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HomeMy WebLinkAbout11-4943WILSON PAVING, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. ; NO. //- A19Y3 CIVIL 2011 BURCZAK PAVING COMPANY, Defendant NOTICE WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 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 of relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY WE) LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR-N&F arc 'z' Cz Cumberland County Bar Association C„r-- r7'; ?a -r, 32 South Bedford Street w Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 t zir -4 ; Wa F. Shade, Esquire Supreme Court No. 15712 53 West Pomfret Street Carlisle, Pennsylvania 17013 Telephone : 717-243-0220 Attorney for Plaintiff WILSON PAVING, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW V. NO. CIVIL 2011 BURCZAK PAVING COMPANY, : Defendant : COMPLAINT 1. Plaintiff WILSON PAVING, INC., is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania and operating under the registered fictitious name of Wilson Paving, with offices at 480 West Old York Road, Carlisle, Cumberland County, Pennsylvania 17015. 2. Defendant BURCZAK PAVING COMPANY is believed to be a corporation organized and existing under the laws of the State of Tennessee with offices at 3620 East End Drive, Humboldt, Tennessee 38343. 3. On or about November 18, 2010, Defendant purchased from Plaintiff, under an WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 oral agreement, asphalt materials consisting of 52 gallons of Pac at $4.00 per gallon, 249.96 tons of 9.5 mm wearing at $62.00 per ton, and 93.94 tons of 9.5 mm wearing delivered at $69.00 per ton for the sum of Twenty-Three Thousand Five Hundred Eighteen and 62/100 ($23,518.62) Dollars. R 4. The asphalt materials were delivered F.O.B. by Plaintiff to Defendant, at the instructions of Defendant, on or about November 18, 2010, to the location of Love's Travel Stops & Country Stores, Inc. at 1165 and 1167 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania 17015. 5. Plaintiff posted its invoice therefor to Defendant on November 19, 2010. 6. The terms of payment were net within fifteen days of the date of the invoice. 7. After Defendant failed to make payment within fifteen days of the date of the invoice, Plaintiff repeatedly demanded payment. 8. Defendant refused to make payment until Defendant posted its check number 1836, dated March 11, 2011, to Plaintiff in the amount of $23,518.62. 9. Plaintiff made timely presentation of Defendant's check within less than thirty days of the date of issue, but payment was refused by the drawee for lack of funds. WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 -2- 10. After Defendant tendered the bad check to Plaintiff, Plaintiff issued its Subcontractor's Notice of Intention to File a Mechanic's Lien Claim on April 18, 2011. 11. When Plaintiff served its Subcontractor's Notice of Intention to File a Mechanic's Lien Claim upon Defendant, Plaintiff demanded interest under the Pennsylvania Contractor and Subcontractor Payment Act in the then amount of Nine Hundred Forty and 74/100 ($940.74) Dollars. 12. When Plaintiff served the Notice of Intention to File a Mechanic's Lien Claim upon Defendant, Plaintiff also made it clear to Defendant, in writing, that interest would continue to accrue at the rate of one (I%) percent per month or fraction of a month after April 26, 2011, and that if it would be necessary for Plaintiff to institute litigation to enforce its claims, there would also be penalties and counsel fees under the Pennsylvania Contractor and Subcontractor Payment Act. 13. On May 12, 2011, Defendant wired to counsel for Plaintiff the sum of $23,518.62, but there were no funds for interest. WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 -3- 14. On May 16, 2011, counsel for Plaintiff notified Defendant, in writing, that Plaintiff was pursuing its claims against Defendant for interest and that, by May 16, 2011, the interest was One Thousand One Hundred Seventy-Five and 93/100 ($1,175.93) Dollars. 1.5. In the same written notice of May 16, 2011, Plaintiff notified Defendant that, if Plaintiff had not received the interest by the close of business on May 26, 2011, Plaintiff would be filing suit against Defendant for the interest and the statutory penalties and counsel fees as provided under the Pennsylvania Contractor and Subcontractor Payment Act. 16. Defendant has not paid the interest due to Plaintiff under the Pennsylvania Contractor and Subcontractor Payment Act. 17. The penalty for Defendant's failure to comply with the Pennsylvania Contractor and Subcontractor Payment Act is one (I%) percent of the contract amount per month from December 26, 2010. WHEREFORE, Plaintiff demands judgment against Defendant in an amount less WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 than Fifty Thousand and No/ 100 ($50,000.00) Dollars for the interest, penalties, attorney -4- Pr fees, and court costs as provided under the Pennsylvania Contractor and Subcontractor Payment Act. Wayn F. Shade, Esquire Supreme Court No. 15712 53 West Pomfret Street Carlisle, Pennsylvania 17013 Telephone: 717-243-0220 Attorney for Plaintiff WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 -5- I, WARD L. WILSON, verify that I am the President of Wilson Paving, Inc., trading and doing business under the fictitious name of Wilson Paving, the Plaintiff herein, that I make this verification on its behalf being authorized to do so and that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unworn falsification to authorities. Date: June 10, 2011 Ward L. Wils n WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 FILED-OFFIOE ''F THE PR0TH0ti0 Al WILSON PAVINE!1,23 AM (f' SIN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUN-,;CUMBERLAND COUNTY, PENNSYLVANIA PENNSYLVANIA : CIVIL ACTION - LAW V. NO. 11-4943 CIVIL 2011 BURCZAK PAVING COMPANY, Defendant AFFIDAVIT OF SERVICE WAYNE F. SHADE, ESQUIRE, certifies that he is counsel for Plaintiff in the above-captioned matter, that he did, on June 14, 2011, serve the Complaint in the above- captioned matter upon Defendant Burczak Paving Company by certified United States mail, postage prepaid, return receipt requested, addressee only, and that the same was received by Defendant on June 17, 2011, as evidenced by the return receipt card attached hereto bearing Certified No. 70012510000658614172. It is understood that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Date: June 20, 2011 Div Wayn . Shade WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 ru - - ----------- L T 7-- Postage 3 64 Ln Certified Fee 2.85 J t1mJ Return Receipt Fee 2 goo O (Endorsement Required) 2.30 ? Restricted Delivery Fee (Endorsement Required) -„_ a Total Postage & Fees 1$5.79 1 Iq U7 Sert o urczak Paving Caan------------ _-_ ? - -------- Box J2-3 treet, Apt No.; s O or PO Box No. ?1? -?S??3_t -_i'II?._ ?.X ------------------- a °''p' Humboldt, TN 38343 E EZ AWt a P*t SbowW4 +. I I solrt,al. as nnrn t I IIIIIIIII 8. ftook by (MMId S Aft* MW cod ft ft bftk d *W""l or d? le t ?i P a IB 411110MY 1. Ar"* Addihesed to: R YOB, der QaNaery bskrvr: E3 No Mr. . Russell J. BurczakAJr Burczak Paving Co any`' P.O. Box 323 3620 East End Drive Humboldt, TN 383+3 " ®OWSW ma 137 sMil C3 MOM -1 0 Return Reaek* f& Mwdwow C1 W,*jW Mall Q C.O.D. 4. ROrWW ?~ X*' Fief 13 Yes 2. Ar"*Knbw 2Z2h T9ipS 9{100 OT52 R00Z arvfar aalc1eiF m ?_ • . - WILSON PAVING, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. `l NO. 11-4943 CIVIL 2011 ? z BURCZAK PAVING COMPANY, =M ?, r=- '? Defendant ? - fV -.L r -G PRAECIPE FOR DEFAULT JUDGMEN' ? 3 1-17 TO: DAVID D. BUELL, PROTHONOTARY -,. Please enter judgment in favor of Plaintiff and against Defendant in the above matter in the amount of $1,175.93 for statutory interest, $1,059.30 for statutory penalties, ?'"'$ ti a,3 S. ? 3 pw? a ? Shades and for liability for counsel fees, together with costs, all under the Contractor and Subcontractor Payment Act, for failure of Defendant to plead within twenty (20) days from the date of service of the Complaint. It is certified that Notice of Intention to Enter Default Judgment has been given in accordance with Rule 237.1 of the Pennsylvania Rules of Civil Procedure. A copy of said Notice is attached hereto. Date: August 12, 2011 t YJ4 Y-U- 2 ? L , , - Wayne F. ade, Esquire Supreme Court No. 15712 53 West Pomfret Street Carlisle, Pennsylvania 17013 Telephone: 717-243-0220 Attorney for Plaintiff WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 Gcvv&a ?y 00 l°a ?,?ab3?? s "a YY1a? 1ec? WILSON PAVING, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. NO. 11-4943 CIVIL 2011 BURCZAK PAVING COMPANY, Defendant NOTICE OF INTENTION TO ENTER DEFAULT JUDGMENT TO: Burczak Paving Company Date of Notice: July 19, 2011 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: 717-249-3166 Wayne . Shade, Esquire Supreme Court No. 15712 53 West Pomfret Street Carlisle, Pennsylvania 17013 Telephone: 717-243-0220 Attorney for Plaintiff WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 WILSON PAVING, INC., : IN THE COURT OF COMMON PJ?Effi OF Plaintiff : CUMBERLAND COUNTY, PQ S?,VATIA CIVIL ACTION - LAW M ?°, V. r- °' ?Jd cs NO. 11-4943 CIVIL 2011 , BURCZAK PAVING COMPANY, : > C- a Defendant -; : d; C„ PETITION FOR APPOINTMENT OF ARBITRAf Olk§ ,j TO THE HONORABLE, THE JUDGES OF SAID COURT: WAYNE F. SHADE, ESQUIRE, counsel for Plaintiff WILSON PAVING, INC. in the above-captioned action, respectfully represents, as follows: 1. The above-captioned matter is at issue. 2. The claim of Plaintiff is for an unliquidated amount for attorney fees and court costs of less than $5,000 for statutory attorney fees and court costs under the Pennsylvania Contractor and Subcontractor Payment Act. 3. Plaintiff has a default judgment for statutory interest and statutory penalties which has not been appealed. 4. Defendant has neither entered an appearance nor any defense. 5. There are no other attorneys interested in this matter as counsel or otherwise WAYNE F. SHAD] Attorney at Law 5 South Hanover Stre( Carlisle, Pennsylvani 17013 who would be disqualified to sit as arbitrators. WHEREFORE, Petitioner prays that your Honorable Court appoint three (3) tL? %,94. CA fa arbitrators to whom the case shall be submitted. OL Date: October 6, 2011 Wayn F. Shade Attorney for Plaintiff WILSON PAVING, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW V. NO. 11-4943 CIVIL 2011 BURCZAK PAVING COMPANY, Defendant OATH We do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that we will discharge the duties of our office with ? )4? - rAAW1_ Robert P. Kline, Esquire Karl E. Rominger, Esquire E izZet D. Snover, Esquire Chairman 155 South Hanover Street 301 Street P.O. Box 461 Carlisle, PA 17013 Lemoyne, PA 17043 New Cumberland, PA 17070 AWARD We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay are awarded, they shall be separately stated.) In favor of Plaintiff and against Defendant in the amount of $4,351.79 for counsel fees plus court costs. This award is in addition to the statutory interest in the amount of $1,175.93 and the statutory penalties in the amount of $1,059.30 under the Contractor and Subcontractor Payment Act, 73 P. S. § 501, et seq., for which Plaintiff has default judgment against Defendant. Date of Hearing: December 15, 2011 Date of Award: December 1'5-, 2011 itrator, disc ts. sert n me if applicable.) Robert . K me, Esquire, chairman Karl E. minger, Esquire Eli bet . Snover, Esquire NOTICE OF ENTRY OF AWARD NOW, the /644 day of December, 2011, at 9 : _?9 /9 .M., the above award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. A.daitrator's compensation to be paid upon appeal: o ry $ 350 , co By: Deputy ?l ? ?/t??' ?r / 1L f n p?PS yna.leai )a 1 ?? i„p3 { Apr a- WILSON PAVING, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW V. NO. 11-4943 CIVIL 2011 -P BURCZAK PAVING COMPANY , rnm C_ Defendant''' f o -? PRAECIPE FOR JUDGMENT c:' ;C_. TO: DAVID D. BUELL, PROTHONOTARY r ..n Please enter judgment in favor of Plaintiff and against Defendant in the award of the arbitrators of December 15, 2011, in the amount of $6,587.02 plus court costs. Date: January 20, 2012 z °?_ Wayne F. Shade, Esquire Supreme Court No. 15712 53 West Pomfret Street Carlisle, Pennsylvania 17013 Telephone: 717-243-0220 Attorney for Plaintiff WAYNE F. SHADE Attorney at Law 53 West Pomfret Street Carlisle, Pennsylvania 17013 00k s1 LO .SZ pa OU ek 31?0 - aU01