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10-6392
MADISON EXCAVATION, INC. IN THE COURT OF COMMON PLEAS OF AND GEORGE ESTEP, CUMBERLAND COUNTY, PENNSY-~,V,E~TI Plaintiffs `•° ~u:a v. DOCKET NO. 10-6392 Civil a E { iµc-~ tf'` ~ ='~ KIMBOB, INC. ' "~ - ~''= Defendant CIVIL ACTION -LAW ~"" ~' =- ~_ ; ._.,. ~ ~ 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 AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 AVISO LISTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderse de las quejas expuestas en las paginas siguientes, debe tomar accion dentro de veinte (20) dies a partir de la fecha en que recibio la demanda y el aviso. Usted debe presenter comparecencia escrita en persona o por abogado y presenter en la Corte por escrito sus defenses o sus objeciones a las demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso o notificacion por cualquier dinero reclamado en la demanda o por cualquier otra queja o compensacion reclamados por el Demandante. LISTED PUEDE PERDER DINERO, O PROPIEDADES U OTROS DERECHOS IMPORTANTES PARR LISTED. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI LISTED NO TIENE O NO CONOCE UN ABODAGO, VAYA O LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARR AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 Craig A. Diehl, Esquire I.D. No. 52801 LAW OFFICES OF CRAIG A. DIEHL 3464 Trindle Road Camp Hill, PA 17011 Attorney for Plaintiffs MADISON EXCAVATION, INC. AND GEORGE ESTEP, Plaintiffs v. KIMBOB, INC. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 10-6392 Civil CIVIL ACTION -LAW COMPLAINT NOW COMES, Madison Excavation, Inc., by and through its counsel, Law Offices of Craig A. Diehl, hereby averring the following: 1. Plaintiff, Madison Excavation, Inc., is a Pennsylvania corporation with a business address at 405 Bridge Street, New Cumberland, Pennsylvania 17070. 2. Plaintiff, George Estep, is an adult individual with an address at 405 Bridge Street, New Cumberland, Pennsylvania 17070. 3. Defendant, Kimbob, Inc., is a Pennsylvania corporation with a business address at 840 Market Street, Lemoyne, Pennsylvania 17043. 4. Defendant requested and authorized Plaintiffs to perform and render construction and excavation services between July 2009 and November 2009. 5. Plaintiffs performed said services in a quality and satisfactory manner. 6. Upon completion of the services, Plaintiffs provided invoices to Defendant which were reasonable in price that have gone unpaid. (See Exhibit "A" for accurate copies of the invoices.) 7. Despite demand for payment, Defendant refuses to pay and/or reimburse Plaintiffs for the services and goods provided for Defendant's benefit. 8. The outstanding amount that remains unpaid is Three Thousand Six Hundred Twenty-Nine Dollars and Seventy-Five Cents ($3,629.75). WHEREFORE, Plaintiffs respectfully request judgment to be entered in their favor and against Defendant in the amount of Three Thousand Six Hundred Twenty-Nine Dollars and Seventy-Five Cents ($3,629.75) plus reasonable attorney fees and costs. Respectfully submitted, LAW OFFICES OF CRAIG A. DIEHL Date: p p By: Craig A iehl, Esquire Attorney I.D. No. 52801 3464 Trindle Road Camp Hill, PA 17011 Tel: (717) 763-7613 Fax: (717) 763-8293 Attorney for Plaintiffs EXHI 1T "A~" ~ 9 Unpaid Invoices Madison Excavation -Bermudian Springs & HACC Gettysburg -Inv. #1028 $2,176.00 Madison Excavation -Army Depot -Inv. #1029 $825.00 Madison Excavation -Tools and Tires -Inv. #1209 $490.65 $3,491.65 Unpaid Expenses George Estep - Kimbob Expenses $641.73 George Estep - McDermitt Expenses $114.37 George Estep -Advanced pay to Gilbert Gardner Credit for driveways completed TOTAL DUE $432.00 $1,188.10 -$1,050.00 $3,629.75 ~~ 45/13/2010 14:31 7177639613 MADISON HOMES GROUP ..:,~.. .x n'. ~ ''~., ,+ ~' " ~ ;_{ : ~ ~ ~. ~: , ~ : Va ~ot~w`~:. Madison Exc~ ~ . :_~ . . ~; 405 Brldge Street, New Qumberirnd, PA';'~~'~,,-. TelepfiDne. 7~;T-763.9!611 ~:=~;?~~ ~ =~}:: . Fex: 717-?63-961;3 ~;~. > _ ;; 9: ~((~~, ' • i+~bi.~ ~ • Y ~:..w 'f:: .. ~' ~ • : KirnBob, l.a~c. M1 V. :?' ~/ . po1r° ; , ~~ + ~~lJ B~~ S }- . e 7;'.'. .. Gantp Hill, PA 17001 _ w.,~rt,'• ~~: . ~,~-... ~ ':~-;- F 'S. PAGE 07 2009 ~ ~ ~ . ~ ` .~ .. • ~ ~ ' ~~:~8T6.:©0 ., ~~ . 2009 2 week rental of 236 Skid~Loader ,(~ $438: July l9 - 31 s , (Bermudian Spriggs Job) :? ~~~ . _ ~ C)ct. 9--Nov. 9, 2009 1 month~rental 0€236 Skid:Loadeu (+~ $1,3 ,;, ~0 t ;,, t > : (HACC Qcttysbtixg rob) ;>.~,,,.~ ~ ~:~ ~~~ ~~ ~.: . .~; f '~ r` . .s •. r.'. ,••,, f,•' Please rerzait payment at your earliest convenience to: M ~, •: '•": n~ Inc. 1 ' . . ~,. • ~ +r'Y. .. ~~ F'• Y 1.) . ,' S • ~ ~.~i'r . ' j~: ~ . Si`~•~~ e . "" ": ' '~ . ~4 J Y\}n. ~r'` S f.: .: t •~ `{ ,y.Y_. 1~. ~••~. ..L:Af~~.~Y: - ~1 ~' -'iN~i- .r. '.. iY.aa. ,y .:, '.~:~r.' r7,,':~ ,~. ~k'. y~'~ kY•. '..'q. .qo ~e I 14:31 7177639613 MADISON HOMES GROUP Pfi~GE 06 .;:;. ?as ~~, ::;;~` ~~ ~' . ..54'?: ;`:r! ' . Madison Excavate a n~F~-:r~~~ 405 Bridge Street, New Cumberland, PA~`~fi0T~1~ . T®lephone; 717-763=9811 •~ ~ ~° Fax: 717-763-9613 ' ~ Ai 'r~~ •.'. ~•~:, ;M; .. ;•e:k.x ,y:~a: `~i~.y - ~"caber 28, 2009 ~ ' ~ ('tunJ~ I Lill, J~A ;. ; ~ 1700] ~ "'"'` • `': X~~, ,• INVOICE # 1029 - ~.:.Y ~k` ~ • ~. ' • ~.i;. ~ ,+w:•; . .I OI3 SITS: A.R~X DEPOT ~: ~ U/Z2/U~) ,,:.,.~ . 6 Haurs 953 Track Loader @ $ 75:00/hour . • ~`-• 4~~0. 0 }y V, }()/2.3/()9 5 Hours 953 Track Loader @ $ 7S•.00/per hour • , •'~t.'-'~Q .:,.. TOTAL A11~OUN'~~,,:''p:.~$'~5:d0 ~~.~,•. ~;aA~: • Please renii'C Payment at your earliest convenience to: lviasi ~Iv~tiont Inc. '~~~::• • '. as•t~~ C.!;•.; .y~~;• :it. , ' ~ ':;,y '~~ry'' +:i ~. - •~~' ti ~n~ `'`.~ <: `=c .~.H c^:f'~ ' i :-*'. Y~" . '~j' i~ ^n:-i: ~. •~ .4<,~ , ~~^w, y. .. . :~~ y .. ...1~~,• .~ <q~p~ v~,uTO _ 05/13/2010 14:31 7177639613 MADISON HOF~IES i~OUP PAGE 03 t~F:• .•%r . ~ . M adisor~`~xc~v~~ ~ ~~~ ~ ~~ . 40fi BrldSe Streit, New ~umberlpl~d, PRi~~•~ ;~~~ ~ ..„,T ' Tele.pione: 717~763~11 ~"~ `~ ~dx; 717=T88-96 ":" ~+4 . ~ - 4•S(, . ~ " M... -' ~ <~~ `'> '~ `~ ~. ~~ ~-. °• 9, 2009 Kit1a13ob, inc. : : Camp Hill. PA 1700]. _..y'_ I~VUIC~ ~~# 129 '°~~.`~ - ,fQ[3 SIT'1/: GETTYSBURG I-IACC Pt~VING JOB ;fit.. ~ :~:;" ..~;~ . z Ludes @ 48.00 tsach ~~ ~ :. A'R 3.7.50 ~ ~ 1 Asphalt Rakc@ ••~~Y•,~ ~iK `r~.~~~ ;~ ~:~~=~~'~~" . 2 1216.5 BANDAG BAIdDA CAT RE'I'R>~~iD ~;~~: ~' ~ ~~ ` ~~~~`~" f.~ . . out on job-'CoPY~of quote's` Skid loader tires woni . _ rx._ , .~; p, ; ~, ,~ , ' .•F_ ~ . 5: :'~ ~:.a, ; ~. SALES TAB .~. ~~~+~ '° . , 1~ ~A~ A~~ jf _T y ~ ~! ' :Si er _' ~ '~ f'F~s ~ Please remit payrnent.to: Madigan Excavation, Inc. i+ ~ ~<_~"~~ '~~, ~"' ~ . ' 'A ?, t~.. '~, C'.;: :' ' " ~,~t Cys.: ~ =: n:?' • , fr ', ~ ' • . ^r~?,yell.-~ : . •I li ' ;!. .. ::~.;gin` .`:Y, ,~1` , , ~Ic`RS:..~~,1C~,~)!~~~~C_~r)~~~~ 1~..:``~c~:~~.~.,~`~~.~~~~1~ IC~c :~i~j~. ~~„ Ill[ ~~c_~~_, 405 Bridge Street, New Cumberland, PA 17070 Telephone (717) 763-9611 Fax (717) 763-9613 _ _ ___. __ _ _ _ _ LEASE AGREEMENT THIS AGP.EEIv1"Ei~1T made and entered into tbds 13''~ day of July 20l?9, by and bstween KimBob, Inc., PO Box 5, Camp Hill, PA (Lessee) and Madison Excavation, Inc., 405 Bridge Street, New Cumberland, PA (Lessor). KimBob, Inc. agrees to lease a 236 Skid Loader from Madison Excavation, Inc. Rates are agreed as follows: Daily Rate Based on 8 hours per day: $90.00 Weekly Rate Based on 40 hours per week: $ 438.00 This lease is for the equipment only. It is understood no equipment operator will be provided by Lessor. Lessee is required to supply fuel and maintain daily maintenance on equipment. Additionally, Lessee agrees to add Madison Excavation, Inc., to insurance policy as an additional insured for the value of 236 Skid Loader. Agreed to: KimBob, I Date T ~ ~-- :~` Mad son Excavation, Inc. 7l~ b Date #~ 405 Bridge Street, New Cumberland, PA 17070 Telephone (717) 763-9611 __ _ _. _ __ -Fax (717) 763-9613. _ _ __ LEASE AGREEMENT THIS AGREEMENT made and entered into this 1st day of October 2009, by and between KnnBob, Inc., PO Box 5, Camp Hill, PA (Lessee) and Madison Excavation, Inc., 405 Bridge Street, New Cumberland, PA (Lessor). KimBob, Inc. agrees to lease a 236 Skid Loader from Madison Excavation, Inc. Rates are agreed as follows: Daily Rate Based on 8 hours per day: $90.00 Weekly Rate Based on 40 hours per week: $ 438.00 Monthly Rate Based on 40 hours per week, 160 hour max.: $1,300.00 This lease is for the equipment only. It is understood no equipment operator will be provided by Lessor. Lessee is required to supply fuel and maintain daily maintenance on equipment. Additionally, Lessee agrees to add Madison Excavation, Inc., to insurance policy as an additional insured for the value of 236 Skid Loader. Agreed to: ~~'~ .~ KimBob, c. ~~ ~' i~~ Ma on Excavation, Inc. Date l~ C ~ Date ~~ l~ ~~!1 ~..!~1~ ~l ~:! ~ 1(~.~~>cc,_ 71~ ~ ~ I ~,`~~~~c c:~.J.~~ '~,`J%` /~~~ I (c c:~~~ I~ ~ ~~~~~„ 1(lr ~ ~1 ~c. ~.4~: 405 Bridge Street, New Cumberland, PA 17070 Telephone (717) 763-9611 - _. _ Fax (717) 763-9613 _ _ . _ _ _ _ _ LEASE AGREEMENT Purchase Order No. 4910 THIS AGREEMENT made and entered into this 22nd day of October 2009, by and between KimBob, Inc., PO Box 5, Camp Hill, PA (Lessee) and Madison Excavation, Inc., 405 Bridge Street, New Cumberland, PA (Lessor). KimBob, Inc. agrees to lease a 953C Track Loader from Madison Excavation, Inc. Rates are agreed as follows: Daily Rate Based on 8 hours per day: $600.00 Weekly Rate Based on 40 hours per week: $1,825.00 This lease is for the equipment only. It is understood no equipment operator will be provided by Lessor. Lessee is required to supply fuel and maintain daily maintenance on equipment. Additionally, Lessee agrees to add Madison Excavation, Inc., to insurance policy as an additional insured for value of 953C Track Loader. Agreed to: KimBob, ~,^- ~'G G ~. Ma~on Excavation, Inc. .~ „' Date l'` ~ Z Z Q Date ~7 <~ 14:31 7177639613 MADISON HOMES GROUP ~~ r~ µ st{,.t _.a~~~ ~'%m; . Gilbert G~r~~ =n:~' 417 Fourth Street" ""=~ New Cumberland, PA 17;~?~~0'=~~~~° ,.... :iFyz =., l~imi3ob, l,oc. I'U 13ox S C~-n~p Hill, PA 17001 PHGE 10 ~:~bot. 29, 2009 ;.,~ ~:. - :q=~ . ~~;: .•~,: ~.,a-t,:..: 8/ZG/()9 3 Hours labor to run 953 Loader (~ $ 19.00%hour ~ =~` ~ ~~'r,;~';' $ 57.00 PPL Job Site =gh.`~:~. ~,~ :=-r...: ,mow, ~.~, ,...:,~;;;::. . I ()/22/09 Mobilization -Move 953 Loader 2 Hours ®$ 75~./~ou~ ' ~ $ 150.00 Army Depot Job Site ~ ~ ~"~~`' -~}"~+~, 10.28/09 Mobilization -Move Equipment - 3 Hours ~ $ 7'~,...., . ~:, . ,~..:~ .~ ~ 225.00 Move 963 Loader from McDermitt Concrato Plau~~ . _:.. ~ .. ,.,.,:~. Gettysburg Job Site ~ ~ - ~<F'~: Mvve roller &ota HACC [3ettysburg Job SFite bacl_ a~:~t~ot; .~~ Equipment : ~: :?~:" ::Y;:; Move 953 Loader from.Army Depot Job Site to ~~$;=... _~-: . TOTAL AMO ..:.t~ .. =. ~~ ~:~'~. 432.00 1'lca~sc note: Terms arc Net i0 ~ "~'-~ ~.s:~. ..la.~: :Y~~~ -:~~: ':,~ - ;;: ~~ SE~~1~ 1:...:. ,~ X. .rf; . Hy~+: l::T;~ _ ~ ~:~r. ~~ . . } ~:~~~ r.A,.. :.. v 'o 0 c i 'i m n m =o -{ c N "'~ z W °~ m N D " a m v ~ I a ~ e ~. rt ~ ~ ~ _ m 3 y ~~ \ ~ ~ ' • ~ ~.,, H 2 O A l l •• ~^ "~ ~ ,... z ~, ~~ .'"~ '"y m ~ s~ ~ ca N tD -~ 'L3 a .t m ~ O ~ ~ v 0 '4 I~ . ~ in .. ~' 4 ~ v+ ~ ~ ~, ', I ~ i I ~_.._L- C a ~ ~ m n ~ ~ ~ ak ¢. 4 6~ . G~I) "1 m C17 a 0 ''x~.'~° .:~;, '~i:~ . a ~`~ ~P ~. .. H 0 n rn x 0 -~ :>:>: :~,. Z© ~J'~d df10~f9 S3WOH NOSIQt1W 0 ~~ ~~ ~~ d .L ~, ~~~~ ~ ~~ ~ ~ G .r ~T96E9L~TL T~~bt ©~iP VERIFICATION I, George Estep, President of Madison Excavation, Inc., Plaintiff above-named, being duly sworn according to law, deposes that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. The undersigned understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Date: ! v ~ L ~ Excavation, Inc. VERIFICATION I, George Estep, Plaintiff above-named, being duly sworn according to law, deposes that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. The undersigned understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Date: ~~ ~~ ~~ GE G ESTEP CERTIFICATE OF SERVICE AND NOW, the ~ day of October, 2010, the undersigned hereby certifies that a true and correct copy of the foregoing Complaint was served upon the opposing party by way of United States first class mail, postage prepaid, addressed as follows: James G. Gault, Esquire 840 Market Street, Suite 153 Lemoyne, PA 17043 ~c. e ra A. Fike, Legal Secretary f ? I k ,. ? f I a?, f 1 ?J •i r? i t ? E_ t 0 L 'k L a_ i. L. k 6 MADISON EXCAVATION, INC. aid THE COURT OF COMMON PLEAS GEORGE ESTEP, OF CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA V. DOCKET NO. 10 - 6392 KIMBOB, INC., Defendant CIVIL ACTION - LAW PRELIMNARY OBJECTIONS TO COMPLAINT NOTICE TO PLEAD: TO: MADISON EXCAVATION, INC. AND GEORGE ESTEP, PLAINTIFFS, AND CRAIG A. DIEHL, ESQUIRE YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. AND NOW, comes Kimbob, Inc., by and through counsel, James G. Gault, Esquire, who files the following Preliminary Objections to the Plaintiffs, Complaint pursuant to Pa.R.C.P. 1028(a) stating as follows: 1. On or about October 27, 2010, Plaintiffs filed their Complaint against the Defendant seeking the total sum of $3,629.75 with respect to allegedly unpaid amounts due for various "construction and excavation services." 1 2. Plaintiff Madison Excavation, Inc. is identified in Paragraph 1 of the Complaint as a Pennsylvania corporation with a business address at 405 Bridge Street, New Cumberland, Pennsylvania 17070. 3. Plaintiff George Estep is identified in Paragraph 2 of the Complaint as an adult individual also with an address at 405 Bridge Street, New Cumberland, Pennsylvania 17070. 4. The Complaint was verified by Plaintiff George Estep both individually and as President of Plaintiff Madison Excavation, Inc. on October 28, 2010. 5. Paragraph 4 of Plaintiffs' Complaint alleges that Defendant requested and authorized Plaintiffs to perform and render "construction and excavation services" between July 2009 and November 2009. 6. Although referenced in its Paragraph 4, the Complaint does not specify or further identify the circumstances of or the individuals affiliated with Defendant who requested that Plaintiffs perform and render said services, nor whether said individuals were authorized to do so or had otherwise obtained necessary purchase orders or other authorization. 7. Paragraph 6 of the Complaint avers, inter alia, that Plaintiffs sent invoices to the Defendant and that copies of same are attached to the Complaint as Exhibit A. However, said materials comprising Exhibit A fail to sufficiently identify or specify further the liability of the Defendant to each of the Plaintiffs separately, and further contain references to "unpaid expenses" without sufficiently identifying the basis for recovery thereof, and further reference a "credit for driveways completed" without sufficiently identifying the circumstances or reasons regarding same. 8. Paragraph 7 of the Complaint avers that Plaintiffs have made demand for payment and that the Defendant refuses to pay or reimburse Plaintiffs; however, the Complaint does not specify or further identify the circumstances of or the individuals who made the demand on behalf of Plaintiffs, nor the circumstances of or the individuals affiliated with the Defendant who refused to pay or reimburse. 9. Plaintiffs' Complaint avers that an account has been stated against the Defendant for the sum of $3,629.75; however, the Complaint does not aver that Defendant ever acquiesced, assented, and/or agreed to the account rendered for said sum, and, accordingly, for this reason and others, the Complaint fails to plead properly any action based upon the theory of recovery upon an account stated. 10. Plaintiff's Complaint avers that an account has been stated against the Defendant based upon Defendant's failure to object; however, the Complaint does not aver that Defendant ever acquiesced, assented, and/or agreed to the account rendered for the sum of $3,629.75, and, accordingly, for this reason and others, the Complaint fails to plead properly any action based upon the theory of recovery upon an account stated. 1. MOTION TO DISMISS FOR INSUFFICIENT SPECIFICITY IN A PLEADING AS TO AN ACCOUNT STATED THEORY OF RECOVERY and OTHERWISE - Pa. R.C.P.1828(s)(3? 11. The Defendant hereby incorporates all preceding paragraphs of the instant Preliminary Objections as though fully set forth at length herein. 12. The Complaint is framed to recover an amount due under an account stated theory of recovery; however, the Complaint insufficiently pleads the requisite facts necessary to support this theory of recovery. 13. The Complaint fails to plead sufficiently the nature or extent of the following elements of an account stated: (i) That the Defendant ever acquiesced, assented, or agreed to the account rendered; (ii) That there was ever a running account and/or a pre-existing account; (iii) That there was ever a promise to pay on the alleged account; (iv) That there was ever any acceptance of the account rendered or any account; (v) That there was a matured debt discharged by a manifestation of assent in good faith by debtor and creditor to a stated sum as an accurate computation of the amount of the matured debt or debts due the creditor, or that there were cross demands as the amount of the difference between the total indebtedness due one party and the total indebtedness due the other party; (vi) That there was retention for an unreasonably long time by the Defendant of a statement of account rendered by Plaintiff; 4 (vii) That there was mutual assent to the correctness of the computation of $3,629.75; (viii) That the account stated bound the parties inasmuch as the Defendant never repudiated same; (ix) That the account stated is not subject to impeachment for mistake or fraud; (x) That the equipment, goods and services which comprised the account stated were itemized with specificity; (xi) That the account stated is based on a subsisting debt and arises from a pre- existing account or course of dealings between the parties; and/or, (xii) That the Plaintiffs performance relative to the alleged account was satisfactory to the Defendant. 14. To the extent the Complaint purports to seek recovery of the alleged total amount due under an account stated theory of recovery, yet fails to aver with specificity the appropriate elements of such a theory or action, same is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(3). 15. Plaintiffs' Complaint insufficiently pleads the requisite factual basis for recovery as to each of the Plaintiffs separately, any authorization of the individuals affiliated with the Defendant, any justification for the allowance of "credit for driveways completed" along with the circumstances, authority, and legality thereof, and otherwise fails to plead sufficiently as required by the Pennsylvania Rules of Civil Procedure, and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(3). H. MOTION TO DISMISS FOR FAILURE OF A PLEADING TO CONFORM TO LAW OR RULE OF COURT - Pa.R.C.P.1028(a)(2). 16. The Defendant hereby incorporates all preceding paragraphs of the instant Preliminary Objections as though fully set forth at length herein. 17. To the extent the Complaint is considered to be in the nature of a suit on a written contract, the Complaint does not have attached thereto a copy of any contracts, accounts, account applications, or similar binding documents signed by an authorized representative of the Defendant (see, Pa. R.C.P. 1019(i)), and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(2). 18. To the extent the Complaint is considered to be based upon a written agreement, the Complaint does not have attached thereto a copy of any contract, agreement, writings, or similar binding documents which establishes the liability of the Defendant to the Plaintiff George Estep (see, Pa. R.C.P. 1019(i)), and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(2). 19. The Complaint seeks payment based upon an account stated theory of recovery, demands, and invoices; however, said Complaint does not include specific averments of time, place, and items of special damages (see, Pa. R.C.P. 1019(f)), and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(2). 6 20. The Complaint identifies and joins two plaintiffs ostensibly under Pa. R.C.P. 2229(a); however, the Complaint fails to state the cause of action, damage, and demand for relief of each plaintiff in a separate count (see Pa. R.C.P. 1020(b)), and, as such, is legally objectionable by way of preliminary objection pursuant to Pa.R.C.P. 1028(a)(2). III. MOTION TO DISMISS FOR PENDENCY OF A PRIOR ACTION - Pa.R.C.P. 1028(a)(6). 21. The Defendant hereby incorporates all preceding paragraphs of the instant Preliminary Objections as though fully set forth at length herein. 22. Plaintiff George Estep previously sought redress via Pennsylvania's unemployment compensation law, and, as such, any claim for monies owed is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(ax6). IV. MOTION TO DISMISS FOR FAILURE TO EXERCISE OR EXHAUST A STATUORY REMEDY - Pa.R.C.P.1028(a)('). 23. The Defendant hereby incorporates all preceding paragraphs of the instant Preliminary Objections as though fully set forth at length herein. 24. Plaintiff George Estep previously sought redress via Pennsylvania's unemployment compensation law, and, as such, any claim for monies owed was required to be pursued in accordance with said statutory scheme, and, as such, said claims are 7 legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(7). V. MOTION TO DISMISS FOR LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) - Pa. R.C.P.1028(a)(4). 25. The Defendant hereby incorporates all preceding paragraphs of the instant Preliminary Objections as though fully set forth at length herein. 26. The Complaint seeks payment of a specified total amount under an account stated theory of recovery without asserting the necessary and requisite facts which would support the application of such a theory of recovery in this matter, and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(4). 27. The Complaint seeks payment based upon an account stated theory of recovery; however, said theory of recovery is inapplicable to the alleged transactions or occurrences between the parties, and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(ax4). 28. The Complaint otherwise fails to set forth an appropriate theory of law upon which its demand for payment must be granted, and, as such, is legally objectionable by way of preliminary objection pursuant to Pa. R.C.P. 1028(a)(4). 29. The Complaint fails to state a claim upon which relief can be granted. 8 WHEREFORE, the Defendant respectfully requests that this Honorable Court GRANT the instant Preliminary Objections and dismiss the Plaintiff's Complaint with prejudice. Respectfully submitted, DATE: November 17, 2010 J G. Gault, Esquire Pa. upreme Ct. ID #: 49687 840 Market Street - Suite 153 Lemoyne, PA 17043 (717) 350-0328 j ggault@comcast.net Counsel for Defendant - Kimbob, Inc. 9 VERIFICATION I, Robert M. Mumma, II, Defendant, do hereby verify that any statements of fad made in the foregoing document are true and correct to the best of my knowledge, ikon and belief I understand that any false statements therein are subject to the penalties contained in 18 Fa.C.S-k §4904, relating to to authorities. CERTIFICATE OF SERVICE I hereby certify that on November 17, 2010, I caused to be served a true and correct copy of the foregoing Preliminary Objections to Complaint by U.S. Mail, first class, postage prepaid, addressed to: Craig A. Diehl, Esquire 3464 Trindle Rd. Camp Hill, PA 17011 Counsel for Plaintiffs J G. Gault, Esquire Pa. upreme Ct. ID #: 49687 840 Market Street - Suite 153 Lemoyne, PA 17043 (717) 350-0328 jggault@comcast.net Counsel for Defendant - Kimbob, Inc. I FILED-OFFICE OF THE PROTHONOTARY 2010 DEC 13 PM 1: 08 CUMBERLAND COUNTY P'I:NNSYLVANIA MADISON EXCAVATION, INC. IN THE COURT OF COMMON PLEAS OF AND GEORGE ESTEP, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. DOCKET NO. ]10-6392 Civil KIMBOB, INC. Defendant CIVIL ACTION - LAW ANSWER TO PRELIMINARY OBJECTIONS And Now Come Plaintiffs, Madison Excavation, Inc. and George Estep, by and through their counsel, Law Offices of Craig A. Diehl, answering the Preliminary Objections filed to the Complaint as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted in part, denied in remainder. It is admitted that no specific individual affiliated with Defendant was named requesting or authorizing the services, to be performed. However, the Lease Agreements attached as Exhibit "A" have a signatory of Defendant. Plaintiffs believe that it is unnecessary to do so in the Complaint and believe the averment is clear and unambiguous. Defendant can raise these issues in its .Answer if it desires to do so. 7. Denied. Defendant was fully aware of the invoices as they were provided to Defendant on several occasions. By way of further answer, Plaintiff, George Estep, submitted his business expenses incurred on behalf of Defendant each month while employed for Defendant and was reimbursed for the itemized costs. The final expense report was submitted as was all the others and Defendant has failed to reimburse Plaintiff for expenses which benefitted Defendant. 8. Denied. Invoices were submitted on several occasions and Plaintiff spoke with the accounts payable clerk about the outstanding amounts. Plaintiff further filed an action at the District Magistrate office for the same outstanding amounts. 9. Denied. The complaint conspicuously states that Defendant requested and authorized Plaintiffs to perform certain services (See averment 4 of Complaint). 10. Denied. The complaint conspicuously states that Defendant requested and authorized Plaintiffs to perform certain services (See averment 4 of Complaint). 11. Denied. See responsive pleadings in paragraphs 1 - 10 herein. 12. Denied. The Complaint concisely and adequately pleads the simple facts of this action. 13. Denied. The Complaint concisely and adequately pleads the simple facts of this action. 14. Denied. The Complaint concisely and adequately pleads the simple facts of this action. 15. Denied. The Complaint concisely and adequately pleads the simple facts of this action. 16. Denied. See responsive pleadings set forth in paragraphs 1 - 15 herein. 17. Denied. The Complaint does not aver a written contract except for the Lease Agreements. Plaintiff, George Estep, was an employee of Defendant and was provided oral authorization to perform the services rendered. Copies of the invoices are attached to the Complaint. 18. Denied. The Complaint does not aver a written contract except for the Lease Agreements. Plaintiff, George Estep, was an employee of Defendant and was provided oral authorization to perform the services rendered. Copies of the invoices are attached to the Complaint. 19. Denied. The Complaint concisely and adequately pleads the simple facts of this action. 20. Denied. The Complaint concisely and adequately pleads the simple facts of this action. 21. Denied. See responsive pleadings set forth in paragraphs 1 - 20 herein. 22. Denied. Plaintiff, George Estep, did seek unemployment compensation benefits as a former employee of Defendant. Plaintiffs' claim here originates from a separate agreement for the use of construction equipment and the acquisition of requisite supplies for each job. Copies of the invoices are attached to the Complaint. 23. Denied. See responsive pleadings set forth in paragraphs 1 - 22 herein. 24. Denied. Plaintiff, George Estep, did seek unemployment compensation benefits as a former employee of Defendant, Kimbob, Inc. Plaintiffs' claim here originates from a separate agreement for the use of construction equipment and the acquisition of requisite supplies for each job. Copies of the invoices are attached to the Complaint. 25. Denied. See responsive pleadings set forth in paragraphs 1 - 24 herein. 26. Denied. Plaintiffs have averred in the Complaint facts necessary to establish that Defendant requested, authorized, and benefited from the use of Plaintiffs' construction equipment and the requisite supplies acquired on three (3) occasions during 2009. Defendant refuses to pay for/reimburse Plaintiffs despite having benefited from said use of Plaintiffs' equipment and the necessary job supplies acquired on behalf of Defendant. 27. Denied. Plaintiffs have averred in the Complaint facts necessary to establish that Defendant requested, authorized, and benefited from the use of Plaintiffs' construction equipment and the requisite supplies acquired on three (3) occasions during 2009. Defendant refuses to pay for/reimburse Plaintiffs despite having benefited from said use of Plaintiffs' equipment and the necessary job supplies acquired on behalf of :Defendant. 28. Denied. Plaintiffs have averred in the Complaint facts necessary to establish that Defendant requested, authorized, and benefited from the use of Plaintiffs' construction equipment and the requisite supplies acquired on three (3) occasions during 2009. Defendant refuses to pay for/reimburse Plaintiffs despite having benefited from said use of Plaintiffs' equipment and the necessary job supplies acquired on behalf of Defendant. 29. Denied. The Complaint conspicuously states that Plaintiffs provided the use of construction equipment and requisite supplies for three (3) of Defendant's jobs in 2009 without being paid/reimbursed. WHEREFORE, Plaintiffs respectfully request that this Honorable Court deny Defendant's Preliminary Objections and require Defendant to answer Plaintiffs' Complaint. Respectfully submitted, LAW OFFICES OF CRAIG A. DIEHL Date: By: GQ- Craig A. iehl, Esquire Attorney I.D. No. 52801 3464 Trindle Road Camp Hill, PA 17011 Tel: (717) 763-7613 Fax: (717) 763-8293 Attorney for Plaintiffs jEXH TR? ?tf? 405 Bridge Street, New Cumberland, PA 17070 Telephone (717) 763-9611 Fax (717) 763-9613 LEASE AGREEMENT THIS .A; IREE virEN T made and entered ' ?'-1 V1 ?- T ' C i i11t?_ «ii ??1_. . 1) ii! . _i I(1 I? ?11t] ht_-tti e-en KimBob, Inc., PO Box 5, Camp Hill, PA (Lessee) and Madison Excavation, Inc., 405 Bridge Street, New Cumberland, PA (Lessor). KimBob, Inc. agrees to lease a 236 Skid Loader from Madison Excavation, Inc. Rates are agreed as follows: Daily Rate Based on 8 hours per day: $90.00 Weekly Rate Based on 40 hours per week: $ 438.00 This lease is for the equipment only. It is understood no equipment operator will be provided by Lessor. Lessee is required to supply fuel and maintain daily maintenance on equipment. Additionally, Lessee agrees to add Madison Excavation, Inc., to insurance policy as an additional insured for the value of 2,16 Skid Loader. Agreed to: ;?f KimBob, I Mad lion Excavation, Inc. V _ Z6 Date -7l U Date V?? II I?P_J??f_1?11 405 Bridge Street, New Cumberland, PA 17070 Telephone (717) 763-9611 Fax (717) 763-9613 LEASE AGREEMENT T I-II ACREE1vTEPJT made and enLerud irito this 1st day cif Orltober 2009, by and betwelen KimBob, Inc., PO Box 5, Camp Hill, PA (Lessee) and Madison Excavation, Inc., 405 Bridge Street, New Cumberland, PA (Lessor). KimBob, Inc. agrees to lease a 236 Skid Loader from Madison Excavation, Inc. Rates are agreed as follows: Daily Rate Based on S hours per day: $90.00 Weekly Rate Based on 40 hours per week: $ 438.00 Monthly Rate Based on 40 hours per week, 160 hour max.: $1,300.00 This lease is for the equipment only. It is understood no equipment operator will be provided by Lessor. Lessee is required to supply fuel and maintain daily maintenance on equipment. Additionally, Lessee agrees to add Madison Excavation, Inc., to insurance policy as an additional insured for the value of 236 Skid Loader. Agreed to: KimBob, c. 2??= 4t_ M-1-on Excavation, Inc. E)ate Date 405 Bridge Street, New Cumberland, PA 17070 Telephone (717) 763-9611 Fax (717) 763-9613 LEASE AGREEMENT Purchase Order No. 4910 THIS AGREEMENT made and entered into this 22nd day of October 2009, by and between KimBob, Inc., PO Box 5, Camp Hill, PA (Lessee) and Madison Excavation, Inc., 405 Bridge Street, New Cumberland, PA (Lessor). KimBob, Inc. agrees to lease a 953C Track Loader from Madison Excavation, Inc. Rates are agreed as follows: Daily Rate Based on 8 hours per day: $600.00 Weekly Rate Based on 40 hours per week: $1,825.00 This lease is for the equipment only. It is understood no equipment operator will be provided by Lessor. Lessee is required to supply fuel and maintain daily maintenance on equipment. Additionally, Lessee agrees to add Madison Excavation, Inc., to insurance policy as an additional insured for value of 953C Track Loader. Agreed to: KimBob, IT r /s' Madison Excavation, Inc. _ ? Date ?- ! CZ Z G` Date If, VERIFICATION I, George Estep, President of Madison Excavation, Inc., Plaintiff above-named, being duly sworn according to law, deposes that the facts set forth in the foregoing Answers to Preliminary Objections are true and correct to the best of my knowledge, information, and belief. The undersigned understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Date: 6z - Ge Estep, Pre ident M ison Excavation, Inc. VERIFICATION I, George Estep, Plaintiff above-named, being duly sworn according to law, deposes that the facts set forth in the foregoing Answers to Preliminary Objections are true and correct to the best of my knowledge, information, and belief. The undersigned understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Date: G ,??GE F; EP CERTIFICATE OF SERVICE, AND NOW, the day of December, 2010, the undersigned hereby certifies that a true and correct copy of the foregoing Answers to Preliminary Objections was served upon the opposing party by way of United States first class mail, postage prepaid, addressed as follows: James G. Gault, Esquire 840 Market Street, Suite 153 Lemoyne, PA 17043 D ra A. Fike, Legal Secretary t . Jib- 4.iV r i +.r?.TAP,- 7u .,ROTI`i CNO l I i JU1 20 AN, Ii: 0LL CUMBERLAND COUNTY MADISON EXCAVATION, INC. and MINSYLY4 E COURT OF COMMON PLEAS GEORGE ESTEP, OF CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA V. DOCKET NO. 10 - 6392 KIMBOB, INC., : Defendant CIVIL ACTION - LAW MOTION OF JAMES G. GAULT. ESQUIRE FOR LEAVE TO WITHDRAW AS COUNSEL FOR DEFENDANT KIMBOB. INC. Attorney James G. Gault, counsel of record for Defendant Kimbob, Inc. hereby moves this Honorable Court for leave to withdraw as counsel for the Defendant, and in support of said Motion avers as follows: 1. On November 7, 2007, the undersigned counsel was retained by Robert M. Mumma, II ("Mumma") on an hourly basis to perform various legal research and legal writing projects. Mumma is the president and owner of Defendant Kimbob, Inc. Said legal work was performed in different office suites located at 840 Market St., Lemoyne, Pennsylvania. 2. Over the ensuing months and years, Mumma requested the undersigned counsel to represent his interests or the interests of his companies and/or entities in a variety of legal matters before county, state, and federal courts. Said legal work included representation of the Defendant Kimbob, Inc. 1 3. In a letter dated September 25, 2010 sent to Mumma, the undersigned counsel indicated that he had recently undergone cardio-vascular assessment and testing secondary to an ongoing and sustained increase in work-related stress, anxiety, and tension. Said letter further advised that the treating cardiologist had recommended a reduction in work hours and other proactive measures to reduce exposure to work-related stress. Although the initial plan was to institute a 3.5 day work week, work demands and ever-present court filing deadlines often required working in excess of 3.5 days per week. (A copy of said letter will be made available to the Court for in camera review if so directed). 4. In a letter dated May 2, 2011 sent to Mumma, the undersigned counsel indicated that he would be relocating to Maryland secondary to upcoming wedding nuptials and that his last day to report to the Lemoyne office would be September 2, 2011, thereby providing Mumma with a four (4) month advance notice regarding the retention of successor counsel. However, said letter specified that the undersigned counsel reserved the right to adjust the departure date for an earlier cessation of work as dependent on the following two factors: (#1) if he was not paid timely or regularly, or (#2) if he was subjected to further intolerable work demands or conditions, including both professional working relationships and inter-personal relationships. (A copy of said letter will be made available to the Court for in camera review if so directed). 5. With respect to factor #1 of the two factors delineated above in Paragraph 4, the undersigned counsel is currently owed in excess of $8,000 for legal services provided to Mumma; in the context of this written Motion, professional considerations weigh against the disclosure of any more specific details concerning Factor #2. 2 15. Concurrence from opposing counsel is not necessary in light of the mandatory withdrawal obligations set forth in Rule of Professional Conduct 1.16(a). 16. As reflected by the attached Certificate of Service, a copy of the foregoing Motion has been served upon opposing counsel and upon the Defendant Kimbob, Inc. 17. No hearing or argument is requested, and discovery is not necessary. 18. With respect to a matter listed for Argument Court on July 15, 2011, the above-captioned action was assigned to Judge Masland. WHEREFORE, the undersigned counsel respectfully requests leave of Court to withdraw as counsel for the Defendant Kimbob, Inc. DATE: July 19, 2011 4s G. Gault, squire PA Supreme Ct. Id. No. 49687 503 Magaro Road Enola, PA 17025 Tele: (717) 350-0328 jggault@comcast.net VERIFICATION I, James G. Gault, Esquire, the Movant, verify that the statements of fact made in the foregoing document are true and correct to the best of my knowledge, information and belief I understand that any false statements therein are subject to the penalties contained in 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. DATE: July 19, 2011 Jai* G. Gault, Esquire PA Supreme Ct. Id. No. 49687 503 Magaro Road Enola, PA 17025 Tele: (717) 350-0328 jggault@comcast.net 6 CERTIFICATE OF CONCURRENCE OR NON-CONCURRENCE I, James G. Gault, Esquire, the Movant, have not sought to obtain the concurrence of opposing counsel, nor ascertain the non-concurrence of opposing counsel, insofar as concurrence and/or non-concurrence from opposing counsel is not necessary in light of the mandatory withdrawal obligations set forth in Rule of Professional Conduct 1.16(a). DATE: July 19, 2011 Ja?es G. Gault, E quire PA Supreme Ct. Id. No. 49687 503 Magaro Road Enola, PA 17025 Tele: (717) 350-0328 jggault@comcast.net 7 CERTIFICATE OF SERVICE I, James G. Gault, Esquire, do hereby certify that I served a copy of the foregoing Motion this date by U.S. Mail, first class, postage prepaid, addressed to: Craig A. Diehl, Esquire 3464 Trindle Road Camp Hill, PA 17011 Counsel for Plaintiff Kimbob, Inc. c/o Robert M. Mumma, II 840 Market Street Lemoyne, PA 17043 DATE: July 19, 2011 4uprePAme GaultEsquire Ct. Id. No. 49687 503 Magaro Road Enola, PA 17025 Tele: (717) 350-0328 jggault@comcast.net L, MADISON EXCAVATION, INC. and GEORGE ESTEP, Plaintiffs V. KIMBOB, INC., Defendant IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PENNSYLVANIA c DOCKET NO. 10 - 6392 c? cn r N CIVIL ACTION - LAW cv c.a ORDER AND NOW, this 'V day of , 2011, upon consideration of the Motion of James G. Gault, Esquire for ?eave to Withdraw as Counsel for Defendant Kimbob, Inc., the Motion is GRANTED. Among other reasons and for other good cause, said Motion is granted pursuant to the mandatory withdrawal provisions of Rule of Professional Conduct 1.16(a). Defendant Kimbob, Inc. shall notify the Court and opposing counsel within days as to the identity of successor counsel. rn? ?rn -? 4Q -,, c -TI B E T, J. Distribution: es G. Gault, Esquire 503 Magaro Rd. Enola, PA 17025 1!<imbob, Inc. V c/o Robert M. Mumma, II 840 Market Street Lemoyne, PA 17043 Defendant raig A. Diehl, Esquire 3464 Trindle Road Camp Hill, PA 17011 Counsel for Plaintiff MADISON EXCAVATION, INC., and IN THE COURT OF COMMON PLEAS OF GEORGE ESTEP, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. KIMBOB, INC., DEFENDANT 10-6392 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO COMPLAINT ORDER OF COURT AND NOW, this _ day of July, 2011, upon consideration of Defendant's preliminary objections and the briefs submitted in lieu of argument, IT IS ORDERED AND DIRECTED that all of Defendant's preliminary objections are DISMISSED. Defendant is given twenty (20) days from the date of this order to file an answer to Plaintiffs' complaint. By the Court, Albert H. Masland, J. Craig A. Diehl, Esquire For Plaintiffs James G. Gault, Esquire For Defendant :saa MO.AU . , n r r*iCV c-- .. !< C wdr ?`j xaW ?--; _ ...E ? - 1 MADISON EXCAVATION, INC., and GEORGE ESTEP, Plaintiffs V. KIMBOB, INC, Defendant ENTRY OF APPEARANCE TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 10-6392 CIVIL TERM JUDGE MASLAND . CO 7? t , , C? --r-: Kindly enter my appearance on behalf of Defendant, Kimbob, Inc. in the above- captioned matter. Respectfully submitted, 5020 Ritter Road Suite 104 Mechanicsburg, PA 17055 Pu.: 717.766.4008 FAx: 717.766.4066 Dated: August 5, 2011 ?G Jo M. Kerr, Esquire At orney I.D. #26414 John Kerr Law, P.C. 5020 Ritter Road Suite 104 Mechanicsburg, PA 17055 (717) 766-4008 CERTIFICATE OF SERVICE The undersigned hereby certifies that he has served a copy of the foregoing, "Entry of Appearance," on the below-named individual in the manner indicated: First Class Mail, Postage Prepaid Craig A. Diehl, Esquire 3464 Trindle Road Camp Hill, PA 17011 w ? - ?L Jo M. Kerr, Esquire 5020 Ritter Road Suite 104 Mechanicsburg, PA 17055 (717) 766-4008 Dated: August 8, 2011 YV "11,1 I?n w IIC 5020 Ritter Road Suite 104 Mechanicsburg, PA 17055 PHONE: 717.766.4005 FAX: 717.766.4066 MADISON EXCAVATION, INC. IN THE COURT OF COMMON PLEAS OF AND GEORGE ESTEP, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs C-) N V. DOCKET NO. 10-6392 Civil -,a3 -.- -+ M :p CD .< _ KIMBOB INC. ai VM Defendant CIVIL ACTION - LAW --? ° XC, - y?c rv ? -? PRAECIPE FOR DEFAULT JUDGMENT - CA rn ?:. TO: Prothonotary of Cumberland County Please enter judgment in favor of Plaintiffs and against Defendant above-named for want of an answer, and assess Plaintiffs' damages as follows: 1. Amount claimed in Plaintiffs' Complaint: Damages $ 3,629.75 Subtotal $ 3,629.75 2. Costs 124.25 TOTAL $ 3,754.00 It is certified that a written notice of intention to file this Praecipe was mailed to Defendant against whom judgment is to be entered, if any, after the default occurred and at least ten (10) days prior to the date of the filing of this Praecipe. (A true and correct copy of the Notice is attached hereto as Exhibit "A.") LAW OFFICES OF CRAIG A. DIEHL Date: 11 114 /1/ $y; AAA 10 1 :V__31 N4 Mfg ry Craig A iehl, squire Attorney ID No. 52801 3464 Trindle Road Camp Hill, PA 17011 (717)763-7613 Counsel for Plaintiffs O fd,4 f 7'y e 136,f -2- 6 7410 00e yyladeol OFFICE OF THE PROTHONOTARY OF CUMBERLAND COUNTY DAVID D. BUELL TELEPHONE PROTHONOTARY (717) 240-6195 CUMBERLAND COUNTY OFFICES 1 COURTHOUSE SQUARE CARLISLE, PENNSYLVANIA 17013 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA PLAINTIFF: Madison Excavation, Inc and George Estep Versus DEFENDANT(S): Kimbob, Inc. JUDGMENT NO. CERTIFICATE OF RESIDENCE Pa. R.C.P. 236 I hereby certify that the precise address for Plaintiffs is: 405 Bridge Street, New Cumberland, Pennsylvania 17070 and certify that the last known business address of the within Defendant is: 840 Market Street, Lemoyne, Pennsylvania 17043 LAW OFFICES OF CRAIG A. DIEHL Date: By: Craig A. iehl, Esquire Attorney I.D. No. 52801 3464 Trindle Road Camp Hill, PA 17011 Tel: (717) 763-7613 Fax: (717) 763-8293 Attorney for Plaintiffs, Madison Excavation, Inc. and George Estep 7s" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Or MADISON EXCAVATION, INC., and GEORGE ESTEP, Plaintiffs NO. 10-6392 Civil Term V. CIVIL ACTION - LAW KIMBOB, INC., Defendant DATE OF NOTICE: August 19, 2011 To: KIMBOB, Inc. c/o John M. Kerr, Esquire 5020 Ritter Road, Suite 104 Mechanicsburg, PA 17055 JUDGE MASLAND IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE COMPLAINT SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE, YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD,ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 Date: 4$ LAW OFFICES OF CRAIG A. DIEHL By: Q Craig Al Diehl, Esquire Attorney I.D. No. 52801 3464 Trindle Road Camp Hill, PA 17011 Tel: 717-763-7613 Fax: 717-763-8293 Counsel for Plaintiff CERTIFICATE OF SERVICE AND NOW, the 22"d day of August, 2011, the undersigned hereby certifies that a true and correct copy of the foregoing IMPORTANT NOTICE was served upon the opposing party by way of United States first class mail, postage prepaid, addressed as follows: John M. Kerr, Esquire John Kerr Law, P.C. 5020 Ritter Road, Suite 104 Mechanicsburg, PA 17055 (Attorney for Defendant) De A. Fike MADISON EXCAVATION, INC. AND GEORGE ESTEP, Plaintiffs V. KIMBOB, INC. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 10-6392 Civil : CIVIL ACTION - LAW AFFIDAVIT OF NON-MILITARY SERVICE Personally appeared before me the undersigned, a Notary Public in and for said County and State, Craig A. Diehl, Esquire, duly authorized to execute this Affidavit and states that the Plaintiff knows of his own knowledge that the Defendant, Kimbob, Inc., is not in the military service as defined in the Soldiers' and Sailors' Relief Act of 1940 and its amendments thereto, to the following reasons: Defendant is a business entity and as such would not be capable of serving in the military Plaintiff further says that the obligation sought to be enforced in this suit is not an obligation against a surety, guarantor, endorser, or other person liable, primarily or secondarily for a party in the military service. Crai . Diehl, Esquire I verify that the statements made in this Affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. 4904 relating to unworn falsification to authorities. Date: _ //I /T1 // !s?? (A L. 14otMel ? I Craig . Diehl, Esquire Sworn to or affirmed and subscribed before me this day of November, 2011. Notary Public My Commission Expires: MADISON EXCAVATION, INC. AND GEORGE ESTEP, Plaintiffs V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : DOCKET NO. 10-6392 Civil KIMBOB, INC. Defendant : CIVIL ACTION - LAW NOTICE BY PROTHONOTARY OF ENTRY OF ORDER, DECREE OR JUDGMENT TO: Kimbob, Inc., Defendant You are hereby notified that on d117111, 2011, the following Order has been entered against you in the above-captioned cage. ORDER FOR DEFAULT J GM NT Date: 11117111 too, - OAF Proth I hereby certify that the name and address of the proper person to receive this notice is: Kimbob, Inc. c/o John M. Kerr, Esquire 5020 Ritter Road, Suite 104 Mechanicsburg, PA 17055 A Defendido/a Defendidos/as Por este medio se le esta notificando que el de del 2011, el/la siguiente (Orden), (Decreto), (Fallo) ha silo anotado en contra suya en el case mencionado en el epigrafe. FECHA: Protonotario Certifico que la siguiente direccion es la del defendido/a segun indicada en el certificado de residencia: Rule 236 •v r- APR 2 9 201 x MADISON EXCAVATION, INC. IN THE COURT OF COMMON PLEAS OF AND GEORGE ESTEP, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, v. DOCKET NO. 10-6392 Civil KIMBOB, INC., Defendant. CIVIL ACTION—LAW t=� V. -y' - (J3 ,y C.0 } METRO BANK, rte' Garnishee �- C)f 1 -! cSp TO: METRO BANK 1130 Carlisle Road Camp Hill, PA 17011 YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED INTERROGATORIES IN ATTACHMENT DIRECTED TO GARNISHEE WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. STONE, DUNCAN, & LINSENBACH, PC DATE: , By: lin Dush In' sq. Atty ID No. 3 861 8 N. Baltimore Street Diilsburg, PA. 17019 PH: (717) 432-2089 FX: (717) 432-0158 APR 2 9 2013 P. w MADISON EXCAVATION, INC. IN THE COURT OF COMMON PLEAS OF AND GEORGE ESTEP, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, V. DOCKET NO. 10-6392 Civil KIMBOB, INC., Defendant. CIVIL ACTION—LAW V. METRO BANK, Garnishee INTERROGATORIES IN ATTACHMENT DIRECTED TO GARNISHEE TO: METRO BANK 1130 Carlisle Road Camp Hill, Pa 17011 You must file with the Prothonotary of the Court of Common Pleas of Cumberland County and serve a copy upon Alina M. Dusharm, Esq., 8 North Baltimore Street, Dillsburg, PA 17019 your verified answers to the following Interrogatories In Attachment within twenty (20) days after service upon you. Failure to do so may result in a default judgment being entered against you. If your answer to any of the foregoing interrogatories is affirmative, specify the amount, value, and/or completely describe the nature of the subject property. If -p- : 7 ,Y. t. M, APR 2 9 2013 � F your answer depends upon the review of any documents, account records, or other papers or electronic data, completely describe the same in exact detail (or attach a copy of the same). 1. a. At the time you were served or at any subsequent time, did you owe the defendant[s] any money or were you liable to defendant[s] on any negotiable or other written instrument, or did defendant[s] claim that you owed any money or were liable to defendant[s] for any reason? bo To the extent that your above answer depends in ;zrhnlP or part on documents, account records, other papers, or electronic data, describe each in exact detail (or attach a copy of the same). Defendant has less than $300 exemption. Defendant has 4 accounts with Metro Bank all 4 accounts have a $0.00 or negative balance. Defendant also has 2 loans with Metro Bank. .: APR 2 9 2013 2. a. At the time you were served or at any subsequent time, was there in your possession, custody, or control or in the joint possession, custody, or control of yourself or one or more other persons property of any nature owned solely or in part by the defendant[s]? b. To the extent that your above answer depends in whole or part on documents, account records, or other papers or electronic data, describe each in exact detail (or attach a copy of the same). n/a ' APR 2 9 2013 F 3. a. At any time you were served or at any subsequent time, did you hold legal title to property of any nature owned solely or in part by the defendant[s] or in which defendant[s] held or claimed any interest? b. To the extent that your above answer depends in whole or part on documents, account records, or other papers or electronic data, describe each in exact detail (or attach a copy of.the same). n/a APR 29 2013 - 9m 4. a. At any time you were served or at any subsequent time, did you hold as a fiduciary property in which the defendant[s] had an interest? b. To the extent that your above answer depends in whole or part on documents, account records, or other papers or electronic data, describe each in exact detail (or attach a copy of the same). n/a • psl F ` APR ? 9 2013 S. a. At any time before or after you were served, did the defendant[s] transfer or deliver property of any nature to you or to any person or place pursuant to your direction or consent and, if so, what was the consideration therefor? b. To the extent that your above answer depends in whole or part on documents, account records, or other papers or electronic data, describe each in exact detail (or attach a copy of the same). n/a RD F APR 2 9 2013 6. a. At the time you were served or at any subsequent time did you pay, transfer, or deliver any money or property of any nature to the defendant[s]? b. To the extent that your above answer depends in whole or part on documents, account records, or other papers or electronic data, describe each in exact detail (or attach a copy of the same). n/a <. APR 2 90 2013 n , ry 3 7. a. At the time you were served or at any subsequent time did you pay, transfer, or deliver any money or property of any nature, to any person, .entity, or place pursuant to the direction of, or undertaking for, the defendant[s], e.g., lease payments, loan payments, etc.? b. To the extent that your above answer depends in whole or part on documents, account records, or other papers or electronic data, describe each in exact detail (or attach a copy of the same). no G AR 9 2013 8. a. At the time you were served or at any subsequent time, did you have, share, or utilize any safe deposit boxes, pledges, documents of title, securities, notes, coupons, receivable, license, or collateral in which there was an interest claimed by defendant[s]? b. To the extent that your above answer depends in whole or part on documents, account records, or other papers or electronic data, describe each in exact detail (or attach a copy of the same). n/a TP APR 2 9 2013 li� n a 9. a. Identify every account (not previously noted) titled in the name of defendant[s] or in which you believe defendant[s] have an interest in whole or part, whether or not styled as a payroll account, individual retirement account, tax account, lottery account, partnership account, joint or tenants by entirety account, insurance account, trust or escrow account, attorney's account, or otherwise. b. To the extent that your above answer depends in whole or part on documents, account records, or other papers or electronic data describe each in exact detail (or attach a Copy of the same). n/a APR 2 9 2013 10. a. At the time you were served or at any subsequent time, did you have any other contractual relationships with or other obligations to defendant[s], and if so, detail every position and condition, and report the performance of the same. b. To the extent that your above answer depends in whole or part on documents, account records, or other papers or electronic data, describe each in exact detail (or attach a copy of the same). n/a ,. APR 29 2013 11. a. If you are a bank or other financial institution, at the time you were served or at any subsequent time, did the defendant[s] have funds on deposit in an account in which funds are deposited electronically on a recurring basis and which are identified as being funds that upon deposit are exempt from execution, levy, or attachment under Pennsylvania or federal law? If so, identify each account and state the reason for the exemption, the amount being withheld under each exemption, and the entity electronically depositing those funds on a recurring basis. b. To the extent that your above answer depends in whole or part on documents, account records, or other papers or electronic data, describe each in exact detail (or attach a copy of the same). n/a { APR 2 9 2013 IL 1-2. a. If you are a bank or other financial institution, at the time you were served or at any subsequent time, did the defendant[s] have funds on deposit .in an account in which the funds on deposit, not including any otherwise exempt funds, did not exceed the amount of the general monetary exemption under.42 Pa.C.S. § 8123? If.so, identify each account. b. To the extent that,your above answer depends in whole or part on documents, account records, or other papers or electronic data, describe each in exact detail (or attach a copy of the same). n/a STONE, DUNCAN, & LINSENBACH, PC DATE: l I By: a M. ush s . Atty ID No. 30 861 8 N. Baltimore Street Dillsburg, PA. 17019 PH: (717) 432-2089 FX: (717) 432-0158 VERIFICATION The undersigned does hereby verify subject to the penalties of 18 PA. C.S. § 4904 relating to unsworn falsifications to authorities, that he/she is Jennifer Hilbish (Name) Levy pecialist of Metro Bank, garnishee herein, (Title) (Company) that he/she duly authorized to make this verification, and that the facts set forth in the foregoing Answers to Interrogatories are true and correct to the best of his/her knowledge, information and belief. (SIG URE)