HomeMy WebLinkAbout01-7128COMMONWEALTH OF PENNSYLVANIA
COURT OF COMMON PLEAS
JUDICIAL DISTRICT
NOTICE OF APPEAL
DISTRICT JUSTICE JUDGMENT
NOTICE OF APPEAL
Notice is givan that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice off the
.~/~and in the case mentioned below.
/6/0
CLAJMI'¢O.
CV
LT
This block will be signed ONLY when this notation is required under Po. R.C.PJJ). No.
1008B.
This Notice of Appeal, when received by the District Justice, will operate as a
SUPERSEDEAS to the judgment for possession in this case
Signature of Prothonotary or Deputy
ff appellant was CLAIMANT (see Pa. R.C.P.J.P. No.
1001 (6) in action before District Justice, he MUST
FILE A COMPLAINT within twenty (20) days after
filing his NOTICE of APPEAL.
PRAEClPE 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.J.P. No. 1001(7) in action before District Justice.
IF NOT USED, detach from copy of notice of al)peal to be served upon appellee).
PRAECIPE: To Prothonotary
Name of ~oellee(s)
(Co,omo.Pie= N= 0 1 C4v,'l' ) within twenty (20) days af'~r service of rule or suff~ entry of judgment of non ~
RULE, To .~/--~7~~~ , appollee(s).
Name ol a~oel~(s)
(1) You am 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 WILL BE ENTERED AGAINST YOU.
Date: [~C..(3)Thec~odate officio,service of this rule if service was by mail is the date of mailing, v,")..l~,,_/__~~ ~~' ~
COURT FILE TO BE FILED WITH PROTHONOTARY
AOPC 312-90
PROOF OF SERVICE OF NOTICE OI~APPEAr,A,I~,ID RULE TO FILE COMI~LAINT .~ .,..,~,.
(This proof of service MUST BEF/LED W/TH/N TEN (10) DAYS AFTER filing the notice of appea/_:~C~.ck app/icab?, boxesJ
COMMONWEALTH OF PENNSYLVANIA
COUNTYOF - ;SS
AFFIDAVIT: I hereby swear or affirm that I served
[] a copy of the Nptice,.of Appeal; Common Pleas.~lq. -, ___ '., upon the Districf3ustice designated therein on
(date of service) , [] by Personal service [] by (certified) (registered) mail, sender's
receipt attached hereto, and upon the appellee, (name) , on
.., [] by personal service [] by (certified) (registered) mail, sender's receipt attached hereto.
[] and further that I served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appellee(s) to whom
the Rule was addressed on ...... [] by personal service [] by (certified) (registered)
mail, sender's receipt attached hereto.
SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME
THIS . DAY OF .....
Signature of affiant
Signature of olficial before whom affidaviI was made
Title of official
My commission expires on ...............................
COMMONWEALTH Of PENNSYLVANIA
COUNTY OF: CUMBERLAND
Mag. Dist. No.:
09-3-0&
DJ Name: Hen
Address: 104 S. SPORTING HILL RD.
MECHANI CSBURG, PA
Telephone: (717) 761- 8230 17050
DANIEL P. MESCALL/SHAMROCKMASONRY
166 OLD YORK KD.
DI'.LSBURG, PA 17019
THIS IS TO NOTIFY YOU THAT:
Judgment: . ~ :
[~] Judgment was entered for: (Name)
~ Judgment was entered against: (Name)
in the amount of $
on:
NOTICE OF JUDGMENT/TRANSCRIPT
CIVIL CASE
PLAINTIFF: NAME and ADDRESS
rMCPARTLAND, JEFFREY
20 .SST ciRc,.
HI,.,., 17011
/ -J
VS.
DEFENDANT: NAME and ADDRESS
rDANIE'. P. MESCAL'./SHAMROCK MASONRY'q
166 OLD YORK RD.
DI'.'.SBURG, PA 17019
Docket No.: CV-0000481-01
Date Filed: 11/05/01
CROSS COMPI_~INT 00t
(Date of Judgment)
Defendants are jointly and severally liable.
[~ Damages will be assessed on:
--]This case dismissed without prejudice
(Date & Time)
Amount Of Judgment
Judgment Costs
Interest on Judgment
Attorney Fees
Total
Post Judgment Credits $
Post Judgment Costs $
Certified Judgment Total $
$ 2,650.00
$ 4.00
$. .00
$ .00
$ 2,654.00
[/Am6d'n'{ of Judgment Subject t~
Attachment/Act 5 of 1996 $ ---;
.Lev~'¢i?~s~tayed for dayS, or ~ genera,., y~ stayed.
[--~ Objection to levy has been filed and hearing will be held:
Time:
ANY PARTY HAS THE RIGHT TO APPEAL~HIN30 DAY~FI'ER 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 ~E OF JUDG~?~RIPT FORM WITH YOUR NOTICE OF APPEAL
'~/u/~/ ~ Date ~ C~, ~,..f~,~-.~ , , District Justice
I certify that this is a t~~*~ll]~~1~~ceedings containing the judgment.
Date [/~ ~-~ ,DistrictOusticeI
My commission expires first Monday ~Jar~ary, 2004 SEAL
AOPC 315-99
PROOF OF SERVICE OF NOTICE OF APPEAL AND RULETO FILE COMPLAINT
(This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing the notice of appeal, Check applicable boxes)
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF ....... /z~_~ ..........: ................... ; SS
AFFIDAVIT: I hereby swear or affirm that I served
t~ a copy of the Notice el Appeal, Common Pleas No, ~'~ :'//~ , upon the District Justice designated therein on
~ (date of service) /.2.- --..,1-o ~ 40 / [] bv personal service [] by (certified) (registered) mail, sender's
receipt attached hereto, and .upon the appellee, (name) __~_~___~":~_-:_-:_-:_-:_-:_-~_: ~_(.~L...,~'~'_~,_: .... ' ' ..__L, on
, '~-~.~ O~ , ..>~ { [] by personal service ~[~y (certified) (registered) mail, sender s receipt attached hereto.
~TU-iiher that l ~erved the R~ie~o-~ile a Complaint accorfip~nying the above Notice of Appeal u.pon.,~e appellee(s) to whom
the Rule was addressed on .... ~ c.. c~ ....... _.~.t_,~,,,/_., [] by personal service .[~iby (certified) (registered)
mail, sender's receipt attached hereto.
SWORN (AFFIRMED)AND SUBSCRIBED BEFORE ME
TH s DAY OF I
~~~o,, ~.- ~,,, - -~--I'
Signature of affiant
CN~ ltllJ. Pit t71)tt .
0 ISt~e~t, Apt'N°';°,rPO~N°' ' / I
JEFFREY MCPARTLAND and JOAN
MCPARTLAND, Husband and Wife,
Plaintiffs
DANIEL P. MESCALL, individually,
and t/d/b/a SHAMROCK MASONRY,
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICE
You have been sued in court. If you wish to defend against the
claims set forth in the following pages, you must take action within
twenty (20) days after this complaint and notice are served, by
entering a written appearance personally or by attorney and filing in
writing with the Court your defenses or objections to the claims set
forth against you. You are warned that if you fail to do so the case
may proceed without you and a judgment may be entered against you by
the Court without further notice for any money claimed in the com-
plaint or for any other claim or relief requested by the plaintiff.
You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF
YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE
YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
2 Liberty Avenue
Carlisle, PA 17013
Telephone: (717) 249-3166
JEFFREY MCPARTLAND and JOAN
MCPARTLAND, Husband and Wife,
Plaintiffs
DANIEL P. MESCALL, individually,
and t/d/b/a SHAMROCK MASONRY,
Defendants.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION LAW
JURY TRIAL DEMJ~DED
COMPLAI~T
1. The Plaintiffs in this action are JEFFREY MCPARTLAND and JOAN
MCPARTLAND, husband and wife, and adult individuals, who currently
reside at 20 West Circle, Camp Hill, Cumberland County, Pennsylvania,
17011. (hereinafter referred to as Plaintiff).
2. The Defendants in this action are DANIEL P. MESCALL, an adult
individual, and t/d/b/a as Shamrock Masonry, with a principal place of
business at 166 Old York Road, Dillsburg, Pennsylvania, 17019, Said
Daniel P. Mescall, adult individual currently resides at 166 Old York
Road, Dillsburg, 17019. ( hereinafter referred to as (Defendant).
3. On or about June 4, 2001, Plaintiff contacted Defendant to
restore and repoint the top two (2) feet or more of the chimney of
Plaintiff's residential home for which the Defendant provided a
written proposal. Said proposal attached hereto, marked as Exhibit
(A), and made a part of the record herein.
-1-
4. According to the Defendant's proposal, this was a simple
procedure commonly known as "re-pointing bricks" and the amount of the
estimate was based upon the job, not on a hourly time rate. The
proposal was for $785.00.
5. Plaintiff accepted Defendant's proposal dated July 2, 2001, on
July 19, 2001. See Exhibit "A".
6. Defendant began to work on Plaintiff's chimney on or about
August 14, 2001. Almost immediately upon the Defendant commencing
work on the chimney re-pointing, the entire chimney collapsed.
7. It is alleged and Plaintiff avers that Defendant could not
have completed the initial contracted job, that of repointing the
bricks in the exposed chimney, because of time constraints.
8. It is alleged and Plaintiff avers that the Plaintiff left for
work on August 14, 2001, the day of the collapse, at seven in the
morning and that the Defendant had not arrived by that time.
Plaintiff avers that he was in contact with the Defendant's insurance
company who stated that they received the call about the collapse at
approximately nine in the morning, not nearly enough time to set up
scaffolding, mix the mortar, scrape out all existing mortar, and
repoint the entire chimney in that time. Moreover, Plaintiff avers
that in discussions with Defendant prior to the commencement of the
job, that
mortar to
Plaintiff
completed.
re-pointing takes several days to allow for the brick and
set properly, sometimes a total of several weeks to elapse.
avers that there is no way the repointing job was ever
-2-
9. It is alleged that Defendant contacted both his insurance
company, Erie Insurance Group, and the Plaintiff's insurance Company,
State Farm Insurance to claim the loss within minutes of the collapse;
and further stating that he had completed the entire repointing job as
outlined in his proposal. Attached is letter dated October 1, 2001,
requesting reimbursement of the $250.00 for the claim, marked as
Exhibit "B", and made a part of the record herein.
10. On or about August 17, 2001, Defendant submitted a second
proposal for the repair of the collapsed chimney, to essentially
rebuild chimney from the roof-line to surround the three chimney
vents, leaving only six inches or so exposed vents from the top.
Plaintiff specifically requested that the Defendant use the existing
brick or brick of similar color and size. The proposal for the
chimney rebuilding project proffered by the Defendant was for Two
Thousand Six Hundred and Fifty ($2650.00) Dollars. Said proposal was
never signed by the Plaintiff, but was signed by the Defendant. Said
proposal, dated August 17, 2001, is attached hereto, marked as Exhibit
"C", and made a part of the record herein.
11. On or about August, 2001, the Defendant rebuilt the
collapsed chimney, without using uniform bricks in both size and
color, or using the bricks that had been part of the collapse of the
chimney caused by Defendant. Evidence of the shoddy workmanship is
shown in the photos taken by Plaintiff. Attached hereto and marked as
Exhibit "D", and made a part of the record herein.
-3-
12. On or about September 4, 2001, the Plaintiff paid the
Defendant Two Thousand Four Hundred ($2,400.00) Dollars for the repair
of the collapsed chimney caused by Defendant's careless,
unprofessional and unworkmanlike manner in which he completed the
project.
13. On or about September 18, 2001, Defendant wrote a letter to
the Plaintiff requesting payment in the amount of Seven Hundred
($785.00) which represents the amount of the original proposal, that
of the simple re-pointing of the top two (2) feet brick of the
chimney, which was never completed, because Defendant caused the
chimney to collapse.
14. It is averred that because of the chimney collapse, the
Plaintiff was not able to use any hot water until the chimney was re-
built. It is alleged that Plaintiff's hot water is connected to the
furnace which vents through the flue of the main chimney. The
collapse of the chimney, caused by the Defendant, prevented proper
ventilation of the household furnace, thus causing a huge
inconvenience to the Plaintiff's family for several days until the
chimney was rebuilt, albeit in a shoddy manner.
15. On or about September 27, 2001, Defendant filed a civil
action against the Plaintiff Jeffrey McPartland before District
Justice Placey seeking One Thousand and Thirty Five ($1035.00).
16. On or about October 30, 2001, Plaintiff obtained estimates
to rebuild and restore the existing chimney to its original design and
basically tear down what Defendant. See attached proposal submitted
--4--
by Intrieri Construction for $3,285.00, and from Purofirst Capital
Region for $3,216.79 Attached hereto, marked as Exhibit "D", and made
a part of the record herein.
17. It is alleged and therefore averred that because of
Defendant's unworkmanlike manner and shoddy work, the entire chimney
exposed above the roof needs to be demolished and redone to maintain
the efficiency of the chimney and not to devalue the home.
18. On or about November 5, 2001, Plaintiff herein filed a
counter-claim against the Defendant herein alleging that the Defendant
caused the collapse of the chimney, necessitating the rebuilding of
the chimney, and further, that the job was performed in an
unprofessional and unworkmanlike manner requiring the chimney to be
rebuilt yet again by a third party. Plaintiff's relief in the
counterclaim was for payment to rebuild the chimney from the roof-line
using uniform bricks.
19. A hearing was held before District Justice Placey on
November 15, 2001, for both the complaint and the counter-complaint.
20. On or about November 26, 2001, District Justice Placey
entered judgment in favor of Plaintiff McPartland in the amount of Two
Thousand Six Hundred and Fifty Four ($2,654.00) Dollars and against
the Defendant Mescall and Defendant Shamrock Masonry.
21. On or about December 20, 2001, Defendant Mescall and
Defendant Shamrock Masonry filed a Praecipe to Enter Rule to File a
Complaint against the Plaintiff.
22. Plaintiff files this complaint in response thereto.
Wherefore, as a result of the unworkmanlike materials
and procedures, Plaintiff anticipates having to expend the following
sums to properly complete the project, and has suffered the other
pecuniary losses set forth herein Plaintiff respectfully requests that
the Court find in favor of Plaintiff and order the following against
the Defendant:
1. Enter Judgment against the Defendant Daniel
Mescall, Individually, and t/d/b/a as Shamrock Masonry in the amount
of $3,240.00;
2. Find that the Defendant violated the Fair Trade
Practices Statute and award the Plaintiff treble damages as permitted
by the statute;
3.
4.
5.
proper by this Court.
Date:
Award Plaintiff attorney fees;
Award Plaintiff cost of prosecution;
And any and all such relief as deemed just and
Respectively submitted by,
STONE LaFAVE~ & SHEKLETSKI
E 1 i z~t h/B~. Stye
Sup~me/~. ourt /ID #60251
414 B~z~ge S~eet, P.O. Box E
New/Cumberl ~fnd, PA 17070
~e p~o__ne/~17- 774- 7435
/6 Attye~~for Plaintiffs
SHAMROCK MASONRY
166 OLD YORK ROAD
DILLSBURG, PA 17019
(717) 502-1494
PROPOSAL SUBMECrED TO:
Cr~,STATE
pHONE NO.
WORK TO BE PERFORMED AT.'
PROPOS
PROPOSAL NO.
SHEET NO. '
CITY, STATE
DATE OF PLANS
~RCHITECT
We hereby propose to furnish the matedaJs and pedorm the labor necessary for the completion of
material is guaranteed to be as specified, and the above work to be performed in accordance with the drawings
sp~fications submitted for above work and comple~t, ed in a substantial workmanlike manner for the sum of:
,~ I,,4.,,-'~,e.z~ ~,//,~'c, t"/~' .- oo,,.,. ,,'?~7~-. ~-~
Respec.uily subm,.~: ~
Per
Note - This proposal may be withdrawn by us if not accepted within
ACCEPTANCE OF PROPOSAL
The above pdces, speciflcatfons and conditions are satisfactory and are hereby accepted. You are authorized to do the work as specified, Payments
EXHIBIT "A"
ERIE INSURANCE GROUP
4901 Louise Drive · P.O, Box 2013
Mechanicsburg, PA 17055-0710
(717) 795-2223 ° 1-800-382-1304
Fax (717) 795-2315
Business Center · P.O. Box 2013 · Mechanicsburg, PA 17055q:)710
~x (717) 795-2315 · http://www.ede-insurence.corn
October 1, 2001
Shamrock Masonry
ATTN: Dan Mescall
166 Old York Road
Dillsburg, PA 17019
Re: ERIE Claim
ERIE Insured:
Date of Loss:
Claimant:
Loss Location:
#010170568753
Shamrock Masonry
8/14/01
Joan McPartland
20 West Cimle
Camp Hill, PA 17011
Dear Mr. Mescall:
Please be advised that State Farm Insurance has settled with their insured, the McPartlands, for
the chimney damage. We received supporting subrogation papers and reimbursed State Farm
Insurance in the amount of $2,650.00. This coverage was provided under your Voluntary
Property Damage Endorsement of your Fivestar Contractors' Policy.
This coverage is subject to a $250.00 deductible. We are requesting a payment of $250.00 to
be made payable to Erie Insurance Group. Please forward your check for this amount to
P.O. Box 2013, Mechanicshurg, Pennsylvania 17055.
David Witmer, AIC
Claims Adjuster
4902 Carlisle Pike
PMB 247
Mechanicsburg, PA 17050
(717) 612-1244
DW:jmv
cc: Fetrow Insurance Associates
5299 East Trindle Road
Mechanicsburg, PA 17050
EXHIBIT "B"
329694_1
The ERIE Is Above Ail In sERvIcE~ · Since 1925
· SHAMROCK MASONRY
166 OLD YORK ROAD PROPOSAL
DILLSBURG, PA 17019
I (717) 502-1494 ,.oPos*L ~.
,~H RET NO.
DATE
PROPOSAL SUBMITTED TO: WORK TO BE PERFORMED AT.' ~;;~.~//-/-- ~'
PHONE NO. ,/ -~ ARCHITECT
/
We hereby propose to furnish the r~erials and pedorm the lal~r n~a~ for ~ ~m~l~o~ of
All material is guaranteed to be as specified, and the above work to be pe~ormed in accordance with the drawings and
~ations submitted for above work and completed in a substantial workmanlike manner for the sum of:
with payments to be as follows ~ ~ ~/~ ~~/;~
Note - ~is pm~ may be ~dm~ ~ us if not a~e~ ~in ~ clays.
ACCEPTANCE OF PROPOSAL
~e above pdces, specifications and conditions am satisfa~ow and ~re hereby a~. You ~e au~o~ to do Ihe wo~ s s~. Payments
be made as outlined ~ve.
'~:Jams 9450
EXHIBIT "C"
EXHIBIT "D"
VERIFICATION
Jeffrey Mcpartland states that he is one of the named Plaintiffs
named herein in the foregoing instrument and that he is acquainted
with the facts set forth in the foregoing instrument; that the same
are true and correct to the best of his knowledge, information and
belief; and that this statement is made subject to the penalties of 18
Pa. C.S.A. ~ 4904 relating to unsworn falsification to authorities·
ff~y ~c~ar~tand
Date:
Feb ll O~ 02: 13a p.2
Feb 11 02 02: 13a p.4
F~b 11 02 02: 13a
p.3
Feb 11 02 02:14~
~ C..)
SHERIFF'S RETURN -
CASE NO: 2001-07128 p
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MCPARTLAND JEFFREY & JOAN
VS
MESCALL DANIEL
OUT OF COUNTY
R. Thomas Kline
duly sworn according to law,
and inquiry for the within named DEFENDANT
MESCALL DANIEL P IND & T/D/B/A SHAMROCK MASONRY
but was unable to locate Him in his bailiwick.
deputized the sheriff of YORK County,
serve the within COMPLAINT & NOTICE
, Sheriff or Deputy Sheriff who being
says, that he made a diligent search and
to wit:
He therefore
Pennsylvania,
to
On January 25th , 2002 , this office was in receipt of the
attached return from YORK
Sheriff's Costs:
Docketing 18.00
Out of County 9.00
Surcharge 10.00
Dep York County 45.52
.00
82.52
01/25/2002
R. ~Thomas Kline
Sheriff of Cumberland County
STONE LAFAVER SHELEYSKI
Sworn and subscribed to before me
this ,~0~ day of ~
~m 2~ A.D.
/ ~ Prot hono't a/r~
SHERIFF'S RETURN
CASE NO: 2001-07128 p
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MCPARTLAND JEFFREY & JOAN
VS
MESCALL DANIEL
- OUT OF COUNTY
R. Thomas Kline
duly sworn according
and inquiry for the within named DEFENDANT
SHAMROCK MASONRY
but was unable to locate Them
deputized the sheriff of YORK
Sheriff or Deputy Sheriff who being
to law, says, that he made a diligent search and
in his bailiwick.
County,
to wit:
He therefore
Pennsylvania,
serve the within COMPLAINT & NOTICE
to
On January 25th , 2002 , this office was in receipt of the
attached return from YORK
Sheriff's Costs:
Docketing
Out of County
Surcharge
6.00
.00
10.00
.00
.00
16.00
01/25/2002
So answers: /~
R.~Thomas Kline -
Sheriff of Cumberland County
STONE LAFAVER SHELETSKI
Sworn and subscribed to before me
this ~0~ day of ~
~lo~ A.D.
! I Prothonotary/ J
2 of~ 2 COUNTY OF YORK
OFFICE OF THE SHERIFF s .v,c c,L
(717) 771-9601
28 EAST MARKET ST., YORK, PA 17401
SHERIFF SERVICE / INSTRUCTIONS
PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASE TYPE ONLY LINE I THRU 12
t. EL~lNT~%~frey & Joan McPartland
~2. ~8 Civil
3. DEFEN NTIS/ t4. TYPE OF WRI OR COMPL INT
~n~el P. Mescall, ind. & t/d/b/a Shamrock Masonr Complaint ~ Notice
SERVE { ~. ~(~N~J.AL~(~A~P~R~TE~ET~(~F~E/~R~~aT§~A~A~ED~RS~LD~
6. A.,D[~R~SS.~S,TR~EE~.OR RJ~O V~TF~ BOX NI,~ER, AP~-. NO., CITY E~FJO 7~VV~r...S.TC~E AND ZIP CODE)
J-bO UIQ York Kd. ~ Ui££sDurg~'rA'J./OZ~
AT
7. INDICATE SERVICE; ~ PERSONAL r~ PERSON rN CHARGE ~"DEPUTIZE
CERT. ~AIL
POSTED
rq OTHER
NOW ~16, ~ 20 I, SHERIFF OF YORK COUNTY, PA, do hereby deputize the sheriff of
York
COUNTY to execute this Writ and make return thereof according
to law. This deputizaUon being made at the request and risk of the plaintiff.
8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE:
/
OUT OF COUNTY
CUMBERLAND
ADVANCED FEE PAID BY SHERIFF
NOTE: ONLY APPLICABLE OR WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within wdt may leave same
without a watchman, in custody of whomever is found n possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff
herein for any loss, destruction, or removal of any property before sheriff's sale thereof.
9. TYPE NAME and ADDRESS of ATFORNEY / ORIGINATOR and SiGNATURE
10. TELEPHONE NUMBER 11. DATE FILED
Elizabeth Stone
12. S EN~ ¥(~,CE~)~.~E(~C(~ C6~.pE T.O,NAi~E~D/~pd~L~_~ ~i~ at.st ~ ~d if noti~ is to be mailed)' 1/10/02
CUMBERLNAD CO. SHERIFF
SPACE BELOW FOR USE OF THE SHERIFF -- DO NOT WRITE BELOW THIS LINE
13, I acknowledge receipt ofthe'"~'
R, AH1TENS--~
, · , 14. DATE RECEIVED ~rati~VHeadngOate
or complaint as ind,cated above. ~;
16. HO~ '
) POSTED ( ) POE ( ) SHERIFF'S OFFICE ( ) OTHER ~ SEE REMARKS BELOW
17. [~ I hereby certify and return a F{OT~FOUND becau~ I~am unable to locate the individual, company, etc. name above. (See remarks below.)
e ITLE OF INDWIDUAL SERVED / LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant)
~me ' Iht Date ~
~ I lie M,les Int. Date Time Miles Int. Dae ~me Miles Iht Date Time Int. Date Time Miles ~lnt
23. Advance Costs 24. Service Costs 25. N/F 26. Mileage
34. Foreign County Costs J 35. Advance Costs I 36. Sen4ce Costs
41. AFFIRMED and subscribed to before me this ~/1
28. SubTotal 29. Pound 30. Notary
38. Mileage/Posted/Not Found
31. Surchg. 32. Tot. Costs 33. Costs DueorRefu~ ICheck No.
J39, Total Costs I 40. Costs Due or Refund
ISSUING AUTHORIT~
1-24-02
49. DATE
51. DATE RECEIVED
1. WHITE - Issuing Authodfy 2. PINK - Attorney 3. CANARY - Sheriff's Office 4. BLUE ~ Sheriff's Office
COUNTY OF YORK
OFFICE OF THE SHERIFF SE"V,CECALL
~ 28 EAST MARKET ST., YORK, PA 17401 (717)'.271-9601.
SHERIFF SERVICE INSTRUCTIONS
PROCESS RECEIPT and AFFIDAVIT OF RETURN PLF.~ ~ ONLY
-\ y & Joan McPaem~land Iz~(~T[N-U~{~8 Civil
3. DEFEN NY/S/ n~_.~4. TYPEOF'WRI ORCOMPLAINT
~n~_el P. Mescalt, ind. & t/d/b/a Shamrock Maso Comp~a~t & Notice
AT % xoo o~u ~or~ ~u. , uzLAsourg, ~, ~W~oS~ CODE>
7. INDICATE SERViCE: O PERSONAL ~1 PERSON IN CHARGE ~ Q CERT. ~MAiL O POSTED LI OTHER
NOW January 1~ ~0-0-~- 20, I,
. ~- Yor < - - ~- , . SHERIFF OF Y~ORK COUNTY, PA, do hereby deputize the sheriff o~f
, , ~, COUNTY~to execute thru Writ and akeYe~rrtthereof according
to I~,. This deputizati0n b~ing made at the request and risk of the plaintiff.
SHERIFF OF YORK COUNTY
8. SPECIAL INSTRUCTIONS OR QTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE:
OUT OF COUNTY
CUMBERLAND
ADVANCED FEE PAID BY ~HERIFF
NOTE: ON~ APPLICABLE ON WRIT OF EXECUTION; N.B, WAIVER OF WATCHMAN - Any deputy shedff le~ing upon or at~ching any prope~ under within writ may leave same
without a watchman, in custody of whomever is found Jn possession after no fying person of evy or a tachment, without liabi ty on the pa~t of such depo[y or he sheriff to any pk3intiff
.herein for any loss, destruction, or removal of any property before sherifFs sa~e thereof.
9. TYPE NAME and ADDRESS of ATTORNEY ! ORIGINATOR and SIGNATURE
10 TELEPHONE NUMBER
Elizabeth Stone -' . ~,, J ' 11. OATEFILED
~. SEN~ ~,CEA)[.,~c~ c~ !O, NA~e~p ~l~ ~{~'~ ~r~u~t~t~ ,~-~ ~o ~>. ::,~ ~ z / ~ 0 / o 2
CUMBERLNAD C~, SHERIFF
~ SPACE~w FOR USE OF THE S~RIFF -- DO NOT WRITE
13. la~n~ledger~eipt~the~t E, AHRBNS BELOWTHIS LINE
or complaint as indicated above. 1~ ?;E RECEIVED Headng Date
~SIDENCE( ) ...... :::::,:o,)vldua f::~y,)etc, nam::E::: 'Seere e,ow)0~ ~ ~R~marksbelew, ~
18 ~E AND TITLE OF INDIVIDU~ SERVED / LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to ~fendant) Ime of Se~
Advance Costs 24. Service Costs
Foreign County Costs
i. AFFIRMED arid subscribed to be for~ rne*-~is _
SSUING AUTHORITY AND 1
WHITE - Issuing Authority Z PINK- Attorney
26. Mileage 28. SubTotal 30. Notary 31. Surchg. 33 C0s~sDueorRe[und ShsCkNo.
36. Service Costs 37. Notary Cerh 38. Mileage/Posted/Not Found 39 Total Costs 40. Costs Due or Refund
3. CANARY - SherifFs Office 4. BLUE - Sheriff's Office
Pd\com\mcpartlndchmny.rply.wpd\l-02
JEFFREY MCPARTLAND and JOAN
MCPARTLAND, Husband and Wife,
Plaintiffs
Vo
DANIEL P. MESCALL, individually,
and t/d/b/a SHAMROCK MASONRY,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.
CZVZ~ ACTEON - LA~
JURY TRIAL DEMANDED
REPLY
Paragraphs 1 through 22 of Plaintiff's complaint are incorpo-
rated by reference herein as if fully set forth at length.
1. Denied. Defendant's Paragraph 1 is specifically denied. If a
more specific answer is required, Plaintiffs allege that any and all
work performed by Defendant was not carried out in a workmanlike
manner and was shoddy at best. The collapse and the pathetic attempt
by Defendant in the rebuilding is plainly evident by viewing the
chimney when they used unmatched and irregular bricks. Proof thereof,
if relevant, is demanded at time of trial.
2. Admitted and Denied. Plaintiffs admit that a hearing was
held before District Justice Placey on November 15, 2001. It is
specifically denied that Defendant was not given notice of the counter
-complaint filed by the Plaintiffs on November 5, 2001, and sent on
-1-
the same day by the District Justice. Proof thereof, if relevant,
demanded at the time of trial.
3. Denied. It is specifically denied that Defendant did not
cause the collapse of the chimney. He was hired to restore and re-
point the Plaintiffs' chimney.
inevitable due to ordinary wear
demanded at the time of trial.
It is denied that the collapse was
and proof thereof, if relevant, is
4. Denied. It is specifically denied that there were two (2)
contracts and further that they merged. The first proposal that was
submitted for Plaintiffs' signature and was, in fact, signed, was for
restoration of the chimney. When the Defendant began the job of
restoration with the chimney collapsing within the first hour of the
job, the Plaintiffs' were not home. The second proposal which was not
signed by the Plaintiffs was for the rebuilding of the bricks. The
parties had an oral agreement that the existing brick was to be used
in the rebuilding, and if that was not possible, that brick of similar
color and size was to be used. As evident from the photographs
attached to the Complaint, no such conformity was even attempted. This
oral agreement was memorialized by the State Farm insurance agent in
handwritten notes. Moreover, that agent will testify at trial that
when the Defendant reported the claim he agreed to this. It is
further denied that no objection was made prior to being sued, why
else would Plaintiffs not pay. Plaintiffs refused to pay for the
-2-
first job since it was never completed and was impossible to complete,
therefore, the first contract was never satisfied.
Proof thereof, if relevant, is demanded at the time of trial.
5. Denied. If an answer is required, the Plaintiffs are without
sufficient information to admit or deny the averments of paragraph 5
and proof thereof, if relevant, is demanded at the time of trial.
Further, Plaintiffs will present testimony at time of trial
demonstrating that the Defendant attempted to collect from his own
insurance company, as well as, the Plaintiffs' insurance company, both
of whom were contacted by the Defendant.
6. Admitted and Denied. It is admitted that the Plaintiffs do
not have a copy of a second signed proposal. It is denied that the
two contracts should merge. The two proposals were for two different
types of jobs, the first one for the restoration of the chimney for
$785.00 and the second one for the total rebuilding of the top half of
the collapsed chimney for $2,650.00. It is denied that the contracts
proof thereof, if relevant, is demanded at time of trial.
merged,
7.
Denied. It is denied that the Court should grant extra time
to hire a legal counsel. Defendant has never attempted to contact
undersigned regarding any extensions.
8. Denied. If an answer is required, it is specifically denied
that the Defendant has had insufficient time to contact the
Plaintiffs' experts. The chimney was hastily and shoddily rebuilt by
-3-
Defendant on or about August, 2001. Further, Plaintiffs have taken
numerous photos of the roof and chimney. Those photos and competent
experts in the Defendant's field will testify to prove the substandard
quality of work performed by Defendant.
9. Denied. It is denied that the Defendant is owed any money by
the Plaintiffs. Judgment was entered in the amount $2,654.00 against
the Defendant and in favor of Plaintiffs both on the complaint filed
by Defendant and on the counter-complaint filed by the Plaintiffs.
~r~ER~FOR~, as a result of the unworkmanlike manner and
procedures, Plaintiffs anticipate having to expend the following sums
to properly complete the project, and has suffered the other pecuniary
losses set forth herein Plaintiffs respectfully request that the Court
find in favor of Plaintiffs and order the following against the
Defendant:
1. Enter Judgment against the Defendant Daniel
Mescall, Individually, and t/d/b/a as Shamrock Masonry in the amount
of $3,240.00;
2. Find that the Defendant violated the Fair Trade
Practices Statute 73 P.S. 201.1 et seq. and award the Plaintiffs
treble damages as permitted by the statute;
3. Award Plaintiffs attorney fees;
4. Award Plaintiff cost of prosecution;
-4-
5. And any and all such relief as deemed just and
proper by this Court.
Respectively submitted by,
Date:
STONE LaFAVEi~& SH]KLETSKI
Su em /C/ur/ ID
414/B~i~e/Street, P.O. Box E
717-774-7435
for Plaintiffs
Att~ys
-5-
VERIFICATION
Jeffrey McPartland states that he is one of the plaintiffs named
instrument and that he is acquainted with the facts
instrument; that the same are true and
his knowledge, information and belief; and that
statement is made subject to the penalties of 18 Pa. C.S.A. ~
relating to unsworn falsification to authorities.
~E~R~{ARTZAND
in the foregoing
set forth in the foregoing
correct to the best of
this
4904
Date:
Pd\com\mcpartlndc~unny.rply.wpd\l-02
JEFFREY MCPARTLAND and JOAN
MCPARTLAND, Husband and Wife,
Plaintiffs
Vo
DANIEL P. MESCALL, individually,
and t/d/b/a SHAMROCK MASONRY,
Defendants
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 01-7128 Civil Term
:
: CIVIL ACTION - LAW
: JURY TRIAL DEMANDED
CERTIFICATE OF SERVICR
CERTIFICATE OF SERVICF
I, Elizabeth B.
LaFaver & Shekletski,
Joan McPartland, hereby certify that on this date I served a true
correct copy of the within instrument on Defendant by first class
mail, postage prepaid, addressed as follows:
Stone, Attorney at Law, of the law firm of Stone
attorneys for Plaintiffs, Jeffrey Mc?artland and
and
DATE:
Daniel p. Mescall
Shamrock Masonry
166 Old York Road
Dillsburg, PA 17019
- E TONE
~'p'~EY McPARTLA~D AND JOAN McPARTLARD,
husband and wife,
Plaintiffs
Vm
DANIEL P. MESCALL, individually and
t/d/b/a SHAMROCK MASONRY,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-7128 C~VXL ~9
RULE 1312-1. The Petition for Appointment of Arbitrators Shall be substantially in the following form:
PETITION FOR APPOINTMENT OF ARBITRATORS
TO THE HONORABLE, THE JUDGES OF SAID COUR~
Elizabeth B. Stone , counsel for the plaintiffikle~m~la~in the above action (or actions),
respectfully represents that:
1. The above-captioned action (m~llsl~) is ~(ml~) nt issue·
2. Theclaimoftheplaintiffintheactionis$3f240-00 + attorney's fees, treble damages..
and costs of prosecution
The counterclaim of the defendant in ~he action is
The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators:
submitted.
WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be
AND NOW,
foregoing petition,
Esq., and
actions) as prayed for.
ORDER OF COURT ~'~
,19 , in consideration of the
Esq.,
, Esq., are appointed arbitrators in the above captioned action (or
By the Court,
P.I.
d..','~'KEY McPARTLA~) AND JOAN McPARTLA5~,
husband and wife,
Plaintiffs
Ve
DAN/EL P. MESC~TJ,, individually and
t/d/b/a SHAMROCK MASONRY,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-7128 CIVIL
RULE 1312-1. The Petition for Appointment of Arbitrators Shall be substantially in the following form:
PETITION FOR APPOINTMENT OF ARBITRATORS
TO THE HONORABLE, THE JUDGES OF SAID COURT:
Elizab~ B. Stone , counsel for the plaintiff/O~m~lli~in the above action (or actions),
respectfully represents that:
1. The above-captioned action (latlll~ill~) is ~11) at issue.
2. Theclaimoftheplaintiffintheactionis$3e240'00 + atto~y's f~s, treble damage~, .
and costs of prosecuElon
The counterclaim of the defendant in the action is
The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: __
WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be
submitted. '~
COURT
AND NOW, ~ ~0 ,19~e ,-n;'in consideration of the
foregoing petition, ~', ~'~ ~/-//~ ~'~/~ Esq., ~ ("~~
Esq., and ~ .~_~..~.' . Esq., are appointed arb,trators In the above captioned act,on (or
actions) as'p;ayM for. ' /
Jeffrey McPartland and Joan McPartla~.,
~usband and wife, ).
Plaintiffs ~
)
v. )
)
Da~nlel P. Mescall, individually, and..)
t/d/b/a shamrock Masonry,
Defendants GATE
In The Court of Co~mon Pleas of
Cumberland County, Yennsylvania
No -4 · ,'- . , 01-7128
Civil Action
We do solemm-tY swear (or affi&m) chat we will support, obey and defend
the Constitution of the United States and the Consti~u~o~ of this Common-
wealth and chat we will discharge th~ duties of our9ffice with fid%A~Cy. -
We, the undersigned arbitrators, having been duly appointed and sworn
(or affirmed), make the fol!o~ring award:
(Note: If d~es for delay are award, ed, they shall be
separately stated.)
applicable.)
Date of Hearing:
Date of Award:
Arbitrators' ¢om.?ensatton co be
~aid upon appeal:
· Arbitrator, dissents. (Insert name if
......... n b-"m~il co the
award was entered upon the docket and uotice chereo£ g~ve y
Oe.~ucy
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
ROBERT E. ROMITO, CIVIL DIVISION
KRISTEN KOHR,
Plaintiff, No.: 01-7178
Defendant.
AFFIDAVIT
I hereby certify that the judgment entered in the above matter was the result of damages in a motor
vehicle accident.
Respectfully submitted,
WEBER GALLAGHER SIMPSON STAPLETON
FIRES & NEWBY LLP
Ch~stopher P. ~)eegan, Esqt~
Counsel for Plaintiff
Dated: