HomeMy WebLinkAbout01-3291 NOTICE OF APPEAL
COMMONWEALTH Of PENNSYLVANIA
CQURT Of COMMON PLEAS r-RO~
Cumberland County
JUDICIAL DISTRICT DISTRICT JUSTICE JUDGMENT
COMMONPLIASN~ 01-3291 C/V1%
NOTICE OF APPEAL
Notice is given 1hat 1he aps~lant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the Distdcl' Justice an the
dote and in fha case mentkmed b4dov, c
~ilhelm & Kruse, Inc.
A~X]IES~ OF ~ QTY STAT~ ZF COOE
98 A~ttsbury Place, Rankin, PA 15104
4/30/01 Harsco Corporation v. Wilhelm & lrus~, Inc.
CV O00000D-D1
LT
This block wilt be ~]ned ONLY when ~.is .om~an is required urger P= R£P. JJ~. N= /f ~op~nt was CLAIMANT (see Pa. B~.P.J.P.
1008B. 1 O01 ( 6 ) in action before District Justice, he MUST
Thb Notice of Appeol, when receEvm:l by the District Justice. will operate Qs =
SUPERSEDEAS to t~e judgment for possessk~ in t~is cas~ FILE A COMPLAINT within twenty (20) clays after
filing his NOTICE of APPEAL.
Signab~e of Prothono~y or Deputy
PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE
(This section of form to be used ONLY when a,o;ellant was DEFENDANT (see Pa. R.C.P.J.P. No. 1001(7) in action betore Dist~t Justice.
IF NOT USED, detach from copy of notice of appeal to be served upon appellee].
PRAECIPEz To
Enter ~ upon Harsco Corporation , appellee(s), to file a complaint in ~s =pped
(C~*nmm ~ I~ 01-3291 CTv'/L, ~ ) wilhln twenty (20) d~/$ a ~r service of rule ~ entry of judgment of nan pros.
RULEz la ttareco Corporation .
(2) If you do not file a complaint within this time, o JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU.
AOPC3'I2-90 COURT FILE TO BE FILED WITH PROTHONOTARY
t:'ROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPL. AiNT
' ~ (- ' c~ ,::.: ..>
~ ~ ~~ ~'.'...
· :~>.. .-.
~ENT ~Y: ~LHELM&KRUSE; ~ 412 271 4t~9; MAY-~-~.~t0:I~U; PAGE 2/2
C~MONWEALTH Of PENNSYLVANIA NOTICE OF JUDGMENT~RANSCRI~
COUN~ OF: Cb~ CIVIL CASE
09 ' 1' O~ ~ ~
,~-a,~: ~,. 1011 ~
ROB~ V. ~ ~zd~G, PA 17043
~ HZ~, ~A VS.
DEFENd: ~c
~,,~:~717) 761'0583 17011'0000 C~ ~ ~,
~B ~BB~ P~ ~No.: ~-O0000go-o~
~, PA 15104 Date FJJe~: 3/23/01
I
,s TO .O ,Y YOU
~' .... J~nt: ............ ~ ~"~ ~ .........
~ du~meflt ~ entered tot: (Na~)
~ Judgment ~s enmmd against: (N~e) MTT.~Y~ A ~; ~
in the amount o1S 2,11~ ~ on: (Date of J~mem)
~ Defendants are joi~N and ~verelly liable. (Date &
' ~ 'D~ages will ~ asses~ ~: . ;Am~nt'ol Judg~nt
Judgment Costs $ e3 · 00
Interest on Judgment$ .00
~This case ~ismiss~ without prejudi~. ;A~orney ~es S .00
Total
~ Amount of Judgment Subj~ ~
A~achmenFAct 5 of 1~06 $~ Post J~ent Cr~its
Post J~ent Cos~ $
~ Levy is stayed ~r days or ~ generally stave~. ==_~=====_~
~led Judgment Total
~ ~lon to law h~ ~fl fll~ a~ ~wing will ~ held:
Date: Pl~e:
Time:.
ANY PARTY HAS THE RIGHT TO APPEAL WITHIN ~0 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE
OF APPEAL WI'fl'l THE PRO'IHONOTARY/CLERK OF THE COURT OP COMMON PLEAS, CIVIL DIVISION. YOU
MUST INC/L4'JDE~ COPY OF T~ J UI~[,~'/F~IPT F~i~:IM W1TH YOU R NOTIC E~ OF AP PEAL.
I--rf----,~- / ' ','r --~ , ~' .' ',' 'j
My commission expires first Monday of January, :2006 . .
· COMMONWEALTH Of PENNSYLVANIA
COURT OF COMMON PLEAS F:RO~ ;
JUOICIAL iNSTRICT DISTRICT JUSTICE JUDGMENT
COMMON PLEAS N~ 01-3291 CIVZL
NOTICE OF APPEAL
Notice is given that the appellant has flied in the above Court of Common Pleas an a/vpeal ham the judgment rendered by the Dish'ict Justice an the
dam and le the case men,amd b4gaw.
~ar, ss o~ ,u~u.~n ow s~^~
',".:. ~ ~;ar$co Corporactort v. l~llhelTe & l~.rUr~lq, Inc.
LT
Thk ~ wll be skj(~l C~LY when ~s noto~:~ is mq~Jirucl ,rider Pa. R.C~.J.P. I~. If a~pel~"/t wa~ CLAIMANT (~e/:~. R.C.~J.P. No.
1008B,
This Notk:e of Appeal. when recelv~cl by the DistTict Justice, will operate as alO01( 6 ) in action before District Justice, heMUST
SUPERSEDEAS to the judgment for possession in this cas~ FILE A COMPLAINT within twenty (20) clays after
filing his NOTICE of APPEAL.
~ =[ Ro#mnota~ or Deputy
PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE
(This section of form to be used ONLY when appellar~ was DEFENDANT (see Pa. R.C.P.J.I~ No. 1001(7) in action before Disbar Justice.
IF NOT USED, de~ech trom copy of noUce of appeal to be served upon appellee).
PRAECIPE= To Pruthmotary
Enter rule upon ~*l~z=sco Co~po=aclon . appellee(s), to file a complaint in ~ appeal
(Common Pbce ~ 01-3291 CIV7/, ~ ) within twenty (20) days after service of rule or,~/~r envy of judgment of non pros.
RULE: To 1.tarsco Corporat'ion , appellee(s).
(1) Yo~ ore notified thc, o role is he~a~y eflmed upon you to file a complaint in this appel ~ iv,~t¥ (20) c~s oft~r the date of
{2) If you do not fib a co,w~nt wi~in this time. a JUDG~NT OF i',lOH PROS WILL BE ENTERED AGA~T YOU. · ' .
(3) The chte of serv~:e of this rule it s, Kv*;,:e wce by mo,'l is the date of maili - ". '~' '?
^oPc ~2-9o ~t, JRl' FILE
SERVICE OF NOTICE': OF A~-~PEAL AND RULE TO FiLE CO~Pt. AINT
.. .,, ,,, ,. o~-~1, ,, . ,... , .
Io
HARSCO CORP, REED MINERALS DIVISION : IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : NO. 01-3291 CIVIL TERM
WILHELM & KRUSE, INC. : CIVIL DIVISION - LAW
Defendant :
NOTICE
YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIM SET FORTH IN THE
FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE
ARE SERVED, BY ENTERING A WRITFEN APPEARANCE PERSONALLY OR BY AN Aq-FORNEY AND FILING IN WRITING
WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE
WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE
ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE
COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR
PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A
LAWYER OR CANNOT AFFORD ONE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW
TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
TWO LIBERTY AVENUE
CARLISLE PA 17013
(717) 249-3166
NOTICA
LE HAN DEMANDADO A USTED EN LA CORTE. SI USTED QUIERE DEFENDERSE DE ESTAS DEMANDAS
EXPUESTAS EN LAS PAGINAS SIGUIENTES, USTED TIENE VEINTE (20) DIAS DE PI.AZO AL PARTIR DE LA FECHA
DE LA DEMANDA Y LA NOTIFICACION. USTED DEBE PRESENTAR UNA APARIENClA ESCRITA O EN PERSONA O POR
ABOGADO Y ARCHIVAR EN LA CORTE EN FORMA ESCRITA SUS DEFENSAS O SUS OBJEClONES A LAS DEMANDAS
EN CONTRA DE SU PERSONA. SEA AVISADO QUE SI USTED NO SE DEFIENDE, LA CORTE TOMARA MEDIDAS Y
PUEDA ENTRAR UNA ORDEN CONTRA USTED SIN PREVIO AVlSO O NOTIFICACION Y POR CUALQUIER QUEJA O
ALIVIO QUE ES PEDIDO EN LA PETIClON DE DEMANDA. USTED PUEDE PERDER DINERO O SUS PROPIEDADES O
OTROS DERECHOS IMPORTANTES PARA USTED.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO (3
SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVIClO. VAYA EN PERSONA O LLAMF
POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABA JO PARA
AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENClA LEGAL.
CUMBERLAND COUNTY BAR ASSOCIATION
TWO LIBERTY AVENUE
CARLISLE PA 17013
(717) 249-3166
HARSCO CORP, REED MINERALS DIVISION : IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
v. : NO. 01-3291 CIVIL TERM
:
WILHELM & KRUSE, INC. : CIVIL DIVISION - LAW
Defendant :
The Plaintiff, HARSCO CORP, REED MINERALS DIVISION, by its attomeys, KNUPP, KODAK & III~BLUI~, P.C.,
bring this action of Assumpsit against the Defendant to recover the sum of TWO THOUSAND, FIVE HUNDRED FORTY-FOUR
DOLLARS AND ONE CENT ($2,544.01), along with interest thereon at the rate of one and one half percent (1 1/2%) per month
from December 31, 2000 upon a cause of action of which the following is a statement:
1. The Plaintiff, HARSCO CORP, REED MINERALS DIVISION, is a corporation having an office and place of
busineas at P.O. Box 1071, Butler, PA 16003-1071.
2. The Defendant, WILHELM & KRUSE, INC., is a corporation having an office and place of business at 98
Antisbury PL, Rankin, PA 15104.
3. On or about July 25, 2000, Defendant applied for an account with Plaintiff. The Application for Account is
hereto attached at Exhibit "A" and made a part hereof.
4. The a~orementioned Application for Account was approved at Plaintiff's Wormleysburg, Cumberland County,
PA office and Plaintiff subsequently sold materials to Defendant in accordance with the approved Application.
5. The sale of aforementioned materials to Defendant created a balance due and owing, including applicable
service cha~ges, in the amount of TVVO THOUSAND, FIFTY-THREE DOLLARS AND SIXTY-SEVEN CENTS ($2,053.67).
6. Defendant subsequently defaulted on the payments for the materials sold.
F:\USER~RIIGCOMP~WORK~7291APP.WPD:I4Jun01
7. The balance due and owing by Defendant to Plaintiff is the sum of TWO THOUSAND, FIFTY-THREE
DOLLARS AND SIXTY-SEVEN CENTS ($2,053.67), as appears by the Statement of Account hereto attached, made a part
hereof and marked as Exhibit "B".
8. Due to Defendant's default in payment of said amount due and owing as aforesaid, attorney's fees have been
added to said aocount in the total amount of FOUR HUNDRED SEVEN DOLLARS AND THIRTY-FOUR CENTS ($407.34)
in accordance with the signed Application For Account attached at Exhibit "A."
9. Due to Defendant's default in payment, Plaintiff was forced to file suit in District Justice Court 09-1-02 thereby
incurring further costs in the amount of EIGHTY-THREE DOLLARS ($83.00).
10. Plaintiff has frequently demanded payment from Defendant of said amount due and owing as aforesaid, but
Defendant has refused and neglected and still refuses and neglects to pay said amount of any part thereof.
WHEREFORE, Plaintiff bdngs this suit to recover from Defendant the sum of TVVO THOUSAND, FIVE HUNDRED
FORTY-FOUR DOLLARS AND ONE CENT ($2,544.01), along with interest thereon at the rate of one and one half percent
(1 1/2%) per month from December 31, 2000.
Respectfully submitted,
Robert D. Kodak
407 North Front Street
Post Office Box #11848
Han'isbu~g, PA 17108-1848
(717) 238-7151
Attorney ID No. 18041
Attorney for Plaintiff
F:\USER~RIK~COMFAVVORK~27291APP.VVPD: 14Jun01 2
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HAWI~Q I~{IP, I~ M{MEWAI,,{ {)IMIBIOM
::~ISEIN~iK~.~MI~WDR k'~'/~81APp.WPD:14.1.n01
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
HARSCO CORP, REED MINERALS CIVIL DIVISION
DIVISION,
No: 01-3291
Plaintiff,
PRELIMINARY OBJECTIONS
v. TO PLAINTIFF'S COMPLAINT
INCLUDING AN OBJECTION TO
WILHELM & KRUSE, INC., VENUE
Defendant.
Filed on behalf of Defendant:
WILHELM & KRUSE, INC.
Counsel of Record for this Party:
Robert J. Blumling, Esquire
PA I.D. #37943
David A. Levine, Esquire
PA I.D. #65676
William J. Meyer, Esquire
NOTICE TO PLEAD: PA I.D. #82603
TO: Plaintiff BLUMLING & GUSKY, LLP
Firm #458
You are hereby notified to file a written 1200 Koppers Building
response to the enclosed Preliminary Pittsburgh, PA 15219
Objections within twenty (20) days from
service bereofor a default judgment may be (412) 227-2500
entered against you.
{ 20043.03/25386
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
HARSCO CORP, REED MINERALS DIVISION, ) CIVIL DIVISION
)
Plaintiff, ) No: 01-3291
)
v. )
)
WILHELM & KRUSE, INC.,
)
Defendant. )
ORDER OF COURT
AND NOW, this day of ,2001, upon consideration of Defendant's
Preliminary Objections to Plaintiffs Complaint Including an Objection to Venue, it is hereby ORDERED,
ADJUDGED and DECREED that:
I. Defendant's First Preliminary Objection is sustained and Plaintiff's Complaint is hereby
removed from this Court and transferred to the Court of Common Pleas of Allegheny County, and
Plaintiff is further ORDERED to pay all costs and fees associated with said removal and transfer;
2. Defendant's Second Preliminary. Objection is sustained and Plaintiffs Complaint is
dismissed, with prejudice;
3. Defendant's Third Preliminary Objection is sustained and Plaintiff's Complaint is
stricken, with prejudice:
4. Defendant's Fourth Preliminary Objection is sustained and Plaintiffs Complaint is
stricken, with prejudice; and
5. Defendant's Fifth Preliminary Objection is sustained and Plaintiffs Complaint is stricken,
with prejudice.
By the Court:
J.
{20043.03/253861:}
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
HARSCO CORP, REED MINERALS ) CIVIL DIVISION
DIVISION, )
) No: 01-3291
Plaintiff, )
)
v. )
)
WILHELM & KRUSE. INC., )
)
Defendant.
PRELIMINARY OBJECTIONS TO PLAINTIFF'S
COMPLAINT INCLUDING AN OBJECTION TO VENUE
NOW COMES Defendant, Wilhelm & Kruse, Inc. ("Wilhelm & Kruse"), by and through
its undersigned counsel, Blumling & Gusky, LLP, and files the following Preliminary Objections
to Plaintiff's Complaint Including an Objection to Venue in the above-captioned matter, and in
support thereof states as follows:
BACKGROUND FACTS
1. On or about June 19. 2001. Plaintiff initiated the above-captioned lawsuit by
filing a Complaint against Wilhelm & Kruse.
2. In its Complaint, Plaintiff sets forth an action in assumpsit against Wilhelm &
Kruseo
3. In response to Plaintiffs Complaint, Wilhelm & Kruse files the following
Preliminary Objections.
{20043.03/253861 :}
FIRST PRELIMINARY OBJECTION:
PLAINTIFF'S CAUSE OF ACTION MUST BE TRANSFERRED
PURSUANT TO PA. R. CIV. P. 1006(e) DUE TO IMPROPER VENUE
4. AIl of the foregoing paragraphs arc incorporated heroin by reference as if fully set
forth.
5. Pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(1). a preliminary
objection may be asserted for improper venue.
6. The Pennsylvania Rules of Civil Procedure clearly set forth the grounds upon
which venue is proper for claims brought against corporate defendants. See Pa. R. Civ. P.
2179(a).
7. Under the Pennsylvania Rules of Civil Pmcednre, venue in this cause of action is
not propor in Cumberland County.
8. Pursuant to Pennsylvania Rule of Civil Procedure 2179(a)~ venue is improper in
this County for all claims raised by Plaintiffagainst Wilbelm & Kruse.
9. Rule 2179(a) clearly sets i'brth the necessary elements required to establish proper
venue against a corporate defendant such as Wilhelm & Kruse:
A personal action against a corporation.., may be brought in and
only in
(I) the county where its registered office or principal
place of business is located;
(2) a county where it regularly conducts business;
(3) the county where the cause of action arose: or
(4) a county where a transaction or occurrence took place
out of which the cause of action arose.
2
20043.03/253861; }
10. Plaintiff cannot establish venue under Rule 2179(a).
11. Wilhelm & Kruse does not. and never did, have its registered office or principal
place of business in Cumberland County.
12. Wilhelm & Kruse does not, and never has, regularly conduct(ed) its business in
Cumberland County.
13. Furthermore, Plaintiffs cause of action against Wilhelm & Kruse did not arise in
Cumberland County, nor can Plaintiffassert any facts to the contrary.
14. Also, no transaction or occurrence took place in Cumberland County out of which
Plaintiff's causes of action against Wilhelm & Kruse allegedly arose.
15. Plaintiff attempts to establish proper venue in this County by alleging that an
Application for Account was approved by Plaintiff in this County.
16. However, Wilhelm & Kruse never contacted Plaintiff in Cumberland County, and
at no time did any relevant transaction or occurrence take place between Plaintiffand Wilhelm &
Kruse in Cumberland County.
17. The allegation that Plaintiffmay have, for its own business purposes, chosen to
approve the Application for Account in an office that just happens to be in Cumberland County
and at an office which Wilhelm & Kruse never conducted or transacted business with Plaintiff is
insufficient to establish venue in this County.
18. Therefore, Plaintiffhas improperly filed its Complaint against Wilhelm & Fa'use
in this Court due to its lack of'jurisdiction.
19. Proper venue, if any, under the facts of this case is in Allegheny County, where
Wilhelm & Kruse maintains its registered office and principal place of business.
3
{20043.03/253861: }
20. Therefore, Plaintiff's cause ofaction must be removed from Cumberland County
and transferred to Allegheny County at Plaintiff's own expense. See Pa. R. Civ. P. 1006(¢).
W~IEREFORE, Defendant, Wilhem & Kruse, Inc., respectfully requests that this
Honorable Court order Plaintiff's cause of action be removed from this Court and Wansferred to
the Court of Common Pleas of Allegheny County due to improper venue, and order Plaintiffto
pay ail costs and fees associated with said removal and transfer, and further raquests that this
Court grant all such other and further relief as may be just and necessary.
SECOND PRELIMINARY OBJECTION:
PLAINTIFF'S COMPLAINT MUST BE DISMISSED FOR LEGAL INSUFFICIENCY
21. All oftbe foregoing paragraphs ar~ incorporated herein by reference as if fully set
forth.
22. Pennsylvania Rule of Civil Procedure 1028(a)(4) authorizes the assertion of a
preliminary objection, in the form a demurrer, based upon the legal insufficiency ora pleading.
23. Plaintiffs claims allegedly arise from the sale of materials to Wilhelm & Kruse.
24. To support its claims, Plaintiff attaches an Application for Account, which
identifies Wilhelm & Kruse as the applicant. See Complaint, ¶¶ 3, 4 and 8. and Exhibit
attached thereto.
25. The Application for Account does not specifically identify any materials that were
allegedly sold to Wilhelm & Kruse, nor does Plaintiffallege that the Application for Account
identifies any such materials. See Complaint, Exhibit "A".
26. Rather, Plaintiffattaches a Statement of Account allegedly setting forth amounts
due to Plaintifffrom Wilhelm & Kruse for materials allegedly sold to Wilhelm & Kruse. See
Complaint, ¶ 7, and Exhibit "B" attached thereto.
4
120043.03/253861: }
27. The Statement of Account attached to the Complaint is merely a summary of
invoices: however, the invoices identified on the Statement of Account are not attached to the
Complaint.
28. The Statement of Account does not identi~ Wilhelm & Kmse as the entity
allegedly owing a balance due to Plaintiff for materials allegedly sold.
29. Rather, the Statement of Account identifies Metal Processing of America as the
entity allegedly owing a balance due to Plaintiff.
30. Wilhelm & Kruse and Metal Processing of America are separate and distinct
entities, and are not responsible for each other's liabilities.
31. The Statement of Account attached to the Complaint as Exhibit "B", which
Plaintiffrelies upon in establishing its alleged cause of action against Wilhelm & Kmse, wholly
fails to support any claim against Wilhelm & Kmse, as it identifies Metal Processing of America,
not Wilhelm & Kmse, as the entity allegedly owing a balance due to Plaintiff.
32. Therefore. Plaintiffs Complaint is devoid of any evidence supporting its claims
against Wilhelm & Krnse.
33. In fact, the Complaint as stated, along with the exhibits attached thereto, identify
an entity unrelated to Wilhelm & Kruse as having been invoiced tbr the materials alleged in the
Complaint.
34. Accordingly, Plaintiff's Complaint must be dismissed, with prejudice, for failure
to state a claim against Wilhelm & Kruse.
WHEREFORE, Defendant, Wilhelm & Kruse, Inc., respectfully requests that this
Honorable Court dismiss, with prejudice, Plaintiff's Complaint, and that this Court issue all such
other and further relief as may be just and necessary.
5
{20043.03,'253861: }
THIRD PRELIMINARY OBJECTION:
PLAINTIFF'S COMPLAINT MUST BE STRICKEN FOR FAILURE
TO CONFORM TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 1019fh)
35. All of the foregoing paragraphs are incorporated herein by reference as if fully set
forth.
36. Pennsylvania Rule of Civil Procedure 1028(a)(2) provides for a preliminary
objection, in the form of a motion to strike, based upon a party's failure to conform its pleading
to law or rule of court.
37. Pennsylvania Rule of Civil Procedure 1019(h) requires that "[w]hen any claim or
defense is based upon an agreement, the pleading shall state specifically if the agreement is oral
or written."
38. Plaintiffs claims are based upon an alleged agreement or agreements between
Plaintiffand Wilhelm & Kruse for the sale of materials; however, Plaintiff failed to identify the
alleged agreement or agreements as oral or written as required by Rule 1019(h).
39. Plaintiff's Complaint simply identifies an Application for Account. but does not
identify the subsequent agreement or agreements upon which Plaintiffallegedly provided
materials to Wilhelm & Kruse.
40. Accordingly, Plaintiff's Complaint must be stricken based upon Plaintiff's
violation of Rule 1019(h).
WHEREFORE, Defendant, Wilhelm & Kruse, Inc., respectfully requests that this
Honorable Court sustain its Preliminary Objection pursuant to Pennsylvania Rule of Civil
Procedure 1028(a)(2) and strike Plaintiffs Complaint for failure to conform to Pennsylvania
Rule of Civil Procedure 1019(h), or, in the alternative, order Plaintiff to file an amended pleading
6
20043.03/253861: |
by which it properly alleges the existence of an omi or written agreement between the parties,
and that this Court issue all such other and further relief as may be just and necessary.
FOURTH PRELIMINARY OBJECTION:
PLAINTIFF'S COMPLAINT MUST
BE STRICKEN FOR FAILURE TO ATTACH WRITINGS
41. All of the foregoing paragraphs are incorporated herein by reference as if fully set
forth.
42. Pennsylvania Rule of Civil Procedure 1028(a)(2) provides ibr a preliminary
objection, in the form ora motion to strike, based upon a party's failure to conform its pleading
to law or rule of court.
43. Pennsylvania Rule of Civil Procedure 1019(i) requires that:
When any claim or defense is based upon a writing, the pleader
shall attach a copy of the writing, or the material part thereof, but if
the writing or copy is not accessible to the pleader, it is sufficient
so to state, together with the reason, and to set forth the substance
in writing.
44. Under Pennsylvania law, a plaintiffs failure to attach relevant copies of contract
documents violates Rule 1019(i) and prevents a defendant from preparing a defense.
45. In Plaintiffs Complaint. it is alleged that Wilhelm & Kruse failed to pay for
materials as set forth in the Statement of Account. See Complaint, ~ 4, 5 and 7. and Exhibit "B"
attached thereto.
46. The Statement of Account attached to the Complaint sets forth the amount
allegedly owed by Wilhelm & Kruse and references all of the documents or invoices allegedly
supporting the alleged amount due.
7
{ 20043.0.1/253861: !
47. The Statement of Account refers to at least eleven (11) documents or invoices that
are not attached to the Complaint and which allegedly support Plaintiff's claim for amounts due
to Plaintiff from Wilhelm & Kruse.
48. The documents that Plaintiff failed to attach to the Complaint are particularly
important due to the evidence set forth on the Statement of Account that indicates that the
materials were provided to Metal Processing of America, an entity distinct from Wilhelm &
Kruse.
49. Despite its reliance upon the documents and invoices set forth in Exhibit "B".
Plaintiff did not attach all such documents and invoices to the Complaint.
50. Without all of the documents referenced in the Complaint and, specifically,
Exhibit "B", Wilhelm & Kruse has no xvay to determine which documents Plaintiffis referring to
or whether or not Wilhelm & Kruse actually received any such documents or invoices, or
received the alleged materials from Plaintiff.
51. Furthermore, Wilhelm & Kruse has no way to determine any terms or conditions
that may be set forth upon the documents and invoices that are not attached to the Complaint.
52. Therefore, due to Plaintiffs failure to attach all of'the documents referenced in its
Complaint and Exhibit "B", Wilhelm & Kruse cannot adequately prepare defenses to Plaintiff's
claims.
53. To properly respond to Plaintiffs Complaint, it is necessary that Plaintiff attach
all of the alleged documents and invoices to its Complaint.
54. To the extent that Plaintiffalleges and relies upon the documents and invoices
referenced in its Complaint and Exhibit "B", Rule 1019(i) requires Plaintiffto attach the alleged
documents to its Complaint or to state a reason for the inaccessibility of those documents.
120043.03/25386
55. However, despite Plaintiffs allegations set forth in its Complaint, Plaintiff failed
to attach all of the referenced documents and invoices, or to state a reason tbr the inaccessibility
oftbe documents and invoices that are not attached to its Complaint.
56. Accordingly, Plaintiffs Complaint must be stricken based upon Plaintiffs
violation of Rule 1019(i).
WHEREFORE, Defendant, Wilbelm & Kruse, Inc.. respectfully requests that this
Honorable Court sustains its Preliminary Objection pursuant to Pennsylvania Rule of Civil
Procedure 1028(a)(2) and strike Plaintiffs Complaint for failure to conform with Pennsylvania
Rule of Civil Procedure 1019(i), or, in the alternative, order Plaintiffto file an amended pleading
and attach all written instruments upon which Plaintiff relies, along with all such other and
further relief as may be just and necessary.
FIFTH PRELIMINARY OBJECTION:
PLAINTIFF'S COMPLAINT MUST BE STRICKEN
FOR FAILURE TO PLEAD WITH SUFFICIENT SPECIFICITY
57. All of the foregoing paragraphs are incorporated herein by reference as if fully set
forth.
58. Pennsylvania Rule of Civil Procedure 1028(a)(3) authorizes the assertion ora
Preliminary Objection, in the nature ora motion to strike, for a party's failure to plead with
sufficient specificity.
59. Furthermore, pursuant to Pennsylvania Rule of Civil Procedure 1019, a complaint
must plead sufficient facts to allow a defendant to prepare its defenses to a complaint.
60. PlaintitTalleges in Paragraph 4 of the Complaint that "Plaintiffsubsequently sold
materials to [Wilhelm & Kruse]".
120043.03/25386
61. Throughout the Complaint, Plaintiffgenerally references materials allegedly sold
to Wilhelm & Kruse, but fails to specifically identify any such materials. See Complaint, ¶¶ 4, 5,
6and 7.
62. Also, both exhibits attached to the Complaint ihil to specifically identify any
materials whatsoever. See Complaint, Exhibits "A" and "B".
63. In short, Plaintiff fails to specifically allege what materials it allegedly sold to
Wilhelm & Kruse.
64. Without specifically identifying the materials allegedly sold to Wilhelm & Kruse,
it is impossible for Wilhelm & Kruse to determine whether it purchased or received such
materials.
65. By only vaguely pleading that "materials" were sold to Wilhelm & Kmse,
Plaintiff pleads its allegations without sufficient specificity.
66. Plaintiffs Complaint fails to specifically identify the materials allegedly sold and,
therefore, Plaintiff fails to plead its cause of action sufficiently to allow Wilhelm & Kruse to
prepare its defenses to the Complaint.
67. Accordingly, Plaintiff's Complaint must be stricken based upon Plaintiff's failure
to comply with Rule I028(a)(3).
WHEREFORE, Defendant, Wilhelm & Kruse, Inc., respectfully requests that this
Honorable Court strike Plaintiff's Complaint based upon Plaintiff's failure to comply with Rule
1028(a)(3)'s specificity requirement, or, in the alternative, Plaintiff must be required to file an
10
{ 20043.03/253861: }
amended pleading which is sufficiently specific in its allegations, and that this Court issue all
such other and further relief as may be just and necessary.
Respectfully submitted.
BLUMLING & GUSKY, LLP
PA I.D. #37943
David A. Levine, Esquire
PA I.D. #65676
William J. Meyer, Esquire
PA I.D. #82603
1200 Koppers Building
436 7th Avenue
Pittsburgh, PA 15219
(412) 227-2500
Counsel for Defendant
11
{20043.03/253861: }
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing PRELIMINARY
OBJECTIONS TO PLAINTIFFtS COMPLAINT INCLUDING AN OBJECTION TO
VENUE was served this 7th day of September, 2001, upon the following by depositing the same
in the United States Mail, First Class. Postage Pre-Paid:
Robert D. Kodak, Esquire
Knupp, Kodak & lmblum, P.C.
407 North Front Street
P.O. Box #11848
Harrisburg, PA 17108-1848
{20043.03/253861 :}
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
HARSCO CORP, REED MINERALS CIVIL DIVISION
DIVISION.
Plaintiff, No: 01-3291
V.
SUGGESTION Olr BANKRUPTCY
WILHELM & KRUSE, INC.,
Defendant. Filed on behalf of Defendant:
Wilhelm & Kruse, Inc.
Counsel of Record for this Party:
Robert J. Blumling, Esquire
PA I.D. #37943
David A. Levine, Esquire
PA I.D. #65676
William J. Meyer, Esquire
PA I.D. #82603
BLUMLING & GUSKY, LLP
Firm #458
1200 Koppers Building
Pittsburgh, PA 15219
(412) 227-2500
{20043.05/256719:}
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
HARSCO CORP, REED MINERALS )
DIVISION, )
)
Plaintiff, )
) Case No. 01-3291
v. )
)
WILHELM & KRUSE, INC., )
)
Defendant. )
SUGGESTION OF BANKRUPTCY
AND NOW, comes Wilhelm & Kruse, Inc., by and through its undersigned
counsel, Blumling & Gusky, LLP, and files the following Suggestion of Bankruptcy:
1. On October 30, 2001, an Involuntary Petition under the United States
Bankruptcy Code was filed against Wilhelm & Kruse, Inc. by five (5) Petitioning Creditors, in
the United States Bankruptcy Court for the Western District of Pennsylvania at Bankruptcy
Petition No. 01-31011. A copy of the Petition is attached hereto as Exhibit "A" and
incorporated herein by reference.
2. Pursuant to Section 362(a) oftbe Bankruptcy Code, the filing of a case
under Title 11 of the United States Code operates as a stay against the commencement or
continuation of any judicial, administrative or other action against the Debtor.
3. Since a case under Title 11 has been commenced, any further action
against Wilhelm & Kruse, Inc. is stayed unless or until the stay has been lifted by the Bankruptcy
Court.
{20043.05~256719:}
WHZREVORE, Wilhelm & Kruse, Inc. requests this Court to stay all further action
against Wilhelm & Kmse, Inc. in the within proceedings.
Respectfully submitted,
BLUMMNG & GUSKY, LLP
Robert J. Blumling, Esquire
Pa. I.D. No. 37943
David A. Levine, Esquire
Pa. I.D. No. 65676
William J. Meyer, Esquire
Pa. I.D. No. 82603
1200 Koppers Building
Pittsburgh, PA 15219
(4t2) 227-2500
Firm No. 458
{20043.05/256719:) 2
WESTERN D~tr~c~ of pENNSYLVANIA
WILHELM & ~.RU~E, INC.
$?AEET AOORE$S OF OEnTOA ~ end L ~Y.
98 Antisbur¥ Place
Rankin, PA 15104
Alle hen
~O~ON O~ pRINCIPAL ~ OF BU~IN~
C~A OF .AN~U~ CO0~ uNO~ ~, ~ ~0
~Chl~(ef 7 ~ ChI~M 11 .
INFO~ON RE--lNG DEBTOR (Ch~k ~pls~le ~x~)
O ~nir
O,.,,o.d ~ 0.~ supplier of structural steel
~UE
COU~ USE ONLY
(~ ippllommle ~)
· = ::: Wilhelm & Kruse, Inc.
TRAN-~'~R OF CL~,M' '
e~a~= ' . .. . · · a-,,-., ..... .,or ay or to 3nv c.:::one.. Acuch alt documcn~
REQUEST FOR
spec:=~ m th~ pc:~tion.
kacwicqc, mfc~a:i0n, and belicL
X See A~tached
Valley Joist, Inc. Berns/ein Law Firm, P.C.
mam:otrettt:oa:: Richard C. Roberts Nam~o;A~t0~/~t~(uanyj
Na=:a~aili~g P.O. Box 680718 ~1133 Penn ave., Pgh, PA 15222
Ad~'~ Of [ndi~l
Si~=j in Ecpr~c=[advc ~ A~Cr~
~a::~[ Fot: Payne, RL ~(412) 45~-8~03
X See Attached .i~~'~~~~_
Zn[~a-Meta[s Company Be:ns:e~n Law F~:a,
~gi~i[[~[.,' 580 Middletown Blvd. . 1133 Penn Avenue, Pgh, PA 15222
~.,.-~ m ~-or~,=uve ~ [9047 ~ -
~P~":7 ' Langhorne PA (412) 456 8103
Livingston Pipe a Tube, Inc. I aerns/ein Law Firm, P.C.
mare: 0: =cuuoac: Robert Rosenthal
NameaMailin P.O. Box 300
...... [ . . 1133 Penn Avenue, Pgh, PA 15222
~?~m~u~ . Route 4 North {
~pa~v Staunton, IL 62088 (412) 456-8~03
' I~=pAOaC ~O.
PE~ ~ ~ IONING CRED~ORS
e do nc.
o:~ ~ayne, R[ 35968-0718 Goods sold and delivered $[[2,295.00
~uu ~zaa~e:o~n ~[~,, Ste. D-[('0
bangnotne~ ~R ~u47 Goods sold and de[~vezed $6~809.04
Nam~ 3n~ ~dr~ 9f P:ti~o~=r Nature of
~igingbton Pzoe a TubR, :~c. ~ountof~aim
F.u. eox 300 ~ou:e & NOr'
Staunton~ IL 62088 Goods sol4 and delivered ;23,097.36
1 ~nt~tion sh~u
= ::: . " Wilhelm & Kruse,
TRANSFER OF C;~;~
{-] C~,e=k £h:~ box if there h~ bce= a transfer of any -' ......
e,.--n~n, tn...a~fe, art"anvs~cmen,"lh-,t~-, .... {_{., . o- . c ~auygee..oee.. A"tachaildocumen,,
REQ~-~ST FOR RE" *EF '--'--------
Pe'{'~'..~s) .* .~u=: the: nn order
spec,End in th,..un:trion, for re!icl bc entered, agm, iu.~t tlc dc~.',tcr und. cr the chapter of tithe l {., United S[at~ Code,
knowica~e,tofo .rm.~:ton, ~nd b~!ict'.
See Attached
Fastenal Company Bernstein Law Firm, P.O.
~ame o~ ~et~t;on=.* Name o~ A;[oru~! .~t,-m [u an>')
Namc&Mailins John Milek , 1133 Penn Ave., Pgh, PA 15222
S is n ir.~.iu Rep r,.-e:,.ta tiv¢ 55987-09]8 (412) 456-8103
C..~ pac:.y Winqna, ~N .
...................... ............
Wooster Products, Inc. i Bernstein Law Firm, P.e.
~',amc o: .-'s:t[:ou-.r Franc i s T. aodger s ~ame ct ~.;to~=! ."~m {,u anyj
Name&Mailiuz 1000 Spruce Street { 1133 Penn Ave., Pgh, PA 15222
Addr=.mofludi.a'~u..,l "u.u. t~ox ouu',
$i.-.uiu{ iu Reurmeu,,,tivc
C~pac;;y ' #ooater, OH 44691 { (412) 456-8103
"X X
~amc o:
Namc& Mailin-
Addr~ of
pac:,y
i c:~oec ~O.
PE I t ~ ~OHING C~ED~ORS
~amc and~dr~ of Pe~tioucr Nature of ~a[~ ~ount of ~aim
W[nona. MN 55987-0978 ~oods sold and delivered $27.437.66
t .... Nature of ~a~ ~O~t Of Clnlm
r~r~ ts, n .
Wooster, OH 44691 Goods Mold and ~elive=ed $5,956.44
under - 'r~ · . ....
..~.~.~'Z( of pc~q, ~.tup~cr[s) m~tur~ under tuc s~t~=cu~ and thc Pcti[ioucn' C~[~
-----~-~ -, a,ta~=yis} ann pcuuoum{ ~itor mfo~[iou ~ ~c fo~t a~ ~$ 275,595.50
~nt~dou sh~u
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Suggestion of
Bankruptcy was served this 9tb day of November. 2001. via First Class United States Mail.
postage prepaid, upon the following:
Robert D. Kodak, Esquire
Knupp, Kodak & Imblum, P.C.
407 North Front Street
P.O. Box #11848
Harrisburg, PA 17108-1848
20043.05/256719: }