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Home My WebLink About11-2647IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff(s) & Address(es) ANDREW D. MOYER and JANICE K. MOYER 570 Margate Road Harrisburg, PA 17111-5156 CIVIL DIVISION Case No. Civil Tiergr" Civil Action ' LAW =z VS. Defendant(s) & Address(es) SCOTT D. THORNTON 6225 Souvenir Drive Enola, PA 17025-1140 PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY/CLERK OF SAID COURT: Issue summons in the above case Writ of Summons shall be issued and forwarded to Attor a /S eriff. Please C' cle choic Date : March 1, 2011 igna re of Attorny Print Name: Larry Mil r Address: 1423 State Road Duncannon PA 17020 Telephone #: 717.957.2828 Supreme Court ID Number: 28122 TO: • • • 0 • WRIT OF SUMMONS YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAS/HAVE COMMENCED AN ACTION AGAINST YOU. C-Lu P thonotary/Cl k, Civil Division Date: _l %y 1 by Deputy P ft 61 k '7 {{ I" 'f INO ?-? t. a !c_. .? ila.F IN O 61 ,1" (? w t? `- LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. #28122 1423 State Road Duncannon, PA 17020 Telephone: [717[957-2828 Attorney for Plaintiff: ANDREW & JANICE MOYER ANDREW D. MOYER IN THE COURT OF COMMON PLEAS JANICE K. MOYER CUMBERLAND COUNTY, PENNSYLVANIA 570 Margate Road CIVIL DIVISION - LAW Harrisburg, PA 17111-5156 No. 11-2647 Plaintiffs v. SCOTT D. THORNTON 6225 Souvenir Drive Enola, PA 17025-1140 Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 717-249-3166 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viento (20) dias de plazo al partir de le fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. Sea advisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo adviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o es propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO DUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 717-249-3166 DATE: April 7, 2011 By: LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. 428122 1423 State Road Duncannon, PA 17020 Telephone: [717[957-2828 Attorney for Plaintiff: ANDREW & JANICE MOYER ANDREW D. MOYER JANICE K. MOYER 570 Margate Road Harrisburg, PA 17111-5156 Plaintiffs V. SCOTT D. THORNTON 6225 Souvenir Drive Enola, PA 17025-1140 Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW No. 11-2647 COMPLAINT 1. Plaintiffs, Andrew D. Moyer and Janice K. Moyer (hereinafter collectively referred to as "Plaintiffs"), are husband and wife and reside at 570 Margate Road, Harrisburg, Pennsylvania. 2. Defendant, Scott D. Thornton ("Defendant"), is a general contractor with a business address of 6225 Souvenir Drive, Enola, Pennsylvania. 3. Plaintiffs entered a contract with Defendant for renovations/addition to their home (hereinafter "Project"). 4. The contract for the Project was dated August 10, 2009 and, a true and correct copy is attached hereto as Exhibit "A" and which is incorporated herein by reference. COUNT I Andrew D. Mover & Janice K. Moyer v. Scott D. Thornton BREACH OF CONTRACT 5. Paragraphs 1 through 4 of this Complaint are incorporated by reference as if set forth in full. 6. Defendant materially breached the contract with Plaintiffs by overcharging Plaintiffs by more than $65,000 to complete the Project. 7. Defendant also materially breached the contract by failing to timely and satisfactorily complete the work on the Project. 8. Additionally, Defendant materially breached the contract by concealing the contract overruns by not timely submitting the bills of the suppliers and subcontractors to Plaintiffs. s 2 9. Last, Defendant materially breached the contract by failing and refusing to properly and timely manage and obtain the completion of the Project. 10. As a direct result of Defendants' material breaches of the contract, Plaintiffs have suffered substantial damages. 11. Among other things, Plaintiffs were forced to pay for the contract overruns that were directly caused by Defendant's unsatisfactory performance and negligent management of this Project. 12. Additionally, Plaintiffs were inconvenienced and suffered because of Defendant's failure to timely complete the Project. Defendant abandoned the Project before it was satisfactorily completed. 13. Also, Plaintiffs suffered substantial damages in performing Defendant's duties and responsibilities in securing the completion of the Project. 14. Defendant ignored the punchlist that was his contractual responsibility and forced Plaintiffs to retain replacement contractors to complete the Project and, to repair and correct the defective work. 15. Plaintiffs seek the recovery of all damages that they suffered because of Defendant's material breaches of the contract which sum exceeds the local arbitration limit. 3 WHEREFORE, Plaintiffs, Andrew D. Moyer and Janice K. Moyer, respectfully request that this Honorable Court enter judgment in their favor and against Scott D. Thornton for all damages suffered because of Defendant's contract breaches. COUNT II Andrew D. Moyer & Janice K. Moyer v. Scott D. Thornton SLANDER OF TITLE 16. Paragraphs 1 through 15 of this Complaint are incorporated by reference as if set forth in full. 17. On or about June 9, 2 010 , Defendant sent an improper and excessive bill to Plaintiffs for $11,885.71. See Exhibit "B" hereto. 18. The same improper and excessive amount was sought by Defendant by bill dated July 22, 2010. See Exhibit "C" hereto. 19. On September 16, 2010, Defendant filed a mechanic's lien claim against Plaintiffs' real property for $18,903.75. See Exhibit "D" hereto. 20. The filed mechanic's lien claim is excessive, frivolous, and fraudulent. 21. No sum was due Defendant when the frivolous mechanic's lien claim was filed. 4 22. The frivolous, excessive, and fraudulent lien claim was intentionally filed by Defendant to directly cause harm to Plaintiffs. 23. The frivolous, excessive, and fraudulent lien claim was filed for the specific purpose of harassing Plaintiffs and to cause them to suffer damages and, to incur unnecessary fees and expenses. 24. By letter dated October 5, 2010, Plaintiffs' counsel demanded the withdrawal of the frivolous lien claim. See Exhibit "E" hereto. 25. Defendant and Defendant's counsel failed and refused to reply to the letter dated October 5, 2010. 26. The frivolous lien, as intended, is directly causing material harm to Plaintiffs. 27. As a direct result of Defendant's groundless lien filing, Plaintiffs have been prevented from refinancing their home and have been otherwise harmed. 28. The frivolous lien is a slander of Plaintiffs' good title to the real property. 29. Accordingly, Plaintiffs seek a declaration that Defendant's lien claim is improper and frivolous and an award of all damages that have been suffered as a direct result of Defendant's intentional filing of the frivolous lien claim plus, punitive damages. 5 WHEREFORE, Plaintiffs, Andrew D. Moyer and Janice K. Moyer, respectfully request that this Honorable Court declare that Defendant's lien claim is improper and frivolous and, to award all damages that have been suffered as a direct result of Defendant's intentional filing of the frivolous lien claim plus, punitive damages. COUNT III Andrew D. Moyer & Janice K. Moyer V. Scott D. Thornton FRAUD 30. Paragraphs 1 through 29 of this Complaint are incorporated by reference as if set forth in full. 31. Defendant represented that he was a competent general contractor with the ability to perform the Project for the cost estimate. 32. At the time that Defendant's representations were made, he knew or should have known that his representations regarding his ability to perform the Project were inaccurate and false. 6 33. Defendant obtained the money from Plaintiffs when Defendant knew that he would neither timely nor properly perform the Project. 34. Defendant misrepresented to Plaintiffs that he would timely perform the Project for the promised price. 35. Based upon these misrepresentations, Plaintiffs provided monies to Defendant for the performance of the Project. 36. If the misrepresentations had not been made by Defendant, Plaintiffs would not have entered the contract nor made the numerous payments to Defendant. 37. Plaintiffs relied upon the misrepresentations made by Defendant in entering the contract and making the payments to him. 38. The representations made by Defendant that he would promptly and satisfactorily perform the Project were false and fraudulent when made in that Defendant knew, or should have known, that the representations were inaccurate and false. 39. Defendant, by the above described conduct, obtained the payments from Plaintiffs by misrepresentation and fraud. 40. The conduct of Defendant, as described above, was done with specific intent to deceive Plaintiffs. 41. As a direct result, Plaintiffs have suffered substantial damages. 7 WHEREFORE, Plaintiffs, Andrew D. Moyer and Janice K. Moyer, pray for and demand judgment in their favor and against Defendant, Scott D. Thornton, in an amount exceeding $50,000.00, plus costs, attorney's fees, delay damages, punitive damages, and such other relief as this Honorable Court deems just and proper. i , f DATE: April 7, 2011 By: i ry MILLER Cycoftc P- cAo'tatoa GeweraL Co"tractor Ffla '41 August 10, 2009 Mr. & Mrs. Andrew Moyer 570 Margate Road Harrisburg, PA 17111 BUDGET PROPOSAL Re: Kitchen/Garage/Living Room Renovations Dear Mr. & Mrs. Moyer. The following are Budget figures only for the Kitchen renovations, Garage addition and Living Room extension project at the above address: y Excavation and demolition of existing concrete Concrete for footers Excavation and stone dust for propane tank Concrete for Garage addition, Dining Room addition and new patio ? ICF walls for Garage, Kitchen and existing porch s Trusses and framing lumber for entire project ? Shingles and felt paper Doors and windows y Siding, soffit, fascia and spouting Y Insulation and Styrofoam 0221) (souvenir give Qnola, PA, 17025 $ 18,000.00 $ 4,800.00 $ 2,400.00 $ 4,800.00 $ 4,500.00 $ 2,450.00 (717) 602 X500 EXHIBIT A Mr. & Mrs. Andrew Moyer Page two August 10, 2009 ? Drywall (labor and material) ? Light fixtures, new electric sub-panel and all wining for entire project (labor and material) ? Painting (labor and material) ? Trim and interior doors ? Heating (labor and material) ? Plumbing (labor and material) ? Roll-up door for bar area ? Bar and countertop ? Countertops and new sinks for existing Kitchen and new island area ? Kitchen cabinets and new pantry ? New flooring for entire project ? Labor for above project TOTAL AMOUNT THIS BUDGET PROPOSAL $ 4,200.00 $ 6,500.00 $ 3,800.00 $ 2,200.00 $ 3,800.00 $ 3,000.00 $ 1,400.00 $ 6,500.00 $ 13,000.00 $ 5,500.00 $ 5,000.00 $ 38.000.00 $ 137,800.00 Upon completion of project, a six percent (6%) fee will be assessed for management services. Should you have any questions concerning this Budget Proposal, please 4eel free to contact me at (717) 602-3500. Sincerely, Scott D. Thornton General Contractor Accepted by: Mr. /Mrs. Andrew Moyer Date ?fT da. iMwwmn 4t K,traL COVLtriRGtDr f tI CC #PA033641 INVOICE- To: Mr. & Mrs. Andy Moyer : 1.570 Margate Road Harrisburg, Pennsylvania Labor: ? Scott Thornton - Labor to finish project Material/Subcontractor Labor. ? R.F. Fager Co. (attached) ? Home Depot (attached) ? Alside Supply Center Home Depot (attached) Invoice #: 12010-018 ate: 16/9/10 R.: Living/Dining Room Additions $ 3,500.00 $ 79.15 $ 16.57 $ 14.S l $ 55.70 ? Six Percent (6%) Management Fee on original contract amount of $137,000.00 $ 8.220.00 TOTAL AMOUNT DUE THIS INVOICE: $ 11,885.71 Invoice due and payable within thirty (30) days of invoice date. All unpaid amounts subject to one and one-half percent (r 112-%) interest per month. q&nk ym 62255DU.VGa%r Drive ?wOla, Pev?ws?Ivuwia 1j 02? ?hD?.E: ('17) 602-3?DD Fax: (7:L7) ?3?-0223 EXHIBIT B EXHIBIT C Robert RadebeM, Esquire 912 North River Road Halifax, PA 17032 717-89r 262 robm&ftdmfty®aoi.com Attomey for Plaintiff air' ?. ii tulL I hereby oe * that the foregoing is a true and correct copy of the ordinal filed. )am- Cy . Protho ry HECEIVELk OFFICE 0f- PROTHORUT4a ' 2010 SEP 16 dN 3: 30 DAUPwN COUNTY PENNA IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA SCOTT D. THORNTON Plaintiff CIVIL ACTION - LAW vs ANDREW D. MOYER and NO. j'-k6j6-C,,, - 1 ? p2_q- ML_ JANICE K. MOYER ; Defendants MECHANIC'S LIEN CLAIM AND NOW, this -day of September,2010, comes Scott D, Thornton, by attorney, Robert G. Radebach, pursuant to the provisions of the Act of August 24, 1963, P.L.1175 No. 497, Article V, Section 503 Mt deg., as amended, and makes the following statement of Mechanics' Lien Claim: 1. Plaintiff is Scott D. Thornton, an adult individual residing at 6225 Souvenir Drive, Enola, Pennsylvania, and he is the contractor in this action. 2. The owners of the premises in question are Andrew D. Moyer and Janice K. Moyer, husband and wife, who are adult individuals residing at 570 Margate Road, Swatara Township, Dauphin County, Pennsylvania. 3. Scott D. Thomton avers that on or about October 15, 2009, the contractor EXHIBIT D commenced work on renovations to the dwelling house located at 570 Margate Road, Harrisburg, Pennsylvania owned bythe Defendants for the express purpose of making and addition and modifications to the dwelling house of the Defendants. An itemized statement of the charges claimed by the contractor is attached hereto as Exhibit "A" which is hereby made a part hereof. 4. Scott D. Thornton completed the work in question on or about April 20, 2010 5. The amount claimed to be due is $18,903.75. 6. The premises against which this lien is claimed are as follows: ALL THAT CERTAIN parcel of land situate in Swatara Township, Dauphin County, Pennsylvania more particularly bounded and described as foilom: BEGINNING at a concrete marker on the northeastern portion of the right-of-way known as Margate Road and proceeding North seventy-seven degrees (77°) nine minutes (09') tart seconds (10") East, a distance of two hundred seventeen and twonty-nine hundredths feet (217.29') to a point; thence continuing North seventy-seven degrees (77°) nine minutes (09') ten seconds (10") East, a distance of one hundred twenty feet (120) to a point; thence North eightydwo degrees (82°) forty-nine minutes (49') fifty seconds (50") East, a distance of one hundred thirteen and eighty-one hundredths feet (113.81') to a point; thence South twelve degrees (12°) fifteen minutes (15') thirteen seconds (13") East, a distance of three hundred two and fifteen hundredths feet (302.151 to a concrete marker; thence North seventy-one degrees (71 °) twelve minutes (12) thirty-six seconds (36") West, a distance of four hundred sixty-one and three hundredths fleet (461.03) to a point on the cul-de-sac of Margate Road; thence along a curved line on the cul-de-sac of Margate Road, having a radius of fifty feet (50'), an arc length forty-nine and forty-five feet (49.45), and a chord bearing North fifty-seven degrees (57°) forty four minutes (44') twenty4hree seconds (23") West, a chord distance of forty-seven and forty-six hundredths feet (47.46') to a point; thence along a curved line having a radius of ten feet (10'), an arc length eight and forty-one hundredths feet (8.41'), and a chord bearing North sixty-one degrees (61 °) fifty-eight minutes (58) thirty-nine seconds (39') West, a chord distance of eight and seventeen hundredths feet (8.17') to a point; thence North thirty-seven degrees (37°) fifty-two minutes (52') fifty-eight seconds (58") West, a distance of thirty-five and ninety-eight hundredths feet (35.98) to a point, the PLACE OF BEGINNING. BEING Lot 94 on a Subdivision Plan prepared by Gerald C. Grove, PE, called Plan No. 5, English Manor, which Plan appears of record in the Dauphin County Recorder of Deeds' Office in Plan Book "H", Volume 5, Page 76 further BEING a subdivision of Lot No. 87 of the previ prou sion plan recorded in Plan Book "E", Volume 5, Page 92. A w%nn Robert G. Radbbach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 I.D. 19255 Attorney for Plaintiff ITEMIZATION OF MECHANIC'S LIEN CLAIM - 570 MARGATE DRIVE 1. Unpaid Labor $ 3,500.00 2. Unreimbursed materials $ 165.01 3. Unpaid Equipment Expense $ 3,238.74 4. Construction Management flee $12,000.00 TOTAL AMOUNT CLAIMED $18,903.75 EXHIBIT A I verify that the statements made in the Mechanic's Lien Claim are true and correct. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unswom falsification to authorities. Dated: Scott D. Thornton MILLER LAW OFFICES, P.C. Pennsylvania Office 1423 State Road Duncannon, PA 17020 717-957-2828 Fax 717-957-4843 (FAX NUMBER NOT FOR SERVICE OF PAPERS) October 5, 2010 VIA 1ST CLASS & CERTIFIED MAIL Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 Re: Dear Mr. Radebach: Thornton v. Moyer No. 2010-CV-12029-ML Our File: #3666 New Jersey Office - Suite 108 50 Chestnut Ridge Road Montvale, NJ 07645 EMAIL: Ilmmillerlaw@earthlink.net I represent Mr. and Mrs. Andrew Moyer in this mechanic's lien proceeding. Defendants demand that the frivolous claim be dismissed for, inter alia, the following reasons. Your client, on June 9, 2010, sent a bill for $11,885.71. See Exhibit "A" hereto. The same amount was claimed by bill dated July 22, 2010. See Exhibit `B" hereto. The filed mechanic's lien claim of $18,903.75 is clearly false and fraudulent. The frivolous and excessive lien that was filed over your signature in violation of Rule 1023.1 is a slander of title which we believe would support the award of punitive damages. You and your client's misconduct also violate the Dragonetti Act. 42 Pa. Cons. Stat. ¶ 8351 et seq. Defendants demand that the frivolous and fraudulent claim be withdrawn.' Second, as your client knows, he materially breached his contract with Defendants. Directly because of your client's material breach, the project costs were $65,000 over the contract price. But for your client's material breach of his project responsibilities, these excess costs would not have been incurred. Your client's abandonment' of this project directly caused these damages. Plus, your client ignored the punchlist which forced Defendants to hire others to complete the work. Unless the fraudulent mechanic's lien claim is immediately withdrawn, with prejudice, Defendants intend to pursue their breach of contract claims against your client for all of their damages. ' Rule 1023.2 is incorporated herein by reference. 2 Your client admitted to at least three subcontractors that he had abandoned this project. i EXHIBIT E RE: #3666 10/5/10 #3666 1 7184 3875 4490 0002 3324 ES Robert Radebach, Esq. October 5, 2010 Page 2 Please promptly confirm that the fraudulent claim will be dismissed, with prejudice. Sin . 'rely, Larry L. Mil er Attachments In W O y N U M d j Q Q C d ? Q W t0 W O U ? M o . . w V ? 2 d p i2L< a LL LARRY L. MILLER, ESQUIRE ? 4. Restricted Deliver ? IYm ??o o x 4! o od a B v MILLERR-,LAW `OFFICES, P.C. y 3. Service Type wo 0 o 0 z N 66 od E. 2 war,??? 1423 STATE ROAD (Extra Fee ElYes; CERTIFIED LL N ? ANNON, PA 17020 10/5DUNC!1 2. Article Number k D 3666 ?G/ 7? G 71t'14 38'75 4493 OOOr 3324 ' I A. Si nature (OA dr se r ?Agent) ? X II?III j ?II? ? ? ? B. Received B /ease int clearly) 1 III I?ll? t 7184 3875 4490 0002 3324 ? I C. Date of Delivery ? 1. Article Addressed To: ? D. Addressee's Address wDrRaanrFonAdd,,,?,./ays.ndeq ? ROBERT RADEBACH ? , ESQUIRE: S ? 912 NORTH RIVER ROAD ? gdo' ress ! econdary Suite /Apt. /Floor (P/ease Print CleaAyj HALIFAX PA 17032 I ..................... ...s.. Delivery Addres .......................... ......... ....... .. ............. i 1 City --------------- ...................._- -State ..__._.-_.. ZIP * 4 Code 03crft 3"a. rChommr C.tevueraL Covvtractor 1 -ti a #1>A033641 INVOICQ Mr. & Mrs. Andy Moyer /AJJ_ .SS: 570 Margate Road Harrisburg, Pennsylvania Labor: ? Scott Thornton - Labor to finish project Material/Subcontractor Labor: RF. Fager Co. (attached) ? Home Depot (attached) y Alside Supply Center ? Home Depot (attached) Invoice #: 1010-018 Date: E;/9/10 Re: Living/Dining Room Additions $ 5,500.00 $ 79.15 $ 16.57 $ 14.51 $ 55.70 ? Six Percent (6%) Management Fee on original contract amount of $IS7,000.00 $ 8.410.00 TOTAL AMOUNT DUE THIS INVOICE: $ 11,885.71 Invoice due and payable within thirty (3o) days of invoice date. All unpaid amounts subject to one and one-half percent (I 1/2%) interest per month. q&ltk yox 6225StmVevu r twWe Ewola, PeK44.S0Cvavu.A 1,_-L025 Phom: (7L27) 6D2-35oo FaX: (7177) 732-0223 EXHIBIT A EXHIBIT B 1 L:h?DP":W D. MOYE ?w . W'J? }... l .. N oft mfr xnow 1edi *e, I - r 7 ? I -I e:, > 'This Verification :n m4?- to wh- 18 Fa. Ct.inc . 1904 re a ... ng .. n _ .. ' ., - _. 3t ....'I'l 1 Tr T1-. t F . te; April }i1 pit: ?, CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing COMPLAINT upon counsel of record this 7th day of April, 2011 by placing the same in the United States Mail, 1ST CLASS and CERTIFIED mail, postage prepaid, addressed as follows: Scott D. Thornton 6225 Souvenir Drive Enola, PA 17025-1140 By: Fillc Mf.?1..19 L5fi1s???1 . 'sly r ?rE , 1 3 PI , 1 f1L t-4 i,i kJ 4?+ j?=f s"t' ?? n s 4 t.,` f, ? LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. #28122 1423 State Road Duncannon, PA 17020 Telephone: [717[957-2828 Attorney for Plaintiff: ANDREW & JANICE MOYER ANDREW D. MOYER IN THE COURT OF COMMON PLEAS JANICE K. MOVER CUMBERLAND COUNTY, PENNSYLVANIA 570 Margate Road CIVIL DIVISION - LAW Harrisburg, PA 17111-5156 No. 11-2647 Plaintiffs v. SCOTT D. THORNTON 6225 Souvenir Drive Enola, PA 17025-1140 Defendant 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 Amended Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Amended Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. I Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 717-249-3166 NOTICIA Le han demandado a usted en la Corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viento (20) dias de plazo al partir de le fecha de la demanda y la notification. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la Corte en forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. Sea advisado que si usted no se defiende, la Corte tomara medidas y puede entrar una orden contra usted sin previo adviso o notification y por cualquier queja o alivio que es pedido en la petition de demanda. Usted puede perder dinero o es propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE SI NO St!.KV1U1U, V:aYA EN PERSUNA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE'ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR AS!,ISTENCIA LEGAL. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 717-249-3166 l DATE : June 10, 2011 By: LARRJY L. MILLER r? LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. #28122 1423 State Road Duncannon, PA 17020 Telephone: [717[957-2828 Attorney for Plaintiff: ANDREW & JANICE MOYER ANDREW D. MOYER IN THE COURT OF COMMON PLEAS JANICE K. MOYER CUMBERLAND COUNTY, PENNSYLVANIA 570 Margate Road CIVIL DIVISION - LAW Harrisburg, PA 17111-5156 Plaintiffs No. 11-2647 V. , SCOTT D. THORNTON 6225 Souvenir Drive Enola, PA 17025-1140 Defendant AMENDED COMPLAINT 1. Plaintiffs, Andrew D. Moyer and Janice K. Moyer (hereinafter collectively referred to as "Plaintiffs"), are husband and wife and reside at 570 Margate Road, Harrisburg, Pennsylvania. 2. Defendant, Scott D. Thornton ("Defendant"), is a general contractor with a business address of 6225 Souvenir Drive, Enola, Pennsylvania. 3. Plaintiffs entered a contract with Defendant for renovations/addition to their home (hereinafter "Project"). 4. The contract for the Project was dated August 10, 2009 and, a true and correct copy is attached hereto as Exhibit "A" and which is incorporated herein by reference. 5. Venue is proper in Cumberland County as it is the County in which Defendant was available for service of process. 6. No prior actions are pending related to these claims. COUNT I Andrew D. Mover & Janice K Moyer V. Scott D. Thornton BREACH OF CONTRACT 7. Paragraphs 1 through 6 of this Amended Complaint are incorporated by reference as if set forth in full. 8. Defendant materially breached the contract with Plaintiffs by overcharging Plaintiffs by more than $65,000 to complete the Project. 9. Defendant also materially breached the contract by failing to timely and satisfactorily complete the work on the Project. 10. Additionally, Defendant materially breached the contract by concealing the contract overruns by not timely 2 submitting the bills of the suppliers and subcontractors to Plaintiffs. 11. Last, Defendant materially breached the contract by failing and refusing to properly and timely manage and obtain the completion of the Project. 12. As a direct result of Defendants' material breaches of the contract, Plaintiffs have suffered substantial damages. 13. Among other things, Plaintiffs were forced to pay for the contract overruns that were directly caused by Defendant's unsatisfactory performance and negligent management of this Project. 14. The cost overruns of the Project because of Defendant's material breaches exceeded $60,000. 15. Additionally, Plaintiffs were inconvenienced and suffered because of Defendant's failure to timely complete the Project. Defendant abandoned the Project before it was satisfactorily completed. 16. Defendant represented to Plaintiffs that the Project would be completed in approximately three to four months. 17. Instead, the Project lasted approximately six months. 18. Defendant, in fact, never showed up at the Project_ for approximately two months and provided no explanation for his abandonment of the Project. 3 19. Also, Plaintiffs suffered substantial damages in performing Defendant's duties and responsibilities in securing the completion of the Project. 20. Defendant ignored the punchlist that was his contractual responsibility and forced Plaintiffs to retain replacement contractors to complete the Project and, to repair and correct the defective work. 21. In addition to Plaintiffs' time, Plaintiffs incurred expenses of approximately $5,000 to remedy Defendant's defective work and to complete the Project. 22. Plaintiffs also suffered disruptions, inconvenience, and extra financing costs because of Defendant's material breaches of contract. 23. Plaintiffs seek the recovery of all damages that they suffered because of Defendant's material breaches of the contract which sum exceeds the local arbitration limit. WHEREFORE, Plaintiffs, Andrew D. Moyer and Janice K. Moyer, respectfully request that this Honorable Court enter judgment in their favor and against Scott D. Thornton for all damages suffered because of Defendant's contract breaches. 4 COUNT II Andrew D. Moyer & Janice K Moyer V. Scott D. Thornton FRAUD 24. Paragraphs 1 through 23 of this Amended Complaint are incorporated by reference as if set forth in full. 25. Defendant represented that he was a competent general contractor with the ability to perform the Project for the cost estimate. 26. At the time that Defendant's representations were made, he knew or should have known that his representations regarding his ability to perform the Project were inaccurate and false. 27. Defendant obtained the money from Plaintiffs when Defendant knew that he would neither timely nor properly perform the Project. 28. Defendant misrepresented to Plaintiffs that he would timely perform the Project for the promised price. 29. Based upon these misrepresentations, Plaintiffs provided monies to Defendant for the performance of the Project. 5 30. If the misrepresentations had not been made by Defendant, Plaintiffs would not have entered the contract nor made the numerous payments to Defendant. 31. Plaintiffs relied upon the misrepresentations made by Defendant in entering the contract and making the payments to him. 32. The representations made by Defendant that he would promptly and satisfactorily perform the Project were false and fraudulent when made in that Defendant knew, or should have known, that the representations were inaccurate and false. 33. Defendant, by the above described conduct, obtained the payments from Plaintiffs by misrepresentation and fraud. 34. The conduct of Defendant, as described above, was done with specific intent to deceive Plaintiffs. 35. As a direct result, Plaintiffs have suffered substantial damages. WHEREFORE, Plaintiffs, Andrew D. Moyer and Janice K. Moyer, pray for and demand judgment in their favor and against Defendant, Scott D. Thornton, in an amount exceeding $50,000.00, plus costs, attorney's fees, delay damages, punitive damages, and such other relief as this Honorable Court deems just and proper. ? f^ DATE: June 7, 2011 By: LARppY L. LLER l.?' 6 VERiFICA. T . N 1, AUEW D. M YER, have read the foregoing facrIlaa statements conLained -i e-r n arc- an?°` _. = r_ 7t t the best of my l owl edge, nfca-,-ma.T-i.on and nel ief - n2:, Verification, is made t-,b3ectm -tn the penal`-,es ,f c= 4904 relating , -,r- - r.waverments, _ may be subject to criminal psnalt--es. Care: Lune "I , 2CI By. . 1 ANDREW 1h MCYE' CERTIFICATION FOR FACSIMILE SIGNATURE The undersigned attorney, offering the attached, certifies that the affiant or person signing the document acknowledged the genuineness of the signature and that the document or a copy with an original signature affixed will be filed if requested by the Court or a party. I hereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. r DATE: June 10, 2011 By. tL.?MILLER LARRY CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing AMENDED COMPLAINT upon counsel of record this 10th day of June, 2011 by placing the same in the United States Mail, 1sT CLASS and CERTIFIED mail, postage prepaid, addressed as follows: Robert G. Radebach, Esquire 912 N. River Road Halifax, PA 17032-9543 By:, Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA C:k ANDREW D. MOYER and ?z .;'m JANICE K. MOYER, : CIVIL ACTION -LAW "'r- -- c3 Plaintiffs Cc - '° V. NO. 11-2647 a --"' `"' SCOTT D. THORNTON, -` C:) Defendant ' PRELIMINARY OBJECTIONS 1. Failure of Complaint to conform Rule of Court. - Pa. R. C. P. 1028(a) (2). Defendant objects that the Complaint in this action fails to attach the written agreement referred to in Paragraph 4 of the Complaint, and Pa. R. C. P. 1019(i). 2. Failure of Complaint to be factually specific - Pa. R. C. P 1028(3). Defendant objects that the Complaint lacks specificity as to the scope of the work, the time for performance or the cost of the project. 3. Demurrer - Pa. R. C. P. 1028 (4). Defendant objects that the Complaint fails to set forth a cause of action against Defendant. The pleading contains only general allegations which are not legally sufficient to establish any sort of liability against the Defendant. WHEREFORE, Defendantrequests that the Court enter-an Order requiring Plaintiffs to'file an Amended Complaint and also an Order transferring this action to Dauphin County, Pennsylvania. aw? / Robert G. Radebach, Esquire 912 North River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Defendant Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ANDREW D. MOYER and JANICE K. MOYER, CIVIL ACTION - LAW Plaintiffs V. NO. 11-2647 SCOTT D. THORNTON, Defendant CERTIFICATE OF SERVICE AND NOW, July 11, 2011, I, Robert G. Radebach, Esquire, Attorney for Defendant, hereby certify that I served a copy of the Preliminary Objections in the above-captioned matter upon Plaintiffs, by depositing the same in the United States Mail, postage prepaid in the post office at Halifax, Pennsylvania, addressed as follows: Larry L. Miller, Esquire 1423 State Road Duncannon, PA 1702,0 Robert G. Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 I.D. 19255 Attorney for Plaintiffs 12 10' (tl C['?'I ERLAND COUNT PJN S YLVA y A LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. #28122 1423 State Road Duncannon, PA 17020 Telephone: [717[957-2828 Attorney for Plaintiff: ANDREW & JANICE MOYER ANDREW D. MOYER JANICE K. MOYER Plaintiffs V. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW No. 11-2647 PLAINTIFFS' MOTION TO COMPEL DISCOVERY Plaintiffs, Andrew D. Moyer and Janice K. Moyer, by and SCOTT D. THORNTON through their counsel, Larry L. Miller, hereby file this Motion to Compel Discovery in accordance with the provisions of Rule 4019 of the Pennsylvania Rules of Civil Procedure and in support thereof, states the following: 1. On June 8, 2011, Plaintiffs served discovery in the form of Interrogatories and a Request for Production of Documents upon Defendant via first class and certified mail. True and correct copies of the June 8, 2011 service letter, signed certified return receipt card, and the discovery requests are collectively attached hereto as Exhibit "A." 2. Defendant has failed and refused to respond to Plaintiffs' Interrogatories and Request for Production of Documents. 3. Defendant's answers to Plaintiffs' Interrogatories and Request for Production of Documents were due within thirty days in accordance with the provisions of Rules 4006(a)(2) and 4009.12 of the Pennsylvania Rules of Civil Procedure. 4. In accordance with the Pennsylvania Rules of Civil Procedure, it is respectfully requested that this Honorable Court enter an. Order requiring Defendants to fully and completely answer the outstanding discovery. WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter an order requiring Defendant to fully and completely answer their discovery within twenty (20) days. DATE: July 11, 2011 By MILLER LAW OFFICES, P.C. Pennsylvania Office 1V3 State Road Duncannon, PA 17020 717-957-2828 Fax 717-957-4843 (FAX NUMBER NOT FOR SERVICE OF PAPERS) June 8, 2011 VIA 1ST CLASS & CERTIFIED MAIL Robert G. Radebach, Esquire 912 N. River Road Halifax, PA 17032-9543 Re: Moyer v. Thornton No. 11-2647 Our File: #3666 New Jersey Office - Suite 108 50 Chestnut Ridge Road Montvale, NJ 07645 EMAIL: Ilmmillehaw@earthlink.net Dear Mr. Radebach: Enclosed are Plaintiffs' Interrogatories and Request for Production of Documents directed to Scott D. Thornton. S L Enclosures o vl, M ao k w it W UQ v LLI? g?x ?wm of LL 4. Restricted Delivery? 3. Service Type LARRY L • MILLER, ESQUIRE CERTIFIED MILLER LAW OFFICES, P • C • (Extra Fee) Yes 1423 STATE ROAD 2. Article Number f DUNCANNON, PA 17020 / 6/8/11 #3666?[li ll 7184 3875 4490 0003 0186 A. Sign t re. (OAddre a or ?A ent) I `???II I?III ? i 1???11 I I I I? III Ili X I?III I ece' a By. lease Print Clearly) 71,649 3875 4490 0003 0186 W m cL f 1. Article Addressed To: Date of elivery n ma I t O c??n ROBERT-G• RADEBACH, ESQUI E a Addressee's Address (<DllerentFmmAddassUsedbySendeQ 912 N. RIVER ROAD tz 0: = W I HALIFAX PA 17032-9:5x43 W - - F - - co L.L - - --- ---- -- -Secondary Address I Suite I Apt, . /Floor (Please Print ea Y: t U ? _ Delivery Address -------------- EXHIBIT A . -.--.--._-ZIP + 4 ,. - ------------------------------------------ -State City LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. #28122 1423 State Road Duncannon, PA 17020 Telephone: [717[957-2828 Attorney for Plaintiff: ANDREW & JANICE MOYER ANDREW D. MOYER JANI CE K. MOYER Plaintiffs v. SCOTT D. THORNTON Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW No. 11-2647 INTERROGATORIES OF PLAINTIFFS DIRECTED TO SCOTT D. THORNTON TO: SCOTT D. THORNTON and his attorney Robert G. Radebach, Esquire 912 N. River Road Halifax, PA 17032-9543 INSTRUCTIONS PLEASE TAKE NOTICE that you are hereby required pursuant to Pennsylvania Rules of Civil Procedure Nos. 4005 and 4006, to serve upon the undersigned within thirty (30) days from service hereof your answers in writing and under oath to the following Interrogatories. These Interrogatories shall be deemed to be continuing Interrogatories. If between the time of your answers to said • Interrogatories and the time of the trial of this case, you or anyone acting on your behalf learns the identity and whereabouts of any other witnesses not identified in your said answers, or if you obtain or become aware of additional required information not supplied in your answers, you shall promptly furnish the same to the undersigned by supplemental answers. DEFINITIONS As used in these Interrogatories, the words and terms set forth below shall be defined as follows: (a) "Person" has its customary broad meaning and shall also include any human being, corporation, partnership, sole proprietorship, unincorporated association, joint venture, or any other organization or entity. (b) "Identify" or "identity" when referring to an individual means to state his/her: (1) full name; (2) social security number; (3) present address; (4) present home telephone number; (5) present business telephone number. (c) "Identify" or "identity" when referring to a document means to: 2 (1) state the type of document (e.g. record, report, .letter, memoranda, telegram, chart, photograph), its date, its title (if any), its identifying number, a generalized summary of the subject matter of the contents of the document, and its present location; and, (2) identify each person who prepared it, each person for whom it was prepared, each person to whom it was sent, and each person who presently has custody of the original or copies thereof. (d) "Identify" or "identify" when referring to a claim, action or other legal proceeding, means to set forth the name of the court or other tribunal involved with the legal proceeding, the date on which the legal proceeding was commenced and the docket number or other index number assigned by the tribunal to identify and legal proceeding. (e) "Describe", "specify", and/or "state" shall mean to set forth fully and unambiguously, using professional words of art if necessary, each and every fact relevant to the matter requested by the Interrogatory. (f) "Document" includes any written, recorded or graphic matter however produced or reproduced including but not limited to correspondence, telegrams, other written communications, contracts, agreements, notes, reports, records, memoranda, photographs, tape recordings or any other writing, including copies of any of the 3 foregoing presently or previously in your possession, custody or control. (g) "Statement" includes any written statement signed or otherwise adopted or approved by the person making it. It includes the stenographic, mechanical, electrical, or other method of recording or a transcription thereof which is a substantially verbatim recital of an oral statement by the person making it an contemporaneously recorded. (h) "Plaintiffs" means Andrew D. Moyer and Janice K. Moyer. (i) "You," "your," "Defendant," or "Mr. Thornton" means Scott D. Thornton. (j) "Project" is the project known as 570 Margate Road, Harrisburg. (k) Unless otherwise specified, each interrogatory relates to, covers, and requests information from August 10, 2009 to the date answers are filed, and each requires a continuing answer. DATE: June 8, 2011 By: 4 ¦ INTERROGATORIES 1. Identify, state, and describe your experience in performing construction projects like Plaintiffs' Project. Also, identify any and all documents related thereto. 2. Identify, state, and describe the suppliers/materialmen that you used on the Project. Also, identify any and all documents related thereto. 5 3. Identify, state, and describe the subcontractors that you used on the Project. Also, identify any and all documents related thereto. 4. Identify, state, and describe all logs or other daily records that you compiled during the Project. Also, identify any and all documents related thereto. 6 5. Identify, state, and describe all communications with Plaintiffs relating to the Project. Also, identify any and all documents related thereto. 6. Identify, state, and describe all job minutes regarding the Project. Also, identify any and all documents related thereto. 7 7. Identify, state, and describe all communications with subcontractors regarding the Project. Also, identify any and all documents related thereto. 8. Identify, state, and describe all travel and expense records regarding the Project. Also, identify any and all documents related thereto. 8 a 9. Identify, state, and describe all projects that you have performed during the past forty-eight months. Also, identify any and all documents related thereto. 10. Identify, state, and describe job problems you encountered on your prior projects during the last forty-eight months. Also, identify any and all documents related thereto. 9 11. Identify, state, and describe all claims that were made against you during the past forty-eight months. Also, identify any and all documents related thereto. 12. Identify, state, and describe all suits that were filed against you during the past five years. Also, identify any and all documents related thereto. 10 13. Identify, state, and describe all projects on which you have been terminated. Also, identify any and all documents related thereto. 14. Identify, state, and describe if you had the financial ability to manage and administer Plaintiffs' Project. Also, identify any and all documents related thereto. 15. Identify, state, and describe your bills that were not paid to you during the past forty-eight months because of the other parties' complaints with your performance. Also, identify any and all documents related thereto. 16. Identify, state, and describe all liens that you have filed in the last three years. Also, identify any and all documents related thereto. 12 17. Identify, state, and describe all outstanding judgements against you. Also, identify any and all documents related thereto. 18. Identify, state, and describe all pending suits or claims against you. Also, identify any and all documents related thereto. 13 19. Identify, state, and describe all present projects on which. you are working. Also, identify any and all documents related thereto. 20. Identify, state, and describe all other owners who have alleged that you abandoned their projects. Also, identify any and all documents related thereto. 14 21. Identify, state, and describe your records of meetings with Plaintiffs regarding the Project. Also, identify any and all documents related thereto. 22. Identify, state, and describe all defective work that had to be repaired and corrected on the Project. Also, identify any and all documents thereto. 15 23. Identify, state, and describe all documents supporting your assertion that you are owed $18,903.75. Also, identify any and all documents related thereto. 24. Identify, state, and describe all costs of labor to finish the Project. Also, identify any and all documents related thereto. 16 25. Identify, state, and describe all unpaid equipment expenses. Also, identify any and all documents related thereto. 26. Identify, state, and describe the basis for claiming a construction management fee of $12,000. Also, identify any and all documents related thereto. 17 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing INTERROGATORIES upon counsel of record this 8th day of June, 2011 by placing the same in the United States Mail, 1sT CLASS and CERTIFIED mail, postage prepaid, addressed as follows: Robert G. Radebach, Esquire 912 N. River Road Halifax, PA 17032-9543 B f? Y: 18 LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. #28122 1423 State Road Duncannon, PA 17020 Telephone: [717[957-2828 ANDREW D. MOYER JANICE K. MOYER v. Plaintiffs SCOTT D. THORNTON Defendant Attorney for Plaintiff: ANDREW & JANICE MOYER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW No. 11-2647 REQUEST FOR PRODUCTION OF DOCUMENTS OF PLAINTIFFS DIRECTED TO SCOTT D. THORNTON TO: SCOTT D. THORNTON and his attorney Plaintiffs, Andrew D. Moyer and Janice K. Moyer, by and through its attorney hereby requests in accordance with Rule 4009 of the Pennsylvania Rules of Civil Procedure that Defendant, Scott D. Thornton, produce for inspection and copying by Plaintiffs, their attorney and agents, all of the following documents in the possession, custody, or control of Defendant or otherwise available to them which are responsive to the requests contained in the numbered paragraphs below, within thirty (30) days of service of this request, at the offices of Miller Law Offices, P.C., 1423 State Road, Duncannon, Pennsylvania 17020. This request is intended to cover all documents in your possession, custody and control, or your agents, employees, and attorneys and is considered to be continuing. The definitions of Plaintiffs' Interrogatories are incorporated herein by reference. Your response to the request should be modified or supplemented as you and/or your attorneys obtain further additional documents up to the time of trial. Requested documents are more particularly itemized and described as follows: DOCUMENTS REQUESTED 1. All documents that were identified in response to Plaintiffs' Interrogatories. 2 2. All documents that should have been identified in response to Plaintiffs' Interrogatories. 3. Any and all documents or demonstrative evidence that you intend to introduce or use at trial. 4. Any and all correspondence, memoranda, or other documents that relate or refer to the legal arguments and defenses presented by you. 3 5. Any and all discoverable reports that are prepared by experts for use in this case. 6. Any and all documents that reflect the names and business addresses of individuals with knowledge or information regarding the issues presented in this proceeding. 7. Any and all correspondence, memoranda, or messages between the parties relating to the subject matter of this action. 4 8. Any and all records of communication between you and your subcontractors on the Project. 9. Any and all statements obtained from any and all persons or parties, whether signed and acknowledged or not, relating in any way whatsoever to this litigation. 10. All documents having to do with and from which information can be obtained concerning each and every fact that you claim supports a defense. 5 11. All written communications, including electronic mail, by and between you and any other party concerning the Project including, but not limited to, letters, purchase orders, invoices, summaries, accountings, financial statements, cost estimates, and completion estimates which pertain to the subject matter of the within litigation. 12. All correspondence by and between you and/or any other party in this matter regarding the Project. 13. Any and all correspondence, memorandum, or any other communications that relate to this litigation. 6 14. Any statements or memoranda which relate to the issues raised in this action. 15. The entire contents of any investigation file or files and any other documentary material in your possession which relates to the allegations of Plaintiff's Complaint (except references to 'mental impressions, conclusions or opinions representing the value or merit of the claim or defense or respecting strategy or tactics or privileged communications from and to counsel). 16. Reports of any and all experts who will testify at trial. 7 I 17. Any memoranda, diaries, ledgers or the like referring in any way to telephone conversations or other forms of oral or electronic communication between the parties. 18. All documents referring to, relating to, or reflecting your claim of $18,903.75. 19. All documents supporting your claim of $18,903.75. 8 4 20. All documents referring to, relating to, or reflecting your invoice dated June 9, 2010. 21. All documents supporting your invoice dated June 9, 2010. DATE: June 8, 2011 F ti By : ' L LA14RY L; I LLER 9 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing REQUEST FOR PRODUCTION OF DOCUMENTS upon counsel of record this 8th day of June, 2011 by placing the same in the United States Mail, 1ST CLASS and CERTIFIED mail, postage prepaid, addressed as follows: Robert G. Radebach, Esquire 912 N. River Road Halifax, PA 17032-9543 f By: cf t VERIFICATION I, LARRY L. MILLER, have prepared the foregoing MOTION TO COMPEL DISCOVERY. The factual statements contained therein are true and correct. I am authorized to make this Verification on behalf of my clients, Andrew D. Moyer and Janice K. Moyer. I have personal knowledge of the facts. This Verification is made subject to the penalties of 18 Pa. Cons. Stat. Section 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. Date: July 11, 2011 By: CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct co the foregoing MOTION this 11th da PY of y of July, 2011 by placing the same in the United States Mail, first class and certified Postage prepaid, addressed as follows: mail, Robert G. Radebach, Esquire 912 N. River Road Halifax, PA 17032-9543 By: a ANDREW D. MOYER JANICE K. MOYER, PLAINTIFFS V. SCOTT D. THORNTON, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 11-2647 CIVIL TERM ORDER OF COURT AND NOW, this / day of July, 2011, a Rule is issued on Defendant to show cause why the relief requested should not be granted. Rule returnable twenty (20) days from the date of this order. By the Court, Albert H. Masland, J. / Larry L. Miller, Esquire For Plaintiffs C-) Robert G. Radebach, Esquire m ?? For Defendant a z r` -arn :saa ('p? i tS ^a. ,c- rU ,., ,L > ,• LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. #28122 1423 State Road Duncannon, PA 17020 Telephone: [717[957-2828 Attorney for Plaintiff: ANDREW & JANICE MOYER ANDREW D. MOYER IN THE COURT OF COMMON PLEAS JANICE K. MOYER CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW Plaintiffs No. 11-2647 V. SCOTT D. THORNTON Defendant PRAECIPE TO: PROTHONOTARY OF CUMBERLAND COUNTY Please attach the enclosed Exhibit "A" to Plaintiffs' Amended Complaint. DATE: July 19, 2011 'ROTHON TA %, f 1.#U 20 Alf 10: 2 CUMBERLAND COUNTY PENNSYLVANIA // n By: LA RY . MILLER uuurrC • d1kotatoR ciE1'L-er6'L 0-0`brActor H-rc ?p,4o33?z August 10, 2009 Mr. & Mrs. Andrew Moyer 570 Margate Road Harrisburg, PA 17111 BUDGET PROPOSAL Re: Kitchen/Garage/Living Room Renovations Dear Mr. & Mrs. Moyer: The following are Budget figures and Living Room only for the extension project at the above Kitchen renovations, G address: Garage addition Y Permits Y Excavation and demolition of existing concrete Concrete for footers Excavation and stone dust for propane tank Concrete for Garage addition, Dining patio Room addition and new 'CF walls for Garage, Kitchen and existing porch s Trusses and framing lumber for entire project Shingles and felt paper Doors and windows Siding, soffit, fascia and spouting Insulation and Styrofoam 6,2?,) ?ouvenm rive QrJ-, PA 170'25 $ 18,000.00 $ 4,800.00 $ 2,400.00 $ 4,800.00 $ 4,500.00 $ 2,450.00 (717) 6o,2 i500 EXHIBIT A Mr. & Mrs. Andrew Moyer Page two August 10, 2009 ? Drywall (labor and material) $ 4,200.00 Light fixtures, new electric sub-panel and all wiring for entire $ 6,500.00 project (labor and material) ? Painting (labor and material) $ 3,800.00 ? Trim and interior doors $ 2,200.00 ? Heating (labor and material) $ 3,800.00 ? Plumbing (labor and material) $ 3,000.00 ? Roll-up door for bar area $ 1,400.00 ? Bar'and countertop $ 6,500.00 ? Countertops and new sinks for existing Kitchen and new island $ 13,000.00 area ? Kitchen cabinets and new pantry $ 5,500.00 New flooring for entire project $ 5,000.00 ? Labor for above project $ 38.000.00 TOTAL AMOUNT TffiS BUDGET PROPOSAL $ 137,800.00 Upon completion of project, a six percent (6%) fee will be assessed for management services. Should you have any questions concerning this Budget Proposal, please feel, free to contact me at (717) 602-3500. Sincerely, Scott D. Thornton General Contractor Accepted by- Mr. /Mrs. Andrew Moyer Date CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing PRAECIPE upon counsel of record this 19th day of July, 2011 by placing the same in the United States Mail, 1ST CLASS and CERTIFIED mail, postage prepaid, addressed as follows: Robert G. Radebach, Esquire 912 N. River Road Halifax, PA 17032-9543 By : ?' Er? ?n?t?ti?l?tlTAt+ ?;1JP? ?HNSYLVAN1A ?? LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. #28122 1423 State Road Duncannon, PA 17020 Telephone: [717[957-2828 Attorney for Plaintiffs: ANDREW & JANICE MOYER ANDREW D. MOYER JANICE K. MOYER Plaintiffs V. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW No. 11-2647 PLAINTIFFS' ANSWER TO PRELIMINARY OBJECTIONS SCOTT D. THORNTON Plaintiffs hereby answer the Preliminary Objections of Defendant as follows: 1. Denied. The August 10, 2009 contract was attached as Exhibit "A" to Plaintiffs, Complaint. Defendant was served with a copy of the Complaint that included the August 10, 2009 contract. Moreover, the contract is in the possession of Defendant. Last, a Praecipe has been filed to again attach the contract to the Amended Complaint. 2. Denied. These averments state an erroneous conclusion of law and they are accordingly specifically denied. 3. Denied. These averments state an erroneous conclusion of law and they are accordingly specifically denied. WHEREFORE, Plaintiffs, Andrew D. Moyer and Janice K. Moyer, respectfully request that this Honorable Court dismiss and deny the groundless Preliminary Objections of Defendant. DATE: July 19, 2011 By: VERIFICATION I, LARRY L. MILLER, have prepared the foregoing ANSWER TO PRELIMINARY OBJECTIONS. The factual statements contained therein are true and correct to the best of my knowledge, information and belief. I am authorized to make this Verification on behalf of my clients, ANDREW D. MOYER AND JANICE K. MOYER. The facts set forth in the pleading are based upon my review of the documents and information provided by Mr. and Mrs. Moyer and/or of which I have personal. knowledge as counsel for Mr. and Mrs. Moyer. This Verification is made subject to the penalties of 18 Pa. Cons. Stat. Section 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. l Date: July 19, 2011 By: LAR Y X. M LLER CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing ANSWER upon counsel of record this 19th day of July, 2011 by placing the same in the United States Mail, 1ST CLASS and CERTIFIED mail, postage prepaid, addressed as follows: Robert G. Radebach, Esquire 912 N. River Road Halifax, PA 17032-9543 i By: ?-i R PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) ANDREW D. MOYER JANIC'E K. MOYER SCOTT D. THORNTON VS. No. 11-2647 =? r- W r- rv -<2 0 CD Z" ?Cl) zo ?= c? _ Arm rv -< --j 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): DEFENDANT'S PRELIMINARY OBJECTIONS 2. Identify all counsel who will argue cases: (a) for plaintiffs: LARRY L. MILLER, ESQ. (Name and Address) 1423 STATE ROAD, DUNCANNON, PA 17020 (b) for defendants: ROBERT RADEBACH, ESQ. (Name and Address) 912 N. RIVER ROAD, HALIFAX, PA 17032 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Date: 7/19/11 ANDREW D. & JANICE K. MOYER Attorney for --a c:) C) -?, C)> INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ANDREW D. MOYER and --) '-z JANICE K. MOYER, CIVIL ACTION - LAW -? = -+ Plaintiffs = W V. NO. 11-2647' C max' o SCOTT D. THORNTON - - -? , Defendant c , ANSWER TO PETITION TO COMPEL DISCOVERY 1. Admitted. 2. Denied. Defendant is contemporaneously herewith filing the requested discovery responses. 3. Admitted 4. Denied. In view of the fact that the d the Petition is moot. WHEREFORE, Defendant requests August 10, 2011 are now being filed, be dismissed. Robe)A G. Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 I.D. 19255 Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ANDREW D. MOYER and : JANICE K. MOYER, CIVIL ACTION - LAW Plaintiffs V. NO. 11-2647 SCOTT D. THORNTON, Defendant CERTIFICATE OF SERVICE AND NOW, August 10, 2011, I, Robert G. Radebach, Esquire, Attorney for Defendant, hereby certify that I served a copy of Defendant's Answers to Motion to Compel Discovery in the above-captioned matter upon Larry L. Miller, Esquire, Attorney for Plaintiffs on August 10, 2011, by personal service at the following address: Larry L. Miller, Esquire., 1423 State Road I Duncannon, PA 170 0 / A Ro rt G. Radebach, Esquire 912 North River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Defendant Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ANDREW D. MOYER and .x2 `' JANICE K. MOYER, CIVIL ACTION - LAW iMi r i='? Plaintiffs NO. 11-2647_ C-) SCOTT D. THORNTON, Defendant . DEFENDANT'S ANSWERS TO PLAINTIFFS' INTERROGATORIES 1. Identify, state, and describe your experience in performing construction projects like Plaintiffs' Project. Also, identify any and all documents related thereto. ANSWER: Defendant has been engaged in the construction business since 1982, involving all aspects of construction from simple home renovation, to erection of single family dwellings. Defendant has performed tasks from laborer, rough carpenter, finish carpenter, plumbing work, electrical work, roofing, painting, excavating, and landscaping. Since 1982, Defendant has performed 30-40 similar jobs to the Moyer project. 2. Identify, state, and describe the suppliers/materialmen that you used on the Project. Also, identify any and all documents related thereto. ANSWER: Eberly Lumber Company, Mechanicsburg, PA, supplied lumber to the project. R. F. Fager Company, Camp Hill, PA, supplied roofing materials. Bowers Carpet & Design, Harrisburg, PA, supplied flooring materials. Kinsley Materials Co., York, PA, supplied concrete to the Moyer job. Plaintiffs are in possession of a complete list of suppliers for this project because the parties had agreed that Plaintiffs would pay for all materials, equipment and labor for the work. Plaintiffs kept an ongoing record of all costs paid out. 3. Identify, state and describe the subcontractors that you used on the Project. Also, identify any and all documents related thereto. ANSWER: Biller Masonry & Dryvit Company, 10 Tristan Drive, Dillsburg, PA 17019 Beere & Son Remodeling, 761 Tower Road, Enola, PA 17025 Jay Acri, Lewisberry, PA - Laborer Bryan Smith, Dillsburg, PA - Laborer Ron Sponsler, 2480 Lambs Gap Road, Enola, PA - Labor Ed Siegfried, Chambers Hill, PA - Excavating R.B. Hobaugh & Son, Inc., 98 Herman Avenue, Lemoyne, PA 17043 Bowers Carpet & Design, 2200 Woodview Drive, Harrisburg, PA 171 12 Lloyd Drywall, Inc. 6890 Clearfield Street, Harrisburg, PA 17109 A.D.D. Enterprises, 203 Redwood Street, Harrisburg, PA 17109 Lesher Marble, 2400 Swatara Creek Road, Middletown, PA 17057 Plaintiffs have a more complete listing of subcontractors because they paid for all of the work and materials. 4. Identify, state, and describe all logs or other daily records that you compiled during the Project. Also, identify any and all documents related thereto. ANSWER: All logs kept in digital format, which were not backed up and which records were lost due to computer memory failure in 2010 prior to any dispute by Moyers. 5. Identify, state, and describe all communications with Plaintiffs relating to the Project. Also, identify any and all documents related thereto. ANSWER: All billings for the job were provided to Plaintiff including Defendants statements for work performed. Defendant does not have any copies of the billings provided to Plaintiff. 6. Identify, state, and describe all job minutes regarding the Project. Also, identify any and all documents related thereto. ANSWER: All logs kept in digital format, which were not backed up and which records were lost due to computer memory failure in 2010 prior to any dispute by Moyers. 7. Identify, state, and describe all communications with subcontractors regarding the Project. Also, identify any and all documents related thereto. ANSWER: Defendant has no records of communications with subcontractors or materialmen - they were oral and no minutes were retained. 8. Identify, state, and describe all travel and expense records regarding the Project. Also, identify any and all documents related thereto. ANSWER: All records were provided to Plaintiffs as the work was performed. 9. Identify, state, and describe all projects that you have performed during the past forty-eight months. Also, identify any and all documents related thereto. ANSWER: Mr. & Mrs. Steve Sleboda, 5 Donald Street, Mechanicsburg, PA 17050 Mr. & Mrs. Scott McDonald, 2410 Dewey Lane, Enola, PA 17025 Mr. & Mrs. Don Kuhn, 8117 Spruce Drive, Harrisburg, PA 17111 Murphy Rentals, 3320 Derry Street, Harrisburg, Pa 17111 Mr. Greg Senko, 2350 Dusty Lane, Enola, PA 17025 Mr. & Mrs. Bill Piekos, 5 Boxwood Lane, Camp Hill, PA 17011 East Pennsboro Animal Clinic, 90 East Shady Lane, Enola, PA 7025 Mr. & Mrs. Ben Wootton, 2290 Lambs Gap Road, Enola, PA 17025 Mr. & Mrs. Bob Germond, 5281 Dogwood Court, Mechanicsburg, PA 17055 Mr. Dan Putt, 6001 Michaele Drive, Enola, PA 17025 Cor Construction Services, 12 Long Lane, Mechanicsburg, PA 17055 Mr. & Mrs. Jim Milbrand, 4909 Bretney Drive Harrisburg, PA 17112 Mrs. Don Catlin, 5236 Deerfield Avenue, Mechanicsburg, PA 17050 Miss Patty Catlin, 568 Brighton Place, Mechanicsburg, PA 17055 Mr. & Mrs. Andy Douma, 3032 Fishing Creek Valley Road, Harrisburg, PA 17112 Defendant has records for some of these projects and will forthwith provide same to Plaintiffs. 10. Identify, state, and describe job problems you encountered on your prior projects during the last forty-eight months. Also, identify any and all documents related thereto. ANSWER: None. 11. Identify, state, and describe all claims that were made against you during the past forty-eight months. Also, identify any and all documents related thereto. ANSWER: None. 12. Identify, state, and describe all suits that were filed against you during the past five years. Also, identify any and all documents related thereto. ANSWER: None. 13. Identify, state, and describe all projects on which you have been terminated. Also, identify any and all documents related thereto. ANSWER: None. 14. Identify, state, and describe if you had the financial ability to manage and administer Plaintiffs' Project. Also, identify any and all documents related thereto. ANSWER: Plaintiffs and Defendant agreed that Defendant would manage the Project and Plaintiffs were to pay all billings for labor and materials, which was done except for Defendant's final billing. 15. Identify, state, and describe your bills that were not paid to you during the past forty-eight months because of the other parties' complaints with your performance. Also, identify any and all documents related thereto. ANSWER: None. 16. Identify, state, and describe all liens that you have filed in the last three years. Also, identify any and all documents related thereto. ANSWER: None. 17. Identify, state, and describe all outstanding judgements against you. Also, identify any and all documents related thereto. ANSWER: None. 18. Identify, state, and describe all pending suits or claims against you. Also, identify any and all documents related thereto. ANSWER: None. 19. Identify, state, and describe all present projects on which you are working. Also, identify any and all documents related thereto. ANSWER: a. East Pennsboro Animal Clinic, Shady Lane, Enola, PA - Large Retaining Wall project. Plaintiff provided a job estimate similar to the Moyer job and will provide a copy to Plaintiffs. b. Mr. & Mrs. Bill Piekos, 5 Boxwood Lane, Camp Hill, PA 17011. This project is to install a retaining wall, new concrete slab, excavation and grading. Plaintiff provided a job estimate similar to the Moyer job and will provide a copy to Plaintiffs. 20. Identify, state, and describe all other owners who have alleged that you abandoned their projects. Also, identify any and all documents related thereto. ANSWER: None. 21. Identify, state, and describe your records of meetings with Plaintiffs regarding the Project. Also, identify any and all documents related thereto. ANSWER: Defendant has no records. Meetings were held weekly. No records were kept by Defendant. As the work progressed Plaintiffs made changes in the scope of the work which increased the costs and Plaintiffs advised Defendant that tthey were not concerned about the increased costs. 22. Identify, state, and describe all defective work that had to be repaired and corrected on the Project. Also, identify any and all documents thereto. ANSWER: The only issue Defendant knows about was a complaint regarding a fissure crack in a granite bar top which was covered by a separate agreement with Lesher Marble. Plaintiffs never identified any defective work to Defendant which required correction and when Defendant was finished Plaintiffs expressed no dissatisfaction to Defendant with the work performed or the costs associated with the Project. 23. Identify, state, and describe all documents supporting your assertion that you are owed $18,903.75. Also, identify any and all documents related thereto. ANSWER: Billing and the original quote authorizing a 6% management fee. 24. Identify, state, and describe all costs of labor to finish the Project. Also, identify any and all documents related thereto. ANSWER: These costs were sent to Plaintiffs in the Statement of June 9, 2010. 25. Identify, state, and describe all unpaid equipment expenses. Also, identify any and all documents related thereto. ANSWER: Bestline Equipment. Equipment rentals and interest charges for lifts, totaling $3,238.74. The invoices were provided to Plaintiffs in December of 2009 and January of 2010, but which were never paid by Plaintiffs. Defendant will supply a copy of a statement detailing these charges. 26. Identify, state, and describe the basis for claiming a construction management fee of $12,000.00. Also, identify any and all documents related thereto. ANSWER: The basis for claiming a management fee comes fro eon al proposal for the work to be performed being a manageme ee 6% for t t al value of the work, which defendant estimates was at le it $ 00,00 Date: " G RobVrt, adebach, Esquire 912 No h River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Defendant Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ANDREW D. MOYER and JANICE K. MOYER, Plaintiffs V. CIVIL ACTION - LAW NO. 11-2647 SCOTT D. THORNTON, Defendant I verify that the statements made in this Answer to Interrogatories 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 unsworn falsification to authorities. Dated: g-/D ! f (7 v SCOTT D. THORNTON Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ANDREW D. MOYER and JANICE K. MOYER, CIVIL ACTION - LAW Plaintiffs V. NO. 11-2647 SCOTT D. THORNTON, Defendant CERTIFICATE OF SERVICE AND NOW, August 10, 2011, I, Robert G. Radebach, Esquire, me for Defendant, hereby certify that I served a copy of Defendant's Ans s to Plai iffs' Interrogatories in the above-captioned matter upon Larry L. Mill ,Esquire orney for Plaintiffs on August 10, 2011, by personal service at the follo g addr . Larry L. Miller, Esquire 1423 State Road Duncannon, PA 17029 Rol Radebach, Esquire 912 N h River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Defendant t Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA , ANDREW D. MOYER and rn0 :: 0 r--T" JANICE K. MOYER, CIVIL ACTION - LAW ,a Plaintiffs V. NO. 11-2647 ,.. SCOTT D. THORNTON, _. Defendant DEFENDANT'S ANSWERS TO PLAINTIFFS' REQUEST FOR PRODUCTION OF DOCUMENTS 1. All documents that were identified in response to Plaintiffs' Interrogatories. ANSWER: See attached. 2. All documents that should have been identified in response to Plaintiffs' Interrogatories. ANSWER: All documents identified are attached. 3. Any and all documents or demonstrative evidence that you intend to introduce or use at trial. ANSWER: Presently Defendant has only a copy of the original proposal, and the final billings render th Plaintiffs and the Mechanics Lien Claim. When other documents are identified they will be provided. 4. Any and all correspondence, memoranda, or other documents that relate or refer to the legal arguments and defenses presented by you. ANSWER: See Documents in Item 3 above. 5. Any and all discoverable reports that are prepared by experts for use in this case. ANSWER: Defendant has no reports at thjis time, but will provide any such reports upon obtaining same. 6. Any and all documents that reflect the names and business addresses of individuals with knowledge or information regarding the issues presented in this proceeding. ANSWER: Defendant has no such documents other than the names and addresses of individuals listed in the Answers to Interrogatories. 7. Any and all correspondence, memoranda, or messages between the parties relating to the subject matter of this action. ANSWER: 8. Any and all records of communication between you and your subcontractors on the Project. ANSWER: 9. Any and all statements obtained from any and all persons or parties, whether signed and acknowledged or not, relating in any way whatsoever to this litigation. ANSWER: 10. All documents having to do with and from which information can be obtained concerning each and every fact that you claim supports a defense. ANSWER: 11. All written communications, including electronic mail, by and between you and any other party concerning the Project including, but not limited to, letters, purchase orders, invoices, summaries, accountings, financial statements, costs estimates, and completion estimates which pertain to the subject matter of the within litigation. ANSWER: 12. All correspondence by and between you and/or any other party in this matter regarding the Project. ANSWER: 13. Any and all correspondence, memorandum, or any other communications that relate to this litigation. ANSWER: 14. Any statements or memoranda which relate to the issues raised in this action. ANSWER: 15. The entire contents of any investigation file or files and any other documentary material in your possession which relates to the allegations of Plaintiffs' Complaint (except references to mental impressions, conclusions or opinions representing the value or merit of the claim or defense or respecting strategy or tactics or privileged communications from and to counsel). ANSWER: 16. Reports of any and all experts who will testify at trial. ANSWER: 17. Any memoranda, diaries, ledgers or the like referring in any way to telephone conversations or other forms of oral or electronic communication between the parties. ANSWER: 18. All documents referring to, relating to, or reflecting your claim of $18,903.75. ANSWER: 19. All documents supporting your claim of $18,903.75. ANSWER: 20. All documents referring to, relating to, or reflecting your invoice dated June 9, 2010. ANSWER: 21. All documents supporting your invoice dated June 9, ANSWER: Date: C// O (t mewrrV KaaeDacn, tsquire 912 N h River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Defendant Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ANDREW D. MOYER and JANICE K. MOYER, Plaintiffs V. CIVIL ACTION - LAW NO. 11-2647 SCOTT D. THORNTON, Defendant I verify that the statements made in this Answer to Request for Production of Documents 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 unsworn falsification to authorities. Dated: g':Zlo- -/I a2 _ f SCOTT D. THORNTON Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ANDREW D. MOYER and JANICE K. MOYER, Plaintiffs V. SCOTT D. THORNTON, Defendant CIVIL ACTION - LAW NO. 11-2647 CERTIFICATE OF SERVICE AND NOW, August 10, 2011, I, Robert G. Radebach, Esquire orne, Defendant, hereby certify that I served a copy of Defendant's Ans rs to Plai Request for Production of Documents in the above-captioned Otter upon La Miller, Esquire, Attorney for Plaintiffs on August 10, 2011, b ersonal service following address: Larry L. Miller, Esqui 1423 State Road Duncannon, PA 170; at the Ro adebach, Esquire 912 o River Road Halifax, A 17032 (717) 896-2666 I . D.# 19255 Attorney for Defendant PAYMENTS RECEIVED FROM ANDY MOYER 11/22/2009 12/21/2009 1/4/5010 1/13/2010 1/19/2010 1/28/2010 3/1/2010 3/23/2010 $ 1,579.00 $ 3,100.00 $ 3,080.00 $ 2,310.00 $ 1,375.00 $ 2,200.00 $ 3,433.00 $ 200.00 TOTAL PAYMENTS RECEIVED $17,277.00 July 09, 2010 Scott Thornton 6225 Souvenir Drive Enola, PA 17025 Scott, Attached are payments for invoice 2010-018 for material and services rendered at 570 Margate Road, Harrisburg PA to "finish the project". This will be the final payment for the new construction at the above address. I have reviewed your management fee and I'm unable to provide you the percentage you are remitting. Where as you are a conscientious craftsman with ability to problem solve, you did not provide this valuation of management to my project as promised. The lack of management led to a large overrun in material and labor, way above the upgrades I had calculated into my project. I provided you with spreadsheets and met with you frequently to ensure that we were on target and I received your assurances up until the 85% budget mark. Unfortunately by that time we were not near completion and I was left with little options. This is further reflected by your "lost wages" from the lack of oversight on the sub-contractors present on my job and your decision for yourself to correct their work. You were paid a significantly higher hourly rate on the job for what I believed was for your supervision, knowledge and liability. In addition to the lack of sub management I also did not receive timely remittance of material and sub contractor's bills leading me to encounter additional unexpected overruns, late into the project. I also did not see timely and efficient use of time and material which I would have expected if it would have been "your money" based on a bid. Finally, your communication with me from March forward was severely lacking. You choose to deliver bills to me by placing them somewhere in the house and not delivering them to me in person so we could review and discuss. You would come after I left for work and leave as soon as I came home from work and have Roger discuss issues with me. Lastly, you communicated to at least 3 subs that your were "done" at my job; you never informed me of this, you never completed all the items on the punch list that you had us write down for you, and you didn't contact me for over 45 days. I feel you abandoned my job and forced me to seek others to complete the unfinished items. I am very disappointed with the way this has ended, as 1 felt that I treated you with the utmost respect and dignity in our business dealings. I feel that there was some reason that you ran from me and my job at the end and I don't believe it had anything to do with me. For the above reasons I hope you can respect the fair business settlement I am providing with the expectation that you will warranty your work and correct any issues going forward. Sincerely, T Andrew D. Moyer o ^? rn ?? N N ti V Q W g w :EQd tl at! _f I r V tR;2n ER ve°vl O m O O ??p `'? W t 888888888 G O d dZW O 41 C O C O G O C C _ E ?Wn v ? WYJ Z? V W W O< O e+f?ve?+?:?tN00 Y N wg?g m N C C H d ? ppµmm??? (pm?? 19 W Hill LL LL LL LL LL LL J ?O # Boa W?n v?S F W ? < <0 ?d C i ? O O OO O O O O 05 ;;s N?aa as < 010 W mgy° ? aosa'ao W W W W W W UUU UU C c,meraL cohtraator Hi C #Pf4033641. STATE-MQNT o. Mr. & Mrs. Andy Moyer ,D,dd,ess: 570 Margate Road Harrisburg, Pennsylvania Invoice #2010-018 dated 6/9/2010 Interest Charges TOTAL AMOUNT DUE THIS INVOICE: $ 11,885.71 $ 178.29 $ 12,064.00 Invoice due and payable within thirty (3o) days of invoice date. All unpaid amounts subject to one and one-half percent (r ihw.) interest per month. 6225 Sown r Arive BnAla, PEww&j jLVawia 1 025 'mice #: 2010-018 Date: 7/22/10 (tee. Living/Dining Room Additions PhoKz: ( 1?) 602-3500 Fax: (?t?) 32-02:23 EXHIBIT C 03off . cCh"tori rltmruL Cowtrotobr t t l C #PA033641 INVOICE- . o: I Mr. & Mrs. Andy Moyer 570 Margate Road Harrisburg, Pennsylvania y Scott Thornton - Labor to finish project Mat. na /Subcontractor Labor. y R_F. Fager Co. (attached) y Home Depot (attached) y Alside Supply Center y Home Depot (attached) ?nvoice #: 2010-018 pote. 6/9/ 10 Re: Living/Dining Room Additions $ 3,500.00 $ 79.13 $ 16.57 $ 14.51 $ 55.70 y Six percent (6%) Management Fee on original contract amount of $137,000.00 $ 8.220.00 TOTAL AMOUNT DUE THIS INVOICE: $ 11,885.71 Invoice due and payable within thirty (30) days of invoice date. All unpaid amounts subject to one and one-half percent (r 4i%) interest per month. q&skyvm 62255cuven4rDriVe svoLa, PC?tiws?lVAriiA i?025 phant: (v-1ji) 602-3500 Fax: (Y17) YL32-02.23 EXHIBIT B cimtrRL COWtrQCtOr f fla #PA033641 INVOICQ To: I Mr. & Mrs. Andy Moyer ?d?ress: 570 Margate Drive Harrisburg, PA nvoice #: 12010-007 Date: 13/ 11/2010 Ike: I Kitchen/Living Room Additions Labor: ? Scott Thornton: 25 hours @ $55.00 per hour (2/26/10 through 3/ 11/2010) $ 1,375.00 Total Amount Due This Invoice: $1,375.00 Invoice due and payable within thirty (3o) days of invoice date. All unpaid amounts subject to one and one-half percent (i 1/2oio) interest per month. 21 iankjou 62.25 SOUveVUY- Drive G-ttiOLR, PevLVk,& l.VawiA 1702,5 Ph0m: (71-7) 602-3,500 Fax: (7:L7) 732-0223 8e0tt'D, C;rhotlabn CleKtral Cpwtractor WO #PA033641 BUDGET PROPOSAL August 10, 2009 Mr. & Mrs. Andrew Moyer 570 Margate Road Harrisburg, PA 17111 Re: Kitchen/Garage/Living Room Renovations Dear Mr. & Mrs. Moyer: The following are Budget figures only for the Kitchen renovations, Garage addition and Living Room extension project at the above address: y Excavation and demolition of existing concrete Concrete for footers Excavation and stone dust for propane tank Concrete for Garage addition, Dining Room addition and new patio ? ICF walls for Garage, Kitchen and existing porch > Trusses and framing lumber for entire project ? Shingles and felt paper Doors and windows ? Siding, soffit, fascia and spouting Y Insulation and Styrofoam bn'..) ?.:JOwenm ?r,ve ?7-.Ja, PA 17o25 EXHIBIT A ?? 4 ? ? r i? ??? Mr. & Mrs. Andrew Moyer Page two August 10, 2009 Drywall (labor and material) $ 4,200.00 Light fixtures, new electric sub-panel and all wiring for entire $ 6,500.00 project (labor and material) Painting (labor and material) $ 3,800.00 ? Trim and interior doors $ 2,200.00 ? Heating (labor and material) $ 3,800.00 ? Plumbing (labor and material) $ 3,000.00 ? Roll-up door for bar area $ 1,400.00 ? Bar and countertop $ 6,500.00 D Countertops and new sinks for existing Kitchen and new island $ 13,000.00 area ? Kitchen cabinets and new pantry $ 5,500.00 ? New flooring for entire project $ 5,000.00 ? Labor for above project $ 38.000.00 TOTAL AMOUNT TMS BUDGET PROPOSAL $ 137,800.00 Upon completion of project, a six percent (6%) fee will be assessed for management services. 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II 2s'--0' I 4'_5' 14'-8 1/2' 7'-1 1/2- I 14- I ---- I I 1 1 1 1 I I I i 1 1 1 I 1 I 1 1 i I 1 I I I I I I I ? 1 1 FAMILY fI ROOM (ADDITION) STEEL BEAM w12x40 --- -i -- II I I1 2'-5• Y-0 1/2' I f 1 CLOSET _ Dl 1 I -I- - 1 r-s' I I CLOSET fI 0 3C) oltb1 U Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@eol.com Attorney for. Plaintiff i- E.CEIVF.i Fl=ICF '!r R0TI-11)1-'0 P" . P0015.bo. ZOI O SEP 16 AN 3: 29 1=,1 i_i ? ! ; -F C G'tl ICI T Y PENNA IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA SCOTT D. THORNTON Plaintiff CIVIL ACTION - LAW VS - 12...02.01- ry) -- ANDREW D. MOYER and : NO. it 0101()-0q JANICE K. MOYER Defendants MECHANIC'S LIEN CLAIM AND NOW, this day of September,2010, comes Scott D, Thornton, by attorney, Robert G. Radebach, pursuant to the provisions of the Act of August 24, 1963, P.L.1175 No. 497, Article V, Section 503 _t M., as amended, and makes the following statement of Mechanics' Lien Claim: 1. Plaintiff is Scott D. Thornton, an adult. individual residing at 6225 Souvenir Drive, Enola, Pennsylvania, and he is the contractor in this action.. 2. The owners of the premises in question are Andrew D. Moyer and Janice K. Moyer, husband and wife, who are adult individuals residing at 570 Margate Road, Swatara Township, Dauphin County, Pennsylvania. 3. Scott D. Thornton avers that on or about October 15, 2009, the contractor commenced work on renovations to the dwelling house located at 570 Margate Road, Harrisburg, Pennsylvania owned by the Defendants for the express purpose of making and addition and modifications to the dwelling house of the Defendants. An itemized statement of the charges claimed by the contractor is attached hereto as Exhibit "A" which is hereby made a part hereof. 4. Scott D. Thornton completed the work in question on or about April 20, 2010 5. The amount claimed to be due is $18,903.75. 6. The premises against which this lien is claimed are as follows: ALL THAT CERTAIN parcel of land situate in Swatara Township, Dauphin County, Pennsylvania more particularly bounded and described as follows: BEGINNING at a concrete marker on the northeastern portion of the right-of-way known as Margate Road and proceeding North seventy-seven degrees (77°) nine minutes (09) ten seconds (10") East, a distance of two hundred seventeen and twenty-nine hundredths feet (217.29') to a point; thence continuing North seventy-seven degrees (77°) nine minutes (09') ten seconds (10") East, a distance of one hundred twenty feet (129) to a point; thence North eighty-two degrees (82°) forty-nine minutes (49') fifty seconds (50") East, a distance of one hundred thirteen and eighty-one hundredths feet (113.81) to a point; thence South twelve degrees (12°) fifteen minutes (15') thirteen seconds (13") East, a distance of three hundred two and fifteen hundredths feet (302.15') to a concrete marker; thence North seventy-one degrees (71 °) twelve minutes (12') thirty-six seconds (36") West, a distance of four hundred sixty-one and three hundredths feet (461.03') to a point on the cul-de-sac of Margate Road; thence along a curved line on the cul-de-sac of Margate Road, having a radius of fifty feet (50'), an arc length forty-nine and forty-five feet (49.46), and a chord bearing North fifty-seven degrees (57°) forty-four minutes (44') twenty--three seconds (23") West, a chord distance of forty-seven and forty-six hundredths feet (47.46) to a point; thence along a curved line having a radius of ten feet (10'), an arc length eight and forty-one hundredths feet (8.41'), and a chord bearing North sixty-one degrees (61 °) fifty-eight minutes (58') thirty-nine seconds (39') West, a chord distance of eight and seventeen hundredths feet (8.17') to a point; thence North thirty-seven degrees (37°) fifty-two minutes (52') fifty-eight seconds (58") ITEMIZATION OF MECHANIC'S LIEN CLAIM - 570 MARGATE DRIVE 1. Unpaid Labor $ 3,500.00 2. Unreimbursed materials $ 165.01 3. Unpaid Equipment Expense $ 3,238.74 4. Construction Management fee $12,000.00 TOTAL AMOUNT CLAIMED $18,903.75 EXHIBIT A i verify that the statements made in the Mechanic's Lien Claim are true and correct. I understand thatfalse statements made herein are made subjectto the penalties of 18 Pa. C.S. §4904 relating to unswom falsification to authorities. Dated : S 26 / 0 Scott D. Thornton 4 I...L.. i t Ise 2U1 11 SUS I I Fs i 10: 44 CUMBERLAND COUNTY PENNSYLVANIA LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. #28122 1423 State Road Duncannon, PA 17020 Telephone: [717[957-2828 ANDREW D. MOYER JANICE K. MOYER V. Plaintiffs SCOTT D. THORNTON Defendant Attorney for Plaintiff: ANDREW & JANICE MOYER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW No. 11-2647 PLAINTIFFS' MOTION TO MAKE RULE ABSOLUTE 1. On July 12, 2011, Plaintiffs filed a Motion to Compel Discovery because Defendant failed and refused to respond to Plaintiffs' Interrogatories and Request for Production of Documents that were served on June 8, 2011. 2. Plaintiffs' Motion to Compel was served upon Defendant's counsel by first class and certified mail on July 11, 2011. 3. Rule 208.3(b) required Defendant to file a response to the Motion within twenty days after service of the Motion. 4. Defendant has failed to file and serve an answer to Plaintiffs' Motion within twenty days as required by Rule 208.3 (b) . 5. On July 18, 2011, the Honorable Albert H. Masland issued a Rule to Defendant to show cause. See Exhibit "A" hereto. 6. The Rule was made "returnable twenty (20) days from the date of this order." Id. 7. Defendant has failed and refused to timely respond as required by the Order of July 18, 2011. 8. Accordingly, the Rule should be made absolute and Plaintiffs' unopposed Motion to Compel should be granted. 9. To date, no rulings have been made by the Court in this case. WHEREFORE, Plaintiffs respectfully request that this Honorable Court make the Rule absolute and grant their Motion to Compel Discovery. DATE: August 10, 2011 By / '? LA RYA LLER ANDREW D. MOYER IN THE COURT OF COMMON PLEAS OF JANICE K. MOYER, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. SCOTT D. THORNTON, DEFENDANT : 11-2647 CIVIL TERM ORDER OF COURT AND NOW, this - day of July, 2011, a Rule is issued on Defendant to show cause why the relief requested should not be granted. Rule returnable twenty (20) days from the date of this order. By the Court, Albert H. Masland,"J. Larry L. Miller, Esquire For Plaintiffs Robert G. Radebach, Esquire For Defendant saa TRUE COPY FROM RECORD In Testimony whereof, I two unto set my hand and the seal of said Court at Carlisle, Pa. Th "2<v dsy of .20 ary Prothonot ' ? 'k - 0, EXHIBIT A VERIFICATION I, LARRY L. MILLER, have prepared the foregoing MOTION TO MAKE RULE ABSOLUTE. The factual statements contained therein are true and correct. I am authorized to make this Verification on behalf of my clients, Andrew D. Moyer and Janice K. Moyer. I have personal knowledge of the f=acts. This Verification is made subject to the penalties of 18 Pa. Cons. Stat. Section 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. Date: August 10, 2011 By: LA Y /L. I LLER CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing MOTION this 10th day of August, 2011 by placing the same in the United States Mail, first class and certified mail, postage prepaid, addressed as follows: Robert G. Radebach, Esquire 912 N. River Road Halifax, PA 17032-9543 By Y 77 % II ANDREW D. MOYER JANICE K. MOYER Plaintiffs V. SCOTT D. THORNTON Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW No. 11-2647 rn cri x? -S ,?' c rv ORDER a BCD AND NOW, this /l? day of A ;,1 / 14- 2011 upon consideration of Plaintiffs' Motion to Make Rule Absolute, IT BE AND IS HEREBY ORDERED that Plaintiffs' Motion to Compel Discovery that was filed on July 12, 2011 is granted. I ug Owe> gµb,i Robert G. Radebach, Esquire 912 N. River Road Halifax, PA 17032-9543 BY THE COURT: /Z? I C J. Larry L. Miller, Esquire Miller Law Offices, PC 1423 State Road Duncannon, PA 17020 5 ANDREW D. MOYER AND JANICE K. MOYER, PLAINTIFFS V. SCOTT D. THORNTON, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 11-2647 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' AMENDED COMPLAINT BEFORE GUIDO, J., EBERT, J. AND MASLAND, J.? rn -- ORDER OF COURT c'"nA° AND NOW, this day of August, 2011, after briefing by t parties and argument en banc, the preliminary objections filed by the Def not x} Scott D. Thornton, are OVERRULED. By the Court, Albert H. Maslan , J. ? Larry L. Miller, Esquire 1423 State Road Duncannon, PA 17020 For Plaintiffs N` Robert Radebach, Esquire 0 912 North River Road Halifax, PA 17032 For Defendant saa Robert Radebach, Esquire CD 912 North River Road c ? `rr Halifax, PA 17032 -n 717-896-2666 r rn ' r n robradebachatty@aol.com m Attorney for Defendant --4 tD IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA - ANDREW D. MOYER and JANICE K. MOYER, Plaintiffs V. SCOTT D. THORNTON, Defendant CIVIL ACTION - LAW NO. 11-2647 NOTICE TO PLEAD TO: ANDREW D. MOYER and JANICE K. MOYER: You are hereby notified to plead to the enclosed Answer with New Matter and Counterclaim within 20 days after service therfa" judgmentby c@fault may be entered against you. Robert G. Ra7ebach, Esquire 912 North River Road Halifax, PA 17032 (717) 896-2666 Attorney for Defendant Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ANDREW D. MOYER and JANICE K. MOYER, Plaintiffs CIVIL ACTION - LAW V. SCOTT D. THORNTON, NO. 11-2647 Defendant ANSWER WITH NEW MATTER AND COUNTERCLAIM 1. Admitted 2. Admitted. 3. Admitted. 4. Admitted in part and denied in part. Defendant admits that an initial proposal is attached to the Complaint, however Defendant avers that prior to commencement of work, Plaintiffs enlarged the scope of the job and were advised by defendant that the project costs would increase and Plaintiffs acknowledged that they understood that the costs would increase. The substantial additions and alterations to the scope of the work included: a. Remove and reconstruct larger outside porch with heating ducts; b. Construct a new bar; c. Construct a new patio; d. Install a new bath room; e. Add radiant heat under kitchen floor; f. Repairs to walls in the dwelling for defects discovered during construction; g. Relocate gas fireplace; h. Installation of gas line conduit and pull gas lines; 1. Install cathedral ceiling under new porch; j. Finish storage area; k. Add outside door to garage; 1. Open doorway between family room and living room by installation of large beam; m. Install basketball floor in bar area; n. Moved door to kitchen; o. Closed off door between kitchen and dining room and enlarged opening between kitchen and living room; p. Install stone veneer to front and side of garage; q. Install stone veneer in grill area; r. Install cathedral ceiling in living room. The original proposal covered only part of the total job and the original estimate did not include the additions herein set forth. Strict proof of the averment is hereby demanded. 5. Admitted. 6. Admitted. 7. Paragraphs 1 through 6 of this Answer with New Matter and Counterclaim are incorporated herein by reference as if set forth in full. 8. Denied. While Defendant admits that the cost of the work completed for Plaintiffs exceeded the original bid proposal attached to the Complaint, Defendant avers that the increased expense resulted only from the substantially increased work ordered by Plaintiffs. Defendant further avers that Plaintiffs paid the Defendant the sum of $17,277.00 for the work performed by Defendant. All other expenses for labor and materials the work in question were paid solely by Plaintiffs, except for items set forth in the Counterclaim filed herein. Strict poof of the averment is hereby demanded. 9. Denied. The Complaint sets forth no time for performance, and Defendant avers that the work was completed in a timely fashion. Strict poof of the averment is hereby demanded. 10. Denied. On the contrary there were no cost over runs. At the time the Plaintiffs requested additional work no estimates were requested and Defendant advised Plaintiffs that the work would be billed on a cost and materials basis. Defendant further avers that statements for materials and labor were submitted to Plaintiffs on a regular basis, however Defendant has no information regarding the timeliness of payment by Plaintiffs except for the items set forth in the Counterclaim filed herewith. Strict proof of the averment is hereby demanded. 11. Denied. Defendant avers that the contract was performed in a timely fashion and that there was no mismanagement of time or resources. Strict poof of the averment is hereby demanded. 12. Denied. On the contrary the Plaintiffs received more than full value for the work performed because they have failed and refused to pay the final billings issued by Defendant. Strict poof of the averment is hereby demanded. 13. Denied. Defendant avers that Plaintiffs made substantial additions and alterations to the scope of the work including: a. Remove and reconstruct larger outside porch with heating ducts; b. Construct a new bar; c. Construct a new patio; d. Install a new bath room; e. Add radiant heat under kitchen floor; f. Repairs to walls in the dwelling for defects discovered during construction; g. Relocate gas fireplace; h. Installation of gas line conduit and pull gas lines; 1. Install cathedral ceiling under new porch; j. Finish storage area; k. Add outside door to garage; 1. Open doorway between family room and living room by installation of large beam; m. Install basketball floor in bar area; n. Moved door to kitchen; o. Closed off door between kitchen and dining room and enlarged opening between kitchen and living room; p. Install stone veneer to front and side of garage; q. Install stone veneer in grill area; r. Install cathedral ceiling in living room. These additional expenses were never contemplated in the original quote, however the Defendant never agreed to perform the additional work without payment. Strict poof of the averment is hereby demanded. 14. Denied. On the Contrary Defendant avers that there were no cost overruns on the project and strict proof of the averment is hereby demanded. 15. Denied. On the contrary the Defendant completed the work in a timely fashion and at the conclusion of work the Plaintiffs did not indicate to Defendant that there was any work left undone or poorly done or which required correction. Defendant specifically denies that he abandoned the project. Strict poof of the averment is hereby demanded. 16. Denied. On the contrary the Defendant avers that the time for performance was never the subject of a contract specification of any sort. Strict poof of the averment is hereby demanded. 17. Denied. While Defendant admits that the construction period lasted six months, the extended time was the result of the additional work required by Plaintiffs who never expressed any concerns to Defendant regarding the timeliness for completion of the project, Strict proof of the averment is hereby demanded. 18. Denied. Defendant avers that the time for commencement of the job was never made a specific contract provision nor was it an issue raised by Plaintiffs at any time during progress of the job. Strict proof of the averment is hereby demanded. 19. Denied. Defendant avers that Plaintiffs never performed any duties or responsibilities for Defendant in the conduct of the project. Strict proof of the averment is hereby demanded. 20. Denied. On the contrary Defendant avers that he completed the punch list for the work at Plaintiffs property and was never advised that there were any outstanding items. Strict proof of the averment is hereby demanded. 21. Denied. Defendant is without knowledge or information sufficient to form a \ belief as to the truth of this averment regarding the amount of damages claimed by Plaintiffs to correct allegedly defective work because the means of proof thereof are within the exclusive control of Plaintiffs, and strict poof of the averment is hereby demanded. 22. Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment because the means of proof thereof are within the exclusive control of Plaintiffs, and strict poof of the averment is hereby demanded. 23. Denied. Defendant avers that while Plaintiffs have not specified the amount of damages they seek, Defendant hereby demands a trial by jury. WHEREFORE, Defendant requests that the Complaint be dismissed with prejudice. 24. Paragraphs 1 through 23 of this Answer with New Matter and Counterclaim are incorporated herein by reference as if set forth in full. 25. Admitted. 26. Denied. On the contrary Defendant avers that he was able to perform the work requested by Plaintiffs and in fact the job was completed in a good and workmanlike manner in full accord with the agreement he made with Plaintiffs. Strict proof of the averment is hereby demanded. 27. Denied. On the contrary Defendant avers that he was not fully paid by Plaintiffs for the work he performed. Strict proof of the averment is hereby demanded. 28. Denied. The basis for Plaintiffs claim for the contract price represented in the Complaint is erroneous and misleading and fails to accurately define the scope of the work, the cost thereof or the time framework for completion of the job. Defendant avers that he never misrepresented the cost or time necessary to complete the work required by Plaintiffs which was not part of the original proposal, Defendant avers that despite the fact that there were increased work tasks no bid was requested or provided and Plaintiffs agreed to pay for the work on a time and materials basis. Strict proof of the averment is hereby demanded. 29. Denied. There were no misrepresentations by Defendant to Plaintiffs about any aspect of this project. Plaintiffs paid for the work as it progressed and never advised the Defendant that there were any concerns regarding costs, timeliness or quality of the work. Strict proof of the averment is hereby demanded. 30. Denied. Defendant made no misrepresentations to Plaintiffs who paid Defendant only $17,277.00 during construction. Strict proof of the averment is hereby demanded. 31. Denied. Defendant made no misrepresentations to Plaintiffs, who received full value for the moneys paid for the alterations and improvements to their dwelling as the result of the efforts of Defendant. Strict proof of the averment is hereby demanded. 32. Denied. Defendant avers that the project for Plaintiffs was materially greater in scope, cost and time form the original proposal made by Defendant and Plaintiffs knew full well that the original bid was not operative because Plaintiffs desired much more work than originally bid, and Plaintiffs never requested a new job price quote, but rather agreed to proceeds on a cost-plus basis. Strict proof of the averment is hereby demanded. 33. Denied. On the contrary Defendant avers that the Plaintiffs never paid for all of the work performed by Defendant and that any misrepresentation or fraud in this matter resides upon Plaintiffs who failed to pay for all of the billings rendered by Defendant and in addition failed to pay the 6% construction management fee as defined in the original proposal. Strict proof of the averment is hereby demanded. 34. Denied. Defendant avers that he at no time misrepresented himself, or the work he agreed to perform for Plaintiffs. Defendant further avers that Plaintiffs were not deceived and that Plaintiffs received full value for the work performed even though they have failed and refused to pay the balance owed to Defendant. Strict proof of the averment is hereby demanded. 35. Denied. Defendant avers that Plaintiffs received full value for the work performed even though they have failed and refused to pay the balance owed to Defendant. Strict proof of the averment is hereby demanded. WHEREFORE Defendant requests that the Complaint be dismissed with prejudice. NEW MATTER AND COUNTERCLAIM 36. Paragraphs 1 through 35 of this Answer with New Matter and Counterclaim are incorporated herein by reference as if set forth in full. 37. Scott D. Thornton avers that on or about October 15, 2009, he commenced work on renovations to the dwelling house located at 570 Margate Road, Harrisburg, Pennsylvania, owned by the Andrew D. Moyer and Janice K. Moyer for the express purpose of making and addition and modifications to the dwelling house of the Defendants in the following particulars: a. Kitchen renovations; b. Garage Addition; c. Living Room Extension into area of existing porch; d. Remove and reconstruct larger outside porch with heating ducts; e. Construct a new bar; f. Construct a new patio; g. Install a new bath room; h. Add radiant heat under kitchen floor; 1. Repairs to walls in the dwelling for defects discovered during construction; j. Relocate gas fireplace; k. Installation of gas line conduit and pull gas lines; I. Install cathedral ceiling under new porch; m. Finish storage area; n. Add outside door to garage; o. Open doorway between family room and living room by installation of large beam; p. Install basketball floor in bar area; q. Moved door to kitchen; r. Closed off door between kitchen and dining room and enlarged opening between kitchen and living room; s. Install stone veneer to front and side of garage; t. Install stone veneer in grill area; u. Install cathedral ceiling in living room. 38. The charge to be paid by Moyers was to be on a time and materials basis, with Moyers paying the cost of materials and labor directly to the suppliers and contractors as the work progressed. 39. Scott D. Thornton completed the work in question on or about April 20, 2010 40. An itemized statement of the charges for the balance of work performed is attached hereto as Exhibit "A" which is hereby made a part hereof. 41. Scott D. Thornton avers that the Andrew D. Moyer and Janice K. Moyer, husband and wife owe a balance of $18,903.75 for the work performed. WHEREFORE, Scott D. Thornton demands Judgment against Andrew D. Moyer and Janice K. Moyer, husband and wife, in the amount o 18,903.75 t ether with interest from April 20, 2010 and costs of suit. Robert G. Radebach, Esquire 912 North River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Defendant I verify that the statements made in this Answer with New Matter and Counterclaim are true and correct. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Dated: Scott D. Thornton ITEMIZATION OF BALANCE OWED - 570 MARGATE DRIVE 1. Unpaid Labor $ 3,500.00 2. Unreimbursed materials $ 165.01 3. Unpaid Equipment Expense $ 3,238.74 4. Construction Management fee $12,000.00 TOTAL DUE $18,903.75 EXHIBIT A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ANDREW D. MOYER and JANICE K. MOYER, Plaintiffs V. SCOTT D. THORNTON, Defendant CIVIL ACTION - LAW NO. 11-2647 CERTIFICATE OF SERVICE AND NOW, September 15, 2011, I, Robert G. Radebach, Esquire, Attorney for Defendant, hereby certify that I served a copy of the Answer with New Matter and Counterclaim in the above-captioned matter upon Plaintiffs, by depositing the same in the United States Mail, postage prepaid in the post office at Halifax, Pennsylvania, addressed as follows: Larry L. Miller, Esquire 1423 State Road Duncannon, PA 17020 Robert G. Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 0 ivy II J rl`' ?' FlE! V?J MO COUNT"! L'a is J `I ???? Y 1' A LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. 428122 1423 State Road Duncannon, PA 17020 Telephone: [717[957-2828 Attorney for Plaintiff: ANDREW & JANICE MOYER ANDREW D. MOYER IN THE COURT OF COMMON PLEAS JANICE K. MOYER CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW Plaintiffs No. 11-2647 v. SCOTT D. THORNTON Defendant NOTICE TO PLEAD TO: SCOTT D. THORNTON You are hereby notified to file a written response to the enclosed NEW MATTER within twenty (20) days from service hereof or a judgment may be entered against you. DATE: October 5, 2011 By: 1,. ,- 1r .;% .J I'iJ fA i'. nay _ r.a,s Ct t 17'.. COUNTY "NSYLVANIA LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. 428122 1423 State Road Duncannon, PA 17020 Telephone: [717[957-2828 Attorney for Plaintiffs: ANDREW & JANICE MOYER ANDREW D. MOYER JANICE K. MOYER Plaintiffs v. SCOTT D. THORNTON Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW No. 11-2647 PLAINTIFFS' ANSWER AND NEW MATTER TO DEFENDANT'S NEW MATTER AND COUNTERCLAIM Plaintiffs hereby answer the New Matter and Counterclaim of Defendant as follows: 36. Plaintiffs' averments set forth in their pleading are incorporated herein by reference. 37. Denied as stated. The contract, Exhibit "A" to Plaintiffs' Amended Complaint, is incorporated herein by reference. 38. Denied. These averments are specifically denied. Proof thereof is demanded. On the contrary, Defendant provided an estimate and represented that the project would be completed for that estimated price. 39. Denied. These averments are false and they are accordingly specifically denied. Proof thereof is demanded. Defendant's scope of work was not completed by April 20, 2010. In fact, Defendant never satisfactorily completed his scope of work. 40. Denied. These averments are fraudulent and they are accordingly specifically denied. Proof thereof is demanded. On the contrary, Defendant's last bill dated June 9, 2010 was for $11,885.71. See Exhibit "A" hereto. The claimed charge of $18,903.75 is excessive, bogus, and fraudulent. 41. Denied. These averments are specifically denied. Proof thereof is demanded. On the contrary, Defendant's last bill dated June 9, 2010 was for $11,885.71. See Exhibit "A" hereto. Defendant sent a follow-up bill on July 22, 2010 for the same principal amount. See Exhibit "B" hereto. The claimed charge of $18,903.75 is excessive, bogus, and fraudulent. WHEREFORE, Plaintiffs, Andrew D. Moyer and Janice K. Moyer, respectfully request that this Honorable Court enter judgment in their favor and against Scott D. Thornton. NEW MATTER 42. Plaintiffs incorporate by reference their averments from paragraphs 1 through 41 of their pleadings. 2 43. Defendant's Counterclaim is barred in whole or in part as it fails to state a cause of action upon which relief may be granted. 44. Defendant's Counterclaim ie harrpH by flip rInrtrinp of consideration. 45. Defendant's Counterclaim is barred because of his prior material breach of contract. 46. Defendant's Counterclaim is barred in whole or in part by virtue of the Doctrine of Waiver. 47. Defendant's Counterclaim is barred in whole or in part by virtue of the Doctrine of Estoppel. 48. Defendant's Counterclaim is barred in whole or in part by virtue of the Doctrine of Laches. 49. Defendant's Counterclaim is barred in whole or in part by virtue of the Doctrine of Release. 50. Defendant's Counterclaim is barred in whole or in part by virtue of the Doctrine of Accord and Satisfaction. 51. Defendant's Counterclaim is barred by the applicable Statute of Limitations. 52. Defendant's Counterclaim is barred by the doctrine of set-off/recoupment. 53. Defendant's Counterclaim is barred by the Doctrine of Unclean Hands. 3 54. Plaintiffs have not breached any duty to Defendant that was imposed by operation of law or contract. 55. Plaintiffs owe no duty to Defendant, either express or implied, that has not been satisfied. 56. Defendant's claim is barred by his failure to mitigate damages. 57. The damages claimed by Defendant are not recoverable under the terms and conditions of the contract. 58. Defendant materially breached his contract with Plaintiffs by non-performance. 59. Plaintiffs satisfactorily performed their contractual duties to Defendant. 60. Defendant never timely provided Plaintiffs with notice of his billings. 61. Defendant failed to timely complete Plaintiffs' project. 62. Defendant never satisfactorily completed Plaintiffs' prof ect. 63. Defendant completely abandoned Plaintiffs' project before it was completed. 64. Defendant materially breached his obligation to Plaintiffs to manage Plaintiffs' project. 65. All of Defendant's charges asserted in his Counterclaim are bogus, frivolous, and fraudulent. 4 66. Defendant is not legitimately owed anything further by Plaintiffs. 67. Defendant never timely notified Plaintiffs of any unpaid suppliers or equipment providers. 68. Defendant has knowingly and wrongfully pursued an excessive claim. 69. Defendant was paid in full by Plaintiffs for all work that he performed on the project. 70. Defendant's Counterclaim was filed solely for the purpose of harassment, delay, and malicious injuring of Plaintiffs and Plaintiffs reserve the right to move for the imposition of sanctions and fees at the appropriate juncture. 71. Plaintiffs reserve the right, pending the completion of discovery, to assert such additional defenses as may exist. WHEREFORE, Plaintiffs, Andrew D. Moyer and Janice K. Moyer, respectfully request that this Honorable Court enter judgment in their favor and against Scott DATE: October 5, 2011 By: 0AW da. Z°lM&W ce-V-eras Covutraotor I-H C #RA033641 INVOICE- o: Mr. & Mrs. Andy Moyer ,Ahem 570 Margate Road Harrisburg, Pennsylvania invoice #: ] 2010-018 ate: 6/9/1O Re: Living/Dining Room Additions Labor: ? Scott Thornton - Labor to finish project Material/Subcontractor Labor. ? RF. Fager Co. (attached) ? Home Depot (attached) ? Alside Supply Center ? Home Depot (attached) $ 5,500.00 $ 79.13 $ 16.57 $ 14.31 $ 55.70 ? Six Percent (6%) Management Fee on original contract amount of $137,000.00 $__8..220.00 TOTAL AMOUNT DUE THIS INVOICE: $ 11,885.71 Invoice due and payable within thirty (30) days of invoice date. All unpaid amounts subject to one and one-half percent (r 112%) interest per month. ` Wankyou 6225sDtkvevu.rtwLve i?wDI.A, Pevw OLVOIMW 2 02,5 Phovbe: (Y2YL) 602-3600 Fay': (71.7L) yt32-0223 EXHIBIT A O3catt -a. zhawtm CjWrat COKtrACtDr WC #RA03s& 41 STAT?-:MQ N T o: I Mr. & Mrs. Andy Moyer 570 Margate Road Harrisburg, Pennsylvania nvoice #: 2010-0 18 Date: 7/2:2/10 R.: Living/Dining Room Additions Invoice #2010-018 dated 6/9/2010 Interest Charges TOTAL AMOUN'T' DUE THIS I WOICE: $ 11,885.71 $ 178.29 $ 12,064.00 Invoice due and payable within thirty (3a) days of invoice date. All unpaid amounts subject to one and one-half percent (r 1/2%) interest per month. Thankyou. 6225souveKir Drive G-woi a, PMASO Lva vwa 2Y025 Phom: (?LZjz) 602-3500 Fax: 0111?) 9,32-0223 EXHIBIT B actual state -?n t? :?e best. of my a is ma a - :. By CERTIFICATION FOR FACSIMILE SIGNATURE The undersigned attorney, offering the attached, certifies that the affiant or person signing the document acknowledged the genuineness of the signature and that the document or a copy with an original signature affixed will be filed if requested by the Court or a party. I hereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to pupishment. DATE: October 5, 2011 By: . MILLER CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing ANSWER AND NEW MATTER upon counsel of record this 5th day of October, 2011 by placing the same in the United States Mail, 1ST CLASS and CERTIFIED mail, postage prepaid, addressed as follows: Robert G. Radebach, Esquire 912 N. River Road Halifax, PA 17032-9543 By Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Defendant FILED-DFPPC-1- Or 1 "E PROTHONOTAR y 2012 JAN -3 PH 3: tf 9 CUMBERLAND COUNTY PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ANDREW D. MOYER and JANICE K. MOYER, v. Plaintiffs CIVIL ACTION - LAW SCOTT D. THORNTON, Defendant NO. 11-2647 ANSWER TO MOTION TO AMEND PLEADING TO STATE ADDITIONAL RELATED CLAIMS 1. Admitted. Defendant denies any implication that the Mechanics Lien filed in Dauphin County was frivolous, Defendant avers to the contrary that there was and remains a valid issue between Defendant and Plaintiffs regarding final payment for the construction work performed by Defendant for Plaintiffs. 2. Admitted. 3. Admitted. 4. Admitted in part and denied in part. Defendant admits that Preliminary Objections to the Mechanics Lien Claim were upheld, however Defendant denies that the Mechanics Lien was frivolous. A. copy of the Court Order is attached hereto. 5. Denied. This averment states a conclusion of law which requires no response, however Defendant avers that the Mechanics Lien Claim was not frivolous, and strict proof of the averment is hereby demanded. 6. Denied. This averment states a conclusion of law which requires no response, however Defendant avers that the Mechanics Lien Claim was not frivolous, and strict proof of the averment is hereby demanded. 7. Denied. On the contrary, discovery responses filed in this action set forth that Plaintiffs acknowledged that prior to any litigation being filed between the parties, Plaintiffs acknowledged that they owed Defendant for completion of the project. Strict proof of the averment is hereby demanded. 8. Denied. This averment states a conclusion of law which requires no response, however Defendant avers that the Mechanics Lien Claim was not frivolous, and strict proof of the averment is hereby demanded. 9. Denied. This averment states a conclusion of law which requires no response, however Defendant avers that the Mechanics Lien Claim was not frivolous, and strict proof of the averment is hereby demanded. 10. Denied. While Defendant admits that the Plaintiff makes this request, Defendant avers that any claim for wrongful use of civil procedure and/or abuse of process, would not be appropriate at this time until the merits of the underlying claims of Plaintiffs and Defendants are resolved in this action. Strict proof of the averment is hereby demanded. 11. Admitted. 12. Admitted. WHE,F(E'F61 ?,,P?efen?nt respectfully requests that the Court dismiss this motion. Attorney for Defendant I verify that the statements made in this Answer are true and correct. I am authorized to make this verification on behalf of my client Scott D. Thornton I have personal knowledge of the facts. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to author ties. Dated: January 3, 2012 Robert G. Radebach, Esquire Copies Dishibuaed 44 , 4A L Ieti* Bob SCOTT D. THORNTON, Plaintiff V. ANDREW D. MOYER and JANICE K. MOYER, Defendants IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2010 CV 12029 ML'; ORDER r-_, in N d3 AND NOW, to wit, this 24th day of October, 2011, upon review of the Plaintiff's Mechanic's Lien Claim, together with the Defendants' Preliminary Objections to Mechanic's Lien Claim, and all of the subsequently filed pleadings, IT IS HEREBY ORDERED that Objections III and IV of the Defendants' Preliminary Objections must be SUSTAINED; and consequently, the Plaintiff's Mechanic's Lien Claim must be STRICKEN for the following reason: the Plaintiff failed to comply with the provisions of 49 P.S. §§ 1503(5) and 1503(6). Because the required relief for the Defendants is complete by sustaining Objections III and IV, the other Objections are rendered moot and require no further action by the Court. The Defendants have directly attacked the Plaintiff's Mechanic's Lien filed in this case, and have raised several issues of law as reasons for striking the Lien; but the Lien must ultimately fail as a result of Plaintiff's failure to fully adhere to the statutory requirements under the Lien Law. 49 P.S. §§ 1503(5) and 1503(6) provide that the claim shall state: (5) if filed by a contractor under a contract or contracts for an agreed sum, an identification of the contract and a general statement of the kind and character of the labor or materials furnished; (6) in all other cases than that set forth in clause (5) of this section, a detailed statement of the kind and character of the labor or materials furnished, or both, and the prices charged for each thereof. The Plaintiff has undoubtedly failed to identify the contract, failed to generally state the kind and character of labor or materials furnished and, in the alternative, has clearly failed to provide any getailed statement as to the kind and character of the labor or materials furnished and the prices charged for each. Thus, the Plaintiff's Mechanic's Lien Claim is invalid on its face because the work performed was not detailed as required by 49 P.S. §§ 1503(5) and 1503(6). "It is well established that strict compliance with the Mechanic's Lien Law is necessary in order to effect a valid claim." Flick Construction, Inc. v. Dyke, 584 A.2d 1033 (Pa. Super. 1991)(citing 8rann _& Stuart Company v. Consolidated Sun Ray, Incoruorated, 253 A.2d 105 (1969)). The statutory provisions in mechanic's lien cases are to be mechanically applied, in that, the courts have attributed significant importance in maintaining strict compliance with the Lien Law requirements. 2 THEREFORE, as a result of the facial deficiency of the Plaintiff's Mechanic's Lien Claim, said Claim must be STRICKEN and the Prothonotary is HEREBY ORDERED TO STRIKE the Lien from the Docket. ISSUED AT HARRISBURG, the date first above written. DISTRIBUTION: Robert Radebach, Esquire, 912 North River Road, Halifax, PA 17032 Larry L. Miller, Esquire, 1423 State Road, Duncannon, PA 17020 Prothonotary, Dauphin County FILE 3 BY THE COURT: Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty@aol.com Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ANDREW D. MOYER and JANICE K. MOYER, Plaintiffs V. CIVIL ACTION - LAW NO. 11-2647 SCOTT D. THORNTON, Defendant CERTIFICATE OF SERVICE AND NOW, January 3, 2012, I, Robert G. Radebach, Esquire, Attorney for Defendant, hereby certify that I served a copy of Defendant's ANSWER TO MOTION TO AMEND PLEADING TO STATE ADDITIONAL RELATED CLAIMS in the above-captioned matter upon Larry L. Miller, Esquire, Attorney for Plaintiffs on January 3, 2012, by U.S. Mail, first class, postage prepaid at the following address: Larry L. Miller, Esquire 1423 State Road Duncannon, PA 17020/1' 7 Robert G. Radebach, Esquire 912 North River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Defendant ANDREW D. MOYER AND JANICE K. MOYER, PLAINTIFFS V. SCOTT D. THORNTON, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 11-2647 CIVIL TERM O ER OF COURT day of January, 2012, upon consideration of AND NOW, this //9;1- Plaintiffs' motion to amend pleadings, Defendant's response thereto and the argument of counsel heard on January 4, 2012, Plaintiffs are granted leave to file an amended complaint to state additional related claims. However, Plaintiffs shall not file an amended complaint until thirty (30) days have elapsed from the date of this order. The court affords the parties this respite in the proceedings to enable them to reassess the possibility of settlement through further negotiation and/or mediation. By the Court, e . Maslan , J. Larry L. Miller, Esquire 1423 State Road Duncannon, PA 17020 For Plaintiffs o Esquire ?Robert G. Radebach -<?' < -- -? 0 , 912 North River Road icr'-, mac:, Halifax, PA 17032 `'•' `'` For Defendant :saa Cop'. es tKa? I j-d //111/a 9141-1 & . Robert Radebach, Esquire "" t 912 North River Road rn Halifax, PA 17032 C � C � 717-896-2666 rte- robradebachatty @aol.com ,� Attorney for Defendant rr • IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ANDREW D. MOYER and JANICE K. MOYER, • CIVIL ACTION - LAW • Plaintiffs V. • NO. 11-2647 • SCOTT D. THORNTON, • Defendant DEFENDANT'S' MOTION FOR SANCTIONS FOR FAILURE TO RESPOND TO DISCOVERY AND NOW, this 19TH day of April, 2013, comes Defendant, SCOTT D. THORNTON, by and through his counsel, Robert G. Radebach, Esquire, and hereby files this Motion for Sanctions for Failure to Respond to Discovery pursuant to the provisions of Rule 4019 of the Pennsylvania Rules of Civil Procedure, and in support thereof states the following: 1. On December 5, 2011, Defendant served discovery in the form of Interrogatories upon the Plaintiffs via first class mail. True and correct copies of the transmittal correspondence as well as the Interrogatories are collectively attached hereto as Exhibit "A." 2. Plaintiffs have failed to respond to Plaintiffs' Interrogatories. 3. Defendants' Answers to Plaintiffs' Interrogatories were due within thirty(30) days in accordance with the provisions of Rules 4006 (a) (2) of the Pennsylvania Rules of Civil Procedure. 4. On November 5, 2012, Defendant provided correspondence to counsel for Defendants requesting that the Interrogatories be answered, but to date, the interrogatories remain unanswered. A true and correct copy of said correspondence is attached hereto as Exhibit "B." WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter an Order requiring Defendants to fully and co . ete answer the outstanding discovery within twenty (20) days. 1 � ��(•Date: April 19, 2013 dAid � Robert-&. Radebach, Esquire 912 North River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ANDREW D. MOYER and : JANICE K. MOYER, : CIVIL ACTION - LAW Plaintiffs V. : NO. 11-2647 SCOTT D. THORNTON, Defendant CERTIFICATE OF SERVICE AND NOW, April 19, 2013, I, Robert G. Radebach, Esquire, A • ney fo Defendant, hereby certify that I served a copy of Defendant's Moti• for San ons for Failure to Respond to Discovery in the above-captioned matte .'•o Larry . Miller, Esquire, Attorney for Defendants, on April 19, 2013, by de•• ing t, e sa ► in the United States Mail, postage prepaid in the post office at - •sbur., Pe sylvania, addressed as follows: Larry L. Miller, Esqu' - 1423 State Roa• Duncannon, PA 171 r Ro adebach, Esquire 912 North River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Defendant ROBERT G. RADEBACH ATTORNEY-AT-LAW 912 North River Road, Halifax, PA 17032 (717) 896-2666 Fax (717) 896-2754 E-Mail: RobRadebachAttyC aol.com April 19, 2013 Larry L. Miller, Esquire 1423 State Road Duncannon, PA 17020 RE: Moyer v Thornton Cumberland County Docket No.: 11-2647-Civil Dear Attorney Miller: Enclosed please find Defendant's Motion for Sanctions for Failure to Respond to Discovery regarding the above-referenced matter. Please do not hesitate to contact this office should you have any questions regarding this matter. Very truly yours, Robert Radebach ROBERT G. RADEBACH ATTORNEY-AT-LAW 912 North River Road, Halifax, PA 17032 (717) 896-2666 Fax (717) 896-2754 E-Mail: RobRadebachAtty@aol.com December 5, 2011 Larry L. Miller, Esquire 1423 State Road Duncannon, PA 17020 RE: Moyer v. Thornton Cumberland County Docket No.: 11-2647 Dear Attorney Miller: Enclosed please find Defendant's First Set of Interrogatories Directed to Plaintiffs as well as Defendant's First Request for Production of Documents Directed to Plaintiffs regarding the above-referenced matter. Please do not hesitate to contact this office should you have any questions regarding this matter. Very truly yours, Missy S. Swartz Paralegal /mss Enclosures Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty @aol.com Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ANDREW D. MOYER and . JANICE K. MOYER, • CIVIL ACTION - LAW Plaintiffs . v. . • SCOTT D. THORNTON, • NO. 11-2647 Defendant : DEFENDANT'S FIRST SET OF INTERROGATORIES DIRECTED TO PLAINTIFFS To: Andrew D. Moyer and Janice K. Moyer, Plaintiffs do Larry L. Miller, Esquire 1423 State Road Duncannon, PA 17020 Pursuant to Rule 4005 of the Pennsylvania Rules of Civil Procedure, you have been served the within Interrogatories by the Defendant aforementioned, and are required to answer same, in writing and under oath, within thirty (30) days of the date of service hereof. INSTRUCTIONS 1. These Interrogatories are considered to be continuing and, therefore, should be modified or supplemented as you obtain further or additional information up to the time of trial of this case. 2. The answers to these Interrogatories shall reflect the cumulative knowledge of all representatives, agents and employees of the party to whom they are addressed. 3. Where exact information cannot be furnished, estimated information is to be supplied. Where an estimate is to be used, it should be identified as such and accompanied by an explanation as to the basis on which the estimate is made and the reason the exact information cannot be furnished. 4. Where knowledge, information or documents in the possession of a party are requested, such request includes knowledge, information or documents in the possession of the party's agents, representatives or attorneys. 5. If any document was, but no longer is in your possession or subject to your control, state what disposition has been made of it. DEFINITIONS 1. "Document" or"documents" includes, without limitation, writings and printed matter of every kind and description, photographs and drawings, notes and records of oral communication, and recordings (tapes, discs or other) of oral communication. In all cases where originals are not available, "documents" also means copies of original documents and copies of non-identical copies. 2. "Identify" as applied to person means to state the following: (a) full name; (b) title, if any; (c) present home address; (d) present business address; and (e) person, if any, for whom the person identified was acting at the time to which the interrogatory relates. 3. "Identify" as applied to any writing means to state the following: (a) its date; (b) identity of its author(s); (c) identity of its sender(s); (d) identity of person(s), to whom it is addressed; (e) identity of recipient; (f) format; (g) title; (h) number of pages; (I) complete summary of contents; and (j) identity of person(s) known or believed to have possession, custody or access to the writing. 4. "Identify" as applied to an oral statement, conversation or conference means to (a) identify the person making each statement, the person to whom each statement was made, and all other persons present at the time of each statement; (b) state the date of such statement, conversation or conference; (c) state the place where such statement, conversation or conference was held; (d) if by telephone, identify the person receiving the telephone call, the person making the call, and the places where the persons participating in the call were located; and (e) state in detail the substance of each statement, conversation or conference. 5. "Person" means any individual, firm, association, partnership, corporation, or trustee and also, where relevant, the person representing or acting for such "person". 6. "Explain" or"state" means to set forth every fact relevant to the answer to the Interrogatory and to set forth each such fact fully and unambiguously. INTERROGATORIES 1. Personal information (for each Plaintiff). State: (a) Your full name; (b) Each other name, if any, which you have used or by which you have been known; (c) The name of your spouse at the time of the incident period set forth in your Complaint and the date and place of your marriage to such spouse; (d) The address of your present residence and the address of each other residence which you have had during the past five years; (e) Your present occupation and the name and address of your employer; (f) Date of your birth; (g) Your Social Security number; (h) Your military service and positions held, if any; and (I) The schools you have attended and the degrees or certificates awarded, if any. ANSWER: • 2. Factual basis for claims and defenses. State with particularity the factual basis for each claim you are asserting in the case. ANSWER: 3. Witnesses. (a) Identify each person who: (1) Was a witness to the transaction which is the subject of this action through sight or hearing and/or (2) Has knowledge of facts concerning the transaction which is the subject of this action prior to, at the time of, or after the work in question was performed. (b) With respect to each person so identified, state that person's exact location and activity with respect to this matter. ANSWER: • 4. Statements. If you know of anyone that has given any statement (as defined by the Rules of Civil Procedure) concerning this action or its subject matter, state: (a) The identity of each such person; (b) When, where, by whom, and to whom each statement was made, and whether it was reduced to writing or otherwise recorded; and (c) The identity of any person who has custody of any such statement was reduced to writing or otherwise recorded. ANSWER: 5. Reports of transaction. Identify documents (except reports of experts subject to Pa. R.C.P. No. 4003.5)which describe the claims made by Plaintiffs or the cause thereof. ANSWER: 6. Demonstrative evidence. If you know of the existence of any photographs, motion pictures, video recordings, maps, diagrams, or models relevant to this action, state: (a) The nature or type of such item; (b) The date when such item was made; (c) The identity of the person that prepared or made each item; and (d) The subject that each item represents or portrays. ANSWER: 7. Trial preparation material. If you, or someone not an expert subject to Pa. R.C.P. No. 4003.5, conducted any investigations of the claims made in this action, identify: (a) The identity of any document(s) (except reports of experts subject to Pa. R.C.P. 4003.5) regarding any survey or investigative reports, setting forth the author and date of such document(s). ANSWER: 8. Trial witnesses. Identify each person you intend to call as a non-expert witness at the trial of this case, and for each person identified state your relationship with the witness and the substance of the facts to which the witness is expected to testify. ANSWER: 9. Expert Witnesses. Identify each expert you intend to call as a witness at the trial of this matter, and for each expert state: (a) The subject matter about which the expert is expected to testify; and (b) The substance of the facts and opinions to which the expert is expected to testify and a summery of the grounds for each opinion. (You may file as your answer to this interrogatory the report of the expert of have the interrogatory answered by your expert.) ANSWER: 10. Trial Exhibits. Identify all exhibits that you intend to use at the trial of this matter and state whether they will be used during the liability or damages portions of the trial. ANSWER: 11. Books, Magazines, etc. If you intend to use any book, magazine, or other such writing at trail, state: (a) The name of the writing; (b) The author of the writing; (c) The publisher of the writing; (d) The date of publication of the writing; and (e) The identity of the custodian of the writing. ANSWER: 12. For each Plaintiff, state: (a) The period and amount of time they have resided at their current residence; (b) The prior owners of their residence, if known; (c) The current address of any of the prior owners, if known; and (d) The period and amount of time the prior owners resided at their residence. ANSWER: 13. If you intend to use any admission(s) of a party at trial, identify such admission(s). ANSWER: Date: Robert G. Radebach, Esquire 912 North River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Defendant Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty @aol.com Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ANDREW D. MOYER and JANICE K. MOYER, • CIVIL ACTION - LAW • Plaintiffs • v. • SCOTT D. THORNTON, • NO. 11-2647 Defendant : CERTIFICATE OF SERVICE AND NOW, December 5, 2011, I, Robert G. Radebach, Esquire, Attorney for Defendant, hereby certify that I served a copy of Defendant's First Set of Interrogatories Directed to Plaintiffs in the above-captioned matter upon Larry L. Miller, Esquire, Attorney for Plaintiffs, on December 5, 2011, by depositing the same in the United States Mail, postage prepaid in the post office at Harrisburg, Pennsylvania, addressed as follows: Larry L. Miller, Esquire 1423 State Road Duncannon, PA 17020 Robert G. Radebach, Esquire 912 North River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Defendant Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty @aol.com Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA • ANDREW D. MOYER and JANICE K. MOYER, • CIVIL ACTION - LAW Plaintiffs : v. SCOTT D. THORNTON, • NO. 11-2647 Defendant : DEFENDANT'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO PLAINTIFFS To: Andrew D. Moyer and Janice K. Moyer, Plaintiffs do Larry L. Miller, Esquire 1423 State Road Duncannon, PA 17020 Pursuant to Pa. R.C.P. No. 4001, et seq., Defendant, Scott D. Thornton requests Plaintiffs, Andrew D. Moyer and Janice K. Moyer to produce copies of the following documents, at its expense, within thirty (30) days of service of this Request for Production of Documents. INSTRUCTIONS 1. If Plaintiffs do not have possession, custody or control of such documents, Plaintiffs are required to identify the documents and the person who has possession, custody or control of such documents and where such documents are located. 2. If you object to the production of any document on the grounds that the attorney-client privilege, the attorney work-product privilege or any other privilege is applicable thereto, you shall, with respect to each such document: (a) state its date; (b) identify its author; (c) identify each person who prepared or participated in the preparation of the document; (d) identify each person who received it; (e) identify each person from whom the document was received; (f) state the present location of the document and all copies thereof; (g) identify each person who has ever had possession, custody or control of the document or a copy thereof, or has seen, reviewed, read or otherwise become aware of the contents thereof; and (h) provide sufficient, detailed information concerning the document and the circumstances thereof to explain the claim of privilege and to permit the adjudication of the propriety of such claim. 3. As referred to herein, "documents" include written, printed, typed, recorded or graphic matter, however produced or reproduced, including correspondence, telegrams, other written communications, data processing storage units, tapes, contracts, agreements, correspondence, notes, memoranda, analysis, projections, indices, work papers, studies, reports, surveys, diaries, calendars, films, photographs, diagrams, minutes of meetings or any other writings (including copies of the foregoing, regardless of whether you are now in possession, custody or control of the original) now in the possession, custody or control of you, your former or present counsel, agents, employees, officers, insurers or any other agent acting on your behalf. REQUEST FOR PRODUCTION OF DOCUMENTS 1. Any and all documentation regarding the subject transaction, including but not limited to the following: a. Any executed contract upon which Plaintiffs claim damages, and any additions or modifications thereto. b. The building permit and /or building permits issued by Swatara Township, and any and all modifications to any building permit requests. c. Reports of any building construction inspection reports for the subject project. d. Copies of all spreadsheets showing the costs for labor and materials paid by Plaintiffs. e. Copy of the punchlist referred to in the Complaint. f. Copies of all bills and statements which relate to this project, which were paid by Plaintiffs. g. Copies of any memoranda of construction progress meetings between Plaintiffs and Defendant. 3. Any and all copies of all correspondence regarding the subject transaction. Date: Robert G. Radebach, Esquire 912 North River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Defendant Robert Radebach, Esquire 912 North River Road Halifax, PA 17032 717-896-2666 robradebachatty @aol.com Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA • ANDREW D. MOYER and JANICE K. MOYER, • CIVIL ACTION - LAW • Plaintiffs • v. • SCOTT D. THORNTON, • NO. 11-2647 Defendant : CERTIFICATE OF SERVICE AND NOW, December 5, 2011, I, Robert G. Radebach, Esquire, Attorney for Defendant, hereby certify that I served a copy of Defendant's First Request for Production of Documents Directed to Plaintiffs in the above-captioned matter upon Larry L. Miller, Esquire, Attorney for Plaintiffs, on December 5, 2011, by depositing the same in the United States Mail, postage prepaid in the post office at Harrisburg, Pennsylvania, addressed as follows: Larry L. Miller, Esquire 1423 State Road Duncannon, PA 17020 Robert G. Radebach, Esquire 912 North River Road Halifax, PA 17032 (717) 896-2666 I.D.# 19255 Attorney for Defendant • r. S f IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ANDREW D. MOYER and JANICE K. MOYER, CIVIL ACTION - LAW Plaintiffs V. NO. 11-2647 SCOTT D. THORNTON, Defendant ORDER S� AND NOW, this day of , 2013, upon presentation and consideration of the within Motion for Sanctions for Failure to Respond to Discovery, it is HEREBY ORDERED that Plaintiff is directed and ordered to fully and completely answer Defendant's Interrogatories within twenty (20) days of service of this Order or be subject to such sanctions, including the payment of reasonable expenses including attorney's fees incurred in obtaining the order of compliance as the Court may direct. BY E COURT, J. Distribution: obert G. Radebach, Esquire, 912 North River Road, Halifax, PA 17032 earry L. Miller, Esquire, 1423 State Road, Duncannon, PA 17020 V , =m �� LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. #28122 1423 State Road Duncannon, PA 17020 Telephone: [717 [957-2828 Attorney for Plaintiffs: ANDREW & JANICE MOYER ANDREW D. MOYER IN THE COURT OF COMMON PLEAS JANICE K. MOYER CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW Plaintiffs V. No. 11-2647 SCOTT D. THORNTON Defendant PLAINTIFFS' ANSWER TO DEFENDANT' S MOTION FOR SANCTIONS Plaintiffs, Andrew D. Moyer and Janice K. Moyer (hereinafter "Plaintiffs" ) , by and through their counsel , hereby answer Defendant' s Motion for Sanctions as follows : 1 . Admitted. 2 . Denied as stated. The Court instructed the parties to make a good faith attempt to settle the dispute before Plaintiffs proceeded with their Second Amended Complaint . However, neither Defendant nor his counsel ever made a good faith settlement offer. As a direct result, the prosecution of the case was delayed. 3 . Denied as stated. See response to Paragraph 2 which is incorporated herein by reference . By way of further response, Defendant has never properly responded to Plaintiffs' discovery. 0 4 . Admitted. However, Plaintiffs delayed proceeding with the case because of their desire to settle the case as the Court directed. WHEREFORE, Plaintiffs respectfully request that this Honorable Court deny Defendant' s Motion for Sanctions . 5 DATE: May 16, 2013 By: (YY MILLER a VERIFICATION I , LARRY L. MILLER, have prepared the foregoing ANSWER TO DEFENDANT' S MOTION FOR SANCTIONS . The factual statements contained therein are true and correct to the best of my knowledge, information and belief. I am authorized to make this Verification on behalf of my clients, Andrew D. Moyer and Janice K. Moyer. The facts set forth in therein are based upon my review of the documents and information provided by my client and/or of which I have personal knowledge as counsel for Plaintiffs . This Verification is made subject to the penalties of 18 Pa. Cons . Stat . Section 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to crimina/l p nalties . C. Date : May 16, 2013 By: LAR1zY L MILLER f. CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing PLAINTIFFS' ANSWER TO // DEFENDANT' S MOTION FOR SANCTIONS upon counsel of record this 1W th day of May 2013 , by placing the same in the United States Mail, 1ST CLASS and CERTIFIED mail, postage prepaid, addressed as follows : Robert G. Radebach, Esquire 912 N. River Road Halifax, PA 17032-9543 By: ' Larr}` L,/Mi ter OF THEP PRONG' NOTARY 2013 MAY AN11: 02 CUMBERLAND COUNTY PENNSYLVANIA LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. #28122 1423 State Road Duncannon, PA 17020 Telephone: (717[957-2828 Attorney for Plaintiff: ANDREW & JANICE MOYER ANDREW D. MOYER IN THE COURT OF COMMON PLEAS JANICE K. MOYER CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW Plaintiffs V. No. 11-26A7 SCOTT D. 'THORNTON ROBERT G. RADEBACH Defendants 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 Second Amended Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Amended Complaint or for any other claim or relief .requested by the Plaintiffs . You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 S . Bedford Street Carlisle, PA 17013 717-249-3166 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viento (20) dias de plazo al partir de le fecha de la demanda y la notificacion. Usted debe presenter una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. Sea advisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previc, adviso o notificacion y por cualquier queja o alivio que es pedido, en la peticion de demanda. Usted puede perder dinero o es propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO DUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEQUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 717-249-3166 C- DATE: May 22, 2013 By: LARRt_L/MALLER LARRY L. MILLER, ESQUIRE Pa. Supreme Court I.D. #28122 1423 State Road Duncannon, PA 17020 Telephone: [717 [957-2828 Attorney for Plaintiffs: ANDREW & JANICE MOYER ANDREW D. MOYER IN THE COURT OF COMMON PLEAS JANICE K. MOYER CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW Plaintiffs V. No. 11-2647 SCOTT D. THORNTON ROBERT G. RADEBACH Defendants SECOND AMENDED COMPLAINT Plaintiffs incorporate by reference, as if set forth herein, the averments of their Amended Complaint . COUNT III Andrew D. Moyer & Janice K. Mover V. Scott D. Thornton and Robert G. Radebach 30 . The averments of paragraphs 1 through 29 of the Amended Complaint are incorporated by reference as if set forth in full . 31 . Defendant, Scott Thornton, and his counsel, Robert G. Radebach, filed an excessive and entirely frivolous lien against Plaintiffs on September 16, 2010 at 2010-cv-1229ML in Dauphin County. 32 . Defendant and Mr. Radebach unreasonably refused to dismiss the entirely frivolous lien claim. 33 . As a result, Plaintiffs were forced to file Preliminary Objections to obtain the dismissal of the frivolous lien claim. 34 . On October 24, 2011, the Honorable Lawrence Clark dismissed the frivolous lien claim that had been filed by Defendant and Mr. Radebach. See Exhibit "A" hereto. 35. Defendant and Mr. Radebach filed the excessive and frivolous lien claim for the purposes of attempting to extort monies from Plaintiffs that were clearly not due. 36 . Defendant and Mr. Radebach knew at all times that the lien was completely frivolous and excessive . 37 . Defendant and his counsel, Mr. Radebach, maliciously presented the lien claim and refused to dismiss it . 38 . Plaintiffs suffered substantial damages directly because of Defendant' s and Mr. Radebach' s misconduct including, damages related to the frivolous lien claim, extra financing costs, legal expenses and fees, emotional distress, and damage to their reputations. 39 . Defendant and Mr. Radebach knew at all relevant times that there was no probable cause for the entirely frivolous mechanic' s lien. 2 40 . Defendant and Mr. Radebach proceeded with the lien claim with malice. 41 . Plaintiffs have a right to proceed against Defendant and Mr. Radebach pursuant to 42 Pa. Cons . Stat . § 8351 . 42 . Defendant and Mr. Radebach instituted and continued the frivolous mechanic' s lien claim against Plaintiffs' property. 43 . Plaintiffs have prevailed on the frivolous lien claim that was wrongfully filed by Defendant and Mr. Radebach. 44 . The lien was pursued by Defendant and Mr. Radebach against Plaintiffs solely to harass Plaintiffs and to maliciously injure them. 45 . At all times relevant hereto, Defendant and Mr. Radebach knew that the lien claim was excessive, frivolous, and entirely without probable cause . WHEREFORE, Plaintiffs demand an award of all damages they suffered because of Defendants' misconduct plus, punitive damages . COUNT IV Andrew D. Mover & Janice K. Moyer V. Scott D. Thornton and Robert G. Radebach 46 . The averments above are incorporated by reference as if set forth in full . 3 47 . Defendant and Mr. Radebach used the mechanic' s lien law for an improper purpose . 48 . Defendant and Mr. Radebach used the mechanic' s lien law to harass Plaintiffs on a frivolous claim and thereby harmed Plaintiffs . 49 . Defendant and Mr. Radebach used the lien claim as a weapon to attempt to coerce Plaintiffs into paying an entirely frivolous claim. 50 . Defendants and Mr. Radebach are liable to Plaintiffs for the damages suffered because of their abuse of process . 51 . Defendant's and Mr. Radebach' s misconduct was egregious. 52 . Defendant and Mr. Radebach' s legal position was specious . 53 . Defendant and Mr. Radebach wilfully ignored controlling law. 54 . Defendant and Mr. Radebach proceeded with the lien claim even though there was obviously no colorable claim. 55 . Plaintiffs have suffered substantial damages including, damage to their reputations, emotional distress, substantial fees and expenses, and extra financing costs . 56 . Defendant and Mr. Radebach pursued the lien against Plaintiffs property primarily to harm Plaintiffs and to cause injury to Plaintiffs. 4 57 . Defendant and Mr. Radebach proceeded with the lien claim simply to harass Plaintiffs and to cause them to suffer emotional and financial harm. 58 . Defendant' s and Mr. Radebach' s misconduct was reprehensible and outrageous . . WHEREFORE, Plaintiffs demand an award of all damages they suffered because of Defendants' misconduct plus, punitive damages . COUNT V Andrew D. Moyer & Janice K. Mover V. Scott D. Thornton and Robert G. Radebach 59 . The averments above are incorporated by reference as if set forth in full . 60 . Defendant and Mr. Radebach disparaged and defamed Plaintiffs' title by making the false and malicious lien filing. 61 . Defendant and Mr. Radebach acted with malice. 62 . Plaintiffs are lawful owners of 570 Margate Road, Harrisburg, PA. 63 . Defendant and Mr. Radebach maliciously filed a frivolous lien against the real property on September 16, 2010 . 64 . The excessive and frivolous lien caused Plaintiffs substantial damages including, the inability to refinance and substantial attorney' s fees and expenses. 5 65 . The lien filed by Defendant and Mr. Radebach was false and frivolous. 66 . The lien was filed of public record by Defendant and Mr. Radebach. 67 . The lien was relied upon by others, as intended by Mr. Radebach and Defendant, as being valid. 68 . The persons relying upon the lien understood the ramifications of the lien, as intended by Defendant and Mr.. Radebach. 69. Plaintiffs suffered pecuniary loss as a result of Defendant' s and Mr. Radebach' s malicious filing of the lien. 70 . Defendant and Mr. Radebach knew at all times that the lien was false and frivolous. 71 . Defendant and Mr. Radebach pursued the lien claim in bad faith and with ill will . 72 . Defendant and Mr. Radebach intended to and succeeded in affecting Plaintiffs' interests in an unprivileged manner. 73 . Defendant and Mr. Radebach abused any conditional privileges. 74 . Defendant and Mr. Radebach slandered Plaintiffs' good title. 75 . Defendant and Mr. Radebach intentionally filed the fraudulent lien against Plaintiffs, property. 6 76 . Defendant and Mr. Radebach filed the lien that was derogatory to Plaintiff' s title to property in an effort to prevent others from dealing with the Plaintiffs. 77 . Defendant and Mr. Radebach caused special damages to the Plaintiffs and acted with ill will and malice. 78 . The frivolous lien that Defendant and Mr. Radebach filed had an effect upon alienation and was a cloud on Plaintiffs' title from September 16, 2010 through October 24, 2011 . 79. Defendant and Mr. Radebach filed the mechanic' s lien as leverage with the intent to force Plaintiffs into negotiating an unfair settlement . 80 . Defendant and Mr. Radebach acted with intentional disregard of Plaintiffs, rights . 81 . Defendant and Mr. Radebach violated the trust' inherent in the lien law when they used the lien statute in an effort to extract money from Plaintiffs who clearly owed nothing to Defendant Thornton. WHEREFORE, Plaintiffs demand an award of all damages suffered because of Defendants' misconduct plus, punitive damages. DATE: May 22 , 2013 By: LARR , IJ —MILLER 7 SCOTT D. THORNTON, : IN THE COURT OF. COMMON PLEAS Plaintiff : DAUPHIN COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW ANDREW D. MOYER and JANIGE K. : MOYER ' Defendants : NO. 2010 CV 12029 MLA ' s -�'=7- Lx^^1 i ORDER " r, AND NOW, to wit, this 24th day of October, 2011 , upon review of the Plaintiff ' s Mechanic ' s Lien Claim, together with the Defendants ' Preliminar.y. Objections to Mechanic ' s Lien Claim , and all of the subsequently filed pleadings, IT IS HEREBY ORDERED that Objections III and IV of the Defendants ' Preliminary Objections must be SUSTAINED; and consequently, the Plaintiff ' s Mechanic' s Lien Claim must, be STRICKEN for the following reason : the Plaintiff failed to comply with the provisions of 49 P.S. §§ 1503(5) and 1503(6) . Because the required relief for the Defendants is complete by sustaining Objections III -and IV, the other Objections are rendered moot and require no further action by the Court . The Defendants have directly attacked the - Plaintiff' s .Mechanic' s Lien filed in this case, and have raised several issues of law as reasons for striking the Lien ; but the Lien must ultimately fail as a result of Plaintiff' s failure to fully adhere to the statutory requirements under the Lien Law. 49 P.S. §§ 1503(5) and 1503(6) provide that the claim shall state: EXHIBIT A (5) if filed by a contractor under a contract or contracts for an agreed sum, an identification of the contract and a general statement of the kind and character of the labor or materials furnished; (6) in all other cases than that set forth in clause (5) of this section, - a detailed statement of the kind and character of the labor or materials furnished, or both , and the prices charged for each thereof . The Plaintiff has undoubtedly failed to identify . the contract , failed to generally state the kind and character of labor or materials furnished and, in the alternative, has clearly failed to provide any detailed statement as to, the ,kind and character of the labor or materials furnished and the prices charged for each . Thus, the Plaintiff ' s Mechanic ' s Lien Claim is invalid on its face because the work performed was not detailed as required by 49 P.S. §§ 1503(5) and 1503(6) . "It is well established that strict compliance with the Mechanic' s Lien Law is necessary in order to effect a valid claim. " Flick Construction , Inc . v. Dyke, 584 A.2d 1033 (Pa. Super. 1991 ) (citing Brann & Stuart Company v. Consolidated Sun Ray., Incorporated, 253 A.2d 105 (1969) ) . The scat-utory provisions in mechanic' s lien cases are to be mechanically applied, in that, the courts have attributed significant importance in maintaining strict compliance - with the Lien Law requirements . 2 THEREFORE, as a result of the facial deficiency of the Plaintiff ' s Mechanic' s Lien Claim , said Claim must be STRICKEN and the Prothonotary is HEREBY ORDERED TO STRIKE the Lien from the Docket . ISSUED AT HARRISBURG, the date first above written . BY THE COURT: L wrence F. Clar , Jr. , Judge 00 12 4 ZV hereby oertiO that the foregoing is e true and cormW oopy of the origmW Prothon tart' DISTRIBUTION: Robert Radebach, Esquire, 912 North River Road, Halifax, PA 17032 Larry L. Miller, Esquire, 1423 State Road, Duncannon, PA 17020 Prothonotary, Dauphin County FILE 3 VERIFICATION I, ANDREW D. MOYER, have read the foregoing SECOND AMENDED COMPLAINT. The factual statements contained therein are true and correct to the best of my knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa. Cons. Stat. Section 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. ,!�':�� Date: May 22, 2013 By= = - DItW D. MOYER I II . CERTIFICATE OF SERVICE i I HEREBY CERTIFY that I served a true, and correct copy of the foregoing SECOND AMENDED COMPLAINT upon Defendants this day i of May 2013 , by placing the same in the United States Mail , 1sT CLASS and CERTIFIED mail, postage prepaid, addressed as follows : Robert G. Radebach, Esquire 912 N. River Road Halifax, PA 17032-9543 III I By: Larry L. ller I I cd w`1 r -e- r i I� I I I �I i