiff is not entitled to collect attorney fees or interest at the rate specified. 4. The document was not executed on behalf of Timothy J. Hogg. Wherefore, Defendant requests that this Court dismiss and/or strike Plaintiff's Complaint. Respectfully submitted, ~\ ~c `~ Dated: \ David J. Lanza Attorney I.D. #55782 2132 Market Street Camp Hill, PA 17011 (717) 730-3775 Attorney for Defendant CERTIFICATE OF SERVICE AND NOW, this 9th day of June, 2010, I hereby certify that I have served a copy of the foregoing document on the following by depositing a true and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: John S. Kundrat, Esquire 107 Boas Street Harrisburg, PA 17102 By: ~ David Lanza D"'~3t`~ ~~~_ 2018.111N 21 PM 1 ~ ~ 9 "~~~ E. K. SERVICES, INC. Plaintiff v. TIM HOGG, t/d/b/a COAKLEY' S RESTAURANT Defendant IN THE COURT OF COMMON CUMBERLAND COUNTY, PEl NO. 10-2607 CIVIL ACTION -LAW PLAINTIFF' S RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS AND NOW, comes Plaintiff, E.K. SERVICES, INC., by its attorneys, OF VANIA T& ASSOCIATES, and responds to the Preliminary Objections of Defendant and in sup~ort thereof states as follows: 1. Paragraph 1 is a conclusion of law to which no response is required. 2. Denied. To the contrary, the signature on the contract document is to be that of Defendant. If it is determined that it is not the Defendant's signature, then it ~s submitted that it is the signature of the agent of Mr. Hogg acting with appropriate authority to bind the Defendant. 3. Paragraph 3 is a canclusion of law to which no response is required. 4. Denied. To the contrary, the document was executed by Mr. Hogg or authorized representative and Mr. Hogg received the benefits therefrom. WHEREFORE, we respectfully request that the Preliminary Objections of the Defendant be dismissed. KUNDRAT & SOCIATES By John S. Kundrat, Esquire Attorney I.D. No. 24958 107 Boas Street Harrisburg, PA 17102 (717) 232-3755 Attorney for Plaintiff Dated: June 17, 2010 CERTIFICATE OF SERVICE AND NOW, this 1~ay of , 2010, I, Anna M. Hause, secretary for the law firm of Kundrat & Associates, Counsel for Plaintiff, hereby certify that a true and correct copy of the foregoing Plaintiff's Response to Defendant's Preliminary Objections was served via first class mail, postage prepaid, addressed to the parties or counsel of record as follows: David J. Lanza, Esquire 2132 Market Street Camp Hill, PA 17011 KLTNDRAT & ASSOCIATES C,~~~ Anna M. Hause 107 Boas Streets Harrisburg, PA 17102 717-232-3755 David J. Lanza Attorney I.D. No. 55782 2132 Market Street Camp Hill, PA 17011 (717) 730-3775 Attorney for Defendant E.K. SERVICES, INC. Plaintiff v. TIMOTHY J. HOGG t/d/b/a COAKLEY' S RESTAURANT Defendant ~„ ~F T~ ~ ~ ~~~ ~'~TAnv Z~~~ ~~~ ~ 8 ~~ ~~ ~' ~E~f~l~~ftL~,~aU ~:x~t1t~~Y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-2607 CIVIL ACTION -LAW ANSWER 1. Denied. Defendant has no knowledge of Plaintiff s corporate status. 2. Admitted. 3. Admitted in Part. Denied in Part. To the extent that this averment constitutes a legal conclusion about the Plaintiff's status as "contractor" or the status or legal effect of any contract, such averment is denied. 4. Admitted. 5. Denied. It is denied that Defendant uses any such fictitious name. 6. Denied. It is denied that Defendant entered into or signed the document attached to the Complaint. 7. Denied. It is denied that Defendant completed the work or provided the invoice to Defendant. Plaintiff deviated from the terms of Exhibit "A" without authorization. Plaintiff s invoice chazges for services not required and that aze not the responsibility of Defendant. 8. Denied. It is denied that Defendant is a party to the contract or is responsible to pay for interest. By way of further denial, to the extent that charges have accumulated, such charges have accumulated as a result of Plaintiff's attempts to collect improper amounts. 9. Denied. Defendant did not agree to the terms of this contract. Defendant did not execute this document. By way of further denial, the attorney fee provision appeazs in a document that did not authorize all of the chazges that Plaintiff seeks to collect. 10. Admitted. 11. Denied. This averment constitutes a legal conclusion that requires no responsive pleading. By way of further denial, Plaintiff did not complete the work or invoice consistent with Exhibit "A." 12. Admitted. Wherefore, Defendant requests judgment in favor of Defendant and against Plaintiff and that Plaintiff's Complaint be dismissed. New Matter 13. Defendant incorporates the denials of ¶¶ 1-12 as if fully set forth herein. 2 14. Plaintiff s Complaint fails to state a claim upon which relief can be granted. 15. Plaintiff has named a party as a Defendant that did not execute the document attached as Exhibit "A." 16. Plaintiff is seeking damages and pursuing claims inconsistent with the terms of Exhibit "A." 17. Plaintiff seeks damages based on unwritten modifications to Exhibit "A," despite a clear prohibition on such modifications set forth in Exhibit "A." Counterclaim 18. Defendant incorporates the averments and denials of ¶¶ 1-17 as if fully set forth herein. 19. Plaintiff has initiated this action against a party that did not execute the agreement and has included terms that were not contained in the original agreement. 20. Plaintiff has interposed these claims for an improper purpose. 21. Defendant has been forced to incur attorney fees to defend against this action. 3 Wherefore, Defendant demands judgment for all attorney fees expended through the time of trial in this action. Dated: ~~ ~ /! ~ l y ~, 7 Respectfully submitted, David J. Lanza. Attorney I.D. #55782 2132 Mazket Street Camp Hill, PA 17011 (717) 730-3775 Attorney for Defendant 4 ,, CERTIFICATE OF SERVICE AND NOW, this ~~ day of October, 2010, I hereby certify that I have served a copy of the foregoing document on the following by depositing a true and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: John S. Kundrat, Esquire 107 Boas Street Harrisburg, PA 17102 By: David Lanza VERIFICATION I, TIMHOGG, verify that the statements made in this Answer are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S.A §4904, relating to unsworn falsification to authorities. Date: /~ /J ~ ~ ~' By: _..... ~ -= i..-. 6 Tim Hogg David J. Lanza Attorney 1.D. No. 55782 2132 Market Street Camp Hill, PA 17011 (?17)730-3775 Attorney for Defendant E.K. SERVICES, INC. Plaintiff v. TIMOTHY J. HOGG t/d/b/a COAKLEY'S RESTAURANT Defendant ~ i N~ ~~ ~7~~~1~ ~TA~ j, 2~td OCT t ~ APf 9~ C ~U~McB ~R ~~~a ~r~tl~~i'T ~~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-2607 CIVIL ACTION -LAW PRAECIPE TO WITHDRAW PRELIMINARY OBJECTIONS Please withdraw the Preliminary Objections of Plaintiff. Respectfully submitted, Dated: ~ 1 ` ~ ~'~ David J. Lanza Attorney I.D. #55782 2132 Market Street Camp Hill, PA 17011 (717) 730-3775 Attorney for Defendant CERTIFICATE OF SERVICE AND NOW, this 15~' day of October, 2010, I hereby certify that I have served a copy of the foregoing document on the following by depositing a true and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: John S. Kundrat, Esquire 107 Boas Street Harrisburg, PA 17102 By: avid Lanza r~~-, '~ s-~t ~~ ~ ~ .. ~. _;-~ ~: c~~ t4W~ ~ -a ~ ~" . .~ .~ j ~. _ ca. ~ E. K. SERVICES, INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 10-2607 TIM HOGG, t/d/b/a COAKLEY'S RESTAURANT Defendant :CIVIL ACTION -LAW RESPONSE TO NEW MATTER AND COUNTERCLAIM AND NOW, comes Plaintiff, E. K. SERVICES, INC., by its attorneys, Kundrat & Associates, and states the following in response to Defendant's Answer with New Matter and Counterclaim: New Matter 13. No response is required. 14. Denied. To the contrary, Plaintiff s Complaint does state a claim upon which relief can be granted. 15. Denied. To the contrary, Plaintiff has named a party which did execute the document stated as Exhibit "A" to the Complaint (hereinafter Exhibit "A"). Should it be determined that Defendant did not execute the Exhibit, it is submitted that an agent for Defendant executed same. 16. Denied. To the contrary, the damages are not inconsistent with Exhibit "A". ,~ 17. Denied. To the contrary, the damages are based on Exhibit "A" and subsequent modifications. WHEREFORE, Plaintiff requests that Defendant's New Matter be dismissed. Counterclaim 18. No response is required. 19. Denied. It is denied that Plaintiff has initiated this action against an incorrect party. If it is determined that Defendant did not execute the agreement, it is submitted that an agent of Defendant did execute the agreement. Byway of further answer, it is denied that terms were included which were not contained in the original agreement. 20. Denied. Plaintiff has made its claims for the appropriate purpose to collect monies due. 21. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of this averment and, therefore, it is denied and strict proof at trial is demanded. WHEREFORE, Plaintiff requests that the claims made in the Counterclaim be denied. KUNDRAT & ASS C TES By John S. Kundrat, Esquire Attorney I.D. No. 24958 107 Boas Street Harrisburg, PA 17102 (717) 232-3755 Attorney for Plaintiff Dated: October 27, 2010 CERTIFICATE OF SERVICE AND NOW, this o~'~d y of ~'-~~ f~ , 2010, I, Anna M. Hause, secretary for the law firm of Kundrat & Associates, Counsel for Plaintiff, hereby certify that a true and correct copy of the foregoing Plaintiff s Response to Defendants New Matter and Counterclaim was served via first class mail, postage prepaid, addressed to the parties or counsel of record as follows: David J. Lanza, Esquire 2132 Market Street Camp Hill, PA 17011 KUNDRAT & ASSOCIATES Anna M. Hause 107 Boas Streets Harrisburg, PA 17102 717-232-3755 j } E. K. SERVICES, INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 10-2607 TIM HOGG, tld/bla COAKLEY' S RESTAURANT Defendant : CIVIL ACTION - LAW PRAECIPE TO ATTACH VERIFICATION To: Cumberland County Prothonotary Please file the attached Verification to the Response to New Matter and Counterclaim in the above-captioned matter. KUNDRAT & ASSOCIATES By o S ndra , squire Atto y I.D. No. 24958 107 Boas Street Harrisburg, PA 17102 (717) 232-3755 Attorney for Plaintiff Dated: November 5, 2010 11-04-'10 09:31 FROM-E K SERVICE 727-774-7917 VERIFICATION 7-48: 1'00'1 /001 °-293 I, KEN HEINHOWER, authorized agent of E. K. SERVICES, INC., do hereby verify that the facts stated in the foregoing instrument are true and correct to the best of my knowtodges, infon-nation and belief. I understand that false statements herein are made subject to the penalties of 18 N.C. S. §4904 relating to unsworn falsification to authorities. 4en Heinhower Date: / 0 - ? '7 -/ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA E. K. SERVICES, INC. Plaintiff NO. 10-2607 20 Cµ/ vs. _C= Mo TIM HOGG t/d/b/a COAKLEY'S RESTAURANT ?-M RULE 1312-1 Defendant ?. r The Petition for Appointment of Arbitrators shall be substantially in Following form: ? oo PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Pte.? C=7 rn LTa Na N as C.r John S. Kundrat, Esquire , counsel for the plaintiff/ddanda" in the above action (or actions), respectfully represents that: 1. The above-captioned action 4? is4a;4at issue. 2. The claim of plaintiff in the action is $ 3,882.00 plus interest and fees The counterclaim of the defendant in the action is for legal fees A C.i o -2 C) i-a The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: John S. Kundrat, Esquire, and David J. Lanza, Esquire WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. w Qa Q*` Respectful s itted, kkAk 39&T ORDER OF COURT AND NOW, petition, Esq., and captioned action (or actions) as prayed for. 200 , in consideration of the foregoing Esq., and Esq., are appointed arbitrators in the above By the Court, Kevin A. Hess, P.J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA E. K. SERVICES, INC. Plaintiff NO. 10-2607 20 VS. ' C TIM HOGG t/d/b/a COAKLEY'S RESTAURANT =M RULE 1312-1 Defendant -f Z: ~v The Petition for Appointment of Arbitrators shall be substantially in Following form: Zrn D? PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: N C) N --i C3 za. = -y' "11 C)"11 Z C°3 - ?r*a W1 John S. Kundrat, Esquire , counsel for the plaintiff/defaad&at in the above action (or actions), respectfully represents that: 1. The above-captioned action (egsctioas)-is{,a;4at issue. 2. The claim of plaintiff in the action is $ 3,882.00 plus interest and fees The counterclaim of the defendant in the action is for legal fees The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: John S. Kundrat, Esquire, and David J. Lanza, Esquire WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to I whom the case shall be submitted. 01'{'%'LL60 ?C' 0*f Respectful s fitted, C, 3503 07 L I*d ORDER OF COURT AND NOW, c1 , 2001 , in consideration of the foregoing petition, Esq. and Esq., and A/ LA 2 Esq., are appointed arbitr ors in the?ov captioned action (or actions) as prayed for. rn u? rY By the Court b214 Za evin A. Hess, P.J. ?D? n S. ??unOfi p. C©p, rvs Me,- le- d )e,KG- iLEL1-0 F SHE i ' .C "? j;, ti 20111iup, _B Am f8: John S. Kundrat, Esquire Kundrat & Associates 107 Boas Street Harrisburg, PA 17102 Attorney ID No. 24958 Telephone: 717-232-3755 Fax: 717-232-9608 kundrat-associatesa,ya net E. K. SERVICES, INC. Plaintiff V. CUMBERLAND COU,, l v nENNSYL?'o NIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 10-2607 TIM HOGG, t/d/b/a COAKLEY' S RESTAURANT Defendant CIVIL ACTION -LAW TO: Tim Hogg, t/d/b/a Coakley's Restaurant You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. KUNDRAT & ASSOCIATES By S. Kundrat, Esquire Attorney for Plaintiff John S. Kundrat, Esquire Kundrat & Associates 107 Boas Street Harrisburg, PA 17102 Attorney ID No. 24958 Telephone: 717-232-3755 Fax: 717-232-9608 kundrat-associates&a net E. K. SERVICES, INC. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 10-2607 TIM HOGG, t/d/b/a COAKLEY' S RESTAURANT Defendant CIVIL ACTION - LAW PLAINTIFF'S RESPONSE TO MOTION FOR LEAVE TO JOIN THIRD-PARTY DEFENDANT AND NOW, comes Plaintiff, E. K. SERVICES, INC., by its attorneys, Kundrat & Associates, and states the following in response to Defendant's Motion for Leave to Join Third Party Defendant: 1. Admitted. 2. Admitted. 3. Admitted 4. Admitted. 5. Denied. To the contrary, Pennsylvania - American Water Company (American Water) is not responsible for any damages in this matter. To the contrary, Defendant is solely responsible for all damages. 6. Defendant's Response to Plaintiff's Complaint speaks for itself. 7. Denied. To the contrary, Plaintiff performed those services necessary as required by the contract between the parties and safety requirements. 8. Admitted with clarification. It is admitted that American Water was responsible to pay for installation of the water line between the water main in the public street and the curb stop valve along the side of the restaurant and, in fact, did pay for the installation of that portion of the water line. 9. Admitted. 10. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of this averment and, therefore, it is denied and strict proof at trial is demanded. 11. Denied. Plaintiff has not charged Defendant for any cost in running the water line from the water main to the curb stop valve. All charges were made to and paid by American Water. 12. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of this averment and, therefore, it is denied and strict proof at trial is demanded. 13. Paragraph 13 is a conclusion of law to which no response is necessary. By way of further answer, Plaintiff did not charge Defendant for any work that was the responsibility of American Water. 14. Admitted. 15. Paragraph 15 is a conclusion of law to which no response is required. By way of further answer, Plaintiff did not lengthen the route between the curb stop valve and the restaurant. 16. Denied. To the contrary, the work performed by Plaintiff was necessary to comply with safety standards and complete the contract as requested by Defendant. 17. Denied. To the contrary, American Water paid for all the work which was performed between the water main and the curb box valve. 18. Admitted. 19. Admitted. NEW MATTER 20. Paragraphs 1 through 19 are incorporated herein by reference and made a part hereof as though more fully set forth at length. 21. The damages at issue are $3,887.00 plus interest, attorney's fees and costs. This matter was commenced by Magisterial District Justice Complaint on January 26, 2010, and Judgment was granted for Plaintiff. 22. The Defendant appealed. 23. A Complaint was filed in the Court of Common Pleas of Cumberland County on May 12, 2010, by the Plaintiff. 24. Preliminary Objections were filed by Defendant to the Complaint on June 9, 2010, and a response was filed on June 21, 2010. The Preliminary Objections were withdrawn by Defendant on October 18, 2010. 25. No discovery has been taken or requested by the Defendant. 26. An arbitration was scheduled for May 24, 2011. 27. The Motion to Join Third-Party Defendant was filed by Defendant on May 17, 2011. 28. Defendant's allegations in the Motion are contrived and totally without merit. 29. Pa. R.C.P. 2253(a) requires that for an additional defendant to be added without Court Order, a Writ to Join or Complaint for Joinder must be filed within sixty (60) days from the date the initial pleading was served or for'filing the joining party's answer. 30. The Courts have been reluctant to grant an extension of time. Zakien v. Liljestrand, 438 Pa. 249, 264 A.2d. 638 (1970). For the Court to grant a request for belated joinder, it requires: (1) a valid excuse for delay; and (2) lack of prejudice to the party joined. Riccobono v. Keystone Helicopter Corporation, 352 Pa. Super 186, 507 A.2d 834 (1986). Defendant was aware of the involvement of Pennsylvania - American Water Company in the installation of the water line on or about September 30, 2009, when the parties entered into an agreement to install a 6" water line for Defendant. 31. No discovery was requested by Defendant, therefore there was no delay as in Lawrence v. Meeker, 717 A.2d 1046 (Pa. Super 1998). 32. In determining if there was a valid excuse for a lengthy delay, the context of the case must be considered. Kirsch v. New Castle Parking Authority, 108 Pa. Cmwlth. 259, 529 A.2d 604 (1987). Defendant has not shown a valid excuse for delay in filing the Motion. 33. The arbitration was to be conducted a mere seven (7) days from the date the Motion was filed and is believed to be purely a delay tactic. 34. It is alleged that the purpose of the Motion to add the additional Defendant is totally to harass American Water and damage the business relationship between American Water and Plaintiff. WHEREFORE, Plaintiff respectfully requests this Honorable Court to deny Defendant's Motion for Leave to Join Third Party Defendant. Additionally Plaintiff requests that legal fees in the amount of $500.00 for the preparation of this Response to Defendant's Motion for Leave to Join Third-Party Defendant be awarded to Plaintiff. KUNDRAT & ASSOCIATES By o S. Kundrat, Esquire Attorney for Plaintiff Dated: / //,?/ 09:54 FFOf -F.K. Sarv.1.ces 727-777q-7-Q27 -JCL. .'"?t7;[ ?r,'IG/ DIl1i0L I'-7tS1 YERJFICATION" 1, KEN BEINHOWF-R, authorized agent of E. K. SERVICES, INC., do hereby verify that-the facts stated in the foregoing. instrument are true and correct to the best of my knowledge, information and belief: I understand that false statements herein are made subject to the penalties of I Pa.C.S. X4934 relating to unworn f6lfiification to authorities. Ken Beinhower Date; f 7 b/,? CERTIFICATE OF SERVICE AND NOW, this jt/, _`day of wTLC__; , 2011, I, Anna M. Hause, secretary for the law firm of Kundrat & Associates, Counsel for Plaintiff, hereby certify that a true and correct copy of the foregoing Plaintiff's Response to Motion for Leave to Join Third- Party Defendant was served via first class mail, postage prepaid, addressed to the parties or counsel of record as follows: David J. Lanza, Esquire 2132 Market Street Camp Hill, PA 17011 KUNDRAT & ASSOCIATES Anna M. Hause 107 Boas Streets Harrisburg, PA 17102 717-232-3755 E.K. SERVICES, INC., PLAINTIFF V. TIM HOGG, t/d/b/a COAKLEY'S RESTAURANT, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 10-2607 CIVIL TERM UORDER OF COURT AND NOW, this 0?7 day of August, 2011, upon consideration of Defendant's motion for leave to join a third-party defendant and the Plaintiffs response thereto, the motion is DISMISSED as untimely pursuant to Pa.R.C.P. 2253(a). No further relief is granted to either party. This matter shall proceed forthwith to arbitration. By the Court, Albert H. Masland, J. /John S. Kundrat, Esquire , Cl For Plaintiff N ° Esquire / David Lanza Qom` rnCD :em ?? =--n "n - -v , . ?? ? ,,, For Defendant <> z- CD , Esquire Glenn Davis r-Z x _ , Chairman, Board of Arbitrators °rn --+ X_ :saa IN THE COURT OF COMMON PLEAS T? E.K. Services, Inc. CUMBERLAND COUNTY, PENNSYLVANIA 10-267 NO rn . VS Zm ? Tim Hogg t/d/b/a Coakley's Restaurant Cn te :?x IL-1 r - < ca -41LD -3-- C: coo s NOTICE OF APPEAL ?- FROM AWARD OF BOARD OF ARBITRATORS " TO THE PROTHONOTARY: Notice is given that Defendant appeals from the award of the board of arbitrators entered in this case on November 22, 2011 A jury trial is demanded 11 (Check box if a jury trial is demanded. Otherwise jury trial is waived.) I hereby certify that 1. the compensation of the arbitrators has been paid, or ?2. application has been made for permission to proceed in forma pauperis. (Strike out the inapplicable clause.) Appellant or Attorney for Appellant NOTE: The demand for jury trial on appeal from compulsory arbitration is governed by Rule 1007.1 (b). No affidavit or verification is required. 350. C9 o PD Arrx C# l"70i ,,#-.2617/3 E.K. SERVICES, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW TIM HOGG, t/d/b/a COAKLEY' S RESTAURANT, Defendant NO. 10-2607 CIVIL TERM ORDER OF COURT AND NOW, this 5 h day of January, 2012, a pretrial conference in the above matter is scheduled for Thursday, February 9, 2012, at 9:30 a.m., in chambers of the Honorable Christylee L. Peck, Cumberland County Courthouse, Carlisle, Pennsylvania. Pretrial memoranda shall be submitted by counsel in accordance with C.C.R.P. 212-4, at least five days prior to the pretrial conference. A NONJURY TRIAL in the above matter is scheduled for Friday, March 16, 2012, at 9:30 a.m., in Courtroom No. 5, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Christylee L. eck, J. John S. Kundrat, Esq. 107 Boas Street c v3 C= ;Z Harrisburg, PA 17102 ? Attorney for Plaintiff XM C4 r- '-C r*, David Lanza Esq -<> y{r -v C.5 c , . 2132 Market Street >CZ rte- Camp Hill, PA 17011 Attorney for Defendant V Court Administrator C P';e5 ma,'IeW //W`a E.K. SERVICES, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW TIM HOGG, t/d/b/a COAKLEY'S RESTAURANT, Defendant NO. 10-2607 CIVIL TERM IN RE: NONJURY TRIAL ORDER OF COURT AND NOW, this 19`h day of January, 2012, upon consideration of the attached letter from John S. Kundrat, Esq., attorney for Plaintiff, the pretrial conference previously scheduled in the above matter for February 9, 2012, is rescheduled to Tuesday, February 21, 2012, at 2:30 p.m., in chambers of the undersigned Judge. THE NONJURY TRIAL date remains as previously scheduled for Friday, March 16, 2012, at 9:30 a.m., in Courtroom No. 5, Cumberland County Courthouse, Carlisle, Pennsylvania. John S. Kundrat, Esq. 107 Boas Street Harrisburg, PA 17102 Attorney for Plaintiff David Lanza, Esq. 2132 Market Street Camp Hill, PA 17011 Attorney for Defendant Court Administrator BY THE COURT, Christylee L. eck, J. rc Imo. lid C-- 3: f r? )1?tz L KUNDRAT & ASSOCIATES LAW OFFICES 107 BOAS STREET HARRISBURG, PENNSYLVANIA 17102 JOHN S. KUNDRAT - LL. M. Tax (717) 232-3755 E-mail: kundrat-associates@pa.net FAX (717) 232-9608 January 10, 2012 The Honorable Christylee L. Peck Cumberland County Court of Common Pleas One Courthouse Square Carlisle, PA 17013 Re: E. K. Services, Inc. v. Tim Hogg t/d/b/a Coakley's Docket No. 10-2607 Our File No. 397-2010(1) Dear Judge Peck: We received this date The Order of Court setting the pre-trial conference in the above- captioned matter. Please be advised that we are out of state from January 30, 2012, through February 10, 2012. We will be returning to the office on February 13, 2012. We respectfully request that the pre-trial conference be rescheduled to a date prior to our departure or subsequent to our return. Respectfully submitted, KUND T & ALSO ATFS S. Kun rat JSK:amh cc: David Lanza, Esquire y . E.K. SERVICES, INC., Plaintiff V. TIM HOGG, t/d/b/a COAKLEY'S RESTAURANT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 10-2607 CIVIL TERM NON-JURY TRIAL PRETRIAL CONFERENCE AND NOW, this 21st day of February, 2012, a pretrial conference was held in the chambers of Judge Peck in the above-captioned case. Present on behalf of the Plaintiff was John S. Kundrat, Esquire. Present on behalf of the Defendant was David J. Lanza, Esquire. This action involves a dispute over a contract to perform water pipeline work. The issue on the part of the Plaintiff is whether the Defendant is liable for the performance of that work. Issues on behalf of the Defendant include whether the Defendant can be held liable when he allegedly did not enter into the contract with the Plaintiff but rather a business associate may have entered into the contract. This will be a non-jury trial of an estimated duration of one half of a day. By separate order of Court the non-jury trial has been scheduled for Friday, March 16, 2012, at 9:30 a.m. There being an issue with respect to whether the Defendant: was doing business for himself or on behalf of a business entity, defense counsel is ordered to file a motion in limine on that issue by the close of business on Monday, March 5, 2012, and Plaintiff is directed to file any response to that motion in limine by Friday, March 9, 2012. With respect to settlement negotiations, it does not appear to the Court that this case will be resolved amicably. In, With respect to any exhibits, it appears at this time that both counsel will agree that each other's exhibits are admissible. By the Court, Gi Ch t J L P k r s y ,' e . ec , J. V 'John S. Kundrat, Esquire 107 Boas Street Harrisburg, PA 17102 For the Plaintiff David J. Lanza, Esquire c-3 =, 2132 Market Street :K Camp Hill,. PA 17011 M90 -n For the Defendant :3;= Co -Orr Ct. Admin. pcb ca C) { David J. Lanza I.D. No. 55782 21.32 Market Street Camp Hill, Pennsylvania 17011 (717) 730-3775 E.K. SERVICES, INC. Plaintiff V. TIMOTHY J. HOGG t/d/b/a COAKLEY'S RESTAURANT Defendant Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. NO. 10-2607 CIVIL ACTION - LAW DEFENDANT'S PRAECIPE TO FILE ADMISSION REQUESTS, c -v 3 rnED TO THE Prothonontary: =? Please file the attached discovery in the above case. Respectfully submittedf.' t'J C-D N a ?v a?, 'C7 -T ; rnF -, r-r CD David J. Lanza Attorney I.D. No. 55782 2132 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Defendant CERTIFICATE OF SERVICE AND NOW, this 6th day of March, 2012, the undersigned does hereby certify that he did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: E.K. SERVICES, INC. John S. Kundrat, Esquire 107 Boas Street Harrisburg, PA 17102 By: David Lanza 14-46 David J. Lanza LD. No. 55782 2132 Market Street Camp Hill, Pennsylvania 17011 (717) 730-3775 E.K. SERVICES, INC. Plaintiff V. TIMOTHY J. HOGG t/d/b/a COAKLEY'S RESTAURANT Defendant NO. NO. 10-2607 CIVIL ACTION - LAW DEFENDANT'S FIRST SET OF ADMISSION REQUESTS DIRECTED TO PLAINTIFF To: E.K. SERVICES, INC. John S. Kundrat, Esquire 107 Boas Street Harrisburg, PA 17102 AND NOW, this 23`d day of December, 2011, Plaintiff, through his undersigned attorneys, serves upon you a Request for Admissions pursuant to Pa.R.C.P. 4014. A. CONSTRUCTION This Request for Admissions shall be construed and interpreted in accordance with the Federal Rules of Civil Procedure, including Pa.R.C.P. 4014. Terms used herein shall have the same meaning as they have when used in the pleadings. The Admissions requested shall relate to the facts and circumstances as they exist at the time of the subject incidents referred to in Plaintiff's Complaint. Your responses are to be supplemented in accordance with the Pennsylvania Rules of Civil Attorney for De * IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Procedure. B.. ADMISSIONS REQUESTED 1. There was no written agreement between the parties, aside from or in addition to the documentation attached to Plaintiff's Complaint. 2. The name "Coakley's Restaurant" was registered with the Pennsylvania Department of State to an entity other than Defendant Timothy Hogg at all material times, including the period prior to the execution of the contract at issue in this case, and has never been registered to or advertised as owned by Defendant Timothy Hogg. Respectfully submitted, David J. Lanza Attorney I.D. No. 55782 2132 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Defendant CERTIFICATE OF SERVICE AND NOW, this 23?d day of December, 2011, the undersigned does hereby certify that she did this date serve a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Camp Hill, Pennsylvania, addressed as follows: E.K. SERVICES, INC. John S. Kundrat, Esquire 107 Boas Street Harrisburg, PA 17102 By: David Lanza 14-46 John S. Kundrat, Esquire Kundrat & Associates 107 Boas Street Harrisburg, PA 17102 Attorney ID No. 24958 Telephone: 717-232-3755 Fax: 717-232-9608 kundrat-associates@pa.net E. K. SERVICES, INC. Plaintiff V. TIM HOGG, t/d/b/a COAKLEY' S RESTAURANT -C -- ? i i qq IN THE COURT OF COMMON PLEAO'PF "- CUMBERLAND COUNTY, PENNSY! NhA NO. 10-2607 Defendant : CIVIL ACTION -LAW PLAINTIFF'S PRAECIPE TO FILE RESPONSE TO ADMISSION REQUESTS To: Prothonotary of Cumberland County Please file the attached response to discovery (Exhibit "A") in the above matter which was served on Defendant's counsel on January 19, 2012. KUNDRAT & ASSOCIATES By 7Attorney hn S. Kundrat for Plaintiff Dated: March 9, 2012 John S. Kundrat, Esquire Kundrat & Associates 107 Boas Street Harrisburg, PA 17102 Attorney ID No. 24958 Telephone: 717-232-3755 Fax: 717-232-9608 Icundrat-associates@Pa.net E. K. SERVICES, INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 10-2607 TIM HOGG, t/d/b/a COAKLEY'S RESTAURANT Defendant : CIVIL ACTION -LAW PLAINTIFF'S RESPONSE TO DEFENDANT'S FIRST SET OF ADMISSIONS Plaintiff, E. K. SERVICES, INC. by and through its attorneys, John S. Kundrat, Esquire, hereby responds to the request for admissions of Defendant as follows: 1. There was no written agreement between the parties, aside from or in addition to the documentation attached to Plaintiff's Complaint. Answer: Admitted with clarification. Plaintiff does not know of any additional written agreement between the parties aside from that attached to the Complaint captioned "Proposal".. This is as of the date of this response to the admissions request. Additional agreements may exist. 2. The name "Coakley's Restaurant" was registered with the Pennsylvania Department of State to an entity other than Defendant Timothy Hogg at all material times, EEXHL131T including the period prior to the execution of the contract at issue in this case, and has never been registered to, or advertised as owned by Defendant Timothy Hogg. Answer: Denied. The precise name "Coakley's Restaurant" is not registered with the Pennsylvania Department of State. No document from the Department of State was attached to the admissions request stating the contrary. By way of further answer, Defendant Timothy Hogg indicated to Plaintiffs representative that he and Coakley's Restaurant were one and the same. KUNDRAT & ASSOCIATES By J S. Kundrat, Esquire ttomey for Plaintiff Dated: January 18, 2012 v?p.:ai?.?ii i AWIN I Y C1?T i1 L`TAII]/?aarr. r. .?...?? 1,., tv w ER, auumonzed agent of E. K. SERVICES, INC., do hereby verify that-the,, u„?, 7taIGU ,tt tttG lvrcg(tIng. instrument are true and correct to the best of my, know},r..rtoP ?ntormafi- L nvvia?arru tt14F t4tJG 3taierrlell[S t1Cre[? are made $llttlPc1 In the n?nal+.P? of t o oa r r......u....? , v . Q.A. bdan-;e:uLl iG wr3wVllt t`Ci151IlCatlon t0 elllnOi7flc5_ v -n Bua'-ciriel Vale. 1-a-/q, CERTIFICATE OF SERVICE AND NOW, this of 2012, I, Anna M. Hause /q? dy secretary for the law firm of Kundrat & Associates, Counsel for Plaintiff, hereby certify that a true and correct copy of the foregoing Plaintiff's Response to Defendant's First Set of Admissions was served via first class mail, postage prepaid, addressed to the parties or counsel of record as follows: David J. Lanza, Esquire 2132 Market Street Camp Hill, PA 17011 KUNDRAT & ASSOCIATES aa4t6-* , -4ai-W Anna M. Hause 107 Boas Streets Harrisburg, PA 17102 717-232-3755 CERTIFICATE OF SERVICE AND NOW, this -?l day of &M (' C(_ '2012, I, Anna M. Hause, secretary for the law firm of Kundrat & Associates, Counsel for Plaintiff, hereby certify that a true and correct copy of the foregoing Plaintiff's Praecipe to File Response to Admission Requests was served via first class mail, postage prepaid, addressed to the parties or counsel of record as follows: David J. Lanza, Esquire 2132 Market Street Camp Hill, PA 17011 KUNDRAT & ASSOCIATES Anna M. Hause 107 Boas Streets Harrisburg, PA 17102 717-232-3755 E.K. SERVICES, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW TIM HOGG, t/d/b/a COAKLEY'S, RESTAURANT, Defendant NO. 10-2607 CIVIL TERM IN RE: NONJURY TRIAL ORDER OF COURT AND NOW, this 16th day of March, 2012, after hearing and the parties indicating that all evidence has been submitted to the Court, the record is closed and the matter is taken under advisement. By the Court, Christyle L. Peck, J. John S. Kundrat, Esquire; ` ?.;, 107 Boas Street Harrisburg, PA 17102 ?= rr For the Plaintiff Na z ! -'_. -J ?'fir ? David J. Lanza, Esquire` 2132 Market Street Camp Hill, PA 17011 For the Defendant -`? ?G L E.K. SERVICES, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW TIMOTHY J. HOGG t/d/b/a COAKLEY'S RESTAURANT, Defendant NO. 10-2607 CIVIL TERM ORDER OF COURT AND NOW, this 28 h day of June, 2012, following a non jury trial, and for the reasons set forth in the accompanying opinion, the Court's judgment on Plaintiff's claim for breach of contract is in favor of Defendant and against Plaintiff. NO FURTHER relief is awarded to either parry in this matter. BY THE COURT, ? John S. Kundrat, Esq. Attorney for Plaintiff David J. Lanza, Esq. Attorney for Defendant CS iiA&, few lop, Christylee L. Peck, J. CO : R! E.K. SERVICES, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW TIMOTHY J. HOGG t/d/b/a COAKLEY'S RESTAURANT, Defendant NO. 10-2607 CIVIL TERM OPINION AND ORDER OF COURT Peck, J., June 28, 2012 - In this civil case involving the breach of a construction contract, Plaintiff, a Pennsylvania corporation engaged in the business of contracting, sued Defendant in his individual capacity, for Defendant's alleged failure to timely pay Plaintiff amounts specified in a construction contract. The matter presents the issue of whether an individual, who is a member of the duly registered limited liability company that owns a limited partnership trading under a registered fictitious name, can be sued in his individual capacity when the contract upon which the action is based is between Plaintiff and the fictitious name. For the reasons stated in the following opinion, the court holds that he cannot. PROCEDURAL HISTORY A Magisterial District Judge granted judgment in favor of E.K. Services, Inc. ("Plaintiff') on March 22, 2010.1 Timothy J. Hogg ("Defendant") filed an Appeal from that judgment on April 21, 2010.' Plaintiff filed a Petition for Arbitration on February 22, 2011.3 The Arbitration was held on October 27, 2011, and an arbitration award was entered in favor of Plaintiff.4 On November 23, 2011, Defendant filed an appeal of the arbitration award.5 On March 16, 2012, a non jury trial was held in the Court of Common Pleas, Cumberland County. ' Notice of Judgment/Transcript Civil Case, Apr. 21, 2010. 2 Notice of Appeal from District Justice Judgment, Apr. 21, 2010. 3 Petition for Appointment of Arbitrators, Feb. 22, 2011. 4 Notice of Entry of Award, Oct. 27, 2011. 5 Notice of Appeal From Award of Board of Arbitrators, Nov. 23, 2011. STATEMENT OF FACTS Defendant is a member of Irish New Cumberland, LLC.6 Irish New Cumberland, LLC is the general partner of Irish Restaurants, LP.' Irish Restaurants, LP owns the registered fictitious name Coakley's Restaurant & Pub .8 Coakley's Restaurant & Pub is also commonly known as Coakley's Restaurant ("the Restaurant"). On September 25, 2009, Defendant requested Plaintiff provide an estimate for the installation of a fire service line ("the Line") to the Restaurant. Plaintiff's representative, Dan Beinhower ("Plaintiff's Representative"), met with Defendant at the Restaurant to discuss the placement of the Line. Defendant needed the Line to enter the Restaurant at a specific place through a basement wall so that the Line would connect with additional plumbing work being performed in the basement by a different contractor. Defendant directed Plaintiff's Representative to immediately prepare a contract. Plaintiff drew up the contract between itself and the Restaurant.9 On September 30, 2009, Plaintiffs Representative arrived at the Restaurant to present the contract, but Defendant was not there. Plaintiff's Representative spoke with an employee of Irish Restaurants, LP named Greg Bowers ("Employee"), who contacted Defendant by phone. Plaintiffs Representative then told Defendant the offer amount over the phone. Defendant told Plaintiffs Representative that he was not happy with the high price but he needed the Line installed immediately, to go ahead with the project, and that Employee had authority to execute the contract. Employee then executed the contract between the Restaurant and Plaintiff for the installation of the Line in the amount of $3,882.00.10 Plaintiff's Representative then contacted Pennsylvania One Call. The appropriate utilities responded and marked the location of various utility lines on the street. When installing the Line, Plaintiff made two minor and necessary adjustments to the proposed 6 Def's Ex. 1, p. 2, admitted at Trial Mar. 16, 2012. Def's Ex. 1, p. 1, admitted at Trial Mar. 16, 2012. s Def's Ex. 2, admitted at Trial Mar. 16, 2012. 9 Pl.'s Ex. 1, admitted at Trial Mar. 16, 2012. 10 Id. 2 Line's approach to the Restaurant based on the proximity of utilities established by Pennsylvania One Call and the discovery of an unmarked underground fiber optic line that Plaintiff needed to avoid. Although there were these changes to the original work order, the Line was installed such that it still entered the Restaurant through the basement wall at the place specified by Defendant. The additional parts necessary to change the Line's elevation in order to avoid the fiber optic line carried an additional cost of $362.08." This additional cost was offset by $472.75 that Plaintiff credited back to Defendant for work contracted for but not ultimately needed by Defendant .12 After the installation, the Line was accepted by the appropriate authority and the Restaurant was permitted to operate the portion of the Restaurant that required the Line. The final bill from Plaintiff was $3,771.33.13 This bill was $110.67 less than the contracted amount. 14 Defendant has not paid any portion of the bill to Plaintiff for the work completed. DISCUSSION 1. Breach of Contract Plaintiff sued Defendant on a theory of breach of contract for the unpaid cost of the Line installation. Under Pennsylvania law, a breach of contract claim is established by showing four elements: (1) the existence of a contract to which the plaintiff and the defendant were parties; (2) the essential terms of that contract; (3) a breach of the duty imposed by the contract; and (4) that damages resulted from the breach. Halstead v. Motorcycle Safety Found., Inc., 71 F.Supp.2d 455, 458-459 (E.D. Pa. 1999)(citing Electron Energy Corp. v. Short, 597 A.2d 175 (Pa. Super. 1991); General State Auth. v. Coleman Cable & Wire Co., 365 A.2d 1347 (Pa. Cmwlth. 1976)). In the present case, Plaintiff has failed to prove privity of contract between itself and Defendant. The contract in this case was between Plaintiff and "Coakley's Restaurant." In bringing suit against Defendant individually, Plaintiff simply sued the wrong entity. "It is fundamental 11 Pl.'s Ex. 4, admitted at Trial Mar. 16, 2012. 12 Id. 13 Id. 14 See Pl.'s Ex. 1 and 4, admitted at Trial Mar. 16, 2012. 3 contract law that one cannot be liable for a breach of contract unless one is a party to that contract." Electron Energy Corp., 597 A.2d at 177. "The burden is on the plaintiff to prove by a preponderance of the evidence the existence of the contract to which the defendant is a party." Viso v. Werner, 369 A.2d 1185, 1187 (Pa. 1977). Plaintiff proceeded under the theory that Defendant personally entered into the contract and was therefore personally liable. Plaintiff's claim cannot prevail as it failed to introduce any evidence to establish that the contract was entered into by Defendant in an individual capacity. Defendant was at all times acting in his capacity as a member of Irish New Cumberland, LLC, the general partner of Irish Restaurants, LP, during the contract negotiations for this project. Defendant met Plaintiff at the Restaurant and explained that the Line was needed by the Restaurant. The location of the jobsite was at the Restaurant. The installation of the Line was to the Restaurant. The contract was entered into in the name of the Restaurant and executed by Employee inside the Restaurant. Based on these facts, this Court finds that the contract was entered into by Defendant acting in his capacity as a member of the general partner that owns the Restaurant. "If one is not a party to the contract, one cannot breach it." Electron Enemy Corp, 597 A.2d at 179. Defendant, who was not a party to the contract, cannot be found liable for its breach. This action is captioned as "Tim Hogg, t/d/b/a Coakley's Restaurant." Pursuant to Pa.R.C.P. No. 2128(a), "[a]n action against a partnership may be prosecuted against one or more partners as individuals trading as the partnership in the manner designated by Rule 2127(a), or against the partnership in its firm name." Pursuant to Pa.R.C.P. No. 2127(a) "[a] partnership having a right of action shall prosecute such right in the names of the then partners trading in the firm name, in the following manner: `A, B and C trading as X & Co."' By using the caption "Tim Hogg, trading doing business as Coakley's Restaurant," Plaintiff chose to sue Defendant individually under the false assumption that Defendant was a partner in the Restaurant. No evidence, however, was presented to indicate Defendant was a partner in Irish Restaurants, LP. Defendant is a member of Irish New Cumberland, LLC. This limited liability company is the general 4 partner of Irish Restaurants, LP. This partnership registered the fictitious name "Coakley's Restaurant & Pub." The general rule for the liability of the members of a limited liability company is provided for by 15 Pa.C.S.A. § 8922(a), stating that, "the members of a limited liability company shall not be liable, solely by reason of being a member, under an order of a court or in any other manner for a debt, obligation or liability of the company of any kind or for the acts of any member, manager, agent or employee of the company." The corporate form of the limited liability company, Irish New Cumberland, shields Defendant from personal liability. "Even when a corporation is owned by one person or family, the corporate form shields the individual members of the corporation from personal liability and will be disregarded only when it is abused to permit perpetration of a fraud or other illegality." Kellytown Co. v. Williams, 426 A.2d 663, 668 (Pa. Super. 1981). "Care should be taken on all occasions to avoid making the entire theory of the corporate entity useless." Id. (internal citations omitted). II. Counterclaim for Attorney's Fees Defendant has counterclaimed seeking attorney's fees alleging that Plaintiffs claim was brought with improper purpose. "[P]arties are generally not entitled to an award of counsel fees from an adverse party in the absence of express statutory authorization, a clear agreement between the parties, or the application of a clear exception." James Corp. v. North Allegheny School Dist., 938 A.2d 474, 490 (Pa. Cmwlth. 2007). Plaintiff did not institute the proceedings for an improper purpose. This suit was brought in good faith seeking payment for work completed; it was just brought against the wrong party. No contractual agreement existed between the parties regarding attorney's fees. There is no express statutory authorization, nor any exception entitling Defendant to the award of attorney's fees. Defendant's "counterclaim" for attorney's fees is therefore denied. III. Conclusion Plaintiff should be paid for the work it performed installing the Line. The issue before this Court, however, is whether this Defendant is personally liable to Plaintiff for a 5 breach of contract to install the Line to the Restaurant. Under the facts presented at trial, no privity of contract existed between the Plaintiff and Defendant in his individual capacity. This Court therefore enters judgment in favor of the Defendant on Plaintiff's breach of contract claim. Pursuant to the discussion above, no further relief will be granted to the Defendant for attorney's fees. It is noted that the Pennsylvania Statute of Limitations for actions upon a contract is four years. See 42 Pa.C.S.A. § 5525(a)(1). The institution of a subsequent action upon this contract may not yet be barred by the Statute of Limitations. ORDER OF COURT AND NOW, this 28 h day of June, 2012, following a non jury trial, and for the reasons set forth in the accompanying opinion, the Court's judgment on Plaintiff's claim for breach of contract is in favor of Defendant and against Plaintiff. NO FURTHER relief is awarded to either party in this matter. BY THE COURT, s/ Christylee L. Peck Christylee L. Peck, J. John S. Kundrat, Esq. Attorney for Plaintiff David J. Lanza, Esq. Attorney for Defendant 6