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HomeMy WebLinkAbout10-4927 ~~~.. E~:EIB IT "C" Item Type 3 Boxes Coil Nails Material 2 Rolls Ice and Water Shield Material 6 Rolls of Felt Material 6 Tarps Tool 150 Ib Bag 8 penny nails Material 150 Ib Bag 16 penny nails Material 3 Dewalt Batteries Tool 1 Hamme Drill Tool 1 Porter & Cable Drill and Batter Tool 115 Amp Skill Saw Tool 6 Tear off Shovels Tool 2 Wonder Bars Tool 4 Chalk Lines Tool 5 Utlity Knives Tool 4 Slap Staplers Tool 4 Boxes of Staples Tool 1~ewalt Skrew Gun Tool 2 Tool Boxes Tool 1 Box of Step Flashing Material 1 Dewalt Battery Charger Tool 4 Full Cans of Gas Tool 1 Hand Magnet Tool 2 Tear off Shovels Tool 1 Blower Tool Monday -16 Extra Hours Labor Tuesday - 20 Extra Hours Labor Wednesday - 24 Extra Hours Labor Yellow Pages Ad Contract Cost $90 $95 $60 $130 $50 $50 $225 $240 $120 $75 $300 $45 $32 $40 $100 $25 $125 $600 $98 $50 $75 $50 $135 $100 320 400 480 340 E~:HIB IT "D" xeprlnt - ~i/1u/lulu, ~.ltam i >031315036< Orrstown Bank Shippensburq, PA 17257 Phcsne : 717-532-6114 Bns Date: 07/19/2010 Branch/Teller 0002/0025 07/19/2010 09:95:.04 D & S C©NTRACTING LLG 926 ROXBURY RD NEWBUHC,, PA 172a0 (717} 88.0-3701 108:2 ,!' 60.1503.313 DATE U ~,~-.~~1s~;~~~~.~s a ~ y t d Srd(tioxafExal&xor FOR ~„ ~'~~ ~ { ,~ j-'00 i08 2tN ~:0 3 ~ 3 L 50 36~:. 0 LQ 000'0 3n~ DANNY G. FORR~STER Petitioner v. SHAWN L. EYER and D&S CONTRACTING, LLC, Respondents IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . No: CIVIL ACTION -LAW & EQUITY CERTIFICATE OF SERVICE I, SEAN M. CONCANNON, ESQUIRE, do hereby certify that on July 27, 2010, I served a true and correct copy of a Motion for Injunctive Relief in the Nature of Ex Parte Temporary Restraining Order and proposed Order upon the following below-named individual(s) by United States, postage prepaid, certified mail at Hershey, Pennsylvania, addressed to: Shawn L. Eyer 12915 Lower Horse Valley Road Orrstown, PA 17244 D&S Contracting, LLC 926 Roxbury Road Newburg, PA 17240 JAMES, SMITH, DIETTERICK & CONNELLY, LLP B ~~ Y• W. HANDELMAN, ESQUIRE I.D. No. 82629 SEAN M. CONCANNON, ESQUIRE LD. No. 205998 P.O. Box 650 Hershey, PA 17033-0650 (717) 533-3280 R DANNY G. FORRESTER PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. : C) ~-a- ~ "r i SHAWN I. EYER, . _~.,~.~~, _~ D & S CONTRACTING, LLC, ~ ~ ~ ~_} r,,-T DEFENDANTS NO. 10-4927 CIViL .,,C ~. _ IN RE: MOTION FOR INJUNCTIVE RELIEF ~ _°r~" _," ~. ~ ~ " ORDER OF COURT , ~ ~ ~.. ; AND NOW, this 4th day of August, 2010, this being the time and place set for hearing on the Plaintiff s Motion for Injunctive Relief in the Nature of an Ex Parte Temporary Restraining Order, and the parties having reached an agreement in the matter before hearing, IT IS HEREBY ORDERED AND DIRECTED that: 1. The Temporary Restraining Order currently will remain in effect until further Order of Court. 2. Hearing on the matter is continued until Thursday, October 28, 2010, at 9:00 a.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, PA 3. Shawn I. Eyer has paid the amount of $3,300.00 to D & S Contracting, LLC. The Parties agree that this satisfies the original Temporary Restraining Order. 4. The Parties agree to share the roofers buggy which is an asset of D & S Contracting, LLC on a day on day off basis. The party using the roofers buggy on any particular day will be responsible for transporting it to Big Dog Rentals at the end of the day. • ~,, 5. The parties agree to have a final accounting of D & S Contracting, LLC done by an independent accountant. The accounting shall be completed as soon as possible but no later than October 8, 2010. By the Court, M. L. Ebert, Jr., J. Sean Cancannon, Esquire P. O. Box 650 Hershey, PA 17033 Steven Maitland, Esquire 61 West Lowther Street Carlisle, PA 17013 a °~;`~ SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ~~~tttr pf ~ iurtbrri~~A ~. ~:~-,µ: ~~,~F =~~ ~~~~~~F ~ ~~ ~~ A ~_ 3~ ~~ 11 ~ 18 Jody S Smith Chief Deputy Richard W Stewart Solicitor Danny G. Forrester vs. Shawn L. Eyer (et al.) ., ~~++ ,. ,. ~L Case Number 2010-4927 SHERIFF'S RETURN OF SERVICE 08/02/2010 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Shawn L. Eyer, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of Franklin County, PA to serve the within Writ of Summons according to law. 08/02/2010 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: D & S Contracting, LLC, but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Franklin County, PA to serve the within Writ of Summons according to law. 08/09/2010 11:10 AM -Franklin County Return: And now August 9, 2010 at 1110 hours I, Dane Anthony, Sheriff of Franklin County, Pennsylvania, do herby certify and return that I served a true copy of the within Writ of Summons, upon the within named defendant, to wit: D & S Contracting LLC by making known unto Shawn Eyer, Owner of D & S Contracting LLC at 12915 Lower Horse Valley Road, Orrstown, PA 17244 its contents and at the same time handing to him personally the said true and correct copy of the same. 08/09/2010 11:10 AM -Franklin County Return: And now August 9, 2010 at 1110 hours I, Dane Anthony, Sheriff of Franklin County, Pennsylvania, do herby certify and return that I served a true copy of the within Writ of Summons, upon the within named defendant, to wit: Shawn L. Eyer by making known unto himself personally, at The Franklin County Sheriffs Office, 157 Lincoln Way East, Chambersburg, PA 17201 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $53.00 August 26, 2010 SO ANSWERS, RON R ANDERSON, SHERIFF (cj CountySuite Sheriff, Teleosoft. Inc. SHERIFF'S RETURN - REGULAR CASE NO: 2010-00212 T COMMONWEALTH OF PENNSYLVANIA: COUNTY OF FRANKLIN FORRESTER DANNY G VS EYER SHAWN L KENNETH W HALL Deputy Sheriff of FRANKLIN County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS EYER SHAWN L was served upon the DEFENDANT at 1110:00 Hour, on the 9th day of August 2010 at FRANKLIN COUNTY SHERIFF'S OFFI 157 LINCOLN WAY EAST CHAMBERSBURG. PA 17201 SHAWN L EYER a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing .00 Service .00 Affidavit .00 Surcharge .00 .00 .00 by handing to So Answers: KENNETH W HALL By < eputy heriff 08/17/2010 JARED W HANDLEMAN Sworn and Subscribed to before me this ~ day of ~~0 A.D. Notary ~- COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL RICHARD D. McCARTY, Notary Public Chambersburg Boro., Franklin County My Commission Expires Jan. 29, 2011 SHERIFF'S RETURN - REGULAR CASE NO: 2010-00212 T COMMONWEALTH OF PENNSYLVANIA: COUNTY OF FRANKLIN FORRESTER DANNY G VS EYER SHAWN L KENNETH W HALL Deputy Sheriff of FRANKLIN County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS D& S CONTRACTING LLC was served upon DEFENDANT the at 1110:00 Hour, on the 9th day of August 2010 at 12915 LOWER HORSE VALLEY ROAD ORRSTOWN, PA 17244 by handing to SHAWN EYER OWNER a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing .00 Service .00 Affidavit .00 Surcharge .00 .00 .00 Sworn and Subscribed to before me this ~ day of ~ ~~ ~ A.D. C%~t-~(Jt c~ Notary ,, So Answers: KENNETH W HALL By Deputy Sheriff 08/19/2010 JARED HANDLEMAN ESQ COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL RICHARD D. McCARTY, Notary Public Chambersburg Boro., Franklin County My Comm(ssion Expires Jan. 29, 2011 DANNY G. FORRESTER IN THE COURT OF COMMON PLEAS OF Petitioner :CUMBERLAND COUNTY, PENNSYLVANIA v. No. 10-4927 CNIL r'~' "9 ~ ''" ~.p,~ `~ SHAWN L. EYER and D&S .~ ~' ~? ..,.~ o =~ CONTRACTING, LLC, ~.= ~° ;~,, ~~ Respondents _ :CIVIL ACTION -LAW & EQUITY 3-~ -; `~''' . ~-~ `~ ~ MOTTON FOR EXTENSION OF ACCOUNTING s-° : ~' • • •`= ~ ~ ~- _ DEADLINE AND CONTINUANCE OF HEARING - :~.~' :~. AND NOW, comes the Petitioner, Danny G. Forrester, by and through his counsel, James, Smith, Dietterick & Connelly, LLP, with the consent of Respondents and their counsel, Allied Attorneys of Central Pennsylvania, LLC, to move this Honorable Court to entend the final accounting deadline of October 8, 2010 and to continue the hearing scheduled for October 28, 2010. In suppor thereof, Petitioner avers as follows: 1. This action arised from a former business relationship between the parties pursuant to which the individual litigants (hereinafter "FORRESTER" and ""EYER" respectively) hereto jointly owned and operated a roofing business known as D&S Contracting, LLC (hereinafter "D&S"). 2. As a result of the cessation of the business relationship between FORRESTER and EYER on or about June 19, 2010, FORRESTER filed a Motion for Injunctive Relief on July 27, 2010, along with a Writ of Summons commencing an action in law and equity about the named Respondents to this action. 3. On July 30, 2010, this Honorable Court issued an Order granting to Motion for Injunctive Relief and preserving the staus quo as it existed immediately prior to the cessation of the parties' business relationship, including the freezing of the bank accounts and other assets of D&S pending outcome of the Motion for Injunctive Relief. In addition, the Order of July 30, 2010 scheduled a hearing for August 4, 2010 before this Honorable Court. A true and correct copy of the July 30, 2010 Order is attached hereto as Exhibit "A" and incorporated herein by reference as if set forth in full. 4. On the date scheduled for hearing, August 4, 2010, this Honorable Court issued an Order scheduling a final hearing in the matter for October 28, 2010 at 9:00 a.m. In addition, the August 4, 2010 Order memorialized the parties' agreement to have a final accounting completed and directed that such accounting be completed on or before October 8, 2010 in advance of the scheduled hearing. A true and correct copy of the August 4, 2010 Order is attached hereto as Exhibit "B" and incorporated herein by reference as if set forth in full. 5. Presently, the parties have agreed to employ the Shippensburg accounting firm of Marchal & Marchal, P.C. to complete the final accounting of D&S. However, at the time of the filing of this Motion, the accounting is not complete and will not be completed in advance of the scheduled October 28, 2010 hearing. 6. Counsel for the parties agree that the accounting must be completed in advance of the final hearing in this matter so as to allow counsel and the parties to apprise this Honorable Court of the assets of D&S that remain at issue between the parties. In addition, the completion of the accounting may indeed eliminate the need for hearing as the parties will be better able to attempt to negotiate a full and final settlement of the matter without the need for hearing once the accounting is complete. 7. Accordingly, Petitioner respectfully moves this Honorable Court to extend the deadline for the completion of the final accounting of D&S for a period of sixty (60) days until December 8, 2010. Petitioner further requests that the hearing scheduled for October 28, 2010 be continued until after December 8, 2010 as the Court's calendar permits to permit counsel and the parties sufficient opportunity to review and assess the final accounting in advance of the final hearing. 8. The undersigned has consulted with counsel for Respondents, Andrew J. Bender, Esquire, and Attorney Bender concurs in the relief requested in this Motion. WHEREFORE, Petitioner, Danny G. Forrester, respectfully requests that this Honorable Court grant the within Motion and extend the deadline for the final accounting of D&S Contracting, LLC until December 8, 2010 and continue the hearing scheduled for October 28, 2010 to a date after December 8, 2010 so as to permit counsel and the parties to review the final accounting in advance of the final hearing in this matter. Respectfully submitted, JAMES, SMITH, DIETTERICK & CONNELLY LLP Date: October 22, 2010 By: J~AD"W. HANDELMAN, ESQUIRE \ I.D. No. 82629 SEAN M. CONCANNON, ESQUIRE I.D. No. 205998 P.O. Box 650 Hershey, PA 17033 (717) 533-3280 Attorneys for Petitioner, Danny G. Forrester E DANNY G. FORRESTER Petitioner v. SHAWN L. EYER and D&S CONTRACTING, LLC, Respondents IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. CIVIL ACTION -LAW & EQUITY ORDER AND NOW, this ~ day of 3uly, 2010, upon consideration of Petitioner's Motion for Ex Parte Temporary Restraining Order, including all verified averments thereof and exhibits attached to said Motion, as well as the Writ of Summons filed by Petitioner commencing an action against Respondents in law and equity filed contemporaenouslytyith said Motion, and it appearing to the Court that immediate irreparable harm will be sustained by Petitioner before a hearing can be held, the Motion is hereby GRANTED. It is hereby ORDERED and DIRECTED as follows: (a) Respondents are enjoined from dissipating, distributing, or spending any monies removed from the bank account of D&S Contracting, LLC; b) Respondents shall immediately return the sum of $6,390.30 to the D&S bank account and/or Danny G. Forrester; c) Respondents shall immediately return the piece of equipment, titled in the name of D&S Contracting, LLC, known as the Roofers Buggy, as well as all materials and equipment contained in the Roofers Buggy and otherwise enumerated in Exhibit "C" attached to the within Motion, to D&S and/or Danny G. Forrester. It is further directed that the Roofers Buggy and all tools and materials to be returned by Respondents as directed herein shall remain in the possession of Petitioner, Danny G. Forrester, until further Order of Court; (d) Respondents shall account for all monies expended, removed, or otherwise dissipated from the D&S bank accounts since July 16, 2010; (e) All bank accounts and assets of D&S are hereby frozen and there shall be no disbursement, expenditure, or withdrawal from such accounts without the prior and express joint approval of Petitioner and Respondents. It is further ORDERED that pursuant to Pa.R.C.P. 1531(d), a hearing pertaining to the continuance of this Temporary Restraining Order shall beheld on the .day of 2010 at ~~:~ ~.rn. in Courtroom ~ of the Cumberland County Courthouse, Carlisle, Pennsylvania. A Rule is hereby ENTERED upon Respondents to show cause, if any, at the above date and time, why this Temporary Restraining Order should not be continued permanently. BY THE COURT: ~~~~/~ DANNY G. FORRESTER PLAINTIFF V. SHAWN I. EYER, D & S CONTRACTING, LLC, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-4927 CIV1L IN RE: MOTION FOR INJUNCTIVE RELIEF ORDER OF COURT AND NOW, this 4th day of August, 2010. this being the time and place set for hearing on the Plaintiff's Motion for Injunctive Relief in the Nature of an Ex Parte Temporary Restraining Order, and the parties having reached an agreement in the matter before hearing, IT IS HEREBY ORDERED AND DIRECTED that: 1. The Temporary- Restraining Order currently wil{ remain in effect until further Order of Court. 2. Hearing on the matter is continued until Thursday, October 28, 2010, at 9:00 a.m. in Courtroom No. 2 of the Cumberland County Courthouse, Car{isle, PA 3. Shawn I. Eyer has paid the amount of $3,300.00 to D & S Contracting, LLC. The Parties agree that this satisfies the original Temporary Restraining Order. 4. The Parties agree to share the roofers buggy which is an asset of D & S Contracting, LLC on a day on day off basis. The party using the roofers buggy on any particular day will be responsible for transporting it to Big Dog Rentals at the end of the day. 5. The parties agree to have a final accounting of D & S Contracting, LLC done by an independent accountant. The accounting shall be completed as soon as possible but no later than October 8, 2010. By the Court, M. L. Ebert, Jr., J. Sean Cancannon, Esquire P. O. Box 650 Hershey, PA 17033 Steven Maitland, Esquire 61 West Louther Street Carlisle, PA 17013 CERTIFICATE OF SERVICE I, JARAD W. HANDELMAN, ESQUIRE, do hereby certify that I served a true and correct copy of the foregoing Motion upon the following below-named individual(s) by depositing the same in the U.S. Mail, postage pre-paid at Hershey, Dauphin County, Pennsylvania this 22id day of October, 2010. SERVED UPON: Andrew J. Bender, Esquire Allied Attorneys of Central Pennsylvania, LLC 61 West Louther Street Carlisle, PA 17013 JAMES, SMITH, DIETTERICK & CONNELLY LLP By: JARAD W. HANDELMAN, ESQUIRE Attorney I.D. #82629 P.O. Box 650 Hershey, PA 17033-0650 (717) 533-3280 ' . ' OCT 2 5 2010 DANNY G. FORRESTER IN THE COURT OF COMMON PLEAS OF Petitioner :CUMBERLAND COUNTY, PENNSYLVANIA v. r`, No. 10-4927 CIVIL _. _~, - .- SHAWN L. EYER and D&S _.,,. r, E ; ~, =xr -max -~ -~~ CONTRACTING, LLC, `'~~'- ~`' ~~ ~`~ Respondents :CIVIL ACTION -LAW & EQUITYr= ~ -- -; `° ~ ~_~ `~ci "7 -- ~ ~ .~-~- ORDER ~ ~ ~ ~~ .~: ~~ AND NOW, this ~. ~ day of October, 2010, upon consideration of the Motion for Extension of Accounting Deadline and Continuance of Hearing, and with the concurrence of all parties and counsel, said Motion is hereby GRANTED. The deadline for the final accounting of D&S Contracting, LLC is hereby EXTENDED until December 8, 2010. In addition, the hearing scheduled for Thursday, October, 28, 2010 is hereby CONTINUED. Final hearing on this matter is hereby scheduled for the ~ day of ~~C-~Yf~,a.~ , 20 J ~ at I D : 3~ q..m. in Courtroom oZ- of the Cumberland County Courthouse. All other provisions of the Orders dated July 30, 2010 and August 4, 2010 shall remain in full force and effect pending final hearing in this matter. BY THE COURT: 1~. M.L. EBERT, JR., J. /'1'!a t Distribution: ndrew J. Bender, Esquire, Allied Attorneys of Central Pennsylvania, LLC, 61 West Louther Street, Carlisle, PA 17013. Phone: (717) 249-1177; Fax: (717) 249-4514. arad W. Handelman, Esquire, James, Smith, Dietterick & Connelly, LLP, P.O. Box 650, Hershey, PA 17033. Phone: (717) 533-3280; Fax: (717) 533-2795; e-mail: jwh@jsdc.com. -eS lo` ~`rv ~~ DANNY G. FORRESTER IN THE COURT OF COMMON PLEAS OF Petitioner CUMBERLAND COUNTY, PENNSYLVANIA V. No. 10-4927 CIVIL SHAWN L. EYER and D&S c CONTRACTING, LLC, rrn w -n -n Respondents CIVIL ACTION - LAW & EQUITYz::o Mn r -<A ca MOTION FOR CONTINUANCE OF HEARING c'5, c- 77, , :c, ?r ..$ AND NOW, comes the Petitioner, Danny G. Forrester, by and through his counsel, James, Smith, Dietterick & Connelly, LLP, with the consent of Respondents and their counsel, Allied Attorneys of Central Pennsylvania, LLC, to move this Honorable Court to continue the hearing scheduled for February 16, 2011 at 10:30 a.m. In support thereof, Petitioner avers as follows: 1. The accounting of D&S Contracting, LLC is not yet complete. 2. Counsel for both parties have discussed the matter and believe that the matter will be settled without the need for hearing once the accounting is complete. 3. A continuance of the hearing scheduled for Wednesday, February 16, 2011 is required in order to allow for the completion of the accounting of D&S Contracting, LLC, after which the parties are confident this matter can be resolved without the need for hearing. 4. Andrew J. Bender, Attorney for the Respondents, concurs in the request for continuance and joins in the within Motion. WHEREFORE, Petitioner, Danny G. Forrester, respectfully requests that this Honorable Court grant the within Motion and continue the hearing scheduled for February 16, 2011 at 10:30 a.m. so as to permit counsel and the parties to complete and review the final accounting in advance of the final hearing in this matter. Respectfully submitted, JAMES, SMITH, DIETTERICK & CONNELLY LLP _ r Date: February 14, 2011 By: JARAD W. HANDELMAN, ESQUIRE i I.D. No. 82629 SEAN M. CONCANNON, ESQUIRE I.D. No. 205998 P.O. BOX 650 Hershey, PA 17033 (717) 533-3280 Attorneys for Petitioner, Danny G. Forrester DANNY G. FORRESTER IN THE COURT OF COMMON PLEAS OF Petitioner CUMBERLAND COUNTY, PENNSYLVANIA V. No. 10-4927 CIVIL SHAWN L. EYER and D&S CONTRACTING, LLC, Respondents CIVIL ACTION - LAW & EQUITY CERTIFICATE OF SERVICE I, JARAD W. HANDELMAN, ESQUIRE, do hereby certify that I served a true and correct copy of the foregoing Motion for Continuance of Hearing upon the following below-named individual(s) via facsimile and by depositing the same in the U.S. Mail, postage pre-paid at Hershey, Dauphin County, Pennsylvania this 14th day of February, 2011. SERVED UPON: Andrew J. Bender, Esquire Allied Attorneys of Central Pennsylvania, LLC 61 West Louther Street Carlisle, PA 17013 Facsimile: (717) 249-4514 JAMES, SMITH, DIETTERICK & CONNELLY LLP By: JARAD W. HAND AN, ESQUIRE Attorney I.D. #82629 P.O. Box 650 Hershey, PA 17033-0650 (717) 533-3280 DANNY G. FORRESTER Petitioner V. SHAWN L. EYER and D&S CONTRACTING, LLC, Respondents IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 10-4927 CIVIL No 7' . CIVIL ACTION -- LAW & EQUITY: ', ORDER AND NOW, this _6t day of February, 2011, upon consideration of the Motion for Continuance of Hearing, and with the concurrence of all parties and counsel, said Motion is hereby GRANTED. The hearing scheduled for Wednesday, February 16, 2011 is hereby CONTINUED. Final hearing on this matter is hereby scheduled for the Ut4_ day of 91? , 2011 at j_: ? m. in Courtroom c2-, of the Cumberland County Courthouse. All other provisions of the Orders dated July 30, 2010 and August 4, 2010 shall remain in full force and effect pending final hearing in this matter. BY THE COURT: Distribution: 'Andrew J. Bender, Esquire, Allied Attorneys of Central Pennsylvania, LLC, 61 West Louther Street, Carlisle, PA 17013. Phone: (717) 249-1177; Fax: (717) 249-4514. M.L. EBERT, JR., J. ailed M? ce i,5(i z Jarad W. Handelman, Esquire, James, Smith, Dietterick & Connelly, LLP, P.O. Box 650, Hershey, PA 17033. Phone: (717) 533-3280; Fax: (717) 533-2795; e-mail: jwh@jsdc.com. C--? tv C" D '71 FORRESTER DANNY G IN THE COURT OF COMM00 ? ? , . Petitioner PLEAS OF CUMBERLAND u r rev - COUNTY, PENNSYLVANIA: r'`' Jr-) V. - NO. 10-4927 = t,, a g -' SHAWN L. EYER and D&S E = -; © CONTRACTING, LLC, Z Respondents CIVIL ACTION - LAW & EQUITY ORDER h? I L AND NOW, this , 2011, the parties h day of yh aving reached a settlement of all issues ancillary to the above-captioned action, including a division of the assets of D&S Contracting, LLC, it is hereby ORDERED as follows: 1. The Temporary Restraining Order currently in effect is hereby lifted. 2. Petitioner shall provide to Respondent two (2) nail guns and certain other miscellaneous tools within fifteen (15) days of the date of this order. Said nail guns and tools shall thereafter become Respondent's sole and separate property. It is agreed by the parties that one (1) of the two (2) nail guns to be provided to Respondent shall be one of the nail guns which were purchased by D&S Contracting, LLC during the course of the parties' business. The parties agree that Petitioner shall purchase Respondent's interest in all remaining business assets, including but not necessarily limited to, the Roofer's Buggy, all remaining tools not referenced in Paragraph 1 above, all moneys held in the business checking account and any undistributed profits, for the sum of $11,500.00. 4. The $11,500.00 due and owing to Respondent shall be paid as follows: (A) The $3,072.56 currently held in the Orrstown Bank Free Business Checking Account # 10000203 shall be turned over to Respondent and shall become his sole property. The Court is specifically authorizing Respondent to close the Orrstown Bank Free Business Checking Account and retain all funds held in the account. (B) The remaining balance of $8,427.44 shall be paid by Petitioner to Respondent in twelve monthly installments of $702.29 until the balance is paid in full. The first monthly installment of $702.29 shall be paid by Petitioner on or before July 22, 2011. Petitioner shall make the remaining monthly installment payments on or before the 22nd day of each month thereafter. (C) To secure the $11,500.00 settlement amount which is to be paid by Petitioner, Respondent is granted a lien against the Roofer's Buggy owned by D&S Contracting, LLC, and Petitioner shall not encumber, sell, transfer or otherwise dispose of the Roofer's Buggy without the prior written consent of the Respondent. Following payment full payment of the $11,500.00 due and owing to Respondent, the lien against the Roofer's Buggy shall expire. BY THE COURT, Sean Concannon, Esquire P.O. Box 650 Hershey, PA 17033 Andrew Bender, Esquire 61 West Louther Street Carlisle, PA 17013 -804-S 4,4 dZ-4? - EM 044411 . , ANDREW J. BENDER, ESQUIRE ~ RY A O THONOTA Allied Attorneys of Central Pennsylvania, L.L.C. ~n NOV ! 5 61 West Louther Street 2~ Carlisle, PA 17013 CU~BERLANp CpUp~~-Y (717) 249-1177 ENNSYLVAN1A (717) 249-4514 Fax PA Supreme Court ID #205763 Attorneys for Defendant Shawn L. Eyer DANNY G. FORRESTER, . IN THE COURT OF COMMON Plaintiff : PLEAS OF CUMBERLAND : COUNTY, PENNSYLVANIA v. : NO. 10-4927 SHAWN L. EYER and D&S : CONTRACTING, LLC, : Defendants . CIVIL ACTION - LAW & EQUITY PETITION FOR CIVIL CONTEMPT OF COURT ORDER AND NOW, comes the Petitioner, Shawn L. Eyer, by and through his attorneys, Andrew J. Bender, Esquire and Allied Attorneys of Central Pennsylvania, L.L.C., and files the instant Petition for Civil Contempt of Court Order and in support thereof avers as follows: 1. Petitioner is Shawn L. Eyer, the defendant in the above-captioned action. 2. Respondent is Danny G. Forrester, the plaintiff in the above-captioned action. 3. Petitioner and Respondent were formerly co-owners of a roofing business known as D&S Contracting, LLC, a construction company organized under the laws of the Commonwealth of Pennsylvania. 4. On July 27, 2010, Respondent commenced an action against the Petitioner by filing a Motion for Injunctive Relief in the Nature of Ex Parte Temporary Restraining Order and a Praecipe for Writ of Summons. e 5. Respondent's Motion for Injunctive Relief requested, inter alia, that the business's primary and most valuable asset, a piece of construction equipment known as a Roofer's Buggy, be turned over to the sole control of Respondent. 6. On July 30, 2010, an order was entered by the Honorable M.L. Ebert, Jr. granting Respondent temporary relief and scheduling a hearing for August 4, 2010. A txue and correct copy of the July 30, 2010 order of court is attached hereto mazked as Exhibit "A" and made a part hereof. 7. On August 3, 2010, Petitioner filed a response to Respondent's Motion for Injunctive Relief. 8. On August 4, 2010, a hearing was held on Respondent's Motion for Injunctive Relief before Judge Ebert following which an order was entered, pursuant to the parties' agreement, maintaining the status quo, ordering that the parties would share enjoyment of the Roofer's Buggy on a day on day off basis and ordering an accounting of the assets of D&S Contracting, LLC. A true and correct copy of the August 4, 2010 Order of Court is attached hereto as Exhibit "B" and made a part hereof. 9. Thereafter, subsequent hearings scheduled for October 28, 2010 and February 16, 2011 were continued until June 22, 2011 in order to allow the parties to complete the accounting of business assets. 10. Prior to the June 22, 2011 hearing the parties reached a negotiated settlement whereby Respondent would pay Petitioner the sum of $11,500.00 in return for Petitioner's agreement to turn over all D&S Contracting, LLC assets, including the Roofer's Buggy, to Respondent. 2 . , 11. On June 22, 2011, an order was entered by Judge Ebert detailing the terms of the negotiated settlement, a true and correct copy of which is attached hereto as Exhibit "C" and made a part hereof. 12. To secure payment of the $11,500.00 owed to him, Petitioner was granted a lien in the Roofer's Buggy preventing Respondent from encumbering, selling, transferring or otherwise disposing of the Roofer's Buggy. See, Exhibit "C" at paragraph 4(C). 13. The $11,500.00 due and owing to Petitioner under the terms of the negotiated settlement was to be paid via a cash payment of $3,072.56 from the business's bank account, with the remaining $8,427.44 to be paid in twelve equal monthly installments of $702.29. . 14. Respondent has failed to make consistent monthly payments m accordance with the Court's June 22, 2011 order. 15. The first installment payment of $702.29 was due to Petitioner on July 22, 2011. 16. Respondent failed to make the first monthly installment payment timely and counsel for Petitioner notified counsel for Respondent of the non-payment. 17. Thereafter, on July 29, 2011 Respondent delivered a check to counsel for Petitioner in the amount of exactly $700.00. 18. The second installment payment of $702.29 was due to Petitioner on August 22, , 2011. 19. Respondent failed to make the second monthly installment payment timely and counsel for Petitioner again notified counsel for Respondent of the non-payment. 20. Following this second notice of a missed payment, counsel for the parties agreed that Respondent would make all installment payments on the first of each month in order to make it easier for Respondent's to keep track of the payments. 3 21. It was further agreed by counsel for Respondent that the undersigned would conta.ct Respondent directly regarding any other payment issues. As such, this petition is being served directly upon Respondent and upon James, Smith, Dietterick & Connelly, LLP. 22. Pursuant to this agreement by counsel, the second monthly installment payment's due date was extended to September 1, 2011. 23. Respondent once again failed to make the second installment payment timely. 24. The undersigned made several efforts to contact Respondent regarding the second installment payment, and the second payment was eventually received in the amount of $705.00 on September 16, 2011. 25. The third monthly installment payment of $702.29 was due on October 1, 2011. 26. To this date, Respondent has not made the third installment payment despite several attempts by the undersigned to secure payment. 27. The fourth monthly installment payment of $702.29 was due on November 1, 2011. 28. To this date, Respondent has failed to make the fourth installment payment. 29. Petitioner believes, and therefore, avers, that Respondent has no intention of complying with the terms of the negotiated settlement reached by the parties and the order of court entered by Judge Ebert on June 22, 2011. 30. Petitioner further believes, and therefore, avers, that Respondent may have few assets of substantial value apart from the Roofer's Buggy, and Petitioner respectfully requests this Honorable Court order that possession of the Roofer's Buggy be granted to Petitioner until adjudication of this matter in order to protect Petitioner's security interest in the Roofer's Buggy. 4 31. Petitioner has expended significant sums of money in the way of counsel fees in attempting the secure the payments he is entitled to receive pursuant to the June 22, 2011 order of court, and the preparation and presentation of the instant Petition for Civil Contempt of Court Order. 32. Petitioner believes, and therefore, avers, that Respondent's refusal to pay Petitioner the monthly installment payments, the terms of which were agreed to by Respondent, despite Petitioner's numerous attempts to secure payment, amounts to obdurate and vexatious conduct which entitles Petitioner to counsel fees pursuant to 42 Pa.C.S. § 2503(7). 33. In the event that the court does not find Respondent's conduct to be obdurate and vexatious within the meaning of 42 Pa.C.S. § 2503(7), Petitioner believes, and therefore, avers that Petitioner is nonetheless entitled to counsel fees and costs in accordance with Wood v. Geisenhemer-Shaulis, 2003 PA Super 224, 827 A.2d 1204 (2003), a copy of which is attached hereto as Exhibit "D". WHEREFORE, the petitioner, Shawn L. Eyer, respectfully requests this Honorable Court enter and order directing the respondent, Danny G. Forrester, to: A. Immediately pay to petitioner the full $7,022.44 balance owed or relinquish the Roofer's Buggy to petitioner in satisfaction of the $7,022.44 balance; B. Pay to petitioner the sum of $750.00 for counsel fees and costs incurred in the preparation and presentation of this petition; and C. Relinquish possession of the Roofer's Buggy to Petitioner pending a hearing in this matter and further order of court. 5 Respectfully submitted, DATE: 's-<' ANDREW J. BEN ER, ESQUIRE PA Supreme Court ID #205763 Allied Attorneys of Central Pennsylvania, L.L.C. 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax Attorneys for Petitioner 6 VERIFICATION I, Shawn L. Eyer, verify that the statements made in the foregoing are true and correct. I understand that false sta.tements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. DATE: Shawn L. Eyer, P itioner ~ . , : ~ ~ EXHIBIT "A" ~ DANNY G. FORRESTER : IN THE COURT OF COMMON PLEAS OF Petitioner : CLJMBERLAND COUNTY, PENNSYLVANIA v. : No. /D . ~ SHAWN L. EYER and D&S : CONTRACTING, LLC, : Respondents : CIVIL ACTION - LAW & EQUITY ORDER AND NOW, this ~ day of July, 2010, upon consideration of Petitioner's Motion for Ex Parte Temporary Restraining Order, including all verified averments thereof and exhibits attached to said Motion, as well as the Writ of Summons filed by Petitioner commencing an action against Respondents in law and equity filed contemporaenously with said Motion, and it appearing to the Court that immediate irreparable harm will be sustained by Petitioner before a hearing can be held, the Motion is hereby GRANTED. It is hereby ORDERED and DIl2ECTED as follows: ~ (a) Respondents are enjoined from dissipating, distributing, or spending any monies removed from the bank account of D&S Contracting, LLC; b) Respondents shall immediately return the sum of $6,390.30 to the D&S bank account and/or Danny G. Forrester; c) Respondents shall immediately return the piece of equipment, titled in the name of D&S Contracting, LLC, known as the Roofers Buggy, as well as all materials and equipment contained in the Roofers Buggy and otherwise enumerated in Exhibit "C" attached to the within Motion, to D&S and/or Danny G. Fonester. It is further directed that the Roofers Buggy and all tools and materials to be returned by Respondents as directed herein shall remain in the possession of Petitioner, Danny G. Forrester, until further Order of Court; (d) Respondents shall account for all monies expended, removed, or otherwise dissipated from the D&S bank accounts since July 16, 2010; (e) All bank accounts and assets of D&S are hereby frozen and there shall be no disbursement, expenditure, or withdrawal from such accounts without the prior and express joint approval of Petitioner and Respondents. It is further ORDERED that pursuant to Pa.R.C.P. 1531(d), a hearing pertaining to the continuance of this Temporary Restraining Order shall be held on the ~ day of , 2010 at ~.m. in Courtroom ~L of the Cumberland County Courthouse, Carlisle, Pennsylvania. ' A Rule is hereby ENTERED upon Respondents to show cause, if any, at the above date and time, why this Temporary Restraining Order should not be continued permanently. BY THE COURT: . J. ~ ~ ~ ~ ~ ~ i ~ ~ i s ~ EXHIBIT ~ DANNY G. FORRESTER : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. : SHAWN I. EYER, : D & S CONTRACTING, LLC, : . DEFENDANTS : NO. 10-4927 CIVIL IN RE: MOTION FOR INJUNCTIVE RELIEF ORDER OF COURT AND NOW, this 4th day of August, 2010, this being the time and place set for hearing on the Plaintiff's Motion for Injunctive Relief in the Nature of an Ex Parte Temporary Restraining Order, and the parties having reached an agreement in the ; matter before hearing, IT IS HEREBY ORDERED AND DIRECTED that: 1. The Temporary Restraining Order currently will remain in effect until further Order of Court. 2. Hearing on the matter is continued until Thursday, October 28, 2010, at 9:00 a.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, PA 3. Shawn I. Eyer has paid the amount of $3,300.00 to D& S Contracting, LLC. The Parties agree that this satisfies the original Temporary Restraining Order. 4. The Parties agree to share the roofers buggy which is an asset of D& S Contracting, LLC on a day on day off basis. The party using the roofers buggy on any particular day will be responsible for transporting it to Big Dog Rentals at the end of the day. 5. The parties agree to have a final accounting of D& S Contracting, LLC done by an independent accountant. The accounting shall be completed as soon as possible but no later than October 8, 2010. By the Court, M. L. Ebert, Jr., J. Sean Cancannon, Esquire P. O. Box 650 Hershey, PA 17033 Steven Maitland, Esquire 61 West Louther Street Carlisle, PA 17013 y, Y . . II I ( i i I I i I ~ ~ ~ ; GG » ~ r ~ EXHIBIT ,r DANNY G. FORRESTER, : IN THE COURT OF COMMON Petitioner : PLEAS OF CUMBERLAND : COUiVTY, PEI,~NSYLVANIA v. : : N0. 10-4927 SHA~VN L. EYER and D&S : CONTRACTING, LLC, : Respondents : CIVIL ACTION - LAW & EQUITY ORDER r~ AND NOW, this day of 1,) 1~ L , 2011, the parties havin~ reached a settlement of all issues ancillary to the above-captioned action, including a division of the assets of D&S Contracting, LLC; it is hereby ORDERED as follows: 1. The Temporary Restraining Order currently in effzct is hereby lifted. 2. Petitioner shall provide to Respondent two (2) nail guns and certain other miscellaneous tools within fifteen (15) days of the date of this order. Said nail C'uns and tools sha11 thereaftzr become Respondent's sole and separate property. It is agreed by the parties that , one (1) of the two (2) nail guns to be provided to Respondent sha11 be one of the nail auns which were purchased by D&S Contracting, LLC durina the course of the parties' business. 3. The parties agree that Petitioner shall purchase Respondent's interest in all remaining business assets, includina btit not necessarily limited to, the Roofer's Buggy, a11 oc~ remainin-, tools not referenced in Parajraph 1 above, all moneys held in the business checking account and any undistribttted profits, for the sum of $11,500.00. 4. The $11,500.00 due and owing to Respondent shall be paid as follows: (A) The $3,072.56 currently held in the Orrstown Bank Free Business Checkin(y Account 9 10000203 shall be turned over to Respondent and shall become his soIe property. The Court is specifically authorizina Respondent to close the Orrstown Bank Free Business Ghecking Account and retain all funds held in the account. l (B) The remaining balance of $8,427.44 shall be paid by Petitioner to Respondent in twelve monthly installments of 5702.29 until the balance is paid in fiilf. The first monthly installment of S702.29 shall be paid by Petitioner on or before July 22; 2011. Petitioner shall make the remaining monthly installment payments on or before the day of each month thereafter. (C) To secure the $11,500,00 settlement amount which is to be paid by Petitioner, Respondent is granted a lien aaainst the Roofer's Buagy owned by D&S Contracting, LLC, and Petitioner shall not encumber, sell, transfer or otherwise dispose of the Roofer's Bucgy without the prior written consent of the Respondent. Followinc, payment full payment of the $11,500.00 due and owing to Respondent, the lien against the Roofer's BugQy shall expire. BY THE COURT, TRUE COPY FROM RECpRD !n Testimony whereof, i here unto set my hand Sean Concannon, Esquire and the s8al ofsa~ ~urt atCarlisl20P~/ Thts d y P.O. Box 650 Hershey, PA 17033 onotary Andrew Bender, Esquire 61 West Louther Street Carlisle, PA 17013 EXHIBIT L4 » ' Page 1 ~ LeAsNexis~ ANTWINE WOOD, minor child, and DAWN CRAWLEY, parent and natural guardian of ANTWINE WOOD, and ROOSEVELT JAMAL GRAY, minor child, and CATHY GRAY, parent and guardian of ROOSEVELT JAMAL GRAY, Ap- pellants v. JiJLIA GEISENHEMER-SHAULIS, Appellee No. 3420 EDA 2001 SUPERIOR COURT OF PENNSYLVANIA 2003 PA Super 224; 827 A.2d 1204; 2003 Pa. Super. LEXIS 1756 February 10, 2003, Submitted June 12, 2003, Filed PRIOR HISTORY: [***1] Appeal from the Or- Minor Plaintiffs [i.e., Wood, et al.] der of the Court of Common Pleas of Philadelphia were injured in an automobile accident County, Civil Division, No. 1618 October Term 2000. when the vehicle in which they were pas- Before WOLF, J. sengers was struck by Defendant's [i.e., Geisenhemer-Shaulis'] caz. [Waties] set- DISPOSITION: Order vacated. Case remanded. tled his minor clients' claims directly with Jurisdiction relinquished. the Defendant's insurer, Prudential Prop- erty and Casualty Insurance Company ("Prudential"), and therefore, was not re- COUNSEL: David W. Waties, Philadelphia, for appel- quired to file a Complaint on their behalf. lants. This settlement was confirmed in writing by letter [***2] dated October 10, 1998. Brian D. Boyle, Philadelphia, for appellee. Thereafter, Prudential's adjuster made JUDGES• Before JOHNSON, FORD ELLIOTT and numerous attempts to contact [Waties] to CAVANAUGH, JJ. OPINION BY CAVANAUGH, J. finalize the matter. Receiving no re- sponse, the adjuster sent the case to OPINION BY• CAVANAUGH J [Boyle (appellee's counsel)] who filed a ~ ' Petition to Enforce Minor's Compromise OPINION [azound October 13, 2000] 1205] OPINION BY CAVANAUGH, J: [*P1] David W. Waties ("Waties"), counsel for Ant- al Op., slip op. at 1-2, Apr. 19, 2002. wine Wood ("Wood"), Dawn Crawley, Roosevelt Jamal Gray ("Gray"), and [**1206] Cathy Gray, appeals ~'P3] Waties, around November 13, 2000, filed a from the trial court's September 28, 2001 order directing response claiming (a) that Dawn Crawley (guardian of him to pay $350 to appellee Julia Geisenhemer-Shaulis Antwine Wood) stated that she would sign the docu- ("Geisenhemer-Shaulis") for failing to comply with the ments necessary to file the petition for minor's compro- trial court's November 20, 2000 order. We vacate the mise; and (b) that Katherine Gray (mother of Roosevelt order and remand for a hearin as the trial court ened in Gray) had signed the necessary documents. See Pl.'s holding Waties in civil conte p~t without a hearing. Resp. to Def.'s Pet. to Enforce Minor's Compromise, R.R. at 16a-18a. Waties, therefore, requested that the [*P2] We recite the facts as set forth by the trial court deny Id, R.R. at 18a. ' court's PA.R.APP.P. 1925(a) opinion: Page 2 2003 PA Super 224, 827 A.2d 1204, 2003 Pa. Super. LEXIS 1756, 1 AlthouSh GraY, s mother PurPortedlY signed the necessary documents, Gray's Petition for Mi- I. Did the trial court commit an error of nor's Compromise was not filed until February 2, law in sanctioning plaintiffs counsel 2001 - almost three months a8er Waties filed the without holding a hearing on the matter? response. II. Did the trial court commit an enor [*P4] The Honorable [***3] Patricia A. McI- of law in sanctioning plaintiffs counsel nerney granted Waties' request and directed him to file without holding a hearing in the matter to the petitions within ninety days, or by February 20, 2001. find willfulness as a basis for the sanc- See Trial Order, Nov. 20, 2000. The trial court also tion? stated that if Waties failed to comply, "sanctions and III. Did the trial court commit an er- attorneys fees will be imposed upon further Order of this Court." Id ror of law in sanctioning plaintiffs coun- sel when evidence indicated or would As of June 30, 2001, [Waries] had not have indicated no basis for sanction or complied with the terms of the Order as to contempt or penalty warranting the award Plaintiff Antwine Wood. [Waties] had [***5] ofattorneys fees? filed a Petition to Compromise the Claim of Roosevelt Gray, but that Petition was denied without prejudice due to the failure [*P6] We first distinguish between an award of of [Waties] to provide information re- counsel fees under title 42, section 2503 of the Pennsyl- quested by the Honorable Joseph D. vania Consolidated Statutes ("section 2503") and a fmd- O'Keefe. ing of contempt, which may include an award of counsel Thereafter, on July 19, 2001, [Boyle] fees as a sanction. See Mrozek v James, 2001 PA Super filed a Motion for Sanctions for failure to 199, 780 A.2d 670, 674 (Pa. Super. 2001) (stating, "the comply with Judge McInerney's Order. In award of attorneys fees is an appropriate remedy in a the response to this Motion filed on Au- civil contempt case, separate and apart from the statu- gust 20, 2001, [Waties] alleged that he tory provision for attorney's fees under 42 Pa.C.S.A. [§J had not willfully ignored the Order of 2503(7). )(emphasis supplied); accord Diamond v Judge McInerney. Instead, [Waties] ex- Diamond, 2002 PA Super 34, 792 A.2d 597, 601 (Pa plained that he was unable to complete the Super. 2002); see generally 42 Pa.C.S.A. § 2503(7) (al- Petition to Compromise the claim of lowing a party "counsel fees as a sanction against another Roosevelt Gray due to the existence of a Participant for dilatory, obdwate or vexatious generally welfare lien which the Department of required. Compare Thunberg u Strause, 545 Pa. 607, Public Welfare ("DPW") refused to com- 682 A.2d 295, 299 (Pa. 1996) (reviewing, in considering promise. [Waties] also stated that he had section 2503 issue, procedural history, which included a returned to work [***4] after missing six hearing at which Thunberg's counsel testified); State weeks due to emergency surgery and re- Farm Mut. Auto. Ins. Co. u Allen, 375 Pa. Super. 319, sulting complications. [Waties] concluded 544 A.2d 491, 494 (Pa. Super. 1988) [***6] (finding that the delay in filing the Petitions was trial court erred in awarding section 2503 counsel fees as due to his problems with DPW and his record was unclear due to trial court's failure to hold a personal [**1207] illness, and not to hearing), with Xulp v. Hrivnak, 2000 PA Super 407, 765 any dilatory conduct on his part. A.2d 796, 800 (Pa. Super. 2000) (fmding, in addressing section 2503 issue, no evidentiary heazing necessary where facts were undisputed). Trial Op., slip op. at 1-2, Apr. 19, 2002. Waties, accord- [*P7] With respect to civil contempt, "it is aaci- ing to his brief, fell ill in May 2001, or approximately omatic that courts have always possessed the inherent two months after the trial court's February 20, 2001 power to enforce their orders and decrees by imposing deadiine. sanctions for failure to comply with said orders." Rouse [*PS] After orai arguments, the trial court granted Philadelphia lnc. v Ad Hoc 178, 274 Pa. Super. 54, 417 the motion for sanctions. T'he order, entered September A.2d 1248, 1257 (Pa. Super. 1979) (citations omitted). 28, 2001, directed Waties to pay appellee $ 350 for fail- ing to comply with the court's November 20, 2000 order. The objective of a civil contempt pro- Waties filed this appeal and presents three issues in his ceeding is remedial and judicial sanctions brief are employed to coerce the defendant into Page 3 , 2003 PA Super224, 827 A.2d 1204, 2003 Pa. Super. LEXIS 1756, compliance with the court's order, and in sion below absent a clear abuse of discre- some instances to compensate the com- tion. plainant for loss sustained. In civil con- tempt cases, the complaining party has the burden of proving non-compliance with Mrozek, 780 A.2d at 674 (citations omitted). We have the court order by a preponderance of the found a cleaz abuse of discretion when the trial court evidence. To be punished for civil con- makes a"determination based on a record where no tes- tempt, a party must have violated a court timony was taken and no evidence entered...." Chrysc- order. The order that forms the basis for zanavicz u Chrysczanavicz, 2002 PA Super 99, 796 A.2d the contempt process in civil proceedings 366, 369 (Pa. Super. 2002) [***9] (citation omitted) [***7] must be definitely and strictly (remanding for evidentiary hearing on contempt petition construed. Any ambiguity or omission in where trial court improperly dismissed contempt petition the order forming the basis for the civil without a hearing). contempt proceeding must be construed in [*p10] In sum, we must first examine the order favor [**1208] of the defendant. itself. See C.R. by Dunn, 626 A.2d at 592. Second, we , Where the order is contradictory or the specific terms of the order have not been must ascertain whether the movant sustained its burden violated, there is no contempt. of proof in demonstrating that the non-movant failed to comply with the court's order. See id In pursuing this second inquiry, we must ensure that due process has , Schnabel Assocs., Inc., 487 C.R by Dunn v Travelers, 426 Pa. Super. 92, 626 A.2d been followed. See, e.g. 588, 592 (Pa. Super. 1993)(citations omitted); see also A.2d at 1333. Finally, if civil contempt is found and Woods v Pecklch, 463 Pa. 274, 344 A.2d 828, 832 (Pa counsel fees are awarded as sanctions, we must examine 1975); see genera[ly Schnabel Assocs., Inc. v Bldg. and whether the trial court abused its discretion. See Mrozek, 780 A.2d at 674. Const Trades Council oj Philadelphla and Vicinity, AFL-CIO, 487 A.2d 1327 (Pa. Super. 1985) (discussing [*P11] We first ascertain whether Boyle's motion differences between criminal and civil contempt). [*P8] for sanctions was a request for counsel fees pursuant to Generally, "in order to hold one in civil contempt, a section 2503 or a request for a fmding of civil contempt, five-step process must be followed: (1) a rule to show which may include an awazd of counsel fees as a sanc- cause why an attachment should not issue, (2) an answer tion. We find that it was the latter. and hearing, (3) a rule absolute, (4) a hearing on the [*p12] The Petition to Enforce Minor's Compro- contempt citation, and (5) an adjudication." Schnabel mise and the trial court's order placed Waties on notice Assocs., Inc., 487 A.2d at 1333 (citations omitted). Ful- fillment of all five factors is not mandated, however. that failure to timely file the petitions may result in sanc- "When the contempt proceedings [***8] are predicated tions [***10] and counsel fees. Waties failed to fully on a violation of a court order that followed a full hear- and timely comply. Boyle filed a motion for sanctions ing, due process requires no more than notice of the vi- requesting that the court order Waties to "pay [appellee] olations alleged and an opportunity for explanation and $ 350 for the failure to comply with this Court's Order defense." Diamond, 792 A.2d at 601 (intemal quotation dated November 17, 2000 Def.'s Mot. for Sanctions, marks and citations omitted). R.R. at 49a. [*P9] The court, after finding civil contempt, [**1209] [*P13] We interpret Boyle's motion as may impose sanctions. a request for a finding of civil contempt with a sanction of counsel fees. We will not go so far as to interpret the Attorneys' fees and other disburse- motion as a section 2503 request for counsel fees. We ments necessitated by the contemnor's agree that dilatory conduct apparently exists given that noncompliance may be recovered by the two years lapsed without a filing of the minors' petitions. aggrieved party in a civil contempt case. The request for counsel fees, however, was not based on Because an award of counsel fees is in- such conduct, but rather on Waties' failure to comply tended to reimburse an innocent litigant with the November 20, 2000 court order. We now ascer- for expenses made necessary by the con- tain whether the trial court appropriately found Waties in duct of an opponent, it is coercive and civil contempt. compensatory, and not punitive. Counsel [*P14] With respect to the first inquiry of our tri- fees are a proper element of a civil con- partite analysis, we find that the trial court's November tempt order. In reviewing a grant of at- 20, 2000 order was unambiguous. T'he order states: torney's fees, we will not disturb the deci- Page 4 2003 PA Super 224, 827 A.2d 1204, 2003 Pa. Super. LEXIS 1756, (1) Plaintiffs' counsel [is ordered to] which did not allow Waties to testify or introduce evi- file a Petition for Minors' Compromise, dence that would purportedly excuse his inability to within ninety (90) days from the date of comply with the court's November 20, 2000 order. 2 See this Order; and Chrysczanavicz, 796 A.2d at 369. By extension, we (2) If Plaintiffs' counsel fails to cannot ascertain whether Boyle met his burden of proof, comply with this [***11] Order, sanc- although under the facts of this case, Waties cleazly tions and attorneys fees will be imposed failed to timely comply with the trial courts order. We upon further Order of this Court. vacate the trial court's finding of civil contempt and re- mand for a hearing on the motion for sanctions. Trial Order, Nov. 20, 2000. We find no ambiguous lan- 2 Although not germane to our decision, we guage. The trial court employed terminology that expli- note that the record apparently undermines or citly directed Waties to file the petitions within ninety contradicts assertions contained within Waties' days, or by February 20, 2001 . brief. We will not pursue such inconsistencies, however, without the benefit of a hearing and [*P15) With respect to the second inquiry, we fmd findings of fact by the trial court. that the trial court erred in finding Waties in civil con- [***12] [*p16] Order vacated. Case remanded. tempt without an evidentiary hearing. See Diamond, 792 Jurisdiction relinquished. A.2d at 601; Schnabel Assocs., In., 487 A.2d at 1333. The trial court's finding was entered after oral arguments, I DANNY G. FORRESTER, : IN THE COURT OF COMMON Plaintiff . PLEAS OF CUMBERLAND . COUNTY, PENNSYLVANIA v. : . NO. 10-4927 SHAWN L. EYER and D&S . CONTRACTING, LLC, : Defendants : CIVIL ACTION - LAW & EQUITY CERTIFICATE OF SERVICE The undersigned does hereby certify that, on the date indicated, a true and correct copy of the foregoing Petition for Civil Contempt of Court Order was served on the following, in accordance by forwarding a copy of same via U.S. Postal Service first class mail postage prepaid to address(es) indicated below: Danny G. Forrester Danny G. Forrester c/o Kristen R. Hall 145 Running Pump Road 427 East King Street Newville, PA 17241 Shippens6urg, PA 17257 James, Smith, Dietterick & Connelly, LLP ' P.O. Box 650 Hershey, PA 17033 DATE: 11 ~S l ( ANDREW J. BE DER, ESQUIRE PA Supreme Court ID #205763 Allied Attorneys of Central Pennsylvania, L.L.C. 61 West Louther Street Cazlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax Attorneys for Petitioner DANNY G. FORRESTER, PLAINTIFF V. SHAWN L. EYER, and D&S CONTRACTING, LLC, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 10-4927 CIVIL ORDER OF COURT AND NOW, this 17"' day of November, 2011, upon consideration of Shawn Eyer's Petition for Civil Contempt of Court Order; IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule shall issue upon Danny Forrester to show cause why the relief requested by the Petition for Civil Contempt should not be granted; 2. Danny Forrester shall file an Answer to the Petition on or before December 8, 2011; 3. A hearing in the matter shall be scheduled for Monday, January 30, 2012 at 3:00 p.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. 4. In the interim, Danny G. Forrester, shall not dispose of or in any way financially encumber the Roofer's Buggy currently in his possession without specific Order of Court. M. L. Ebert, Jr., -? 3 rnm zm =M C.n r _ O d C a+ 3 --t O q? ?? c) -n p t) ?m By the Court, Danny Forrester c/o Kristen Hall 427 East King Street Shippensburg, PA 17257 Or 145 Running Pump Road Newville, PA 17241 Jarad Handelman, Esquire Sean Concannon, Esquire P. O. box 650 Hershey, PA 17033 Andrew Bender, Esquire 61 West Louther Street Carlisle, PA 17013 M Copes I p? DANNY FORRESTER, Plaintiff V SHAWN EVER, etc., Defendants IN RE: CONTEMPT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 10-4927 CIVIL TERM ORDER OF COURT AND NOW, this 30th day of January, 2012, after hearing in the above-captioned matter, the court does find that Danny Forrester, who failed to file an Answer in this matter, does owe the sum of $7,022.44 pursuant to the agreement he had with Shawn Eyer dated June 22, 2011. IT IS HEREBY ORDERED AND DIRECTED that hearing in this matter will be continued until 3:30 p.m. on February 6, 2012, on condition that the parties shall sell the roofing buggy in question, that the money received from the sale of the :roofing buggy will be paid to the escrow account of Andrew Bender, Esquire, for distribution pursuant to this Order. Shawn Eyer is awarded $750.00 in attorney's fees which will be deducted from the escrow moneys. Should this transaction take place, counsel can advise the Court and the hearing will be discontinued. By the Court, ? Danny Forrester, Plaintiff 427 East King Street Shippensburg, Pa. V Andrew J. Bender, Esquire For the Defendant : mt f ( E?P t°S fi'la, I t `e ,eiGfj ? ? rya •? m _ M. L. Ebert, Jr., J. ? w ?c =EC; r ; ANDREW J. BENDER, ESQUIRE Allied Attorneys of Central Pennsylvania, L.L.C. 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax PA Supreme Court ID #205763 Attorneys for Defendant Shawn L. Eyer N., '3 Pm 12: : J tl ck ? ti + UuLd i I °EN 4-SY1_VA'[e"1PA DANNY G. FORRESTER, IN THE COURT OF COMMON Plaintiff PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 10-4927 SHAWN L. EYER and D&S CONTRACTING, LLC, Defendants CIVIL ACTION - LAW & EQUITY MOTION FOR CONTINUANCE AND NOW, comes the Petitioner, Shawn L. Eyer, by and through his attorneys, Andrew J. Bender, Esquire and Allied Attorneys of Central Pennsylvania, L.L.C., and files the instant Motion for Continuance and in support thereof avers as follows: 1. On January 30, 2012, the parties appeared before the Court for a hearing on Petitioner, Shawn L. Eyer's, Petition for Civil Contempt of Court Order. 2. Following the hearing, the Court found that Respondent, Danny Forrester owed Petitioner $7,022.44 plus $750.00 in attorneys fees, ordered the sale of the roofing buggy owned by D&S Contracting, LLC and scheduled a hearing for Monday, February 6, 2012 at 3:30 p.m. 3. The parties have attempted to complete the sale of the roofing buggy, but have discovered that they do not have a valid Pennsylvania vehicle title for the roofing buggy. 4. The parties are in possession of a New Hampshire vehicle title to the roofing buggy, a copy of which is attached hereto as Exhibit "A". Petitioner has been informed that a transfer of title cannot be completed until the roofing buggy is properly titled to D&S Contracting, LLC in Pennsylvania. 6. The re-titling process is expected to take a minimum of two (2) weeks. After the roofing buggy is properly re-titled in Pennsylvania, the parties anticipate completing the sale of the roofing buggy to the proposed buyer. 8. The parties require a continuance of the Monday, February 6, 2012 hearing in order to complete the transfer of the roofing buggy, as the re-titling process will take at least two (2) weeks to complete. 9. Respondent, Danny Forrester, is in agreement with the proposed continuance request. WHEREFORE, the petitioner, Shawn L. Eyer, respectfully requests this Honorable Court grant a continuance of at least one (1) month in order to allow for re-titling of the roofing buggy and completion of the sale of the roofing buggy. DATE: 0?- L03 II Respectfully submitted, ANDREW J. BENDER, ESQUIRE PA Supreme Court ID #205763 Allied Attorneys of Central Pennsylvania, L.L.C. 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax Attorneys for Petitioner 2 EXHIBIT (*(* p 4) 169BR131241-733031 B913911 31241-733031 BEIL TRAI *DUPLICATE* ;01'! 2005 7500 UTLTY NO ODOMETER 2 0 11985114 NEW 08/17/2010 07118/2005 tl U; . ._- 10264014 NH MASTER ROOFERS LLC 162 SOUTH MAIN ST MANCHESTER NH 03102 MASTER ROOFERS LLC 162 SOUTH MAIN ST MANCHESTER NH 03102 r!R5? ,IV' I A"'j9=' AND 1',DMESS 'THIS DUPLICATE 'VOIDS ANY PREVIOUSLY ISSUED TITLE , FF ;' PIA ,'JI ?...? .. _, 1 1", vF-,e._.F 6,11 T:,I.: EU I -071 , t °" s rS FlEf EB GERffI #w.TN 'AT .i7.? S._ m r) q Y { THE .; EGO .J#{?0 ?. HE D, !i",6Iv ?s itiD 1 / L ' 1 ? ¦ ¦ 11 1 / 1 1 1 1 1 j ¦ 1 RICHARD C. BAILEY, JR. DIRECTOR 962 ANY CHANGE OR ERASURE WILL VOID THIS TITLE WARNING: Federal and State law require that you state the mileage in connection with a transfer of ownership: Failure to complete the Odometer Disclosure Statement er.providing a false statement may result i:i fines and'or imprisonment. ASSIda'NMENT OF TITLE This is to be filled in by the Seller and delivered to the Purchaser with the vehicle. If non-dealer sale,, purchaser must make application for a new Certificate of Title on Form TDMV, 23 and rile it immediately with the New Hampshire Department of Safety, Division of Motor Vehicles, and surrender this Certificate of Title. Any alterations or erasures will void this Title= The undersigned hereby certifies that the vehicle de>cribed in this Title was transferred to {PRINT): Su er(s)_c ?-Cf..C 1-4 ?t s L1?L - Address-Li Zip?- Date of Sale_ -)- -- I state that the odorneter now reads , ?__ L _ (NO TENTHS) and to 0-e best of my knowledge that it reflects the ACTUAL MILEAGE of the vehicle unless one of the following statements is checked Actual mileage _ I certify that,io the best of my knowledge; this odometer reading "EXCEEDS MECHANICAL' LIMITS.` U i certify that, io the best of my knowledge, this odometer reading is "NOT THE ACTUAL MILEAGE. WARNING ODOMETER DISC_RE/PANC " ' Seller's signature- ? Printed name----- --- Seller's `signature -Printed name_----.___ _-._.__-- " 1 am aware of the above 0 ometer certifi tiofi mad lay #te 1ler" / Signature(s) of buyeri :Printed time-CLI-01 ??= ??? f ?? FIRST RE-AS IG MENT" BY DEALER ONLY DEALER NO. The undersigned hereby certifies that the vehicle described in this title was transferred to (PRINT): Address q/W/© 1 state that the odometer now reacts (NO TENTHS) and to tre best of my ?nowledge that it reflects the ACTUAL MILEAGE of the vehicle unless one of the fo!!o?vma statements is checked: Actual mileage l certify that, to the best of my knowledge- tnls odometer reading "EXCEEDS MECHANICAL LIMITS." I cerjI fy that, to the best of my knowledge. `.'iis oc om?ter reading is "NOT THE ACTUAL NhLEAGE. WARNING ODO TER DISCREPANCY. " / Dealer's signature -Printed "f am aware of the above odometer cer ficat' nmade by the-seller" 5lanature(s) of buyer(s)ee r 'Printed narie ) 4,_,: ' : --- - `+? - SECOND RE-ASSIGNMENT,>BY DEALER ONLY--DEALER NO. The undersigned hereby certifies that the vehicle described in this title was transferred to (PRINT): state that the-odoti?etef nun; reads (NO TENTH) and to Ite best or m; krr,sviedge thGi it reftects the ACTUAL PAILEAGE of the vehicle unles- one of the following statements is checked: I_ Actual m4eag _ I certify that. to the best of my knowledge, this odometer reading "EXCEEDS MECHANICAL LINUTS." r-1 I certify that, to the best of my knowledge, this odometer reading is "NOT THE ACTUAL MILEAGE. WARNING ODOMETER DISCREPANCY." Dealer's signature- -Pruned name --- 1 am aware of the above odometer certification made by:fhe seller" Signature(s) of buyer(s)- -----Printed narie LIENHOLDER TO BE SHOWN ON NEW TITLE (if no lien, print NONE) Lienholder's name Date ct L!enhoider'saddress _Zip --- TITLE MUST BE SURRENDERED TO DIVISION OF MOTOR VEHICLES IF VEHICLE IS , IUNIKED DANNY G. FORRESTER, Plaintiff V. SHAWN L. EYER and D&S CONTRACTING, LLC, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-4927 CIVIL ACTION - LAW & EQUITY CERTIFICATE OF SERVICE The undersigned does hereby certify that, on the date indicated, a true and correct copy of the foregoing Petition for Civil Contempt of Court Order was served on the following, in accordance by forwarding a copy of same via U.S. Postal Service first class mail postage prepaid to address(es) indicated below: Danny G. Forrester c/o Kristen R. Hall 427 East King Street Shippensburg, PA 17257 DATE: 02 L03 I Z ANDREW J. BENDER, ESQUIRE PA Supreme Court ID #205763 Allied Attorneys of Central Pennsylvania, L.L.C. 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax Attorneys for Petitioner DANNY G. FORRESTER, Plaintiff V. SHAWN L. EYER and D&S CONTRACTING, LLC, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-4927 CIVIL ACTION - LAW & EQUITY ORDER t-,_A_ AND NOW, this day of , 2012, upon consideration of the Petitioner, Shawn L. Eyer's, Motion for Continuance, and the concurrence of all parties, said motion is hereby GRANTED. The hearing previously scheduled for Monday, February 6, 2012, is hereby CONTINUED until the Wl`- day of , 2012 at '?: D (7 o'clock, A m. in courtroom number -I, of the Cumberland County Courthouse. All other provisions of the Court's January 30, 2012 order shall remain in full force and effect. r.s ?s N BY THE COURT, _cn ' sue' COW J. c.t - - [i. Distribution: ?Andrew J. Bender, Esq., 61 W. Louther St., Carlisle, PA 17013 Danny G. Forrester, c/o Kristen Hall, 427 E. King St., Shippensburg, PA 17257 l P;?s Ata. 1-rd a 1,3b 3 .. 4. . DANNY G. FORRESTER, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. SHAWN L. EYER, and D&S : CONTRACTING, LLC, DEFENDANTS NO. 10-4927 CIVIL ORDER OF COURT AND NOW, this 24th day of February, 2012, due to a conflict with this Court's schedule, IT IS HEREBY ORDERED AND DIRECTED that the hearing scheduled for Monday, March 12, 2012, at 9:00 a.m. is now rescheduled for Wednesday, March 21, 2012, at 8:30 a.m. in Courtroom #2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. ? Danny Forrester c/o Kristen Hall 427 East King Street Shippensburg, PA 17257 Or 145 Running Pump Road Newville, PA 17241 M. L. Ebert, Jr., J. 5 By the Court, DANNY G. FORRESTER, IN THE COURT OF COMMON Plaintiff PLEAS OF CUMBERLAND COUNTY, PENNSYLVANAwX ? V z ' . NO. 10-4927 _<> o SHAWN L. EYER and D&S CONTRACTING, LLC, =CD Defendants CIVIL ACTION - LAW & ERUIT-f ORDER -l? t AND NOW, this day of K ar t k , 2012, upon consideration of the Motion to Discontinue Hearingfiled on behalf of the Petitioner, Shawn L. Eyer, and the amount due and owing to Petitioner pursuant to the order of court dated January 30, 2012 having been paid in full, it is hereby ORDERED and DECREED that the hearing previously scheduled for Wednesday, March 21, 2012 at 8:30 a.m. is hereby discontinued and shall not be rescheduled. All prior orders of court entered in the above-captioned matter shall remain in full force and effect. BY THE COURT, Distribution: drew J. Bender, Esq., 61 W. Louther St., Carlisle, PA 17013 ./ Danny G. Forrester, c/o Kristen Hall, 427 E. King St., Shippensburg, PA 17257 Or oe" pt Ins