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Home My WebLink About10-2998BBEC, INC., IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. INSITE DEVELOPMENT, LLC, d/b/a INSITE DEVELOPMENT and DONALD H. ERWIN, Defendants CIVIL ACTION - LAW NO. to - aqq 6 NOTICE L + i 7 1? -T1 - 71 a ?- C-0 s You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 lv *9A.OD PQ AT" Co µ13ooA P.# a y l(ogq -Michael W. Winfield, Esquire Attorney I.D. No. 72680 Kelly H. Decker, Esquire Attorney I.D. No. 84886 RHOADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Phone: (717) 237-6703 Fax: (717) 238-8622 E-Mail: mwinfield@rhoads-sinon.com kdecker@rhoads-sinon.com BBEC, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v : CIVIL ACTION - LAW INSITE DEVELOPMENT, LLC, d/b/a NO. INSITE DEVELOPMENT and DONALD H. ERWIN, Defendants COMPLAINT NOW COMES Plaintiff, BBEC, Inc., by and through its attorneys, Rhoads & Sinon LLP, and files the within Complaint, and in support thereof, avers the following: 1. Plaintiff BBEC, Inc. ("BBEC) is a Pennsylvania corporation with a principal place of business located at 507 North York Street, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. Defendant Insite Development, LLC ("Insite") upon information and belief, is a Pennsylvania limited liability corporation, with a registered place of business located at 1943 Monterey Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. Upon further information and belief, Insite's current principal place of business is 2055 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania 17055. 778885.1 3. Defendant Donald H. Erwin ("Erwin") is an adult individual who resides, upon information and belief, at 1943 Monterey Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. At all times relevant hereto, Defendant Erwin was the sole owner of Defendant Insite. 4. On May 1, 2009, Defendants, jointly and severally as maker, executed and delivered to BBEC a Promissory Note in the amount of $180,628.70 to guarantee and otherwise secure payment owed by Defendant Insite for work performed by BBEC in association with the construction of the Comfort Suites hotel located at 2055 Technology Parkway, Mechanicsburg, Cumberland County, Pennsylvania 17055. A true and correct copy of the Note is attached hereto as Exhibit "A" and incorporated by reference. 5. Pursuant to the terms of the Note, the principal amount together with interest at 6% was due and payable 180 days after its effective date of May 1, 2009. 6. The Note further provides for the collection of attorneys fees and all other costs associated with collection upon the Note in the event the makers fail to pay same at its maturity date. 7. The Note matured, and was otherwise due and payable, on November 27, 2009. 8. To date, neither Insite nor Erwin have paid any amounts due BBEC in satisfaction of the Note. 9. Plaintiff is entitled to judgment on the Note in the amount of $180,628.70, along with interest at 6% measured from May 1, 2009, costs and attorneys fees associated with the filing of this action. -2- WHEREFORE, Plaintiff BBEC, Inc. respectfully requests that judgment be entered in its favor, and against Defendants Insite Development, LLC, d/b/a Insite Development and Donald H. Erwin, jointly and severally, in the amount of $180,628.70, together with interest at 6% measured from May 1, 2009, costs, attorneys fees, and such other relief as determined just by this Court. Respectfully submitted, RHOADS & By: I I \' 11 WW V V Michael W. Winfield Kelly H. Decker One Sou Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff -3- VERIFICATION Christopher R. Anderson, deposes and says, subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities, that he is the Vice President/Controller of BBEC, Inc., that he makes this verification by its authority and that the facts set forth in the Complaint are true and correct to the best of his knowledge, information and belief. U Date Christopher R. Anderson EXHIBIT "A" PRONtW KY N _T E Insib; Development 1943 Monterey Drive Meehan=burg, PA 17050 FOR VALUE RECEIVED, the unciersigned hereby unconditionally promises to pay to the order of the principal sum of' f --? ?1I. 7d together with interest at 6% being payable at the offices of or at such other location as the holder hereif may designate in writing. The said principal and interest are due and payable one hundred eighty (130) days from the effective date of this Note set forth below. This Note may be prepaid in whole or in part at any time without penalty and is construed and will be enforced according to the laws of the Commonwealth of Pennsylvania. The maker and any endorser agrees, jointly and severally, to pay attorneys fees for collection or any other fees, charges and exf enses that said -- -_ may be put to in order to effect collection in case payment shall not be made at maturity of this Note. The maker and any endorsers severally waive demand, presentment for payment, protest, notice of protest and of non-payment and al - other requirements necessary to hold each of them liable of makers and endorsers. INSITE DEVELOPMENT z1p President Date: bra Erwin .Date: 635E848v1 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ~~~,,;;r oi' ~,rrrrGrr},i~r~'i~~ ~~ E'~'~. 1 `'rv;-',+~.~Y Jody S Smith Chief Deputy 'r,, ZQ~~ ~A~ i ~ ~~' ~. ~~ Edward L Schorpp Solicitor F ~ -,.G ..:F:r~~~V~,~~~ft~G w',t~q;~~„?;.~Vi~' ~~-~' '+A~ti'~~~Yi iY~sM BBEC, Inc. vs. Insite Developement, LLC (et al.) Case Number 2010-2998 SHERIFF'S RETURN OF SERVICE 05/11/2010 Dennis Fry, Deputy Sheriff, who being duly sworn according to law, states that on May 11, 2010 at 1337 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Insite Development, LLC, by making known unto Donald H. Erwin, Owner of Insite Development, LLC at 1943 Monterey Drive, Mechanicsburg, Cumberland County, Pennsylvania 17055 its contents and at the same time handing to him personally the said true and correct copy of the same. 05/11/2010 Dennis Fry, Deputy Sheriff, who being duly sworn according to law, states that on May 11, 2010 at 1337 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Donald H. Erwin, by making known unto himself personally, at 1943 Monterey Drive, Mechanicsburg, Cumberland County, Pennsylvania 17055 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $53.44 SO ANSWERS, May 12, 2010 RON R ANDERSON, SHERIFF By DENIM FRY, D P SHERIFF ~ej Cous'.tYSuite Sh:~rif, 'felc~o=oYt. Ii~c. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) Gq..~. ~.L CAPTION OF CASE r~ <~ (entire caption must be stated in full) C ° ~ -, , c.._ try' ~ iz~~ BBEC INC. ~_ :~ --c~ ~ ~ ~~ t ~ > oc INSITE DEVELOPMENT, LLC, d/b/a ~ r~i ,- INSITE DEVELOPMIIVT and 10-2998 Civil ~ DONALD H. ERWIN No. :~~ R :.c 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to com taint, etc.): Preliminary Objections filed by Defendant Donald H. Erwin 2. Identify all counsel who will argue cases: (a) for plaintiffs: Michael W. Winfield, Esqguire Rhoads & Sinon ~,Ps 1 So. Market Sq., P.0.1146 Harrisburg, PA 17108-1146 (Name and Address) Kelly Knight, Esquire Cunningham & Chernicoff, P.G. (b) for defendants: 2320 North Second Street Harrisburg, PA 17110 (Name and Address) 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: August 18, 2010 Date: June 25, 2010 Signatur~ Michael W. Winfield Print your name Plaintiff Attorney for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. ,~ CERTIFICATE OF SERVICE I hereby certify that on June 25, 2010, a true and correct copy of the foregoing Praecipe to List Preliminary Objections for Argument was served by means of United States mail, first class, postage prepaid, upon the following: Kelly Knight, Esquire Cunningham & Chernicoff, P.C. 2320 North Second Street Harrisburg, PA 17110 n / r ~- ~, ~ r 784293.1 i~ BBEC, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 2010-2998 CIVIL TERM INSITE DEVELOPMENT, LLC CIVIL ACTION-LAW d/b/a INSITE DEVELOPMENT and DONALD H. ERWIN, _~-' Defendants PRAECIPE TO WITHDRAW PRELIMINARY OBJECTIONS:: OF DEFENDANT DONALD ERWIN AND "- TO WITHDRAW OBJECTIONS FROM ARGUMENT COURT ;> TO THE PROTHONOTARY: ~., ~-~, c~ ' _,,' c ,~? =r ~ `- c :~ - -,., , __ ~ e ,+ ~3~1 , ;- `l, . _ Kindly withdraw Defendant Donald Erwin's preliminary objections to plaintiff's complaint filed on June 10, 2010. Court. This shall confirm I wish to remove this case from being heard in Argument Date: ~" ! ~ ~/ ~ .~! ~.., Mich el A. Scherer, Esquire I.D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Defendants u ..- CERTIFICATE OF SERVICE I hereby certify that on August 6, 2010, 1, Andrea M. Ramos, secretary to Michael A. Scherer, Esquire of Baric Scherer, did serve a copy of the Praecipe to Withdraw Preliminary Objections of Defendant Donald Erwin, by first class U.S. mail, postage prepaid, to the parties listed below, as follows: Kelly M. Knight, Esquire Cunningham & Chernicoff, P.C. 2320 North Second Street Harrisburg, Pennsylvania 17110 Michael W. Winfield, Esquire Rhoads & Sinon, LLP One South Market Square P.O. Box 1146 Harrisburg, Pennsylvania 17108-1146 Andrea M. am s N BBEC, INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA v. NO: 10-2998 Civil Term „,., INSITE DEVELOPMENT, LLC d/b/a CIVIL ACTION -LAW ~ ~.~ - ~,:~ INSITE DEVELOPMENT and `~' c- ~ ,-~' DONALD H. ERWIN, ~!_~ 6, Defendants - -~~ ~ ~ .. - '~ ~,~: ` 4-: PRAECIPE TO WITHDRAW APPEARANCE ~:' '~~ ~ =~~' ..:-. ~ ;- Kindly withdraw the appearance of Cunning am & Chernicoff, P.~. on behalf of Donald H. Erwin in the above captioned action. , ~ By Robe C i off, squJ~fe PA preme I No: 23380 Kel y M. Knight, Esquire PA Supreme Court ID No: 87365 CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second. Street Harrisburg, PA 17110 Telephone: (717) 238-6570 Date: July 9, 2010 PRAECIPE TO ENTER APPEARANCE Please kindly enter the appearance of Michael A. Scherer, Esquire, on behalf of Donald H. Erwin, the Defendant, in the above captioned action. By i a 1 A. Scherer, Esquire PA Supreme Court ID No: `'! Z 19 West South Street Carlisle, PA 17013 ,~ ~ ,~ )10 (717) 249-6873 Dated: ` CERTIFICATE OF SERVICE I, t7Y tOl,It ~fJl, ~ . ~ fII~YY~~S for the law office of I') Ollr ~ ~ c~ ~1X , do hereby certify that a true and correct copy of the Praecipe to Withdraw Appearance/Enter Appearance in the above-captioned matter was sent first class U.S. Mail, First Class Mail, postage prepaid on this date, to the following: Robert E. Chernicoff, Esquire Kelly M. Knight, Esquire CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second. Street Harrisburg, PA 17110 Michael W. Winfield, Esquire Rhoads & Sinon, LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 F:~I-Iome~KKNIGHTIDOCS~Erwin.Donald~BBEC Inc~Entry.Withdraw.wpd BBEC, INC., Plaintiff V. INSITE DEVELOPMENT, LLC d/b/a INSITE DEVELOPMENT and DONALD H. ERWIN, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010-2998 CIVIL TERM CIVIL ACTION-LAW f! :y +133 4: CI Mow . L NOTICE TO PLEAD w You are hereby notified that you have twenty (20) days in which to plead to the enclosed Defendant Donald Erwin's Answer To Plaintiff's Complaint or a Default Judgment may be entered against you. BARIC SCHERER Michael A. Scherer, Esquire Date: I.D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 BBEC, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2010-2998 CIVIL TERM INSITE DEVELOPMENT, LLC CIVIL ACTION-LAW d/b/a INSITE DEVELOPMENT and DONALD H. ERWIN, Defendants DEFENDANT DONALD ERWIN'S ANSWER TO PLAINTIFF'S COMPLAINT AND NOW, comes Donald Erwin, by and through his attorney, Michael A. Scherer, Esquire, and respectfully answers the complaint as follows: 1. - 3. Admitted. 4. Denied. The allegations in paragraph four of the complaint contain legal conclusions, to which a response is not required. To the extent a response is required, it is denied that defendant Erwin executed the note referred to in the complaint jointly and severely with Insight Development, LLC, or that Erwin signed the note individually as "maker." 5. - 7. Admitted in part and denied in part. The note is a writing which speaks for itself; however, the legal meaning of the note is an allegation to which no response is required. 8. Admitted that neither defendant has paid plaintiff since the note was executed. Denied that neither defendant has paid plaintiff any amounts due under the note. Defendant Erwin contends that the amount of the note is in error and that the sum listed on the note includes sums already collected by plaintiff from defendant Insight. 9. Denied. The allegations in paragraph nine of the complaint are legal conclusions to which a response is not required. To the extent a response is required, the note is a writing, attached to the complaint, and as such, the document speaks for itself. NEW MATTER 10. The note does not satisfy the requirements of the applicable Statute of Frauds such that defendant Erwin is personally obligated to repay the note. 11. The note does not contain a provision indicating that it is intended that Erwin was personally guaranteeing the note by signing it. 12. Defendant Erwin is not listed on the note as "maker" and therefor has not personally guaranteed the note. WHEREFORE, Defendant Erwin demands judgment in his favor. Respectfully submitted, BARIC SCHERER Date: J? 14",?-" ichael A. Scherer, Esquire I.D. # 61974 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Defendants VERIFICATION The statements in the foregoing Defendant Donald Erwin's Answer to Plaintiff's Complaint are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements-, and to the extent that they are based upon information which I have given to my counsel, they 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 18 Pa.C.S.§ 4904 relating to unsworn falsifications to authorities. Date: i% H. Erwin CERTIFICATE OF SERVICE I hereby certify that on August ?5, 2010, I, Jennifer S. Lindsay, secretary at Baric Scherer, did serve a copy of Defendant Donald Erwin's Answer To Plaintiff's Complaint, by first class U.S. mail, postage prepaid, to the parties listed below, as follows.. Kelly M. Knight, Esquire Cunningham & Chernicoff, P.C. 2320 North Second Street Harrisburg, Pennsylvania 17110 Michael W. Winfield, Esquire Rhoads & Sinon, LLP One South Market Square P.O. Box 1146 Harrisburg, Pennsylvania 17108-1146 -J)e0f4f Linds y Michael %V. %Vin{icld, Esquire Attorney LD_ No. 72680 RHOADS K SIN;ON LLP One South Market Square P.O. Box 1140 Ilarrisbui-, PA 17 108-1 146 Phone: (7170-117-6703) Fax: (717) 2 ,8-622 E-Mail: mwinfieId(o,rhoads-sinon.com BBEC, INC.. Plaintiff v. RLED--0` CF T RY ,.: Tt-'- F.- it 1?,r - 3 a,4 l? 4 CUV ._?.? %1J' IINIY PE^,N,S) 4JNNA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW INSITE DEVELOPMENT, LLC, dib/a NO. 10-2998 Civil Term INSITE DEVELOPMENT and DONALD H. ERWIN, Defendants PLAINTIFF BBEC, INC.'S ANSWER TO NEW MATTER NOW COMES Plaintiff, BBEC, Inc., by and through its attorneys, Rhoads & Sinon LLP, and hereby files the within Answer to New Matter asserted by Defendant Donald Frwin, as follows: 10. This paragraph is a conclusion of law which requires to response. To the extent a response is required, the allegations are denied. It is specifically denied that Defendant Erwin is not personally obligated to repay the Note. Strict proof of same is demanded at time of trial. 11. Denied. In further answer, the Note on its face states: "For value received, the undersigned hereby unconditionally promises to pay to the order of BBEC the principal sum of $180,528.70, together with interest at six percent (6%) being payable at 700690 1 the offices of BBEC or at such other location as the holder hereof may designate in writing." Defendant Erwin is one of the "undersigned" in his personal capacity. 12. Denied for the reasons set forth in paragraphs 10 and 11 which are incorporated herein by reference. WHEREFORE, Plaintiff BBEC, Inc. demands judgment in its favor, and against Defendant Donald H. Erwin in the amount set forth in the Complaint, along with interest, costs, attorneys fees, and such other relief as determined just by this Court. Respectful ly/submitted, RHOADS A SINON-LLP By: V MichaeNW. Winfield One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1 146 (717) 233-5731 Attorneys for Plaintiff BBEC Inc. -2- VERIFICATION Christoph-,r R. Anderson, deposes and says, subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities, that he is the Vice President/Controller of BBEC, Inc., that he makes this verification by its authority and that the facts set forth in the Answer to New Matter are true and correct to the best of his knowledge, information and belief. <?-1'f 1, Tate Christopher k. Anderson 790690.1 CERTIFICATE OF SERVICE I hereby certify that on September 1, 2010, a true and correct copy of the foregoing Plaintiff BBEC. Inc.'s Answer to New Matter was served by means of United States mail, first class, postage prepaid, upon the following: Kelly M. Knight, Esquire Cunningham & Chernicoff 2320 N. 2'„i Street Harrisburg, PA 17110 Michael A. Scherer, Esquire Baric Scherer 19 West South Street Carlisle, PA 17013 Lynne G itter 790690.1