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HomeMy WebLinkAbout11-7694OM & IrAB LITLILAKIS Jason P. Kutulakis, Esquire Attorney I.D. #: 80411 2 West High Street Carlisle, PA 17013 (717) 249-0900 t _j -:_.i LU; i Q'4T 10 P;1 1 v PENNSYLVP,`11 ? ", COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Dozier Contracting, LLC 1514 Longview Drive Latrobe, PA 15650 Plaintiff V. Civil Action - Law No: - `1 C"ko Joshua and Tamra Thompson 1932 Jody Lane Carlisle, PA 17013 Defendants CIVIL COMPLAINT AND NOW, comes the Plaintiff, Dozier Contracting, LLC, by and through its attorney, Jason P. Kutulakis, Esquire, of ABOM & KUTULAKIS, L.L.P., and brings this action against the above-named Defendants to recover damages and costs, in an amount not to exceed the amount requiring arbitration, upon the following cause of action: 1. Plaintiff, Dozier Contracting, LLC, is a registered contractor in Pennsylvania, with its principal place of business at 1514 Longview Drive, Latrobe, Pennsylvania 15650. 2. Defendants, Joshua and Tamra Thompson, are married adult individuals who own the property at 1932 Jody Lane, Carlisle, Cumberland County, Pennsylvania 17013. 3. On June 14, 2011, Joshua and Tamra Thompson hired Dozier Contracting, LLC, to remove and replace one hundred (100%) of their dwelling-roof, siding and gutters. Additionally, Dozier was to remove and replace the dwelling's shutters as well as an adjacent shed's roof. See Contract attached hereto as Exhibit A. 1 (2) Q??} ,ga.co fail 1z?-??S7 ? g 4. Joshua and Tamra Thompson agreed to pay Dozier Contracting, LLC, $17,744.49. 5. On July 7, 2011, Tamra Thompson signed a document confirming the work was completed by Dozier Contracting, LLC and was done to their satisfaction. See Homeowner's Inspection Confirmation Document attached hereto as Exhibit B. 6. Joshua and Tamra Thompson submitted an insurance claim to their insurance company, Erie Insurance, under claim number 010171165322. This claim was submitted under policy number Q550807883. See Erie Insurance Exchange attached hereto as Exhibit C. 7. The Property Claims Reinspector assigned to this case for Erie Insurance is Charles P. Kilgore. 8. On June 8, 2011, Erie Insurance sent the Thompsons a letter with a repair estimate and total claim of $17,744.49 and an actual cash value settlement of $12,846.62 after recoverable depreciation. 9. On August 2, 2011, Joshua and Tamra Thompson cashed the last check from Erie Insurance collecting the remaining value of their insurance claim. 10. Further on June 14, 2011, Joshua and Tamra Thompson made their first payment to Doizer Contracting, LLC, of $12,846.62 leaving a remaining balance of $4,897.87. See Invoice attached hereto as Exhibit D. 11. Joshua and Tamra Thompson have failed to make any payments towards the remaining balance of $4,897.87 owed to Doizer Contacting, LLC despite collecting the full insurance amount from Erie Insurance. COUNT I - BREACH OF CONTRACT 12. Paragraphs 1 - 11 are incorporated herein. 13. On June 14, 2011, a contract between Doizer Contracting, LLC and Joshua and Tamra Thompson was signed which states that Dozier Contracting, LLC would remove and replace 2 one hundred (100%) percent of the Thompson's dwelling roof, siding, gutters, dwelling shutters, and shed roof and in return Joshua and Tamra Thompson would pay Dozier Contracting, LLC $17,744.49. See Contract attached hereto as Exhibit A. 14. Joshua and Tamra Thompson submitted an insurance claim to their insurance company, Erie Insurance, under claim number 010171165322. This claim was submitted under policy number Q550807883. See Erie Insurance Exchange attached hereto as Exhibit C. 15. On June 8, 2011, Erie Insurance sent the Thompsons a letter with a repair estimate and total claim of $17,744.49 and an actual cash value settlement of $12,846.62 after recoverable depreciation. 16. On July 7, 2011, Tamra Thompson signed a document confirming the work was completed by Dozier Contracting, LLC and was done to their satisfaction. See Homeowner's Inspection Confirmation Document attached hereto as Exhibit B. 17. Further on June 20, 2011, Joshua and Tamra Thompson made their first payment to Doizer Contracting, LLC, of $12,846.62 leaving a remaining balance of $4,897.87. See Invoice attached hereto as Exhibit D. 18. Joshua and Tamra Thompson have failed to make any payments towards the remaining balance of $4,897.87 owed to Dozier Contacting, LLC despite collecting the full insurance amount from Erie Insurance. 19. Failure to comply with the terms of a written contract constitutes a breach of that contract. 20. Joshua and Tamra Thompson failed to comply with all of the terms of the written contract. 21. Joshua and Tamra Thompson owe Dozier Contacting, LLC $4,897.87 as an outstanding balance for the invoice generated on August 9, 2011. See Invoice attached hereto as Exhibit D. 3 22. Joshua and Tamra Thompson's failure to pay the remaining balance to Dozier Contracting, LLC constitutes a breach of the June 14, 2011 contract. 23. The costs incurred by Dozier Contracting, LLC to put them in the position that they would have been in had Joshua and Tamra Thompson adequately paid Dozier for its fees and satisfied their obligations under the contract are damages. WHEREFORE, it is respectfully prayed that This Honorable Court find for the Plaintiff and against the Defendants in the amount of $4,897.87, with interest, penalty, attorney fees, costs and expenses relating to this lawsuit. COUNT II - din the alternative) UNJUST ENRICHMENT 24. Paragraphs 1-23 are hereby incorporated by reference. 25. Joshua and Tamra Thompson owns the property located at 1932 Jody Lane, Carlisle, Cumberland County, Pennsylvania 17013. 26. Joshua and Tamra Thompson have received the benefits of Dozier Contracting, LLC's services and the materials purchased by the Dozier Contracting, LLC. 27. Joshua and Tamra Thompson property located at 1932 Jody Lane, Carlisle, Cumberland County, Pennsylvania 17013 has increased in value as a result of the Dozier Contracting, LLC's labor, services and materials. 28. Joshua and Tamra Thompson have not paid the Plaintiff fully for the services rendered and materials used. 29. Joshua and Tamra Thompson knew that the Plaintiff was making improvements to his property and signed a document confirming the work was completed by Dozier Contracting, LLC and was done to their satisfaction. See Homeowner's Inspection Confirmation Document attached hereto as Exhibit B. 30. Joshua and Tamra Thompson, at no time communicated to Dozier Contracting, LLC that they did not want the improvements and repairs upon their property. 4 31. Dozier Contracting, LLC did not know, nor did he have reason to know, that Joshua and Tamra Thompson did not want the improvements upon the property located at 1932 Jody Lane, Carlisle, Cumberland County, Pennsylvania 17013. 32. Joshua and Tamra Thompson accepted the labor and services of Dozier Contracting, LLC in the amount of seventeen thousand seven hundred forty four dollars and forty nine cents ($17,744.49). See Contract attached hereto as Exhibit A; Homeowner's Inspection Confirmation Document attached hereto as Exhibit B; Invoice attached hereto as Exhibit D. 33. Joshua and Tamra Thompson made a single payment upon the price of the contract in the amount of twelve thousand eight hundred forty six dollars and sixty two cents ($12,846.62). 34. Joshua and Tamra Thompson have enjoyed the benefits of Dozier Contracting, LLC's unpaid services and labor in the amount of four thousand eight hundred ninety seven dollars and eighty seven cents ($4,897.87). See Homeowner's Inspection Confirmation Document attached hereto as Exhibit B; Invoice attached hereto as Exhibit D. WHEREFORE, Plaintiff demands judgment in its favor and against the Defendants Dozier Contracting, LLC in the amount of $4,897.87, with interest, penalty, attorney fees, costs and expenses relating to this lawsuit. COUNT III - FRAUD 35. Paragraphs 1 - 34 are incorporated herein. 36. In Pennsylvania, the elements of fraud are: (1) a material misrepresentation of fact, (2) which is false, and (3) made with knowledge of its falsity, (4) which is intended to induce the receiver to act, and (5) upon which a party justifiably relies. Michael v. Shiley, Inc., 46 F. 3d 1316, 1333, (3d Cir. 1995). 5 37. On June 8, 2011, Erie Insurance sent the Thompsons a letter with a repair estimate and total claim of $17,744.49 and an actual cash value settlement of $12,846.62 after recoverable depreciation. 38. On July 7, 2011, Joshua and Tamra Thompson, by signing the contract and a document confirming the work was completed by Dozier Contracting, LLC and was done to their satisfaction, Joshua and Tams Thompson made a material misrepresentation of their intention to pay Dozier Contracting, LLC for removing and replacing one hundred (100%) percent of the Thompson's dwelling roof, siding, gutters, dwelling shutters, and shed roof. See Contract attached hereto as Exhibit A; Homeowner's Inspection Confirmation Document attached hereto as Exhibit B. 39. On August 2, 2011, Joshua and Tamra Thompson cashed the last check from Erie Insurance collecting the remaining value of their insurance claim. 40. Joshua and Tamra Thompson's knew their promise to pay Dozier Contracting, LLC in full was false and never intended to make payment to Dozier Contracting, LLC, evidence by their cashing of the total insurance settlement from Erie Insurance and failure to pay the remaining balance of four thousand eight hundred ninety seven dollars and eighty seven cents ($4,897.87) owed to Dozier Contracting, LLC for their services. 41. This false statement of Joshua and Tamra Thompson to pay Dozier Contracting, LLC in full for services and labor agreed to in the June 14, 2011 contract was intended to induce Dozier Contracting, LLC to complete the work agreed to remove and replace one hundred (100%) percent of the Thompson's dwelling roof, siding, gutters, dwelling shutters, and shed roof. 42. Dozier Contracting, LLC relied to their detriment on Joshua and Tamra Thompson promise to pay and completed the work which was approved by Tamra Thompson on July 7, 2011. 6 WHEREFORE, Plaintiff demands judgment in its favor and against the Defendants in an amount of in excess of the compulsory arbitration limits, with interest, penalty, attorney fees, costs and expenses relating to this lawsuit. Respectfully Submitted, ABOM dig %UTULAM, LLP Date: October 10 , 2011 P. At)rney f&# 80411 2 West High Street Carlisle, PA 17013 (717) 249-0900 Attorney for Plaintiff 7 I, Brian Dozier, of Dozier Contracting, LLC, verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Date Brian Dozier 8 1514 Longview Dr Latrobe, Pa 15650 (877) 503-0190 (888) 681-7373 Fax PA-069133 Name 16 7 rv= r-' ft l VXO-Wa k Aridness let .302 +` City. SL, C'?xr- ?' f l.? p1 g ?OJ13 "rne/ aI7Px-? 184 S. Plaza Trail Virginia Beach, VA 23452 (877) 503-0190 (888) 681-7373 Fax VA-270513445 HM# 3f! l ?l Claim # (f) 1;7` IS?2 Emal INS. Co. Z-ri Contact # A Tiffs agneanat a valid a ly I Customer has kill replacement cast imsaannoo coverage Pass deducff'ble). B_ Company's wok will be coinoeled %M no oast to Customer ofner fhah CunWmWs instrance deduditife, atless Chstoma dooses upgrades or additional work fiat is nct approved by Customer's iwer Custom er hereby assigns all amaaNs due from Cusfomees insimrs and mortgagees for Companys work to Company. C. Customer will provide all doaments and i lontafah necessary r'1 for submission of claim to Cuskmees imarer and no for payments to be made by Customer's insurer and mortgagee(s). Customer a ilnodas Camp" to di niss scope dwok and pricing with Customer's kwurers and asters. Customer approves Company as the Customer's power or allaney to inspect and adult the loss, and to affect and receive all isrrmce payments related to Compays Work. 0. Al died mats, warhesd and proQ alm ed by CrslomWs ksaer, and any srupplements appoved by the Custorer's insurer for additional work, upgrades, options or cost increase are to be paid to Compaq. Cmpi q reserves ft nghl to request and receive additional payments kom Cuslomer's insoa due to material or tabor increases, storm enviraenent, or if measnfements ado alner imfureaiam provided by Cusfoma orCustomer's iswer are inorrecL E. Compaq may rarncel ft Agreement I Company and Customer's insurer are sable to agree on die scope of work and price for work covered under Customer's insurance policy. Roofing o Remove to Deddna 1404P/6 A o Underlayment S Ai '- c 11 o Install aW 7-5- 46e/ :off/ 100 o Color of Shingle (? e Od l o RJR Roof Stacks/Boo o R/RRotdVents -S"fv*??.-.+1s?/ 4?/v ytelw 1,4 kxe- o Powe-rV'ent 750 Ridge Vent o Valley, Metal o Ridge: ?id? c?il ?4/e o Inspect Decking for Rotten Wood, R/R if needed o Remove and replace up to 3 sheets o After 3 sheets - $440.00 per sheet o Instal Ice & Wa ves & valleys` i ; P o Metal/Drip Edge o Re-Flash Chimney w e o Remove 100% debris & rod entire yard w. magnet 0 5 year workmanship warranty I?t S v Special Instru0iopWj Gutters: ?z e D w ' e Misc. ?jrJr? 3 f_?cr/ `? bra -2 Lave ?' s°.c?s?i?? y e r4,Olv When yam insaance comparty and of representative determine and agreed upon a pica (RCV) l shall became ire final coked prim The homeowner odorous Donor Cordrading LLC to obtain Wor and materials in accordance with fie irsaance scope sheet and fie specifications sat out herein. s RCV $ TOTAL $ Sales Rep: , I, the hum EXHIBIT all terms on back of contract. Int. Phone: Estimated Start Date: L End Date: /0WO Y A Additional Work 15141 evrDR LaUcbcS PA 15650 office# (877) - 503 - 0190 R Gam, j1 ga# (888) - 681- 7373 .Spac9ali?ag 1?`i?d alimZ l ResedwWd and ltd ice (Yairus ,roB iltti i R ?`ax LDL # 27-8377515 COM ar ogre Customer Informa-tion Name Y"?O t LCD YYti'rLt ? li??? SC?I?I Address I-1 3 2 -A L n Phone `71 "1-3 • r3n 7 E4AW Insurance Coo. Our goal here atDo2W Ong is to povide you wNh me0onal service. We want to I that we have coa*W wak lo yaw safsbcftL : Pie We ft fine t3 kqxrt your have wM your Project manager to ensue wing is cwo?b per our cwkwt. YES, the work is cgmpktely finished. This authorizes our insurance company and /or mortgage company to release all funds due for this worlL 1]Z::fY1m I an completely steed with the work and there is no apparent problem at this time. ==]No, but I will be when the items listed below are addressed: 1) 2) X Pr ' S W(( Date Date I hereby certify that all, work has been completed in a ware manner. EXHIBIT ,dun, E,, 2 011 10:46AM Erie Insurance Exchange Erie Insurance P.O. Box 80129 Indianpolis, IN 46280-0129 June 8, 2011 JOSHUA THOMPSON & TAMRA THOMPSON 1932 JODY LANE CARLISLE, PA 17013-1036 Claim Number. 010171165322 Policy Number. Q550807883 Date of Loss: 512612011 Loss Location: 1932 JODY LANE Dear JOSHUA THOMPSON & TAMRA THOMPSON No. 5939 F. 1 The following is an estimate of the repairs needed to restore your property. Most contractors experienced in this We of restoration work should be able to complete the work specified for the price stated in the estimate. You are free to cxtoose your own contractor. Should you select a contractor who charges more than the amount of our estimate, without our approval, you will be responsible for the charges in excess of our esdmate_ Please show the contractor a copy of our estimate so that they may call us should they have any questions. Although your policy is a replacement cost policy, any claim over $5,000.00 is settled on an Actual Cash Value basis (ACV). By policy we only awe the actual cash value (ACV) of the items until they are actually repaired or replaced, as stated under the loss Settlement provision of your policy. Atual cash value (ACV) equals the replacement cost value (RCV) less depreciation (DEP) rested on your estimate- The breakdown for your loss is as follows. Replacement Cost of Repairs $17,744.49 Less Deductible $500.00 Less NonRewverable Dep. $0.00 Total Claim $17,244.49 Less Recoverable Dep. $4,397.87, Actual Cash Value Settlement $12,846.62 The enclosed check represents the actual rash value of the estimated damages. Per the policy conditions, you still have a right to make a claim, within 180 days of the date of loss, for any additional amounts we may be required to pay under this Loss Settlement provision- If repairs or replacement cannot be completed within that time period, you must notify us of the delay and an attticipatW completion date for the repairs andlor replacement In order to process your replacement cost (RCV) claim, we will need original receipts for the repair andlor replacement. We may also require an inspection of the completed repairs or replacement. EXHIBIT 10:46AV No. J939 2 Your mortgage company may be included on your settlement check If so, please contact them in regards to their endorsement procedures. Please call if we can be of any further assistance. Sincerely, Charles P. Kigore Property Claims ReinspecW Erie insurance (M7) 869-5242 Notice: This is a repair estimate only. Should any additional repairs be required beyond what has been agreed upon, these repairs need to be re wmad by the claims handier prior to the commencement of these repairs. Erie insurance does not recommend contractors or vendors and you are under no obl(gatioa to use any contractor or vendor that Erie Insurance may have suggested or used on the Erie's behalf. No contractor or vendor is affiliated with Erie Insurance and we do not warrant their work. !"Jung, Sing, (iutterj? Misr- Specializing in Rind and Hail Damage Residential and Commercial Insurance Qaimr 1514 Longview Drive Latrobe, PA 15650 Office# M7) - 503 - 0190 Tax ZD. #27-037151. CUSTOMER INFORMATION Name ?,?Phone# 8 73 7 Address r7 ! 3 L S17cl. i C-n - City (_ -C&A 101, Q State pA zip 1- 7 d Sates Rep Phone# Insurance Co. a Claim # 0101-711(a Adjustor C?4 S?-f, D.O.L Description Total C". t 1 (, / 00 ' I) i` '70'7 i S CA I r-7? tf Dozier Contracting, a General Contractor requires Overhead & Profit for projects involving 2 or more trades and/or is complex in natme_ Sub-Total' Tax Overhead & Profit Total Due. ?_. NewRCY. a - Balance i - ?_ All }vork has been completed please release the funds to Doer Goritractnib x Project Manager Signature Bate x x Homeowner Signature Date EXHIBIT AND NOW, this /0th day of October, 2011, I, Shannon Freeman, of ABOM & KUTULAKIS, LLP, hereby certify that I did serve a true and correct copy of the foregoing CIVIL COMPLAINT by depositing, or causing to be deposited, same in the United States Mail, First-class mail, postage prepaid addressed to the following: Michael Pykosh, Esquire DETHLEFS-PYKOSHLAW GROUP, LLC 2132 Market Street Camp Hill, PA 17011 ?haAr'qL?' Shannon Freeman 9 _ C ?' 4 k I I 7 lji?.,.. 26 I1: C -;7R N c ° S'r'i'/AN'IA Michael J. Pykosh, Esquire Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Email: Mpvkosh@gglglaw.com Attorney for Defendants DOZIER CONTRACTING, LLC, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JOSHUA AND TAMRA No: 11-7694-CIVIL THOMPSON, Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD To: Dozier Contracting, LLC c/o Jason P. Kutulakis Abom & Kutulakis 2 West High Street Carlisle, Pennsylvania 17013 You are hereby notified to plead to the enclosed Preliminary Objections within twenty (20) days from the date of service hereof or a default judgment may be entered against you. R tf I y u ed, Date: 10- 25-- 11 Michael J. P o ,squire I. D. #58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Michael J. Pykosh, Esquire Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Email: Mpykosh@gpIgLaw.com Attorney for Defendants DOZIER CONTRACTING, LLC, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JOSHUA AND TAMRA No: 11-7694-CIVIL THOMPSON, Defendants JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS AND NOW, comes the Defendants, Joshua and Tamra Johnson, by and through their attorneys, the Dethlefs-Pykosh Law Group, LLC, by Michael J. Pykosh, Esquire who brings the within Preliminary Objections pursuant to Pa. R.C.P. 1028 and in support thereof avers as follows: 1. Plaintiff is Dozier Contracting, LLC, a Pennsylvania limited liability company with an address of 1514 Longview Drive, Latrobe, Westmoreland County, Pennsylvania 15650. 2. Defendants are Joshua and Tamra Thompson, husband and wife, adult individuals currently residing at 1932 Jody Lane, Carlisle, Cumberland County, Pennsylvania 17013. 3. On or about October 10, 2011, a Complaint was filed in this matter. 4. Defendants now file the instant Preliminary Objections to Plaintiffs Complaint pursuant to Pa. R.C.P. 1028. DEFENDANTS' FIRST PRELIMINARY OBJECTION LACK OF NOTICE TO DEFEND Pursuant to Pa. R.C.P. 1028(a)(2) 5. Paragraphs 1 through 4 are incorporated herein by reference and as though fully set forth below. 6. Rule 1028(a)(2) allows a party to preliminarily object to a pleading if the pleading fails to conform to law or rule of court. 7. Plaintiffs' Complaint fails to conform to Pennsylvania Rules of Civil Procedure and Cumberland County Local Rules. 8. Plaintiffs failed to begin their Complaint with the requisite Notice to Defend, in violation of Pa. R.C.P. 1018.1 9. Furthermore, Plaintiff failed to begin its Complaint with the Notice to Defend, in compliance with C.C.R.P. 1018.1-1. 10. Pursuant to Pa. R.C.P. 1026, no responsive pleading need be filed unless the preceding pleading contains a notice to defend. WHEREFORE, for the reasons set forth above, Defendants, Joshua and Tamra Thompson, respectfully request this Honorable Court dismiss Plaintiff's Complaint for failure to conform Pa. R.C.P. 1018.1 and C.C.R.P. 1018.1-1 in violation of Pa. R.C.P. 1028(a)(2). DEFENDANTS' SECOND PRELIMINARY OBJECTION LEGAL INSUFFICIENCY Pa. R.C.P. 1028(a)(4) - Demurrer as to Count I (Breach of Contract) 11. Paragraphs 1 through 10 are incorporated herein by reference and as though fully set forth below. 12. Pa. R.C.P. 1028(a)(4) allows a party to preliminarily object to a pleading for legal insufficiency. 13. Plaintiff's Complaint is legally insufficient. 14. Plaintiff implies throughout its Complaint that it is a contractor in the business of home improvements as defined by 73 P.S. § 517.2. 15. Pursuant to 73 P.S. § 517.2 the work identified in paragraph three (3) of Plaintiffs Complaint is defined as a Home Improvement. 16. The work was done at Defendants' private residence. 17. The total cash price of all work exceeded $500.00. 18. The actions of Plaintiff, in this matter, are controlled by the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. 19. Plaintiff failed to provide Defendants with a proper Home Improvement Contract pursuant to 73 P.S. § 517.7. 20. By failing to provide Defendants with a proper Home Improvement Contract, pursuant to 73 P.S. § 517.7, Plaintiff is precluded from enforcing any agreement with Defendants against Defendants. 73 P.S. § 517.7(a). 21. Therefore, without a contract upon which Plaintiff can make its claim, its action must fail as legally insufficient pursuant to Pa. R.C.P. 1028(a)(4). 22. Pursuant to 73 P.S. § 517.7(g) and Plaintiff's actions in dealing with Defendants, Plaintiff is precluded from any recovery in equity. 23. Furthermore, Defendants respectfully request that this Honorable Court, pursuant to 73 P.S. § 517.10, find that Plaintiffs act of not providing Defendants with a proper Home Improvement Contract, pursuant to 73 P.S. § 5177, be deemed a violation of Pennsylvania Unfair Trade Practices and Consumer Protection Law and order the costs of defending this suit and attorney's fees be taxed against Plaintiff pursuant to 73 P.S. § 201-9.2. WHEREFORE, for all the reasons set forth above, Defendants, Joshua and Tamra Thompson, respectfully request that this Honorable Court sustain Defendants' Preliminary Objections, and grant Defendants' Demurrer and dismiss Plaintiffs Complaint for legal insufficiency pursuant to Pa. R.C.P. 1028(a)(4). Further, Defendants' respectfully request that this Honorable Court, pursuant to 73 P.S. § 517.10 find that Plaintiff's act of not providing Defendants with a proper Home Improvement Contract pursuant to 73 P.S. § 517.7 be deemed a violation of Pennsylvania Unfair Trade Practices and Consumer Protection Law and order the costs of defending this suit and attorney's fees be taxed against Plaintiff pursuant to 73 P.S. § 201-9.2. DEFENDANTS' THIRD PRELIMINARY OBJECTION LEGAL INSUFFICIENCY Pa. R.C.P. 1028(a)(4) - Demurrer as to Count II (Unjust Enrichment) 24. Paragraphs 1 through 23 are incorporated herein by reference and as though fully set forth below. 25. Plaintiff has alleged in paragraph three (3) of its Complaint that there exists or existed a contract between the parties hereto for services to be performed at Defendants' residence. 26. The cause of action listed for Count II of Plaintiff's Complaint is unjust enrichment. 27. The law of Pennsylvania holds that unjust enrichment is a quasi-contractual doctrine based in equity. See Wiernik v. P.H.H. U.S. Mortgage. Corp., 736 A.2d 616, 622 (Pa. Super. Ct. 1999), appeal denied, 561 Pa. 700, 751 A.2d 193 (2000). 28. Pennsylvania law further holds that "the doctrine of unjust enrichment is inapplicable when the relationship between the parties is founded upon a written agreement or an expressed contract ..." Wilson Area Sch. Dist. V. Skepton, 586 Pa. 513, 521, 895 A.2d 1250, 1254 (2006). 29. It is clear the Count II of Plaintiff's Complaint (Unjust Enrichment) of is based upon an expressed or written contract between the parties, therefore, Counts II, even though it is plead in the alternative, is legally insufficient and Defendants' demurrer should be granted. 30. Furthermore, as described above and incorporated herein, pursuant to the Pennsylvania Home Improvement Consumer Protection Act, specifically, 73 P.S. § 517.7(g) and Plaintiffs actions in dealing with Defendants, Plaintiff is precluded from any recovery in equity, including any recovery for unjust enrichment. WHEREFORE, for the reasons set forth above, Defendants, Joshua and Tamra Thompson, respectfully request that this Honorable Court sustain their Preliminary Objection in the form of a demurrer to Count II, Unjust Enrichment, of Plaintiff's Complaint and strike Count Il, Unjust Enrichment, from Plaintiff's Complaint with prejudice. DEFENDANTS' FOURTH PRELIMINARY OBJECTION IN THE FORM OF A MOTION TO STRIKE PLAINTIFF'S DEMANDS IN AD DAMNUM CLAUSES FOR ATTORNEY'S FEES 31. Paragraphs 1 through 30 are incorporated herein by reference and as though fully set forth below. 32. With every ad damnum clause in their Complaint, Plaintiff demands penalty and attorney's fees. 33. There is no statutory authority for the award of either penalty or attorney's fees in this matter. 34. Pursuant to 42 Pa. C.S. § 2503, attorney's fees may be awarded where, it is shown that, inter alia, the other party has acted arbitrarily, vexatiously or in bad faith. 35. There is no contract between the parties hereto which deals with who pays whos attorney's fees. 36.Accordingly, in the absence of statute or contract, each party pays its own counsel fees. Jones v. Muir, 511 Pa. 535, 515 A.2d 855 (1986). WHEREFORE, or the reasons set forth above, Defendants, Joshua and Tamra Thompson, respectfully request that this Honorable Court sustain their Preliminary Objection in the form of a Motion to Strike off the demand for attorney's fees in each of Plaintiffs ad damnum clauses. DEFENDANTS' FIFTH PRELIMINARY OBJECTION LEGAL INSUFFICIENCY Pa. R.C.P. 1028(a)(4) - Demurrer as to Count III (Fraud) 37. Paragraphs 1 through 36 are incorporated herein by reference and as though fully set forth below. 38. Plaintiffs fraud claim is barred by the gist of the action doctrine. 39. The gist of the action doctrine precludes the bringing of tort claims that are collateral to claims sounding in breach of contract. See eToll, Inc., v. Elias/Savion Advertising, Inc., 2002 PA Super 347, 811 A.2d 10, 14 (Pa. Super. 2002). 40. Under the gist of the action doctrine, Plaintiff may not recast their Breach of Contract claims into tort claims: 1) arising solely from the contractual relationship between the parties; 2) when alleged duties breached or based on the contract itself; 3) where the liability stems from the contract; and 4) when the tort claim essentially duplicates the breach of contract claim or where the success of the tort claim is dependent upon the success of the breach of contract claim. Id. 41.Accordingly, Count III, Fraud, of Plaintiffs Complaint is barred by the gist of the action doctrine. 42. Furthermore, as described above and incorporated herein, pursuant to the Pennsylvania Home Improvement Consumer Protection Act, specifically, 73 P.S. § 517.7(g) and Plaintiffs actions in dealing with Defendants, Plaintiff is precluded from any recovery in equity or law, including any recovery for fraud. WHEREFORE, Defendants respectfully request that this Honorable Court sustain their Preliminary Objection, grant their demurrer and strike Count III, Fraud, from Plaintiff's Complaint, with prejudice. Date: ???-ZS? t 1 Respectfully Sub ed: Micha J. Pykosh, Esquire I . D. #58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, PA 17011 Telephone: (717;) 975-9446 DOZIER CONTRACTING, LLC, Plaintiff V. JOSHUA AND TAMRA THOMPSON, . Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No: 11-7694-CIVIL JURY TRIAL DEMANDED CERTIFICATE OF SERVICE THIS IS TO CERTIFY that on the date indicated below, the foregoing Preliminary Objections were mailed via first class mail, postage prepaid to: Dozier Contracting, LLC c/o Jason P. Kutulakis Abom & Kutulakis 2 West High Street Carlisle, Pennsylvania 17013 Date: 10 - 2-5- \ 1 Respectful mitted: M(c el J. Pykosh, Esquire I. D. #58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, PA 17011 Telephone: (717) 975-9446 AOM c& ' uTUr_nKIS Jason P. hutulakis, ksquire Attornev I.D. #: 80411 2 West High Strect Carhsle, PA 17013 (717) 249-0900 Dozier Contracting, LLC Plaintiff V. Joshua and Tamra Thompson Defendants FILED-OFFICE OF THE PROTHONOTARY 70,1 NOV -1 PM 2'. 4 4 CUMBERLAND ° AWNI A T IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No: 2011 - 7694 : Civil Action - Law NOTICE TO PLEAD TO: Joshua and Tamra Thompson 1932 Jody Lane Carlisle, PA 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 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, 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. Pennsylvania Bar Association Lawyer Referral Service 1-800-692-7375 (PA ONLY) or 717-238-6715 Respectfully Submitted, OM & KUTULA"S, LLP Date: 1 ( ' / ( Jas n P. Kutulakis, Esquire A rney ID # 80411 2 est High Street Carlisle, PA 17013 (717) 249-0900 AOM & uTUr.nicis Jason P. hutulakis, Esquire Attomey I.D. #: 80411 2 West I1igh Street Carlisle, PA 17013 (717) 249-0900 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Dozier Contracting, LLC 1514 Longview Drive Latrobe, PA 15650 Plaintiff Civil Action - Law V. No: 2011 - 7694 Joshua and Tamra Thompson 1932 Jody Lane Carlisle, PA 17013 Defendants AMENDED CIVIL COMPLAINT AND NOW, comes the Plaintiff, Dozier Contracting, LLC, by and through its attorney, Jason P. Kutulakis, Esquire, of ABOM & KUTULAKIS, L.L.P., and brings this action against the above-named Defendants to recover damages and costs, in an amount not to exceed the amount requiring arbitration, upon the following cause of action: 1. Plaintiff, Dozier Contracting, LLC, is a registered contractor in Pennsylvania, with its principal place of business at 1514 Longview Drive, Latrobe, Pennsylvania 15650. 2. Defendants, Joshua and Tamra Thompson, are married adult individuals who own the property at 1932 Jody Lane, Carlisle, Cumberland County, Pennsylvania 17013. 3. On June 14, 2011, Joshua and Tamra Thompson hired Dozier Contracting, LLC, to remove and replace one hundred (1009/6) of their dwelling roof, siding and gutters. Additionally, Dozier was to remove and replace the dwelling's shutters as well as an adjacent shed's roof. See Contract attached hereto as Exhibit A. 4. Joshua and Tamra Thompson agreed to pay Dozier Contracting, LLC, $17,744.49. 5. On July 7, 2011, Tamra Thompson signed a document confirming the work was completed by Dozier Contracting, LLC and was done to their satisfaction. See Homeowner's Inspection Confirmation Document attached hereto as Exhibit B. 6. Joshua and Tamra Thompson submitted an insurance claim to their insurance company, Erie Insurance, under claim number 010171165322. This claim was submitted under policy number Q550807883. See Erie Insurance Exchange attached hereto as Exhibit C. 7. The Property Claims Reinspector assigned to this case for Erie Insurance is Charles P. Kilgore. 8. On June 8, 2011, Erie Insurance sent the Thompsons a letter with a repair estimate and total claim of $17,744.49 and an actual cash value settlement of $12,846.62 after recoverable depreciation. 9. On August 2, 2011, Joshua and Tamra Thompson cashed the last check from Erie Insurance collecting the remaining value of their insurance claim. 10. Further on June 14, 2011, Joshua and Tamra Thompson made their first payment to Doizer Contracting, LLC, of $12,846.62 leaving a remaining balance of $4,897.87. See Invoice attached hereto as Exhibit D. 11. Joshua and Tamra Thompson have failed to make any payments towards the remaining balance of $4,897.87 owed to Doizer Contacting, LLC despite collecting the full insurance amount from Erie Insurance. COUNT I - BREACH OF CONTRACT 12. Paragraphs 1 - 11 are incorporated herein. 13. On June 14, 2011, a contract between Dozier Contracting, LLC and Joshua and Tamra Thompson was signed which states that Dozier Contracting, LLC would remove and replace one hundred (1001/6) percent of the Thompson's dwelling roof, siding, gutters, dwelling shutters, and shed roof and in return Joshua and Tamra Thompson would pay Dozier Contracting, LLC $17,744.49. See Contract attached hereto as Exhibit A. 14. Joshua and Tamra Thompson submitted an insurance claim to their insurance company, Erie Insurance, under claim number 010171165322. This claim was submitted under policy number Q550807883. See Erie Insurance Exchange attached hereto as Exhibit C. 15. On June 8, 2011, Erie Insurance sent the Thompsons a letter with a repair estimate and total claim of $17,744.49 and an actual cash value settlement of $12,846.62 after recoverable depreciation. 16. On July 7, 2011, Tamra Thompson signed a document confirming the work was completed by Dozier Contracting, LLC and was done to their satisfaction. See Homeowner's Inspection Confirmation Document attached hereto as Exhibit B. 17. Further on June 20, 2011, Joshua and Tamra Thompson made their first payment to Doizer Contracting, LLC, of $12,846.62 leaving a remaining balance of $4,897.87. See Invoice attached hereto as Exhibit D. 18. Joshua and Tamra Thompson have failed to make any payments towards the remaining balance of $4,897.87 owed to Dozier Contacting, LLC despite collecting the full insurance amount from Erie Insurance. 19. Failure to comply with the terms of a written contract constitutes a breach of that contract. 20. Joshua and Tarn a Thompson failed to comply with all of the terms of the written contract. 21. Joshua and Tamra Thompson owe Dozier Contacting, LLC $4,897.87 as an outstanding balance for the invoice generated on August 9, 2011. See Invoice attached hereto as Exhibit D. 22. Joshua and Tamra Thompson's failure to pay the remaining balance to Dozier Contracting, LLC constitutes a breach of the June 14, 2011 contract. 23. The costs incurred by Dozier Contracting, LLC to put them in the position that they would have been in had Joshua and Tamra Thompson adequately paid Dozier for its fees and satisfied their obligations under the contract are damages. WHEREFORE, it is respectfully prayed that This Honorable Court find for the Plaintiff and against the Defendants in the amount of $4,897.87, with interest, penalty, attorney fees, costs and expenses relating to this lawsuit. COUNT II - (in the alternative) UNJUST ENRICHMENT 24. Paragraphs 1-23 are hereby incorporated by reference. 25. Joshua and Tamra Thompson owns the property located at 1932 Jody Lane, Carlisle, Cumberland County, Pennsylvania 17013. 26. Joshua and Tamra Thompson have received the benefits of Dozier Contracting, LLC's services and the materials purchased by the Dozier Contracting, LLC. 27. Joshua and Tamra Thompson property located at 1932 Jody Lane, Carlisle, Cumberland County, Pennsylvania 17013 has increased in value as a result of the Dozier Contracting, LLC's labor, services and materials. 28. Joshua and Tamra Thompson have not paid the Plaintiff fully for the services rendered and materials used. 29. Joshua and Tamra Thompson knew that the Plaintiff was making improvements to his property and signed a document confirming the work was completed by Dozier Contracting, LLC and was done to their satisfaction. See Homeowner's Inspection Confirmation Document attached hereto as Exhibit B. 30. Joshua and Tamra Thompson, at no time communicated to Dozier Contracting, LLC that they did not want the improvements and repairs upon their property. 31. Dozier Contracting, LLC did not know, nor did he have reason to know, that Joshua and Tamra Thompson did not want the improvements upon the property located at 1932 Jody Lane, Carlisle, Cumberland County, Pennsylvania 17013. 32. Joshua and Tamra Thompson accepted the labor and services of Dozier Contracting, LLC in the amount of seventeen thousand seven hundred forty four dollars and forty nine cents ($17,744.49). See Contract attached hereto as Exhibit A; Homeowner's Inspection Confirmation Document attached hereto as Exhibit B; Invoice attached hereto as Exhibit D. 33. Joshua and Tamra Thompson made a single payment upon the price of the contract in the amount of twelve thousand eight hundred forty six dollars and sixty two cents ($12,846.62). 34. Joshua and Tamra Thompson have enjoyed the benefits of Dozier Contracting, LLC's unpaid services and labor in the amount of four thousand eight hundred ninety seven dollars and eighty seven cents ($4,897.87). See Homeowner's Inspection Confirmation Document attached hereto as Exhibit B; Invoice attached hereto as Exhibit D. WHEREFORE, Plaintiff demands judgment in its favor and against the Defendants Dozier Contracting, LLC in the amount of $4,897.87, with interest, penalty, attorney fees, costs and expenses relating to this lawsuit. COUNT III - FRAUD 35. Paragraphs 1 - 34 are incorporated herein. 36. In Pennsylvania, the elements of fraud are: (1) a material misrepresentation of fact, (2) which is false, and (3) made with knowledge of its falsity, (4) which is intended to induce the receiver to act, and (5) upon which a party justifiably relies. Michael v. Shiley, Inc., 46 F. 3d 1316, 1333, (3d Cir. 1995). 37. On June 8, 2011, Erie Insurance sent the Thompsons a letter with a repair estimate and total claim of $17,744.49 and an actual cash value settlement of $12,846.62 after recoverable depreciation. 38. On July 7, 2011, Joshua and Tamra Thompson, by signing the contract and a document confirming the work was completed by Dozier Contracting, LLC and was done to their satisfaction, Joshua and Tamra Thompson made a material misrepresentation of their intention to pay Dozier Contracting, LLC for removing and replacing one hundred (100%) percent of the Thompson's dwelling roof, siding, gutters, dwelling shutters, and shed roof. See Contract attached hereto as Exhibit A; Homeowner's Inspection Confirmation Document attached hereto as Exhibit B. 39. On August 2, 2011, Joshua and Tamra Thompson cashed the last check from Erie Insurance collecting the remaining value of their insurance claim. 40. Joshua and Tamra Thompson's knew their promise to pay Dozier Contracting, LLC in full was false and never intended to make payment to Dozier Contracting, LLC, evidence by their cashing of the total insurance settlement from Erie Insurance and failure to pay the remaining balance of four thousand eight hundred ninety seven dollars and eighty seven cents ($4,897.87) owed to Dozier Contracting, LLC for their services. 41. This false statement of Joshua and Tamra Thompson to pay Dozier Contracting, LLC in full for services and labor agreed to in the June 14, 2011 contract was intended to induce Dozier Contracting, LLC to complete the work agreed to remove and replace one hundred (100%) percent of the Thompson's dwelling roof, siding, gutters, dwelling shutters, and shed roof. 42. Dozier Contracting, LLC relied to their detriment on Joshua and Tamra Thompson promise to pay and completed the work which was approved by Tamra Thompson on July 7, 2011. WHEREFORE, Plaintiff demands judgment in its favor and against the Defendants in an amount of in excess of the compulsory arbitration limits, with interest, penalty, attorney fees, costs and expenses relating to this lawsuit. Respectfully Submitted, ABOM & KUTULAKIS, LLP Date: November 7, 2011 1" bk2l son P. Ku ttomey ID # 80411 West High Street Carlisle, PA 17013 (717) 249-0900 Attorney for Plaintiff VERIFICATION I, Brian Dozier, of Dozier Contracting, LLC, verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of IS Pa.C.S. 1-4904 relating to unsworn falsification to authorities. 7 ?. i Date - Brian Dozier 1514 Longview Dr FF, Latrobe, Pa 15650 1 ?,,j? F fT f f?(?(lTf % (877) 503-0190 (888) 681-7373 Fax PA-069133 Oral<iir??P?ar fir ?rrr/r??r f Name `?L)5k'?L' Address !a 3.2 ?O?u/ men e- C; . St, zip Cr?,- rt s r.? PP 20-7 HM# Z(') ;?_h L 69Y,,2 Cfa;m # Email Adjuster INS. Co./ i [ Contact # 184 S. Plaza Trail Virginia Beach, VA 23452 (877) 503-0190 (888) 681-7373 Fax VA-2.70513445 Qae ??: A This agreement is valid only it Customer has full replacement cost insurance covenaige (less deductible). S. Company's Work will be completed with no cost to Customer other than Customers insurance deductible, unless Customer chooses upgrades or additional work that is not approved by Customer' s insurer. Customer hereby assigns aft amounts due from Customers insurers and mortgagees for Companys Work to Coco parry. C. Customer will provide all do=ents and information necessary ® for submission of claims to Customers insurer and (ii) for payments to be made by Customer's insurer and mortgagee(s). Customer authoizes Company to d=rss scope of work and priding with Customers insurers and adjusters. Customer approves Company as the Customer's power of attorney to inspect and adjust the loss, and to culled and receive all esurance payments related to Company's Work. D. All dks3 costs, ova and profit allowed by Customer's insurer, and any supplements approved by the Customers insurer for additional work, upgrades, options or cost increase are to be paid to Company. Company reserves the right to request and receive additionai payments from Customers insurer due to material or labor increases, storm environment, or if measurements and/or other intonation provided by Customer or Customers insurer are incorrect. E. Company may cancel ft Agreement I Company and Customers insurer are unable to agree on the scope of work and price for work covered under Customer's insurance policy. Roofing Additional Work o Remove to Decking 10-19©/o Siding: l%© e, o Underlayment _55;A 1 ?i C Q { Lc/i Z-210? o Ins-tail 65 7-Zh,6e.- ;o ?, e- _??Grre.oc? o Color of Shingle o RJR Roof Stacks/Boo ?? o R/R Roof Vents o Power Vent - 750 Ridge Vent ?- o Valley Metal Yff o Ridge: S. G??d C o Inspect Decking for Rotten Wood, R/R if needed o Remove and replace up to 3 sheets FRE?- o After 3 sheets - $40.00 per sheet o Install 1 & Watg?sh???ves & valleys ?_P o MetallDri Ed ? for o Re-Flash Chimney Gc! l-"Ye"4-P f o Remove 100% debris & roil entire yard w. magnet 0 5 year workmanship warranty 7L S Special Instructiops Sales Rep:V1---' I, the hom EXHIBIT all terms on back of contract. Int. Phone: _ Estimated Start Date: _ End Date: Gutters: ot? ?t e Missc. Argyn 3 P_dit/ s?ofepri?l,te/ Alrao When your insurance company and our representative determine and agreed upon a price (RCV) it shall become the final contract price- The homeowner authorizes oozier Contracting LLC to obtain labor and materials in accordance with the insurance scope sheet and the specifications set out herein. RCV $ TOTAL $ h' RGOJ*9, S uzba Gwxers, Ms - .Spieeializing in Wind and Had Damage Residendd and Conmzerciaf Innummxe Qairas -F 1. Name . -,, `ce r Address 9t =- City C.(,/? j to ,o Phone ?r?-??5•z?7??E-i?!!ad Tax LD- # 27-037151 7-et " /-7 0! 1514 Longview DR Lam.., PA 15650 OSiceff (877) - 503 - 0190 Far# (888) - 681- 7373 JOB COMPLETION Insurance Ca- Our goal here at Dozier Oonkaciing is to provide you with exceptional service. We want to know that we have c ompled work W yw salon- Please fake this time to inspect your home with your project manager to ensure everything is c ompleLa per our contract. olti YES, the work is completely finished. This authorizes our insurance company and for mortgage eompaup to release ail fimds due for this work EaEj r es, 106M completely sa#isfied with the worm and there is no apparent problea n at this time- No, bud I will be when the items listed below are addressed: X 1) 2) 1A j(( Daze X E ?? p? der S mature Date I hereby certify that all work has been completed in a wodananae manner. EXHIBIT a Erie Insurance Exchange Erie insurance P.O. Box 80129 Indianpolis, IN 46280-0129 June 8, 2011 JOSHUA THOMPSON & TAMRA THOMPSON 19::2 JODY LANE CARLISLE, PA 17013-1036 Claim Number- 010171165322 Policy Number. 0550807883 Date of Loss: 512612011 Loss Location: 1932 JODY LANE Dear JOSHUA THOMPSON & TAMRA THOMPSON The following is an estimate of the repairs needed to restore your property. Most contractors experienced in this type of restoration work should be able to complete the work specified for the price stated in the estimate. You are free to choose your own contractor- Should you select a contractor who charges more than the amount of our estimate, without our approval, you will be responsible for the charges in excess of our estimate- Please show the contractor a copy of our estimate so that they may call us should they have any questions. Although your policy is a replacement cost policy, any claim over $5,000.00 is settled on an Actual Cash Value basis (ACV). By policy we only owe the actual cash value (ACV) of the items until they are actually repaired or replaced, as stated under the toss Settlement provision of your policy. Actual cash value (ACV) equals the replacement cost value (RCV) less depreciation (DEP) listed on your estimate- The breakdown for your loss is as follows: Replacement Cost of Repairs $17,744.49 Less Deductble $500.00 Less NonRecoverable Dep.' $0.00 Total Claim $17,244.49 Less Recoverable Dep. $4,397.87. Actual Cash Value Settlement $12,84.6.62 The enclosed check represents the actual cash value of the estimated damages. Per the policy conditions, you still have a right to imake a claim, within 180 days of the date of loss, for any additional amounts we may be required to pay under this Loss Settlement provision- 11, repairs or replacement cannot be completed within that time period, you must notify lls of the delay and an anticipated corn pietion date for the repairs andlor replacement In order to process your replacement cost (RCV) claim, we will need original receipts for the repair and/or replacement. We may also require an inspection of the completed repair=_ or replacement EXHIBIT ? n?t' ?ii.C'Ii Bpd Your mortgage company may be included on your settlement check If so, please contact them in regards to their endorsement procedures. Please call if we can be of any further assistance. Sincerely, Charles P. Klgore Property Claims Reinspecbr Erie insurance (317) 861-6242 Notice: This is a repair estimate only. Should any additional repairs be required beyond what has been agreed upon, these repairs need to be reviewed by the claims handier prior to the commencement of these repairs. Erie Insurance does not recommend conVactors or vendors and you are under no obligation to use any contractor or vendor that Erie Insurance may have suggested or used on the Erie's behalf_ No contractor or vendor is affiliated with Erie Insurance and we do not warrant their work. 1314 Longview Drive Latrobe PA 13630 Office# (877) - 303 - 0140 I?avfing, Siding, Gutters, Misr Speciahung in Wind and Dail Damage Residential and Commercial Insurance Claims Tax I D. # 27-037151. CUSTOMER INFORMATION Name ??_7,,, "Phone#Z 87 7 Address 19 3 z .?;o L n city f " ! C rotes.. Safes Rep State 17A Phone# Insurance Co_ uk-iZ Claim # P 10, i `711.( C) Adjustor a ?. z d.O.L Description Total cA 1 y n, u*e t nf,? ce Dozier Contracting, a General Sub-Total iV¢ ?' Contractor requires Overhead & Tax I Profit for projects involving 2 or more Overhead & Profit trades and/or is complex in nature- Total Due - y _ Balance All work has been completed please release the fiazds to Doer Contrt N Fi, x x j? Project Manager Signature Date x Homeowner Signature x Date EXHIBIT a 3 AND NOW, this 7`h day of November, 2011, I, Shannon Freeman, of ABOM & KUTULAKIS, LLP, hereby certify that I did serve a true and correct copy of the foregoing AMENDED CIVIL COMPLAINT by depositing, or causing to be deposited, same in the United States Mail, First-class mail, postage prepaid addressed to the following: Michael Pykosh, Esquire DETHLEFS-PYKOSH LA W GROUP, LLC 2132 Market Street Camp Hill, PA 17011 S annon Freeman ABOM cSZ I?LITLILAKIS Cason Y. Kutulakis, F,syuirc Attomev I.D. #: 80411 2 West I ligh Street Carlisle, P_1 17013 (717) 241-0900 .16 _ ? a 1 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Dozier Contracting, LLC 1514 Longview Drive Latrobe, PA 15650 Plaintiff V. Joshua and Tamra Thompson 1932 Jody Lane Carlisle, PA 17013 Defendants Civil Action - Law No: 2011 - 7694 I, Michael Pykosh, Esquire, on behalf of Defendants, Joshua and Tams Thompson, hereby accept service of the Amended Complaint and certify that I am authorized to do so. Date: Michael Pykos , Esquire DETHLEFS-PYKOSHLAW GROUP, LLC 2132 Market Street Camp Hill, PA 17011 Attorney ID # 58851 TAB OM & &U ULAKIS Jason P. Kutulakis, Esquire Attorney I.D. #: 80411 2 West High Street Carlisle, PA 17013 (717) 249-0900 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Dozier Contracting, LLC 1514 Longview Drive Latrobe, PA 15650 Plaintiff V. Joshua and Tamra Thompson 1932 Jody Lane Carlisle, PA 17013 Defendants Civil Action - Law No: 2011 - 7694 Q ca C4 S 1"x'1 -n .<> N ? c .CO X* S c)-n © xr -e CO ;:rj -11 PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT AND NOW, this 21`t day of December, 2011, comes the Plaintiff, Dozier Contracting, LLC, by and through its counsel, Jason P. Kutulakis, Esquire, of Abom & Kutulakis, LLP and brings the following Preliminary Objections to Defendants' Preliminary Objections to Plaintiff's Amended Complaint, and in support thereof, respectfully avers as follows: 1. On or about October 10, 2011, Plaintiff, Dozier Contracting, LLC, brought this cause of action against Defendants by filing a Complaint. 2. On or about October 25, 2011, Defendants, Joshua and Tamra Thompson, filed Preliminary Objections to Plaintiff's Complaint. 3. On or about November 7, 2011, Plaintiff filed and Amended Complaint. 4. On or about December 5, 2011, Defendants filed Preliminary Objections to Plaintiff's Amended Complaint. LEGAL INSUFFICIENCY OF DEFENDANT'S FIRST PRELIMINARY OBJECTION 5. Paragraphs one (1) through five (5) are incorporated herein by reference. Defendants' first preliminary objection is for demurrer as to count one of Plaintiff's Complaint for Breach of Contract. 7. Defendants object claiming that the matter is controlled by the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.7. 8. Defendants objection is legally insufficient pursuant to 73 P.S. 5 517.2 which defines the term Home improvement and specifically states that the term does not include the construction of a new home. 9. Plaintiff constructed a new home for the Defendants. 10. The matter is not controlled by the Pennsylvania Home Improvement Consumer Protection Act because it does not meet the definition of a Home Improvement under 73 P.S. § 517.2. 11. Defendant's first Preliminary Objection is legally insufficient pursuant to 73 P.S. § 517.2. WWREFORE, Plaintiff respectfully requests that this Honorable Court grant its Preliminary Objections and deny Defendants' first Preliminary Objections due to legal insufficiency. LEGAL INSUFFICIENCY OF DEFENDANT'S SECOND PRELIMINARY OBJECTION 12. Paragraphs one (1) through eleven (11) are incorporated herein by reference. 13. Defendants' second preliminary objection is for demurrer as to count two of Plaintiff's Complaint for Unjust Enrichment. 14. Defendants object claiming that Pennsylvania law holds that the doctrine of unjust enrichment is inapplicable when a party is claiming a cause of action for Breach of Contract even if Unjust Enrichment is plead in the alternative. 15. Defendants preliminary objection is legal insufficient because they do not properly cite Pennsylvania case law in this-area. 16. Pennsylvania case law holds: i. "Claims under the PMWA, the WPCL, and breach of contract may be pleaded alternatively with a claim of unjust enrichment, although recovery may not be had for both unjust enrichment and the other claims. We observe that several of our Courts of Common Pleas have also directly found that unjust enrichment may be pleaded in the alternative with breach of contract." Lugo v. Farmers Pride, Inc., 967 A.2d 963, 970 (Pa. Super. 2009). 17. Further, Plaintiff specifically objects to Paragraph 26 of Plaintiff's Second Preliminary Objection because the matter is not controlled by the Pennsylvania Home Improvement Consumer Protection Act because it does not meet the definition of a Home Improvement under 73 P.S. § 517.2. 18. Defendants' second preliminary objection is legal insufficient based on Pennsylvania case law and the definition of a Home Improvement under 73 P.S. ? 517.2. WRERE'FORE, Plaintiff respectfully requests that this Honorable Court grant its Preliminary Objections and deny Defendants' second Preliminary Objections due to legal insufficiency. LEGAL INSUFFICIENCY OF DEFENDANT'S FOURTH PRELIMINARY OBJECTION 19. Paragraphs one (1) through eightteen (18) are incorporated herein by reference. 20. Defendants' fourth preliminary objection is for demurrer as to count three of Plaintiff's Complaint for Fraud. 21. Defendants object claiming that Plaintiff's cause of action for fraud is barred by the gist of the action doctrine. 22. Defendants have failed to recognize the exception to the gist of the action doctrine under Pennsylvania case law which states: i. "Courts have generally held that the gist of the action doctrine does not apply when the defendant not only breached the contract, but also made misrepresentations about the breach with the intent to deceive the plaintiff, such that the unsuspecting plaintiff continued the contractual relationship or failed to assert its contractual rights against the defendant." Greater Philadelphia Health Services II Corp. v. Complete Care Services, LP., No. 2387 June Term 2000, 2000 WL 33711052, at *2 (Pa. Com. Pl. Nov. 20, 2000). 23. Plaintiff is alleging fraudulent conduct on behalf of the Defendants regarding misrepresentation about the breach of the contract. 24. Plaintiff's fraud count falls under the exception to the gist of the action doctrine and therefore Defendants' preliminary objection based on the doctrine is legally insufficient. 25. Further, Plaintiff specifically objects to Paragraph 38 of Plaintiff's fourth Preliminary Objection because the matter is not controlled by the Pennsylvania Home Improvement Consumer Protection Act because it does not meet the definition of a Home Improvement under 73 P.S. § 517.2. [THEREFORE, Plaintiff respectfully requests that this Honorable Court grant its Preliminary Objections and deny Defendants' fourth Preliminary Objections due to legal insufficiency. Respectfully submitted, Date: - dJ- ` ABom & KUTuLA s, L.L.P. Jas n P'. Kutulakis, Esquire L. #80411 2 est High Street Carlisle, PA 17013 (717) 249-0900 Attorney for Plaintiff COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Dozier Contracting, LLC 1514 Longview Drive Latrobe, PA 15650 Plaintiff Civil Action - Law V. No: 2011 - 7694 Joshua and Tamra Thompson 1932 Jody Lane Carlisle, PA 17013 Defendants CERTIFICATE OF SERVICE AND NOW, this 21" day of December, 2011, I, Shannon Freeman, Esquire, of Abom & Kutulakis, L.L.P., hereby certify that I did serve a true and correct copy of the foregoing PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT by depositing, or causing to be deposited, same in the United States Mail, First-class mail, postage prepaid addressed to the following: Michael Pykosh, Esquire DETHLEFS-PYKOSH LAW GROUP, LLC 2132 Market Street Camp Hill, PA 17011 Attorn y for the Defendants annon Freeman OM CSC" ,yA &U ULAKIS lason 1'. Kutulakis, Esquire 1ttorncv I.D. #: 80411 West High Street Carlisle, PA 17013 (717) 249-0900 CC Dozier Contracting, LLC 1514 Longview Drive Latrobe, PA 15650 Plaintiff V. Joshua and Tamra Thompso 1932 Jody Lane Carlisle, PA 17013 Defendants C 4ONWEALTH OF PENNSYLVANIA C)° COUNTY OF CUMBERLAND MC° zd s+• o C:) ?c-> p2 ,. --ate -r Civil Action - Law No: 2011 - 7694 AND NOW, this 21` day of December, 2011, comes the Plaintiff, Dozier Contracting, LLC, by and through its counsel, JIB= P. Kutulakis, Esquire, of Abom & Kutulakis, LLP and brings the following Amended Preliminary Objections to Defendants' Preliminary Objections to Plaintiff's Amended Complaint, and in support thereof, respectfully avers as follows: 1. On or about Oct ber 10, 2011, Plaintiff, Dozier Contracting, LLC, brought this cause of action against Defendants by filing a Complaint. 2. On or about October 25, 2011, Defendants, Joshua and Tamra Thompson, filed Preliminary Obje lions to Plaintiff's Complaint. 3. On or about November 7, 2011, Plaintiff filed and Amended Complaint. 4. On or about Dec mber 5, 2011, Defendants filed Preliminary Objections to Plaintiff's Amended C( t. 5. On or about December 21, Plaintiff filed Preliminary Objections to Defendants' Preliminary Objections to Plaintiff's Amended Complaint. LACK OF SPECIFICITY OF DEFENDANT'S FIRST PRELIMINAR OBJECTION 6. Paragraphs one 1) through five (5) are incorporated herein by reference. 7. Defendants' first Preliminary objection is for demurrer as to count one of Plaintiff's Complaint for B each of Contract. 8. Defendants vagu ly object claiming that the matter is controlled by the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.7 and Plaintiff's contract is improper. 9. Defendants' first preliminary objection is too vague and fails to state any facts that show how Plaintiff's c ntr t is improper under the Pennsylvania Home Improvement Consumer Prote tion Act, 73 P.S. § 517.7. 10. Plaintiff requests the Defendants more specifically allege how Plaintiff's contract does not meet the requirements under 73 P.S. § 517.7 to enable Plaintiff to develop a response thereto. 11. Defendant's first?Preliminary Objection lacks specificity and places Plaintiff at a considerable disadvantage leaving Plaintiff unable to formulate an answer. WHEREFORE, Plaintiff respectfully requests that this Honorable Court grant its Amended Preliminary Objections and deny Defendants' first Preliminary Objections due to lack of specificity. LEGAL INSUFFICIENCY OF DEFENDANT'S SECOND PRELIMINARY OBJECTION 12. Paragraphs one 1) through eleven (11) are incorporated herein by reference. 13. Defendants' second preliminary objection is for demurrer as to count two of Plaintiff's Complaint for U lust Enrichment. 14. Defendants obje t claiming that Pennsylvania law holds that the doctrine of unjust enrichment is ina plicable when a party is claiming a cause of action for Breach of Contract even if njust Enrichment is plead in the alternative. 15. Defendants preliary objection is legal insufficient because they do not properly cite Pennsylvania cas law in this area. 16. Pennsylvania caste law holds: i. "Cl ' s under the PMWA, the WPCL, and breach of contract may be plea ed alternatively with a claim of unjust enrichment, although recovery may of be had for both unjust enrichment and the other claims. We observe that everal of our Courts of Common Pleas have also directly found that unju t enrichment may be pleaded in the alternative with breach of contract." Lugo . Farmers Pride, Inc., 967 A.2d 963, 970 (Pa. Super. 2009). 17. Further, Plaintif specifically objects to Paragraph 26 of Plaintiff's Second Preliminary Objection because it is too vague and fails to state any facts that show how Plaintiff's contract is improper under the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.7. 18. Defendants' second preliminary objection is legal insufficient based on Pennsylvania case law and the definition of a Home Improvement under 73 P.S. § 517.2. [THEREFORE, Plaintiff respectfully requests that this Honorable Court grant its Amended Preliminary ONe ons and deny Defendants' second Preliminary Objections due to legal insufficiency. LEGAL INSUFFICIENCY F DEFENDANT'S FOURTH PRELIMINARY OBJECTION 19. Paragraphs one 1) through eighteen (18) are incorporated herein by reference. 20. Defendants' fou preliminary objection is for demurrer as to count three of Plaintiff's Complaint for Fraud. 21. Defendants obj ct claiming that Plaintiff's cause of action for fraud is barred by the gist of the action doc e. 22. Defendants hav?failed to recognize the exception to the gist of the action doctrine under Pennsvlva a case law which states: i. "Courts have generally held that the gist of the action doctrine does not apply when the defendant not only breached the contract, but also made misre resentations about the breach with the intent to deceive the plaintiff, such at the unsuspecting plaintiff continued the contractual relationship or failed to assert its contractual rights against the defendant." Greater Phila lphia Health Service II Corp. P. Complete Care Services, LP., No. 2387 June Term 2000, 2000 WL 33711052, at *2 (Pa. Corn. Pl. Nov. 20, 2000). 23. Plaintiff is allegg fraudulent conduct on behalf of the Defendants regarding misrepresentario about the breach of the contract. 24. Plaintiff's fraud count falls under the exception to the gist of the action doctrine and therefore Defendants' preliminary objection based on the doctrine is legally insufficient. 25. Further, Plaintiff specifically objects to Paragraph 38 of Plaintiff's fourth Preliminary Objection because it is too vague and fails to state any facts that show how Plaintiff's contract is improper under the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. 5 517.7. WHEREFORE, Amended Preliminary Ob insufficiency. respectfully requests that this Honorable Court grant its and deny Defendants' fourth Preliminary Objections due to legal Respectfully submitted, &KUTULA"S, L.L.P. Date: l "?c_- '// Jastn P. Kptulakis, E I.D. #80411 2 West High Street Carlisle, PA 17013 (717) 249-0900 Attorney for Plaintiff VERIFICATION I, Jason P. Kutulaksi, state that the foregoing Objections to Plaintiff's contains no averments of therefore does not require Date:C p? squire, am attorney of record for Plaintiff, Dozier Contracting, LLC, and ntiff's Amended Preliminary Objection to Defendants' Preliminary nded Complaint is based solely upon the legal expertise of counsel, t not appearing of record in the action, nor any denial of fact, and ication by said parr pursuant to Pa. R.C.P. 1024(a). Jason P. Kutulakis, Esquire Co Dozier Contracting, LLC 1514 Longview Drive Latrobe, PA 15650 Plaintiff V. Joshua and Tamra Thompsc 1932 Jody Lane Carlisle, PA 17013 Defendants AND NOW, this 2 Kutulakis, L.L.P., hereby PLAINTIFF'S AMEND PRELIMINARY OBJECTI causing to be deposited, sar. to the following: TH OF PENNSYLVANIA COUNTY OF CUMBERLAND Civil Action - Law No: 2011 - 7694 CERTIFICATE OF SERVICE day of December, 2011, I, Shannon Freeman, Esquire, of Abom & rtify that I did serve a true and correct copy of the foregoing D PRELIMINARY OBJECTIONS TO DEFENDANTS' DNS TO PLAINTIFF'S AMENDED COMPLAINT by depositing, or : in the United States Mail, First-class mail, postage prepaid addressed Michael Pykosh, Esquire EFS-PYKOSH LAW GROUP, LLC 2132 Market Street Camp Hill, PA 17011 Attorney for the Defendants 1 Oannon Freeman THE FRC?1JfC,,r?`j, ZD12 JAN -5 PM 3: 31.; CUMBERLAND COUNTY PENNSYLVANIA Michael J. Pykosh, Esquire Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Email: Mpykosha-dplglaw.com Attorney for Defendants DOZIER CONTRACTING, LLC, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JOSHUA AND TAMRA No: 11-7694-CIVIL THOMPSON, Defendants NOTICE TO PLEAD To: Dozier Contracting, LLC c/o Jason P. Kutulakis Abom & Kutulakis 2 West High Street Carlisle, Pennsylvania 17013 You are hereby notified to plead to the enclosed Amended Preliminary Objections within twenty (20) days from the date of service hereof or a default judgment may be entered against you. Respp b ' d, Date: Michael J. Py sh, Esquire (ID: 58851) 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Michael J. Pykosh, Esquire Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Email: Mpykosh(&dplglaw.com Attorney for Defendants DOZIER CONTRACTING, LLC, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW JOSHUA AND TAMRA No: 11-7694-CIVIL THOMPSON, Defendants AMENDED PRELIMINARY OBJECTIONS AND NOW, comes the Defendants, Joshua and Tamra Johnson, by and through their attorneys, the Dethlefs-Pykosh Law Group, LLC, by Michael J. Pykosh, Esquire who brings the within Amended Preliminary Objections pursuant to Pa. R.C.P. 1028 and in support thereof avers as follows: 1. Plaintiff is Dozier Contracting, LLC, a Pennsylvania limited liability company with an address of 1514 Longview Drive, Latrobe, Westmoreland County, Pennsylvania 15650. 2. Defendants are Joshua and Tamra Thompson, husband and wife, adult individuals currently residing at 1932 Jody Lane, Carlisle, Cumberland County, Pennsylvania 17013. 3. On or about October 10, 2011, a Complaint was filed in this matter. 4. On or about October 26, 2011 Defendants filed Preliminary Objections to Plaintiff's Complaint pursuant to Pa. R.C.P. 1028. 5. On or about November 7, 2011, Plaintiff filed an Amended Complaint. 6. On or about December 2, 2011, Defendants filed Preliminary Objections to Plaintiff's Amended Complaint. 7. On or about December 21, 2011, Plaintiff filed Preliminary Objections to Defendants' Preliminary Objections to Plaintiffs Amended Complaint. 8. On or about December 22, 2011, Plaintiff filed Amended Preliminary Objections to Defendants' Preliminary Objections to Plaintiff's Amended Complaint. 9. In light of the foregoing, Defendants now file the instant Amended Preliminary Objections to Plaintiff's Amended Complaint pursuant to Pa. R.C.P. 1028. DEFENDANTS' FIRST PRELIMINARY OBJECTION LEGAL INSUFFICIENCY Pa. R.C.P. 1028(a)(4) - Demurrer as to Count I (Breach of Contract) 10. Paragraphs 1 through 9 are incorporated herein by reference and as though fully set forth below. 11. Pa. R.C.P. 1028(a)(4) allows a party to preliminarily object to a pleading for legal insufficiency. 12. Plaintiff's Amended Complaint is legally insufficient. 13. Plaintiff implies throughout its Amended Complaint that it is a contractor in the business of home improvements as defined by 73 P.S. § 517.2. 14. Pursuant to 73 P.S. § 517.2 the work identified in paragraph three (3) of Plaintiff's Amended Complaint is defined as a Home Improvement. 15. The work was done at Defendants' private residence. 16. The total cash price of all work exceeded $500.00. 17. The actions of Plaintiff, in this matter, are controlled by the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. §§ 517.1 et seq. 18. Plaintiff failed to provide Defendants with a proper Home Improvement Contract pursuant to 73 P.S. § 517.7. 19. Plaintiff failed to provide Defendants with a contract which complied with the requirements of the Home Improvement Consumer Protection Act; specifically, Plaintiff: a. failed to provide Defendants with a legible contract in violation of 73 P.S. § 517.7(a)(1); i. specifically, portions of the handwritten entries on what purports to be Plaintiff's contract with Defendants are illegible; b. failed to provided Defendants with a contract that is signed by both the owner and the contractor in violation of 73 P.S. § 517.7(a)(2); c. failed to provide Defendants with a contract that contained the entire agreement between the owner and the contractor in violation of 73 P.S. § 517.7(a)(3); d. failed to provide Defendants with a contract that included all required notices in violation of 73 P.S. § 517.7(a)(3); e. failed to provide Defendants with a contract that contained the date of the transaction in violation of 73 P.S. § 517.7(a)(4); f. failed to provide Defendants with a contract that included the approximate starting date and completion date in violation of 73 P.S. § 517.7(a)(6); g. failed to provide Defendants with a contract that included a description of the work to be performed, the materials to be used and a set of specifications that could not be changed without written change order signed by owner and contractor, in violation of 73 P.S. § 5171(a)(7); h. failed to provide Defendants with a contract that included the total sales price due under the contract, in violation of 73 P.S. § 5177(a)(8); i. failed to provide Defendants with a contract that listed separately the amount of down payment and the cost of the special order materials, in violation of 73 P.S. § 517.7(a)(9); j. failed to provide Defendants with a contract that included the names, addresses and telephone numbers of all subcontractors on the project known at the date of signing of the contract, in violation of 73 P. S. § 517.7(a)(10); k. failed to provide Defendants with a contract that stated that Plaintiff agrees to maintain liability insurance covering personal injury in an amount not less than $50,000 and insurance covering property damage caused by the work of a home improvement contractor in an amount not less than $50,000, in violation of 73 P.S. § 517.7(a)(11); I. failed to provide Defendants with a contract that identified the current amount of insurance coverage maintained at the time of signing of the contract in violation of 73 P.S. § 517.7(a)(11); m. failed to provide Defendants with a contract that included the toll-free telephone number under section 73 P.S. § 517.3(b) of the Home Improvement Consumer Protection Act, in violation of 73 P.S. § 517.7(a)(12); n. failed to provide Defendants with a notice of right of rescission, in violation of 73 P.S. § 517.7(a)(13) and 71 P.S. § 517.7(b); and o. failed to provide Defendants with a completed copy of the home improvement contract at the time the contract was executed that contained all required notices, in violation of 73 P.S. § 517.7(c). 20. As more particularly described above, the contract entered into between Plaintiff and Defendants is invalid and unenforceable against Defendants. 73 P.S. § 517.7(a). 21. By failing to provide Defendants with a proper Home Improvement Contract, pursuant to 73 P.S. § 517.7, Plaintiff is precluded from enforcing any agreement with Defendants against Defendants. 73 P.S. § 517.7(a). 22. Therefore, without a contract upon which Plaintiff can make its claim, its action must fail as legally insufficient pursuant to Pa. R.C.P. 1028(a)(4). 23. Pursuant to 73 P. S. § 517.7(g) and Plaintiff's actions in dealing with Defendants, Plaintiff is precluded from any recovery in equity. 24. Furthermore, Defendants respectfully request that this Honorable Court, pursuant to 73 P.S. § 517.10, find that Plaintiff's act of not providing Defendants with a proper Home Improvement Contract, pursuant to 73 P.S. § 517.7, be deemed a violation of Pennsylvania Unfair Trade Practices and Consumer Protection Law and order the costs of defending this suit and attorney's fees be taxed against Plaintiff pursuant to 73 P.S. § 201-9.2. WHEREFORE, for all the reasons set forth above, Defendants, Joshua and Tamra Thompson, respectfully request that this Honorable Court sustain Defendants' Preliminary Objections, and grant Defendants' Demurrer and dismiss Plaintiff's Complaint for legal insufficiency pursuant to Pa. R.C.P. 1028(a)(4). Further, Defendants' respectfully request that this Honorable Court, pursuant to 73 P.S. § 517.10 find that Plaintiff's act of not providing Defendants with a proper Home Improvement Contract pursuant to 73 P.S. § 517.7 be deemed a violation of Pennsylvania Unfair Trade Practices and Consumer Protection Law and order the costs of defending this suit and attorney's fees be taxed against Plaintiff pursuant to 73 P.S. § 201-9.2. DEFENDANTS' SECOND PRELIMINARY OBJECTION LEGAL INSUFFICIENCY Pa. R.C.P. 1028(a)(4) - Demurrer as to Count 11 (Unjust Enrichment) 25. Paragraphs 1 through 24 are incorporated herein by reference and as though fully set forth below. 26. Plaintiff has alleged in paragraph three (3) of its Amended Complaint that there exists or existed a contract between the parties hereto for services to be performed at Defendants' residence. 27. The cause of action listed for Count II of Plaintiff's Amended Complaint is unjust enrichment. 28. The law of Pennsylvania holds that unjust enrichment is a quasi-contractual doctrine based in equity. See Wiernik v. P.H.H. U.S. Mortgage. Corp., 736 A.2d 616, 622 (Pa. Super. Ct. 1999), appeal denied, 561 Pa. 700, 751 A.2d 193 (2000). 29. Pennsylvania law further holds that "the doctrine of unjust enrichment is inapplicable when the relationship between the parties is founded upon a written agreement or an expressed contract ..." Wilson Area Sch. Dist. V. Skepton, 586 Pa. 513, 521, 895 A.2d 1250, 1254 (2006). 30. It is clear that Count II of Plaintiff's Complaint (Unjust Enrichment) of is based upon an expressed or written contract between the parties, therefore, Count II, even though it is plead in the alternative, is legally insufficient and Defendants' demurrer should be granted. 31. Furthermore, as described above and incorporated herein, pursuant to the Pennsylvania Home Improvement Consumer Protection Act, specifically, 73 P.S. § 517.7(g) and Plaintiffs actions in dealing with Defendants, Plaintiff is precluded from any recovery in equity, including any recovery for unjust enrichment. WHEREFORE, for the reasons set forth above, Defendants, Joshua and Tamra Thompson, respectfully request that this Honorable Court sustain their Preliminary Objection in the form of a demurrer to Count II, Unjust Enrichment, of Plaintiff's Complaint and strike Count II, Unjust Enrichment, from Plaintiff's Amended Complaint with prejudice. DEFENDANTS' THIRD PRELIMINARY OBJECTION IN THE FORM OF A MOTION TO STRIKE PLAINTIFF'S DEMANDS IN AD DAMNUM CLAUSES FOR ATTORNEY'S FEES 32. Paragraphs 1 through 31 are incorporated herein by reference and as though fully set forth below. 33. With every ad damnum clause in their Amended Complaint, Plaintiff demands penalty and attorney's fees. 34. There is no statutory authority for the award of either penalty or attorney's fees in this matter. 35. Pursuant to 42 Pa. C.S. § 2503, attorney's fees may be awarded where, it is shown that, inter alia, the other party has acted arbitrarily, vexatiously or in bad faith. 36. There is no contract between the parties hereto which deals with who pays whos attorney's fees. 37.Accordingly, in the absence of statute or contract, each party pays its own counsel fees. Jones v. Muir, 511 Pa. 535, 515 A.2d 855 (1986). WHEREFORE, or the reasons set forth above, Defendants, Joshua and Tamra Thompson, respectfully request that this Honorable Court sustain their Preliminary Objection in the form of a Motion to Strike off the demand for attorney's fees in each of Plaintiff's ad damnum clauses. DEFENDANTS' FORTH PRELIMINARY OBJECTION LEGAL INSUFFICIENCY Pa. R.C.P. 1028(a)(4) - Demurrer as to Count III (Fraud) 38. Paragraphs 1 through 37 are incorporated herein by reference and as though fully set forth below. 39. Plaintiff's fraud claim is barred by the gist of the action doctrine. 40. The gist of the action doctrine precludes the bringing of tort claims that are collateral to claims sounding in breach of contract. See eToll, Inc., v. Elias/Savion Advertising, Inc., 2002 PA Super 347, 811 A.2d 10, 14 (Pa. Super. 2002). 41. Under the gist of the action doctrine, Plaintiff may not recast their Breach of Contract claims into tort claims: 1) arising solely from the contractual relationship between the parties; 2) when alleged duties breached or based on the contract itself; 3) where the liability stems from the contract; and 4) when the tort claim essentially duplicates the breach of contract claim or where the success of the tort claim is dependent upon the success of the breach of contract claim. Id. 42.Accordingly, Count III, Fraud, of Plaintiff's Complaint is barred by the gist of the action doctrine. 43. As described above and incorporated herein, pursuant to the Pennsylvania Home Improvement Consumer Protection Act, specifically, 73 P.S. § 517.7(g) and Plaintiff's actions in dealing with Defendants, Plaintiff is precluded from any recovery in equity or law, including any recovery for fraud. 44.A claim by the Plaintiff for fraud cannot exist where Plaintiff has unclean hands. 45. Specifically, Plaintiff failed to provide Defendants, Pennsylvania homeowners, with the protections of the Pennsylvania Home Improvement Consumer Protection Act. 73 P.S. §§ 517.1, et seq. 46. The goal of the Pennsylvania Home Improvement Consumer Protection Act. 73 P.S. §§ 517.1, et seq. is to protect Pennsylvania homeowners from the unscrupulous actions for which, historically and unfortunately, contractors have been known to employ. 47. Finally, the document attached as Exhibit B to Plaintiff's Amended Complaint was offered to Defendants for signature by Plaintiff in an attempt by Plaintiff to receive payment for work from Defendants' insurer, Erie, when Plaintiff knew or had reason to know that the document was false and that the work was not complete or satisfactory in violation of 73 P.S. § 517.9(4). WHEREFORE, Defendants respectfully request that this Honorable Court sustain their Preliminary Objection, grant their demurrer and strike Count III, Fraud, from Plaintiff's Amended Complaint, with prejudice. Date: j--5--Z012- Respectfully SubWed Michael J. cosh, Esquire I. D. #58851 2132 Market Street Camp Hill, PA 17011 DOZIER CONTRACTING, LLC, Plaintiff V. JOSHUA AND TAMRA THOMPSON, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No: 11-7694-CIVIL CERTIFICATE OF SERVICE THIS IS TO CERTIFY that on the date indicated below, the foregoing Defendants' Amended Preliminary Objections to Plaintiff's Amended Complaint were mailed via first class mail, postage prepaid to: Dozier Contracting, LLC c/o Jason P. Kutulakis Abom & Kutulakis 2 West High Street Carlisle, Pennsylvania 17013 Respectfully Submitted: Date: 1 -15-2-0% Z Michael J. Pykosh, Esquire I.D. #58851 2132 Market Street Camp Hill, PA 17011 Telephone: (717) 975-9446 VERIFICATION We, Joshua Thompson and Tamra Thompson, hereby verify that the statements of fact made in the foregoing documents are true and correct to the best of our personal knowledge, information and belief. We understand that any false statements therein are subject to the criminal penalties contained in 18 Pa C. S. Section 4904, relating to unsworn falsification to authorities. Date: ;Joshua Thompson Date: /IV??;2' Tamra Thompson ABOM cSZ' KuTULnKis Jason P. Kutulakis, Esquire Attorney I.D. #: 80411 2 West High Strect Carlisle, PA 17013 (717) 249-0900 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Dozier Contracting, LLC 1514 Longview Drive Latrobe, PA 15650 Plaintiff V. Joshua and T•amra Thompson 1932 Jody Lane Carlisle, PA 17013 Defendants Civil Action - Law No: 2011 - 7694 c? 3r ?° LJ ?- C !1 PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANTS' AMENDED PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT AND NOW, this 23rd day of January, 2012, comes the Plaintiff, Dozier Contracting, LLC, by and through its counsel, Jason P. Kutulakis, Esquire, of Abom & Kutulakis, LLP and respectfully preliminary objects to Defendants' "Amended Preliminary Objections", and in support thereof avers the following: 1. On or about January 6, 2012, undersigned counsel was served with the above-captioned Defendants "Amended Preliminary Objections." PLAINTIFF'S PRELIMINARY OBJECTION TO DEFENDANTS' FIRST PRELIMINARY OBJECTION - LEGAL SUFFICIENCY 2. Paragraph one (1) is incorporated herein by reference. 3. Defendants' Preliminary Objections raises affirmative defenses and cite to 42 Pa. R.C.P. 1028(a) (4). 4. Pa. R.C.P. 1030 requires all affirmative defenses to be plead and a responsive pleading under the heading of New Matter as part of the Defendants' answer. 5. The proper methodology for objecting when defenses are inappropriately raised by way of Preliminary Objections is through Preliminary Objections. Richland v. McHale, A.M. _, 2012 W.L. 11630 (Pa. Super 2012) attached hereto as Exhibit A. 6. Illegality of contract is an affirmative defense which should be pleaded by way of new matter under Rule 1030, and cannot be raised by way of Preliminary Objections. DeAngelis v. Laughlin, 258 A.2d. 615 (Pa. Super 1969). See also Kleinwaks v. Shiner, 10 Pa.d. & C.2d. 301 (27 Leh.L J. 179) (1958), where the court held that Preliminary Objections will be dismissed where they alleged illegality of a contract. The court indicated that the affirmative defense must be pleaded under new matter pursuant to Rule 1030. WHEREFORE, Plaintiff respectfully requests that this Honorable Court grant its Preliminary Objections to Defendants' First Preliminary Objection due to legal insufficiency. PLAINTIFF'S PRELIMINARY OBJECTION TO DEFENDANTS' SECOND PRELIMINARY OBJECTION - LEGAL INSUFFICIENCY 7. Paragraphs one (1) through six (6) are incorporated herein by reference. 8. Illegality of contract is an affirmative defense which should be pleaded by way of new matter under Rule 1030, and cannot be raised by way of Preliminary Objections. DeAngelis v. Laughlin, 258 A.2d. 615 (Pa. Super 1969). See also Kleinwaks v. Shiner, 10 Pa.d. & C.2d. 301 (27 Leh.L J. 179) (1958), where the court held that Preliminary Objections will be dismissed where they alleged illegality of a contract. The court indicated that the affirmative defense must be pleaded under new matter pursuant to Rule 1030. WHEREFORE, Plaintiff respectfully requests that this Honorable Court grant its Preliminary Objections to Defendants' Second Preliminary Objection due to legal insufficiency. PLAINTIFF'S PRELIMINARY OBJECTION TO DEFENDANTS' THIRD PRELIMINARY OBJECTION IN THE FORM OF A MOTION TO STRIKE 9. Paragraphs one (1) through eight (8) are incorporated herein by reference. 10. Illegality of contract is an affirmative defense which should be pleaded by way of new matter under Rule 1030, and cannot be raised by way of Preliminary Objections. DeAngelis v. Laughlin, 258 A.2d. 615 (Pa. Super 1969). See also Kleinwaks v. Shiner, 10 Pa.d. & C.2d. 301 (27 Leh.L J. 179) (1958), where the court held that Preliminary Objections will be dismissed where they alleged illegality of a contract. The court indicated that the affirmative defense must be pleaded under new matter pursuant to Rule 1030. 11. 73 P.S. 517.37(e)(8) makes contracts containing mandatory attorney's fees to contractors voidable, not void and Plaintiff, Dozier Contracting, IJ,C, can recover attorney's fees if justly entitled thereto after the facts are determined. WHEREFORE, Plaintiff respectfully requests that this Honorable Court grant its Preliminary Objections to Defendants' Third Preliminary Objection due to legal insufficiency. Respectfully submitted, ABoM & KUTULA"S, L.L.P. Date: Jaso P. KuthWds, Esquire I.D. 80411 2 West High Street Carlisle, PA 17013 (717) 249-0900 Attorney for Plaintiff VERIFICATION I, Jason P. Kutulaksi, Esquire, am attorney of record for Plaintiff, Dozier Contracting, LLC, and state that the foregoing Plaintiff's Preliminary Objections to Defendants' Amended Preliminary Objections to Plaintiff's Amended Complaint is based solely upon the legal expertise of counsel, contains no averments of fact not appearing of record in the action, nor any denial of fact, and therefore does not require verification by said party pursuant to Pa. R.C.P. 1024(a). Date: Jas P. KutulaIds, Esquire COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Dozier Contracting, LLC 1514 Longview Drive Latrobe, PA 15650 Plaintiff Civil Action - Law V. Joshua and Tamra Thompson 1932 Jody Lane Carlisle, PA 17013 Defendants No: 2011 - 7694 CERTIFICATE OF SERVICE AND NOW, this ag?day of January, 2012, I, Shannon Freeman, Esquire, of Abom & Kutulakis, L.L.P., hereby certify that I did serve a true and correct copy of the foregoing PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANTS' AMENDED PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT by depositing, or causing to be deposited, same in the United States Mail, First-class mail, postage prepaid addressed to the following: Michael Pykosh, Esquire DETHLEFS-PYKOSH LAW GROUP, LLC 2132 Market Street Camp Hill, PA 17011 Attorney for the Defendants ?'IILAr S on Freeman r-rt ., ? r-- r ? v ' Michael J. Pykosh, Esquire Detalefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Email: Mpvkosh@gplglaw.com Attorney for Defendants DOZIER CONTRACTING, LLC, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JOSHUA AND TAMRA No: 11-7694 - CIVIL THOMPSON, Defendants : JURY TRIAL DEMANDED NOTICE TO PLEAD To: Dozier Contracting, LLC c/o Jason P. Kutulakis, Esquire Abom & Kutulakis 2 West High Street Carlisle, Pennsylvania 17013 You are hereby notified to plead to the enclosed New Matter and Counterclaim within twenty (20) days from the date of service hereof or a default judgment may be entered against you. Date: J Z RespgALfih miffed, MicMaeri. flykosh, Esquire (ID: 58851) 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 DOZIER CONTRACTING, LLC, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JOSHUA AND TAMRA No: 11-7694-CIVIL THOMPSON, . Defendants JURY TRIAL DEMANDED NOTICE TO DEFEND 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 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 OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP: CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 Michael J. Pykosh, Esquire Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Email: Mpykosh@Apjg!aw.com Attorney for Defendants DOZIER CONTRACTING, LLC, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JOSHUA AND TAMRA No: 11-7694-CIVIL THOMPSON, Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD To: Dozier Contracting, LLC c/o Jason P. Kutulakis, Esquire Abom & Kutulakis 2 West High Street Carlisle, Pennsylvania 17013 You are hereby notified to plead to the enclosed New Matter and Counterclaim within twenty (20) days from the date of service hereof or a default judgment may be entered against you. Date: bvur?ry 2 ZurZ Resmea fu1,y-,,9,,4amitted, Michael J. PykoSb-,Esquire (ID: 58851) 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 DOZIER CONTRACTING, LLC, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW JOSHUA AND TAMRA No: 11-7694-CIVIL THOMPSON, Defendants : JURY TRIAL DEMANDED NOTICE TO DEFEND 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 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 OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP: CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 Michael J. Pykosh, Esquire Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Email: Mpykosha-dplglaw.com Attorney for Defendants DOZIER CONTRACTING, LLC, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. JOSHUA AND TAMRA THOMPSON, Defendants CIVIL ACTION - LAW No: 11-7694-CIVIL JURY TRIAL DEMANDED ANSWER WITH NEW MATTER AND COUNTERCLAIM AND NOW, comes the Defendants, Joshua and Tamra Johnson, by and through their attorneys, the Dethlefs-Pykosh Law Group, LLC, by Michael J. Pykosh, Esquire who file this Answer, New Matter and Counterclaim, and in support thereof aver as follows: 1. Admitted. 2. Admitted. 3. Admitted in Part, Denied in Part. It is admitted that the document attached to Plaintiff's Amended Complaint as Exhibit "A" purports to be a contract and is accordingly a document which speak for itself. It is also admitted that Defendants hired Plaintiffs to perform work at their residence. It is specifically denied that Defendant, Joshua Thompson, signed a contract with Plaintiffs. Any reference or inference that the contract is valid, enforceable or legal is a specifically denied. By way of further response, Plaintiff's actions in dealing with Defendant violated the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et seq. by failing to offer Defendant the protections afforded by law, to them. 4. Admitted in Part, Denied in Part. It is admitted that Defendant, Tamra Thompson did sign a contract with Plaintiff and that Defendants' insurance company, by letter dated June 8, 2011 and attached to Plaintiff's Amended Complaint as Exhibit "C" did agree to settle Defendants' insurance claim for an actual cash value settlement of $12,846.62. It is specifically denied that Defendant, Joshua Thompson, signed a contract with Plaintiff. It is specifically denied that the contract included a total contract sales price. Any reference or inference that the contract is valid, enforceable or legal is a specifically denied. By way of further response, Plaintiff's actions in dealing with Defendants violated the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et seq. by failing to offer Defendants the protections afforded by law, to them. 5. Denied. It is specifically denied that the document signed by Defendant, Tamra Thompson on July 7, 2011 confirmed that the work was completed. By way of further response, this document (Exhibit "B" to Plaintiff's Amended Complaint) was brought to Ms. Thompson, by Plaintiff at Ms. Thompson's place of employment for Ms. Thompson's signature. It was presented to Ms. Thompson that the document needed to be signed in order for Plaintiff to get more money from the insurance company although Plaintiff acknowledged to and agreed with Ms. Thompson that the work was not completed. Nonetheless, Plaintiff convinced Ms. Thompson to sign the document with assurances that it was only to get more money from the insurance company and that all work would be performed as agreed. By way of further response, Plaintiff's actions in dealing with Defendant violated the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et seq.. by failing to offer Defendant the protections afforded by law, to them. Specifically, the document attached as Exhibit "B" to Plaintiff's Amended Complaint was offered to Defendants for signature, by Plaintiff, in an attempt by Plaintiff to receive payment for work from Defendants' insurer, Erie, when Plaintiff knew or had reason to know that the document was false and that the work was not complete or satisfactory in violation of 73 P.S. § 517.9(4). 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Denied. It is specifically denied that on June 14, 2011 Defendants paid to Plaintiff, $12,846.62. To the contrary, this payment was made on June 20, 2011. It is specifically denied that Plaintiff is entitled, by law, to the sums of money which they are demanding and through their actions should be disgorged of any sums paid to them by Defendants. 11.Admitted in Part, Denied in Part. It is admitted that Defendant refuses to pay, in full, the sums of money which Plaintiff believes are due for the services performed to the residence of Defendants. It is specifically denied that Plaintiff is entitled, by law, to the sums of money which they are demanding. By way of further response, and as set forth more particularly in the New Matter and Counterclaim, Defendants believe that Plaintiffs actions in dealing with Defendants violated the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et seq. by failing to offer Defendants the protections afforded by law, to him. Said violations of the law preclude Plaintiffs recovery. COUNT I - BREACH OF CONTRACT 12. Paragraph twelve (12) being a paragraph of incorporation does not require a response. 13.Admitted in Part, Denied in Part. It is admitted that the document attached to Plaintiffs Amended Complaint as Exhibit "A" purports to be a contract and is accordingly a document which speak for itself. By way of further response, the contract is only signed by Tamra Thompson. It is specifically denied that Defendant, Joshua Thompson, signed a contract with Plaintiff. It is specifically denied that the contract sales price of $17,744.49 appears on the contract. 14. Admitted. 15. Admitted. 16. Denied. As this averment is identical to that of paragraph five (5) above, Defendants hereby incorporate, by reference as if fully set forth here, their response to paragraph five (5) above. 17. Admitted in Part, Denied in Part. It is admitted that on June 20, 2011 Defendants made a payment of $12,846.62 to Plaintiff. It is specifically denied that Plaintiff is entitled, by law, to the sums of money which they are demanding, including the alleged remaining balance of $4,897.87. By way of further response, and as set forth more particularly in the New Matter and Counterclaim, Defendants believe that Plaintiff's actions in dealing with Defendants violated the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et seq. by failing to offer Defendants the protections afforded by law, to him. Said violations of the law preclude Plaintiff's recovery. 18.Admitted in Part, Denied in Part. It is admitted that Defendant refuses to pay, in full, the sums of money which Plaintiff believes are due for the services performed to the residence of Defendants. It is specifically denied that Plaintiff is entitled, by law, to the sums of money which they are demanding. By way of further response, and as set forth more particularly in the New Matter and Counterclaim, Defendant believes that Plaintiff's actions in dealing with Defendant violated the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P. S. §201-1, et seq. by failing to offer Defendant the protections afforded by law, to him. Said violations of the law preclude Plaintiff's recovery. 19. Denied. The averments of paragraph nineteen (19) of Plaintiff's Amended Complaint constitute a conclusion of law to which no response is necessary. To the extent that a response is deemed judicially required, it is specifically denied that Plaintiff is entitled, by law, to the sums of money which they are demanding. By way of further response, and as set forth more particularly in the New Matter and Counterclaim, Defendant believes that Plaintiff's actions in dealing with Defendant violated the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et seq. by failing to offer Defendant the protections afforded by law, to him. Said violations of the law preclude Plaintiff's recovery. 20. Denied. The averments of paragraph twenty (20) of Plaintiff's Amended Complaint constitute a conclusion of law to which no response is necessary. To the extent that a response is deemed judicially required, it is specifically denied that Plaintiff is entitled, by law, to the sums of money which they are demanding. By way of further response, and as set forth more particularly in the New Matter and Counterclaim, Defendant believes that Plaintiff's actions in dealing with Defendant violated the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et seq. by failing to offer Defendant the protections afforded by law, to him. Said violations of the law preclude Plaintiff's recovery. 21. Denied. The averments of paragraph twenty one (21) of Plaintiff's Amended Complaint constitute a conclusion of law to which no response is necessary. To the extent that a response is deeded judicially required, it is specifically denied that Plaintiff is entitled, by law, to the sums of money which they are demanding. By way of further response, and as set forth more particularly in the New Matter and Counterclaim, Defendant believes that Plaintiff's actions in dealing with Defendant violated the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et seq. by failing to offer Defendant the protections afforded by law, to him. Said violations of the law preclude Plaintiff's recovery. 22. Denied. The averments of paragraph twenty two (22) of Plaintiff's Amended Complaint constitute a conclusion of law to which no response is necessary. To the extent that a response is deemed judicially required, it is specifically denied that Plaintiff is entitled, by law, to the sums of money which they are demanding. By way of further response, and as set forth more particularly in the New Matter and Counterclaim, Defendant believes that Plaintiff's actions in dealing with Defendant violated the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et seq. by failing to offer Defendant the protections afforded by law, to him. Said violations of the law preclude Plaintiff's recovery. 23. Denied. The averments of paragraph twenty three (23) of Plaintiff's Amended Complaint constitute a conclusion of law to which no response is necessary. By way of further response, any reference or inference that the contract is valid, enforceable or legal is a specifically denied. By way of further response, Plaintiffs actions in dealing with Defendant violated the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et seq. by failing to offer Defendant the protections afforded by law, to them. WHEREFORE, Defendants respectfully request that this Honorable Court find in favor of Defendants and against Plaintiff on Count I of Plaintiff's Amended Complaint. 24. Paragraph twenty four (24) being a paragraph of incorporation does not require a response. 25. Admitted. 26. Denied. The averments of paragraph twenty six (26) of Plaintiffs Amended Complaint constitute a conclusion of law to which no response is necessary. By way of further response, any reference or inference that the contract is valid, enforceable or legal is a specifically denied. Further, any reference or inference that Plaintiffs are entitled to any equitable relief is specifically denied. By way of further response, Plaintiff's actions in dealing with Defendant violated the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et seq. by failing to offer Defendant the protections afforded by law, to them. 27. Denied. The averments of paragraph twenty seven (27) of Plaintiff's Amended Complaint constitute a conclusion of law to which no response is necessary. By way of further response, any reference or inference that the contract is valid, enforceable or legal is a specifically denied. Further, any reference or inference that Plaintiffs are entitled to any equitable relief is specifically denied. Byway of further response, Plaintiff's actions in dealing with Defendant violated the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et seq. by failing to offer Defendant the protections afforded by law, to them. 28.Admitted in Part, Denied in Part. It is admitted that Defendants have not paid Plaintiff for all of the money which Plaintiff demands. It is specifically denied that Plaintiff is entitled, by law, to the sums of money which they are demanding. By way of further response, any reference or inference that the contract is valid, enforceable or legal is a specifically denied. Further, any reference or inference that Plaintiffs are entitled to any equitable relief is specifically denied. By way of further response, Plaintiff's actions in dealing with Defendant violated the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et seq. by failing to offer Defendant the protections afforded by law, to them. 29. Denied. It is specifically denied that the document signed by Defendant, Tamra Thompson on July 7, 2011 confirmed that the work was completed. By way of further response, this document (Exhibit "B" to Plaintiff's Amended Complaint) was brought to Ms. Thompson, by Plaintiff at Ms. Thompson's place of employment for Ms. Thompson's signature. It was presented to Ms. Thompson that the document needed to be signed in order for Plaintiff to get more money from the insurance company although Plaintiff acknowledged to and agreed with Ms. Thompson that the work was not completed. Nonetheless, Plaintiff convinced Ms. Thompson to sign the document with assurances that it was only to get more money from the insurance company and that all work would be performed as agreed. It is specifically denied that Plaintiff is entitled, by law, to the sums of money which they are demanding. By way of further response, Plaintiff's actions in dealing with Defendant violated the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et seq. by failing to offer Defendant the protections afforded by law, to them. Specifically, the document attached as Exhibit "B" to Plaintiff's Amended Complaint was offered to Defendants for signature, by Plaintiff, in an attempt by Plaintiff to receive payment for work from Defendants' insurer, Erie, when Plaintiff knew or had reason to know that the document was false and that the work was not complete or satisfactory in violation of 73 P.S. § 517.9(4). 30. Denied. It is specifically denied that Defendants did not communicate to Plaintiffs that they were no longer welcomed on Defendants' property. To the contrary, after the relationship between the parties soured and on August 5, 2011, Defendant, Tamra Thompson, specifically told Plaintiff not to return to Defendants' residence due to the actions of Brian Dozier and the deficient work performed. 31. Denied. It is specifically denied that Defendants did not communicate to Plaintiffs that they were no longer welcomed on Defendants' property. To the contrary, after the relationship between the parties soured and on August 5, 2011, Defendant, Tamra Thompson, specifically told Plaintiff not to return to Defendants' residence due to the actions of Brian Dozier and the deficient work performed. 32. Denied. The averments of paragraph thirty two (32) of Plaintiff's Amended Complaint constitute a conclusion of law to which no response is necessary. It is specifically denied that Plaintiff is entitled, by law, to the sums of money which they are demanding. By way of further response, any reference or inference that the contract is valid, enforceable or legal is a specifically denied. Further, any reference or inference that Plaintiffs are entitled to any equitable relief is specifically denied. By way of further response, Plaintiff's actions in dealing with Defendant violated the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et seq. by failing to offer Defendant the protections afforded by law, to them. 33.Admitted in Part, Denied in Part. It is admitted that Defendants made a payment to Plaintiff of twelve thousand eight hundred forty six dollars and sixty two cents ($12,846.62). Any reference or inference that the contract is valid, enforceable or legal is a specifically denied. Further, any reference or inference that Plaintiffs are entitled to any equitable relief is specifically denied. By way of further response, Plaintiff's actions in dealing with Defendant violated the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et seq. by failing to offer Defendant the protections afforded by law, to them. Finally, with respect to Exhibit "B", Defendants incorporate their responses to Averments five (5) and twenty nine (29) above. 34. Denied. The averments of paragraph thirty four (34) of Plaintiffs Amended Complaint constitute a conclusion of law to which no response is necessary. To the extent that a response is deemed judicially required, it is specifically denied that Plaintiff is entitled, by law, to the sums of money which they are demanding. By way of further response, and as set forth more particularly in the New Matter and Counterclaim, Defendant believes that Plaintiff's actions in dealing with Defendant violated the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et seq. by failing to offer Defendant the protections afforded by law, to him. Said violations of the law preclude Plaintiffs recovery. Finally, with respect to Exhibit "B", Defendants incorporate their responses to Averments five (5) and twenty nine (29) above. WHEREFORE, Defendants respectfully request that this Honorable Court find in favor of Defendants and against Plaintiff on Count II of Plaintiff's Amended Complaint. COUNT III - FRAUD 35. Paragraph thirty five (35) being a paragraph of incorporation does not require a response. 36. Denied. The averments of paragraph thirty six (36) of Plaintiff's Amended Complaint constitute a conclusion of law to which no response is necessary. 37. Admitted. 38. Denied. The averments of paragraph thirty eight (38) of Plaintiff's Amended Complaint constitute a conclusion of law to which no response is necessary. Finally, with respect to Exhibit "B", Defendants incorporate their responses to Averments five (5) and twenty nine (29) above. 39. Admitted. 40. Denied. The averments of paragraph forty (40) of Plaintiff's Amended Complaint constitute a conclusion of law to which no response is necessary. To the extent that a response is judicially deemed required the same is specifically denied. As outlined above, Defendants were unhappy with the work of Plaintiff and Plaintiff's subcontractors, especially with regards to the siding. By way of further response, any reference or inference that the contract is valid, enforceable or legal is a specifically denied. By way of further response, Plaintiff's actions in dealing with Defendant violated the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et seq. by failing to offer Defendant the protections afforded by law, to them. 41. Denied. The averments of paragraph forty one (41) of Plaintiff's Amended Complaint constitute a conclusion of law to which no response is necessary. To the extent that a response is judicially deemed required the same is specifically denied. It is specifically denied that Plaintiff is entitled, by law, to the sums of money which they are demanding. By way of further response, any reference or inference that the contract is valid, enforceable or legal is a specifically denied. By way of further response, Plaintiff's actions in dealing with Defendant violated the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et seq. by failing to offer Defendant the protections afforded by law, to them. 42. Denied. The averments of paragraph forty two (42) of Plaintiff's Amended Complaint constitute a conclusion of law to which no response is necessary. To the extent that a response is judicially deemed required the same is specifically denied. It is specifically denied that Plaintiff is entitled, by law, to the sums of money which they are demanding. By way of further response, any reference or inference that the contract is valid, enforceable or legal is a specifically denied. By way of further response, Plaintiff's actions in dealing with Defendant violated the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et seq. by failing to offer Defendant the protections afforded by law, to them. WHEREFORE, Defendants respectfully request that this Honorable Court find in favor of Defendants and against Plaintiff on Count III of Plaintiff's Amended Complaint. NEW MATTER 43. Paragraphs 1 through 42 of Defendants' Answer to Plaintiff's Amended Complaint are incorporated and recast herein by reference and as though fully set forth below. 44. Plaintiff's action is or may be barred or limited by the applicable statute of frauds. 45. Plaintiff's action is or may be barred by illegality. 46. Plaintiff's action is or may be barred as against public policy. 47. Plaintiffs action is or may be barred by the doctrine of unclean hands. 48. Plaintiff's action for fraud is or may be barred by the gist of the action doctrine. 49. Plaintiffs actions in dealing with Defendants have violated the Pennsylvania Home Improvement Consumer Protection Act. 73 P.S. §§ 517.1 - 517.19. 50. Plaintiff's action is barred by the Pennsylvania Home Improvement Consumer Protection Act. 73 P.S. §§ 517.1 - 517.19. 51. Plaintiff has failed to afford Defendants the protections required by law that Plaintiff must afford to residential real property owners pursuant to the Pennsylvania Home Improvement Consumer Protection Act. 73 P.S. §§ 517.1 - 517.19. 52. Plaintiffs actions in dealing with Defendants have violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law. 73 P.S. §§ 201-1 - 201- 9.2. 53. Plaintiffs action is barred by the Pennsylvania Unfair Trade Practices and Consumer Protection Law. 73 P.S. §§ 201-1 - 201-9.2. 54. Plaintiff has failed to afford Defendants the protections required by law that Plaintiff must afford to consumers pursuant to the Pennsylvania Unfair Trade Practices and Consumer Protection Law. 73 P.S. §§ 201-1 - 201-9.2. 55. By failing to provide Defendants with a proper Home Improvement Contract, pursuant to 73 P.S. § 517.7, Plaintiff is precluded from enforcing any agreement they may have had with Defendant against Defendant. 73 P.S. § 517.7(a). 56. Plaintiff implies throughout its Amended Complaint that it is a contractor in the business of home improvements as defined by 73 P.S. § 517.2. 57. Pursuant to 73 P.S. § 517.2 the work identified in paragraph three (3) of Plaintiff's Amended Complaint is defined as a Home Improvement. 58. The work was done a Defendants' private residence. 59. The total cash price of all work exceeded $500.00. 60. The actions of Plaintiff, in this matter, are controlled by the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. §§ 517.1 et seq. 61. Plaintiff failed to provide Defendants with a proper Home Improvement Contract pursuant to 73 P.S. § 517.7. 62. Plaintiff failed to provide Defendants with a contract which complied with the requirements of the Home Improvement Consumer Protection Act; specifically, Plaintiff: a. failed to provide Defendants with a legible contract in violation of 73 P.S. § 517.7(a)(1); i. specifically, portions of the handwritten entries on what purports to be Plaintiff's contract with Defendants are illegible; b. failed to provided Defendants with a contract that is signed by both the owner and the contractor in violation of 73 P.S. § 517.7(a)(2); c. failed to provide Defendants with a contract that contained the entire agreement between the owner and the contractor in violation of 73 P.S. § 517.7(a)(3); d. failed to provide Defendants with a contract that included all required notices in violation of 73 P.S. § 517.7(a)(3); e. failed to provide Defendants with a contract that contained the date of the transaction in violation of 73 P.S. § 517.7(a)(4); f. failed to provide Defendants with a contract that included the approximate starting date and completion date in violation of 73 P.S. § 517.7(a)(6); g. failed to provide Defendants with a contract that included a description of the work to be performed, the materials to be used and a set of specifications that could not be changed without written change order signed by owner and contractor, in violation of 73 P.S. § 517.7(a)(7); h. failed to provide Defendants with a contract that included the total sales price due under the contract, in violation of 73 P.S. § 517.7(a)(8); i. failed to provide Defendants with a contract that listed separately the amount of down payment and the cost of the special order materials, in violation of 73 P.S. § 517.7(a)(9); j. failed to provide Defendants with a contract that included the names, addresses and telephone numbers of all subcontractors on the project known at the date of signing of the contract, in violation of 73 P.S. § 517.7(a)(10); k. failed to provide Defendants with a contract that stated that Defendant agrees to maintain liability insurance covering personal injury in an amount not less than $50,000 and insurance covering property damage caused by the work of a home improvement contractor in an amount not less than $50,000, in violation of 73 P.S. § 517.7(a)(11); 1. failed to provide Defendants with a contract that identified the current amount of insurance coverage maintained at the time of signing of the contract in violation of 73 P.S. § 517.7(a)(11); m. failed to provide Defendants with a contract that included the toll-free telephone number under section 73 P.S. § 517.3(b) of the Home Improvement Consumer Protection Act, in violation of 73 P.S. § 517.7(a)(12); n. failed to provide Defendants with a notice of right of rescission, in violation of 73 P.S. § 517.7(a)(13) and 71 P.S. § 517.7(b); and o. failed to provide Defendants with a completed copy of the home improvement contract at the time the contract was executed that contained all required notices, in violation of 73 P.S. § 517.7(c). 63.As more particularly described above, the contract entered into between Plaintiff and Defendants is invalid and unenforceable against Defendants. 73 P.S. § 517.7(a). 64. Plaintiff does not have privity of contract with Defendant, Joshua Thompson. 65. Plaintiff and/or Plaintiff's agents did not perform in a workmanlike and professional fashion. 66. Despite having sufficient time to do so, Plaintiff failed to finish the work Plaintiff claims that it was contract to perform. 67. The quality of the work performed was deficient, substandard and not would not pass without objection in Plaintiff's trade. 68. Plaintiff left Defendants' property with trash and debris strewn throughout. WHEREFORE, Defendants respectfully request that judgment be entered against Plaintiff and in favor of Defendants, in this matter, plus costs and attorney's fees incurred in the defense of this matter. Specifically, Defendants respectfully request that this Honorable Court, pursuant to 73 P.S. § 517.10 find that Plaintiff's act of not providing Defendant with a proper Home Improvement Contract pursuant to 73 P.S. § 517.7 and the protections afforded by 73 P.S. § 517.7.1 et seq. be deemed a violations of Pennsylvania Unfair Trade Practices and Consumer Protection Law and order the costs of defending this suit and attorney's fees be taxed against Plaintiff pursuant to 73 P.S. § 201-9.2. To the extent that this Honorable Court is not inclined to grant an award of attorney's fees under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, Defendant respectfully requests that this Honorable Court find that Plaintiff's act of bringing an action for relief when the same is expressly prohibited by statute (73 P.S. § 517.7) sufficient for an award of attorney's fees under 42 Pa. C.S.A. § 2503. COUNTERCLAIM Count I - Violations of the Pennsylvania Home Improvement Consumer Protection Act and the Pennsylvania Unfair Trade Practices and Consumer Protection Law 69. Paragraphs 1 through 68 of Defendants' Answer and New Matter and to Plaintiff's Amended Complaint are incorporated and recast herein by reference and as though fully set forth below. 70. Defendants hereby bring forth, as their Counterclaim a cause of action for violations of the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq. 71. Pursuant to 73 P.S. § 517.10 a violation of any of the provisions of the Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. shall be deemed a violation of the Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq. 72. Pursuant to 73 P.S. § 517.2 Defendants are the owner of a private residence situate at and known as 1932 Jody Lane, Carlisle, Cumberland County, Pennsylvania 17013. 73. Defendants believe, and therefore aver, that Plaintiff, pursuant to 73 P.S. § 517.2 is a contractor, within the definition of the Pennsylvania Home Improvement Consumer Protection Act. 74. As outlined more particularly herein, Plaintiff failed to afford Defendant with the protections of the Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. shall be deemed a violation of the Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq. 75. Further, Plaintiff failed to provide Defendant with a contract which complied with the requirements of the Pennsylvania Home Improvement Consumer Protection Act. 76. Specifically, Plaintiff: a. failed to provide Defendants with a legible contract in violation of 73 P.S. § 517.7(a)(1); i. specifically, portions of the handwritten entries on what purports to be Plaintiff's contract with Defendants are illegible; b. failed to provided Defendants with a contract that is signed by both the owner and the contractor in violation of 73 P.S. § 517.7(a)(2); c. failed to provide Defendants with a contract that contained the entire agreement between the owner and the contractor in violation of 73 P.S. § 517.7(a)(3); d. failed to provide Defendants with a contract that included all required notices in violation of 73 P.S. § 517.7(a)(3); e. failed to provide Defendants with a contract that contained the date of the transaction in violation of 73 P.S. § 517.7(a)(4); f. failed to provide Defendants with a contract that included the approximate starting date and completion date in violation of 73 P.S. § 517.7(a)(6); g. failed to provide Defendants with a contract that included a description of the work to be performed, the materials to be used and a set of specifications that could not be changed without written change order signed by owner and contractor, in violation of 73 P.S. § 517.7(a)(7); h. failed to provide Defendants with a contract that included the total sales price due under the contract, in violation of 73 P.S. § 517.7(a)(8); i. failed to provide Defendants with a contract that listed separately the amount of down payment and the cost of the special order materials, in violation of 73 P.S. § 517.7(a)(9); j. failed to provide Defendants with a contract that included the names, addresses and telephone numbers of all subcontractors on the project known at the date of signing of the contract, in violation of 73 P.S. § 517.7(a)(10); k. failed to provide Defendants with a contract that stated that Defendant agrees to maintain liability insurance covering personal injury in an amount not less than $50,000 and insurance covering property damage caused by the work of a home improvement contractor in an amount not less than $50,000, in violation of 73 P.S. § 517.7(a)(11); I. failed to provide Defendants with a contract that identified the current amount of insurance coverage maintained at the time of signing of the contract in violation of 73 P.S. § 517.7(a)(11); m. failed to provide Defendants with a contract that included the toll-free telephone number under section 73 P.S. § 517.3(b) of the Home Improvement Consumer Protection Act, in violation of 73 P.S. § 517.7(a)(12); n. failed to provide Defendants with a notice of right of rescission, in violation of 73 P.S. § 517.7(a)(13) and 71 P.S. § 517.7(b); and o. failed to provide Defendants with a completed copy of the home improvement contract at the time the contract was executed that contained all required notices, in violation of 73 P.S. § 5177(c). 77.As more particularly described above, any contract or agreement entered into between Plaintiff and Defendants is invalid and unenforceable against Defendant. 78. Further, the contract provided to Defendants contained hold harmless clause in violation of 73 P.S. § 517.7(e)(1). 79. Further, the contract provided to Defendants contained a provision that the Plaintiff shall be awarded attorney's fees and costs in violation of 73 P.S. § 517.7(e)(8). 80. By reason of Plaintiff's failure to provide Defendants with a proper Home Improvement Contract, pursuant to 73 P.S. § 517.7, Plaintiff is precluded from enforcing any agreement with Defendants against Defendants. 73 P.S. §517.7(a). 81. With regards to the Pennsylvania Unfair Trade Practices and Consumer Protection Act, Defendant believes and therefore avers that Plaintiff used unlawful and unfair methods of competitions and/or unfair and deceptive acts in the conduct of trade as more particularly described herein when dealing with Defendant and contracting to perform home improvements for Defendant in violation of 73 P.S. § 201-3. 82. Plaintiff failed to provide Defendants with a Notice of Cancellation as required by 73 P.S. § 201-7. 83. Plaintiff has misrepresented Defendant's right to cancel by failing provide Defendant with the Notice of Cancellation in violation of 73 P.S. § 201-7(b)(2)(f). 84. Plaintiff failed to provide Defendant with a proper, legal, written contract, as outlined above, which Plaintiff knew or should have known had the likelihood of causing confusion or misunderstanding to Defendants in violation of 73 P.S. § 201-2(4)(iii). 85. Defendant believes, and therefore avers, that Plaintiff engaged in other fraudulent or deceptive conduct which created a likelihood of confusion or of misunderstanding, more particularly described herein, in violation of 73 P.S. § 201-2(4)(xxi). 86. In light of the foregoing and to the extent that any monies have been paid to Plaintiff or have been authorized to be paid to Plaintiff, Defendants respectfully request that this Honorable Court order Plaintiff disgorged of any fruits of its deceptive conduct. WHEREFORE, Defendants respectfully request that judgment be entered against Plaintiff and in favor of Defendants for violations of the Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq. in an amount equal to three times the actual damages sustained by Defendants plus costs, pre-judgment and post-judgment interest, disgorgement of any monies which have been paid to or have been authorized to be paid to Plaintiff, punitive damages and reasonable attorney fees, and whatever other relief this Honorable Court deems necessary and just pursuant to 73 P.S. § 201-9.2(a). Count II - BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING 87. Paragraphs 1 through 86 of Defendants' Answer and New Matter and to Plaintiff's Amended Complaint are incorporated and recast herein by reference and as though fully set forth below. 88. Every contractual relationship and contractual negotiation imposes upon each party a duty of good faith and fair dealing in its negotiation, performance and its enforcement. 89. Plaintiff's actions in dealing with and contracting with Defendants violated the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et seq. by failing to offer Defendant the protections afforded by law, to them. 90. Defendants' aforementioned conduct was willful, outrageous, malicious or otherwise made without regard as to the protections afforded to consumers by the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et seq. WHEREFORE, Defendants respectfully request that judgment be entered against Plaintiff and in favor of Defendants in an amount equal to three times the actual damages sustained by Defendants plus costs, pre-judgment and post judgment interest, disgorgement of any monies which have been paid to or have been authorized to be paid to Plaintiff, punitive damages and reasonable attorney fees, and whatever other relief this Honorable Court deems necessary and just pursuant to 73 P.S. § 201-9.2(a). Date: r',bruu w Z.- 2-,UJ2 Respectfully Submitted, By: Michael J. Pykosh, Esquire I. D. # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 E-Mail: MPykosh _dplglaw.com VERIFICATION I, Joshua Thompson hereby verify that the statements of fact made in the foregoing documents are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are subject to the criminal penalties contained in 18 Pa C.S. Section 4904, relating to unsworn falsification to authorities. Date: QJosH,ua Thompson VERIFICATION I, Tamra Thompson hereby verify that the statements of fact made in the foregoing documents are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are subject to the criminal penalties contained in 18 Pa C.S. Section 4904, relating to unsworn falsification to authorities. Date: ?-?-?? ?-- ---- Tamra Thompson DOZIER CONTRACTING, LLC, Plaintiff V. JOSHUA AND TAMRA THOMPSON, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No: 11-7694-CIVIL JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that, on the date indicated below, a copy of the foregoing, Answer, New Matter and Counterclaim, with Notice to Defend, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: Dozier Contracting, LLC c/o Jason P. Kutulakis, Esquire Abom & Kutulakis 2 West High Street Carlisle, Pennsylvania 17013 Date: /-c- b rurA vU 7_ 2_u12 Respectfully Submitted, By:- Michael J. Pykosh, Esquire I.D. # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 E-Mail: MPykosha-dplglaw.com M0M c - U ULAKIS t )Z m ?? Jason P. hutulakis, Esquire Attorne I D #: 80411 cnr- 'C . . y 2 West High Street C 2-1 .?. ?4 Carlisle, PA 17013 f s 21? 0 'T! (717) 249-0900 2 T> CO ? COMMONWEALTH OF PENNSYLVANIA C crl COUNTY OF CUMBERLAND Dozier Contracting, LLC 1514 Longview Drive Latrobe, PA 15650 Plaintiff Civil Action - Law V. No: 2011 - 7694 Joshua and Tamra Thompson 1932 Jody Lane Carlisle, PA 17013 Defendants PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANTS' ANSWER WITH NEW MATTER AND COUNTERCLAIM AND NOW, this 21St day of February, 2012, comes the Plaintiff, Dozier Contracting, LLC, by and through its counsel, Jason P. Kutulakis, Esquire, of Abom & Kutulakis, LLP and brings the following Preliminary Objections to Defendants' Answer with New Matter and Counterclaim, and in support thereof, respectfully avers as follows: 1. On or about October 10, 2011, Plaintiff, Dozier Contracting, LLC, brought this cause of action against Defendants by filing a Complaint. 2. On or about October 25, 2011, Defendants, Joshua and Tamra Thompson, filed Preliminary Objections to Plaintiff's Complaint. 3. On or about November 7, 2011, Plaintiff filed and Amended Complaint. 4. On or about December 5, 2011, Defendants filed Preliminary Objections to Plaintiff's Amended Complaint. 5. On or about December 21, Plaintiff filed Preliminary Objections to Defendants' Preliminary Objections to Plaintiff's Amended Complaint. 6. On or about January 5, 2012, Defendant filed Amended Preliminary Objections in response. 7. Subsequently on or about January 23, 2012, Plaintiff filed Preliminary Objections to the Defendants' Amended Preliminary Objections to Plaintiff's Amended Complaint. 8. On or about February 5, 2012, Defendants filed an Answer with New Matter and Counterclaim. Plaintiffs First Preliminary Objection - Count I Pa R C P 1028(a)(4) Demurrer 9. Paragraphs one (1) through eight (8) are incorporated herein by reference. 10. In Count I, Defendants allege that Plaintiffs violated the Pennsylvania Home Improvement Consumer Protection Act and the Pennsylvania Unfair Trade Practices and Consumer Protection Law. 11. As relief for the allegations Defendants raised in Count I, Defendants are requesting punitive damages. 12. The Pennsylvania Home Improvement Consumer Protection Act is devoid of any authority to impose punitive damages. 13. Defendants provide no other source of law in support of receiving punitive damages for the violations alleged in Count I. 14. As such, Defendants' claim in Count I is legally insufficient and Defendants are not entitled to punitive damages WHEREFORE, Plaintiff respectfully requests that this Honorable Court grant its Preliminary Objection as to Count I and dismiss Defendants' Counterclaim for legal insufficiency. Plaintiffs Second Preliminary Objection - Count II Pa.R.C.P.1028(a)(3) Lack of Specificity 15. Paragraphs one (1) through fourteen (14) are incorporated herein by reference. 16. In Count II, Defendants allege that Plaintiffs breached the Covenant of Good Faith and Fair Dealing. 17. However, Defendants' Count II lacks any specific facts in support of a breach of the Covenant of Good Faith and Fair Dealing. 18. Defendants' lack of specificity places Plaintiff in the position of having no means to formulate a defense or prepare and Answer to the allegation of breach of the Covenant of Good Faith and Fair Dealing. 19. Furthermore, Courts have determined that "Pennsylvania law would not recognize a claim for breach of covenant of good faith and fair dealing as an independent cause of action separate from [a] breach of contract claim since the actions forming the basis of the breach of contract claim are essentially the same as the actions forming the basis of the bad faith claim." THE, Inc v Southeastern Pennsylvania. Transp. Authority, 2002 WL 1018941 at 6 (Phila..C.P. May 17, 2002)(quoting McHale v. NuEnergy Group, No. Civ. A. 01-4111, 2002 WL 321797, (E.D.Pa. Feb. 27, 2002))(See Also, Blue Mountain Mushroom Co Inc v Monterey Mushroom. Inc., 246 F.Supp.2d 394, 400 (E.D.PA. 2002) (Tennsylvania law does not recognize a separate claim for breach of implied covenant of good faith and fair dealing.")). 20. As such, Defendants' pleading is insufficient in specificity and is based on no recognized cause of action in Pennsylvania. WMEREFORE, Plaintiff respectfully requests that this Honorable Court grant its Preliminary Objection as to Count II and dismiss Defendants' Counterclaim due to lack of specificity. Plaintiff's Third Preliminary Objection - Count II Pa R C.P.1028(a.)(4) Demurrer 21. Paragraphs one (1) through twenty (20) are incorporated herein by reference. 22. In Count II, Defendants allege that Plaintiffs breached the Covenant of Good Faith and Fair Dealing. 23. However, Defendants provided no source of law in support of what constitutes a breach of the Covenant of Good Faith or Fair Dealing. 24. Additionally, as relief for the allegations in Count II, Defendants demand punitive damages. 25. However, Defendants provided no source of law in support of receiving punitive damages for the violations alleged in Count II. 26. As such, Defendants' claim in Count II is legally insufficient and Defendants are not entitled to punitive damages. [THEREFORE, Plaintiff respectfully requests that this Honorable Court grant its Preliminary Objection as to Count II and dismiss Defendants' Counterclaim due to legal insufficiency. Respectfully submitted, IoM&KUTUoWs. L.L.P. Date: Jason utudakis, Esquire I.D. 0 11 2 We Hi S eet Carlisle, PA 17013 (717) 249-0900 Attorney for Plaintiff VERIFICATION I, Jason P. Kutulakis, Esquire, am attorney of record for Plaintiff, Dozier Contracting, LLC, and state that the foregoing Plaintiff's Preliminary Objection to Defendants' Answer with New Matter and Counterclaim is based solely upon the legal expertise of counsel, contains no averments of fact not appearing of record in the action, nor any denial of fact, and therefore does not require verification by said party pursuant to Pa. R.C.P. 1024(a). Date: ? r t!?_ • COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Dozier Contracting, LLC 1514 Longview Drive Latrobe, PA 15650 Plaintiff Civil Action - Law V. No: 2011 - 7694 Joshua and Tamra Thompson 1932 Jody Lane Carlisle, PA 17013 Defendants CERTIFICATE OF SERVICE AND NOW, this 2150 day of February, 2012, I, Shannon Freeman, Esquire, of Abom & Kutulakis, L.L.P., hereby certify that I did serve a true and correct copy of the foregoing PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANTS' ANSWER WITH NEW MATTER AND COUNTERCLAIM by depositing, or causing to be deposited, same in the United States Mail, First-class mail, postage prepaid addressed to the following: Michael Pykosh, Esquire DETHLEFS-PYKOSH LAW GROUP, LLC 2132 Market Street Camp Hill, PA 17011 Attorney for the Defendants Sh on Freeman L LA r` P 1-- j) n ors 12P" EPti Aii0 i 6J ,,'F PENNSYLVANIA Michael J. Pykosh, Esquire Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Email: Mpykosh@gpig!aw.com Attorney for Defendants DOZIER CONTRACTING, LLC, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JOSHUA AND TAMRA No: 11-7694-CIVIL THOMPSON, Defendants JURY TRIAL DEMANDED DEFENDANTS' RESPONSE TO PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANTS' COUNTERCLAIM AND NOW, comes the Defendants, Joshua and Tamra Johnson, by and through their attorneys, the Dethlefs-Pykosh Law Group, LLC, by Michael J. Pykosh, Esquire who file this Response to Plaintiff's Preliminary Objections to Defendants' Counterclaim, and in support thereof aver as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. Plaintiffs First Preliminary Objection - Count I Pa. R.C.P. 1028(a)(4) Demurrer 9. Paragraph nine (9) being a paragraph of incorporation does not require a response. 10. Admitted. It is admitted that in Count I of Defendants' Counterclaim to Plaintiff's Complaint that Defendants allege that the Plaintiff committed violations of the Pennsylvania Home Improvement Consumer Protection Act, 73 P.S. §§ 517.1 et seq. and the Unfair Trade Practices and Consumer Protection Law, 73 P. S. § 201-1 et seq. 11. Admitted in Part, Denied in Part. It is admitted that the ad damnum clause for Count I of Defendants' Counterclaim that they request punitive damages. It is specifically denied that this is the sole relief which Defendants seek. By way of further explanation, Defendants seek treble their actual damages plus costs, pre- judgment and post-judgment interest, disgorgement of any monies which have been paid to or have been authorized to be paid to Plaintiff and reasonable attorney's fees pursuant to 73 P.S. § 201-9.2(a). 12. Denied. The averments of paragraph twelve (12) of Plaintiff's Preliminary Objections to Defendants' Counterclaim constitute conclusions of law to which no response is necessary. To the extent that a response is deemed judicially required the same is specifically denied. By way of amplification, it is specifically denied that the Pennsylvania Home Improvement Consumer Protection Act ("HICPA"), 73 P.S. §§ 517.1 et seq. is devoid of any authority to impose punitive damages. Violations of the HICPA sound in tort more so that contract. The HICPA contains an express provision that states that "[a] violation of the provisions of .... [HICPA] shall be deemed a violation of the ... [Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq.] [and that] [n]othing in .... [the HICPA] shall preclude an owner from exercising any right provided under the Unfair Trade Practices and Consumer Protection Law." 73 P.S. § 517-10. Although the Unfair Trade Practices and Consumer Protection Law ("UTPCPL") does not expressly provide for punitive damages, it provides that a court may award "such additional relief as it deems necessary or proper," and several courts have held that punitive damages may be awarded in appropriate circumstances. 73 P.S. § 201-9.2(a). See also Stokes v. Gary Barbera Enters., 783 A.2d 296 (Pa. Super. Ct. 2001) (affirming trial court's award of punitive damages under section 201-9.2(a) of the UTPCPL). Further, "punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others." Feld v. Merriam, 506 Pa. 383, 395, 485 A.2d 742, 747-48 (1984) quoting Restatement (Second) of Torts § 908(2). Such action of Plaintiff, as alleged in Defendants' Answer with New Matter and Counterclaim could logically support a finding of punitive damages by a jury and any attempt to remove them at this early stage is, in the least, premature. See also W. W. Coal Co. v. Pennsylvania Nat'l Mut. Casualty Ins. Co., 75 Pa. D. & C.2d 621 (Somerset Cty. 1975). 13. Denied. The averments of paragraph thirteen (13) of Plaintiff's Preliminary Objections to Defendants' Counterclaim constitute conclusions of law to which no response is necessary. To the extent that a response is deemed judicially required the same is specifically denied and the response of Defendants to Plaintiff's averments at paragraph twelve (12) above are incorporated herein by reference as it fully set forth herein. 14. Denied. The averments of paragraph fourteen (14) of Plaintiff's Preliminary Objections to Defendants' Counterclaim constitute conclusions of law to which no response is necessary. To the extent that a response is deemed judicially required the same is specifically denied and the response of Defendants to Plaintiff's averments at paragraphs twelve (12) and thirteen (13) above are incorporated herein by reference as it fully set forth herein. WHEREFORE, Defendants, Joshua and Tamra Thompson, respectfully request that this Honorable deny Plaintiffs first preliminary objection (demurrer) and rule Plaintiff's to file a response to Defendant's Counterclaim within twenty (20) days. Plaintiffs Second Preliminary Objection - Count II Pa. R.C.P. 1028(a)(3) Lack of Specificity 15. Paragraph fifteen (15) being a paragraph of incorporation does not require a response. 16. Admitted. 17. Denied. The averments of paragraph seventeen (17) of Plaintiff's Preliminary Objections to Defendants' Counterclaim contains conclusions of law to which no response is necessary. To the extent that a response is deemed judicially required the averments of paragraph seventeen (17) are specifically denied. By way of further response, paragraph eighty-seven (87) of Defendants' Answer with New Matter and Counterclaim is a paragraph of incorporation which serves to recast, by reference and as though fully set forth in Count II of Defendants' Counterclaim that portion of Defendants' Answer with New Matter and Counterclaim coming before it. Sufficient facts abound throughout Defendants' Answer with New Matter and Counterclaim to support a finding that Plaintiff breached the covenant of good faith and fair dealing as alleged in Count II of Defendants' Counterclaim. 18. Denied. The averments of paragraph eighteen (18) of Plaintiff's Preliminary Objections to Defendants' Counterclaim constitute conclusions of law to which no response is necessary. To the extent that a response is deemed judicially required the same is specifically denied and the response of Defendants to Plaintiff's averments at paragraph seventeen (17) above are incorporated herein by reference as it fully set forth herein. 19. Denied. The averments of paragraph nineteen (19) of Plaintiff's Preliminary Objections to Defendants' Counterclaim constitute conclusions of law to which no response is necessary. To the extent that a response is deemed judicially required the same is specifically denied and the response of Defendants to Plaintiff's averments at paragraph seventeen (17) above are incorporated herein by reference as it fully set forth herein. By way of further response, the contractual relationship upon which Plaintiff's claims rest underlie Count II of Defendants' Counterclaim, their cause of action for Plaintiff's breach of the covenant of good faith and fair dealing. Further, Section 205 of the Restatement (Second) of Contracts, which was adopted by ... [the Superior Court] in Baker v. Lafayette College, 350 Pa. Super. 68, 84, 504 A.2d 247, 255 (1986), affd, 516 Pa. 291, 532 A.2d 399 (1987), and Creeger Brick & Bldg. Supply, Inc. v. Mid-State Bank & Trust Company, 385 Pa. Super. 30, 35, 560 A.2d 151, 153 (1989), provides: 'Every contract imposes on each party a duty of good faith and fair dealing in its performance and its enforcement.' Restatement (Second) of Contracts, § 205. A similar requirement has been imposed upon contracts within the scope of the Uniform Commercial Code (UCC) by 13 Pa. C.S.A. § 1203. Somers v. Somers, 613 A.2d 1211, 1213 (Pa Super. Ct. 1992). "Good faith" has been defined as 'honesty in fact in the conduct or transaction concerned.' 13 Pa. C.S.A. § 1201. The breach of the obligation to act in good faith cannot be precisely defined in all circumstances, however, examples of "bad faith" conduct include: 'evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party's performance.' Somers, 613 A.2d at 1213 (citing Restatement (Second) of Contracts, § 205(d)). Kaplan v. Cablevision of Pa., Inc., 448 Pa. Super. 306, 318 (Pa. Super. Ct. 1996). The actions of Plaintiff in dealing with Defendants and in light of the numerous violations of the HICPA and UTPCPL, outlined in Defendants' Answer with New Matter and Counterclaim, including, but not limited to those actions identified in paragraphs five (5) and twenty-nine (29) of Defendants' Answer to Plaintiff's Amended Complaint, clearly show Plaintiff's actions were calculated to frustrate the objective of the contractual relationship upon which Plaintiffs claims rest. 20. Denied. The averments of paragraph twenty (20) of Plaintiff's Preliminary Objections to Defendants' Counterclaim constitute conclusions of law to which no response is necessary. To the extent that a response is deemed judicially required the same is specifically denied and the response of Defendants to Plaintiffs averments at paragraphs seventeen (17), eighteen (18) and nineteen (19) above are incorporated herein by reference as it fully set forth herein. WHEREFORE, Defendants, Joshua and Tamra Thompson, respectfully request that this Honorable deny Plaintiffs second preliminary objection (lack of specificity) and rule Plaintiff's to file a response to Defendant's Counterclaim within twenty (20) days. Plaintiffs Third Preliminary Objection - Count II Pa. R.C.P. 1028(a)(3) Lack of Specificity 21. Paragraph twenty-one (21) being a paragraph of incorporation does not require a response. 22 . Ad m itted . 23. Denied. The averments of paragraph twenty (20) of Plaintiff's Preliminary Objections to Defendants' Counterclaim constitute conclusions of law to which no response is necessary. To the extent that a response is deemed judicially required the same is specifically denied and the response of Defendants to Plaintiffs averments at paragraphs seventeen (17), eighteen (18) nineteen (19) and twenty (20) above are incorporated herein by reference as it fully set forth herein. 24.Admitted. It is admitted that Defendants seek punitive damages, among other damages, for Plaintiff's conduct as the relief sought in the ad damnum clause to Count II of Defendants' Counterclaim. 25. Denied. The averments of paragraph twenty-five (25) of Plaintiff's Preliminary Objections to Defendants' Counterclaim constitute conclusions of law to which no response is necessary. To the extent that a response is deemed judicially required the same is specifically denied. Further, "punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others." Feld v. Merriam, 506 Pa. 383, 395, 485 A.2d 742, 747-48 (1984) quoting Restatement (Second) of Torts § 908(2). Such action of Plaintiff, as alleged in Defendants' Answer with New Matter and Counterclaim could logically support a finding of punitive damages by a jury and any attempt to remove them at this early stage is, in the least, premature. See also W. W. Coal Co. v. Pennsylvania Nat? Mut. Casualty Ins. Co., 75 Pa. D. & C.2d 621 (Somerset Cty. 1975). Finally, punitive damages are available to parties in cases involving fraud and deceit. A a wholly wanton disregard of the rights of others is sufficient to support a finding of punitive damages. Pittsburgh Live, Inc. v. Servov, 615 A.2d 438, 442 (Pa. Super. Ct. 1992). 26. Denied. The averments of paragraph twenty-six (26) of Plaintiffs Preliminary Objections to Defendants' Counterclaim constitute conclusions of law to which no response is necessary. To the extent that a response is deemed judicially required the same is specifically denied and the response of Defendants to Plaintiff's averments at paragraph twenty-five (25) above are incorporated herein by reference as it fully set forth herein. WHEREFORE, Defendants, Joshua and Tamra Thompson, respectfully request that this Honorable deny Plaintiff's third preliminary objection (demurrer) and rule Plaintiff's to file a response to Defendant's Counterclaim within twenty (20) days. Date: ? I ? 2-11 -.- Respectfully Su fitted, By: Michael J. Pykosh, Esquire I. D. # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 E-Mail: MPykosh(cD-dplglaw.com VERIFICATION I, Michael J. Pykosh, Esquire, am attorney of record for Defendants and state that the foregoing Defendants' Response to Plaintiffs Preliminary Objections to Defendants' Counterclaim is based solely upon the legal expertise of counsel, contains no averments of fact not appearing on record in the action, nor any denial of fact, and therefore does not require verification by said Defendants pursuant to Pa. R.C.P. 1024(a). Date: z) z2 / z l _1 Mic el J. Pykosh, Esquire Attorney for Defendants, Joshua & Tamra Thompson DOZIER CONTRACTING, LLC, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW JOSHUA AND TAMRA No: 11-7694-CIVIL THOMPSON, Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that, on the date indicated below, a copy of the foregoing, Response to Plaintiff's Preliminary Objections to Defendants' Counterclaim, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: Dozier Contracting, LLC c/o Jason P. Kutulakis, Esquire Abom & Kutulakis 2 West High Street Carlisle, Pennsylvania 17013 Date: 4/1 Z / I Z Respectfully ubmitted, 71 By: Mich el J. Pykosh, Esquire I. D. # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 E-Mail: MPykosh _dplglaw.com Michael J. Pykosh, Esquire ID#58851 Dethlefs-Pykosh Law Group, LLC J D'., -4 f 11: 27 2132 Market Street Camp Hill, Pennsylvania 17011 -)JHEIERLAHD CCU i Y Telephone—(717)975-9446 P N C Y LV AH i A Fax—(717)975-2309 mpykosh c(�dplglaw.com Attorney for Defendants DOZIER CONTRACTING, LLC, : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA • v. CIVIL ACTION — LAW JOSHUA AND TAMRA No: 11-7694— CIVIL THOMPSON, Defendants : PETITION FOR LEAVE TO WITHDRAW APPEARANCE PURSUANT TO PA. R.C.P. 1012 AND NOW, comes the DETHLEFS-PYKOSH LAW GROUP, LLC, by and through Michael J. Pykosh, Esquire, present legal counsel for Defendants, Joshua and Tamra Thompson, and files this Petition to Withdraw as Counsel of Record and in support thereof avers the following: 1. Your Petitioner is Dethlefs-Pykosh Law Group, LLC, by Michael J. Pykosh, Esquire, 2132 Market Street, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Attorneys from Petitioner's law firm, including, but not necessarily limited to, Michael J. Pykosh, may have entered an appearance on behalf of Defendants in this matter. 3. Petitioner makes this Petition on behalf of all attorneys associated with Petitioner's law firm relative to this matter. 4. On or about August 8, 2011, Defendants, Joshua and Tamra Thomspon, hereinafter sometimes refered as "Thompsons", contacted Petitioner seeking legal counsel for this matter. 5. Defendants, Joshua and Tamra Thomspon, have not kept up with their obligations to communicate with Petitioner in this matter. 6. Defendants, Joshua and Tamra Thomspon, have substantially failed to fulfill their financial and other obligations and duties as clients in this matter. 7. Petitioner is without sufficient assistance of clients to adequately represent Defendants, Joshua and Tamra Thomspon. 8. Petitioner's continued representation of Defendants, Joshua and Tamra Thomspon, have been rendered unreasonably difficult by virtue of Defendants, Joshua and Tamra Thomspon, failure to fulfill their obligations as clients in this matter, and good cause exists under Rule 1.16(b)(7) of the Pennsylvania Rules of Professional Conduct for Petitioner's withdrawal of appearance in this case. 9. Based upon all of the foregoing, Your Petitioner respectfully requests that the Honorable Court Order that the Petitioner and all attorneys associated with Petitioner is formally withdrawn as counsel for Defendants, Joshua and Tamra Thomspon. 10.Further, on or about April 26, 2013, the undersigned counsel provided Thompsons correspondence (attached as "Exhibit "A") regarding their action. Defendants failed to respond to Petitioner relative to said correspondence. 11.Further, on or about October 24, 2013, Petitioner left a voicemail message for the Defendants on the answering machine of the phone number provided by the Defendants. Defendants failed to contact Petitioner in response to said voicemail message. 12.Despite Petitioner's efforts, Thompsons have never contacted Petitioner despite being directed to do so in the aforementioned correspondence and aforementioned voicemail message. 13.The contents of this Petition have been shared with counsel for Plaintiff. WHEREFORE, the Petitioner, Michael J. Pykosh, of the Dethlefs-Pykosh Law Group, LLC, respectfully requests this Honorable Court to grant leave for the entry of an Order allowing its Withdrawal from legal representation of the Defendants pursuant to Pa. R.C.P. 1012. Respectfully ubmitted, Dated: l 1 `2-to—A3 By: Michael'J. Pykosh, Esquire ID # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, PA 17011 717-975-9446 DETHLEFS-PYKOSH LAW GROUP, LLC )arrell C. Dethlefs* Legal Staff vlichael J. Pykosh* 2132 Market Street Sherry L. Deckman* 3ryan W.Shook Camp Hill, PA 17011 Crystal L. Mahoney vlelanie L. Erb Phone: (717)975-9446 Melissa C. Foreman -leather N.Orisko Toll Free:(800)287- 1202 Jamie L. Swope Tharles J.Hartwell Fax: (717)975-2309 2ichard D. Hollingworth,Jr. E-mail: ddethlefs@aol.com Matthew R.Seeley ■ ww.dplglaw.com *Licensed P;! Tide Agent April 26, 2013 Joshua Thompson Tamra Thompson 1932 Jody Lane Carlisle, PA 17013 RE: Dozier Contracting, LLC v Joshua and Tamra Thompson Cumberland County Docket No.: 2011-7694 Dear Mr. and Mrs. Thompson: I heard back from the Plaintiff's attorney relative to our proposed settlement offer regarding the above-referenced matter. The Plaintiff made a counter-offer of$3,265.00. Essentially, if you decide to accept and pay their counter-offer that would end the lawsuit. Upon receipt and review of this correspondence, please contact me to discuss further. Very , Yours, tch.. . Pykosh MJP/clm • 138 East Market Street,3`d Floor 51110.4 York, PA 17401 A Debt Relief Agency 01 The Dethlefs-Pykosh Law Group, LLC— "You, Full Service Lain'Firm" Michael J. Pykosh, Esquire ID#58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone—(717)975-9446 Fax—(717)975-2309 mpvkosh(a�dplglaw.com Attorney for Defendants DOZIER CONTRACTING, LLC, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA • v. ▪ CIVIL ACTION — LAW • JOSHUA AND TAMRA ▪ No: 11-7694— CIVIL • THOMPSON, Defendants : CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Petition to Withdraw as Counsel of Record, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: Dozier Contracting, LLC do Jason Kutulakis, Esquire Abom & Kutulakis, LLP 2 West High Street Carlisle, PA 17013 Joshua and Tamra Thompson 1932 Jody Lane Carlisle, PA 17013 Respectful ubmitted, Dated: t l 2t:. ` l 3 By: Michael J. Pykosh, Esquire ID # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, PA 17011 717-975-9446 DOZIER CONTRACING, LLC of Plaintiff loop V. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT JOSHUA AND TAMRA THOMPSON, Defendants 2011-07694 CIVIL TERM IN RE: PETITION FOR LEAVE TO WITHDRAW APPEARANCE PURSUANT TO PA.R.C.P. 1012 ORDER OF COURT AND NOW, this day of December 2013, upon consideration of the Petition for Leave to Withdraw Appearance Pursuant to Pa.R.C.P. 1012, a RULE is issued upon all interested parties to show cause why Defendants' counsel should not be entitled to withdraw. PETITIONER shall effectuate service of this Order of Court upon Plaintiff and Defendant. RULE RETURNABLE twenty (20) days from the date of service. BY THE COURT, Thomas A. Placey C.P.J. Distribution List: , . Michael J. Pykosh, Esq. Jason P. Kutulaki, Esq. /,loshua and Tamra Thompson Q`wl I EX Mau , 011:11,;,,, Michael J. Pykosh, Esquire ID#58851 .�1,.+ r iii: , Dethlefs-Pykosh Law Group, LLC cUMBi tit 1 " 2132 Market Street AND Camp Hill, Pennsylvania 17011 N-Hh'S Y OU6 ! Telephone—(717)975-9446 YL Fax—(717)975-2309 mpykoshadplglaw.com DOZIER CONTRACTING, LLC, : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION — LAW JOSHUA AND TAMRA No: 11-7694— CIVIL THOMPSON, Defendants : PETITIONER'S MOTION TO MAKE RULE ABSOLUTE AND NOW, this 8th day of January, 2014, comes the Petitioner, Dethlefs- Pykosh Law Group, LLC, by Michael J. Pykosh, Esquire, who avers as follows: 1. On December 4, 2013, Petitioner filed a Petition for Leave to Withdraw Appearance. A copy of the Petition is attached hereto as "Exhibit "A" and made apart hereof. 2. On December 11, 2013, a Rule was issued by the Court to show cause why the Petition to Withdraw as Counsel of Record for Defendants, Joshua and Tamra Thompson, should not be granted. This Rule was returnable twenty (20) days after service. A copy of said Rule is attached hereto as "Exhibit "B" and made apart hereof. 3. Defendants, Joshua and Tamra Thompson, were served with a copy of the aforementioned Rule on December 18, 2013. A copy of the certified mail receipt evidencing the same is attached hereto as "Exhibit "C" and made apart hereof. 4. Plaintiffs Counsel, Jason P. Kutulakis, Esquire, was served with a copy of the aforementioned Rule on December 16, 2013. A copy of the certified mail receipt evidencing the same is attached hereto as "Exhibit "D" and made apart hereof 5. Response to the Rule has not been filed by Defendants within the time frame required by the attached Rule. WHEREFORE, the Petitioner, Dethlefs-Pykosh Law Group, LLC, by Michael J. Pykosh, respectively request that the Rule be made Absolute and that Petitioner be removed /withdrawn as legal cousel for Defendants, Joshua and Tamra Thompson. Respectfully Submitted, fl i 1 Dated: /—N !'j/ By: ��`� '�" ./ ��"�-- Michael J. P%koih, Esquire ID # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, PA 17011 717-975-9446 .I Michael J.Pykosh,Esquire 1D#58851 Dethlefs-Pykosh Law Group, LLC 4 v i 3 DEC -If AM II: 27 2132 Market Street Camp Hill,Pennsylvania 17011 ''U M B E R L N D COUNTY Telephone—(717)975-9446 PENNSYLVANIA Fax—(717)975-2309 mpvkosh @dolglaw.com Attorney for Defendants DOZIER CONTRACTING, LLC, : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. • CIVIL ACTION —LAW JOSHUA AND TAMRA No: 11-7694—CIVIL THOMPSON, • Defendants : PETITION FOR LEAVE TO WITHDRAW APPEARANCE PURSUANT TO PA. R.C.P. 1012 AND NOW, comes the DETHLEFS-PYKOSH LAW GROUP, LLC, by and through Michael J. Pykosh, Esquire, present legal counsel for Defendants, Joshua and Tamra Thompson, and files this Petition to Withdraw as Counsel of Record and in support thereof avers the following: 1. Your Petitioner is Dethlefs-Pykosh Law Group, LLC, by Michael J. Pykosh, Esquire, 2132 Market Street, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Attorneys from Petitioner's law firm, including, but not necessarily limited to, Michael J. Pykosh, may have entered an appearance on behalf of Defendants in this matter. 3. Petitioner makes this Petition on behalf of all attorneys associated with Petitioner's law firm relative to this matter. 4. On or about August 8, 2011, Defendants, Joshua and Tamra Thomspon, hereinafter sometimes refered as "Thompsons", contacted Petitioner seeking legal counsel for this matter. 5. Defendants, Joshua and Tamra Thomspon, have not kept up with their obligations to communicate with Petitioner in this matter. 6. Defendants, Joshua and Tamra Thomspon, have substantially failed to fulfill their financial and other obligations and duties as clients in this matter. 7. Petitioner is without sufficient assistance of clients to adequately represent Defendants, Joshua and Tamra Thomspon. 8. Petitioner's continued representation of Defendants, Joshua and Tamra Thomspon, have been rendered unreasonably difficult by virtue of Defendants, Joshua and Tamra Thomspon, failure to fulfill their obligations as clients in this matter, and good cause exists under Rule 1.16(b)(7) of the Pennsylvania Rules of Professional Conduct for Petitioner's withdrawal of appearance in this case. 9. Based upon all of the foregoing, Your Petitioner respectfully requests that the Honorable Court Order that the Petitioner and all attorneys associated with Petitioner is formally withdrawn as counsel for Defendants, Joshua and Tamra Thomspon. 10.Further, on or about April 26, 2013, the undersigned counsel provided Thompsons correspondence (attached as "Exhibit "A") regarding their action. Defendants failed to respond to Petitioner relative to said correspondence. 11.Further, on or about October 24, 2013, Petitioner left a voicemail message for the Defendants on the answering machine of the phone number provided by the Defendants. Defendants failed to contact Petitioner in response to said voicemail message. 12.Despite Petitioner's efforts, Thompsons have never contacted Petitioner despite being directed to ao so in the aforementioned correspondence and aforementioned voicemail message. 13.The contents of this Petition have been shared with counsel for Plaintiff. WHEREFORE, the Petitioner, Michael J. Pykosh, of the Dethlefs-Pykosh Law Group, LLC, respectfully requests this Honorable Court to grant leave for the entry of an Order allowing its Withdrawal from legal representation of the Defendants pursuant to Pa. R.C.P. 1012. Respectfully ubmitted, Dated: 1.1 —\3 By: Michael J. Pykosh, Esquire ID#58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, PA 17011 717-975-9446 DETHLEFS-PYKOSH LAW GROUP, LLC )arrell C.Dethlefs* Legal Staff vlichael J.Pykosh* 2132 Market Street Sherry I,. Deckman* 3ryan W.Shook Camp Hill, PA 17011 Crystal L.Mahoney vlelanie L.Erb Phone: (717)975-9446 Melissa C. Foreman leather N.Orisko Toll Free:(800)287- 1202 Jamie L. Swope �harles.1.Hartwell Fax: (717)975-2309 lichard D.Hollingworth,Jr. E-mail: dethlefs@aol,com Matthew R.Seeley www.dplglaw.com *Licensed P:I T,Ne.Igc'nr April 26,2013 Joshua Thompson Tamra Thompson 1932 Jody Lane Carlisle, PA 17013 RE: Dozier Contracting, LLC v Joshua and Tamra Thompson Cumberland County Docket No.: 2011-7694 Dear Mr. and Mrs. Thompson: I heard back from the Plaintiffs attorney relative to our proposed settlement offer regarding the above-referenced matter. The Plaintiff made a counter-offer of$3,265.00. Essentially, if you decide to accept and pay their counter-offer that would end the lawsuit. Upon receipt and review of this correspondence, please contact me to discuss further. Very Yours, tch.. . Pykosh MJP/clm 138 East Market Street,3rd Floor 111111:4 York,PA 17401 A Debt Relief Agency 0I The Dethlefs-Pykosh Law Group, LLC— "Your Full Service Law Firm" Michael J.Pykosh, Esquire ID#58851 Dethlefs-Pykosh Law Group,LLC 2132 Market Street Camp Hill,Pennsylvania 17011 Telephone—(717)975-9446 Fax—(717)975-2309 mpykosh4dplalaw.com Attorney for Defendants DOZIER CONTRACTING, LLC, : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA • v. CIVIL ACTION—LAW JOSHUA AND TAMRA • No: 11-7694—CIVIL THOMPSON, • Defendants : CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Petition to Withdraw as Counsel of Record, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: Dozier Contracting, LLC do Jason Kutulakis, Esquire Abom & Kutulakis, LLP 2 West High Street Carlisle, PA 17013 Joshua and Tamra Thompson 1932 Jody Lane Carlisle, PA 17013 Respectful ubmitted, Dated: 1112c, l ` 3 By: Michael J. Pykosh, Esquire ID #58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, PA 17011 717-975-9446 DOZIER CONTRACING, LLC ' '' '' ' , •ilia Plaintiff =_. v. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT JOSHUA AND TAMRA THOMPSON, Defendants 2011-07694 CIVIL TERM IN RE: PETITION FOR LEAVE TO WITHDRAW APPEARANCE PURSUANT TO PA.R.C.P. 1012 ORDER OF COURT AND NOW, this i I day of December 2013, upon consideration of the Petition for Leave to Withdraw Appearance Pursuant to Pa.R.C.P. 1012, a RULE is issued upon all interested parties to show cause why Defendants' counsel should not be entitled to withdraw. PETITIONER shall effectuate service of this Order of Court upon Plaintiff and Defendant. RULE RETURNABLE twenty (20)days from the date of service. BY THE COURT, Thomas A. Placey C.P.J. Distribution List: Michael J. Pykosh, Esq. Jason P. Kutulaki, Esq. x .1__ ,/oshua and Tamra Thompson J c�` Cori'es 1E4., /1ZPI//"2 U.S. Postal Service,:, CERTIFIED MAIL,:, RECEIPT ..n (Domestic Mail Only;No Insurance Coverage Provided) Ui ul For delivery information visit our website at www.usps.come P- V",!IT "e 'i ,, ` a q O m . 1 ii it Postage Certified Fee ;3.14 ,i Postekrtk 0 Return Receipt Fee $2.55 (Endorsement Required) C Restricted Delivery Fee #4.QQ O (Endorsement Required) >-\ w �� Total Postage&Fees $ $6.11 /-4446.(20 J/�' rl _ J Sent To osjua.and 1amra Rumps.on fU rq 'Street,Apt No,; QQ n 0 or PO Box No. �_J �_ _ --- �.[ City,State,ZIP+4 1 ' , 11013 PS Form 3800,August 2006 See Reverse for Instructions I SE NOER: COMPLETE THIS SECTION COMPI FTE THIS SECTION ON DELIVERY • Complete items 1,2,and 3.Also complete A.Signature item 4 if Restricted Delivery is desired. El Agent ■ Print your name and address on the reverse X� " ' ❑Addressee so that we can return the card to you. ived b nted ame) C. Date of Deliv • Attach this card to the back of the mailpiece, or on the front if space permits. _"aS sa� 12''I t_ , 1. Article Addressed to: D. Is delivery address different from item 1? ❑Yes If YES,enter delivery address below: ❑No Joshua and Tamra Thompson 1932 Jody Lane 3: ice Type Carlisle, PA 17013 Certified Mall ❑Express Mall Registered ❑Return Receipt for Merchandise ❑Insured Mall ❑C.O.D. 4. Restricted Delivery?(E,ltra Fee) ❑Yes 2. ArticleNumber 7012 1640 0001 9930 7556 (Thvtaller tom !��service labs° 11 �r—I t t FoiRri S9'T,I d ru y P004 I i 1 1�m sklc Return RecApt 102595-024A-15Q; IIIII U.S. Postal Services., CERTIFIED MAIL„, RECEIPT m (Domestic Mail Only;No Insurance Coverage Provided) .0 u7 For delivery information visit our website at www.usps.com® czi Qm Postage $ $0.46 0011 Certified Fee X3.10 Q rl Q o Irk Return Receipt Fee Fi c) (Endorsement Required) ❑ Restricted Delivery Fee $0�00, (Endorsement Required) .o Total Postage&Fees $ $6.11 �\�. 13/_'2013 t j r-R > � Sent To dI Ufl P Kutu_Ia ti �4 Street,Apt. o.; r7 W I , p (� fO or PO Box No. / l/ty-Q�7--r1-1'h-- tied City,State,ZIP+4Jr1 ,-i 4 _,L 1-1 1• 111 , :. I PS Form 3800.August 2006 See Reverse for Instructions SENDER: COMPLETE ;'IIS SECTION COMPLETE THIS SECTION ON DELIVERY • Complete items 1,2,an• Also complete A. Sig'° re Item 4 if Restricted Delivery is desired. ❑Agent 11 X 'Print your name and address on the reverse A4 `i/f ❑Addressee so that we can return the card to you. B. -eceived by(Printed Na e) C.bat=of Delivery • Attach this card to the back of the mailpiece, or on the front if space permits. 44, U J '. Is delivery address different from item 1? ❑ 1. Article Addressed to: If YES,enter delivery address below: ❑No Jason P. Kutulakis, Esquire Abofn & Kutulakis LLP 2 West High Street 3. Service Type tCertified Mall ❑Express Mail Carlisle, PA 17013 Registered ❑Return Receipt for Merchandise ❑Insured Mail ❑C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. at:i1 JIM yH I I f7E012�{ 1640 0001 9930 7563 P9 F14 JI 1 i keDIRJari 2b04 I I 9 i I t,lofAestic Return Receipt 102595-02.M-1540 Michael J. Pykosh, Esquire ID#58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone—(717)975-9446 Fax—(717)975-2309 mpykoshdolglaw.com DOZIER CONTRACTING, LLC, : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA • v. ▪ CIVIL ACTION – LAW • JOSHUA AND TAMRA ▪ No: 11-7694– CIVIL • THOMPSON, Defendants : CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing PETITIONER'S MOTION TO MAKE RULE ABSOLUTE, was hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: Dozier Contracting, LLC do Jason Kutulakis, Esquire Abom & Kutulakis, LLP 2 West High Street Carlisle, PA 17013 Joshua and Tamra Thompson 1932 Jody Lane Carlisle, PA 17013 Respectfully Submitted, , / L� .— Dated: ► -�' I y By: ‘; �. �/ Michael J. Pykosh, Esquire ID # 58851 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, PA 17011 717-975-9446 10\ DOZIER CONTRACTING, LLC, : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLf 7 VANIA r,> V. CIVIL ACTION — LAW JOSHUA AND TAMRA No: 11-7694— CIVIL > T, THOMPSON, c Defendants - ORDER AND NOW, this day o , 20Li upon consideration of the foregoing Petitioner's Motion to Make Rule Absolute, and there being no Response filed by Defendants, the Rule, which was issued on December 11, 2013, is hereby MADE ABSOLUTE. Petitioner shall be removed /withdrawn as legal cousel.for the Defendants, Joshua and Tamra Thompson, regarding the above-captioned matter. Pursuant to the requirements of Pa. R.C.P. 236(a)(2), (b), (d), the Prothonotary shall. immediately give written notices of entry of the Order, including a copy of this Order, to each party's attorney of record, or if unrepresented, to each party; and shall note in the docket the giving of such notices and time and manner thereof. BY THE O RT: omas A.Placey J. Di tribution Legend: oinmon Pleas Judge ethlefs-Pykosh Law Group, LLC shua and Tamra Thompson Michael J. Pykosh, Esquire 1932 Jody Lane 2132 Market Street Carlisle, PA 17013 Camp Hill, Pennsylvania 17011 bom & Kutulakis, LLP Jason P. Kutulakis, Esquire 2 West High Street Carlisle, PA 17013 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Dozier Contracting, LLC Plaintiff VS Joshua and Tamra Thompson Defendant RULE 1312 -1 following form: No. 2011 -7594 CIV WI rte-- -- ( r) The Petition for Appointment of Arbitrators shall be substantially in THE PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Jason P. Kutulakis , counsel for the plaintiff/defendant in the above action (or actions), respectfully represents that: 1. The above - captioned action (or actions) is (are) at issue. 2. The claim of plaintiff in the action is $ 4,897.87 plus interest, penalty, attorney fees, costs and expenses The counterclaim of the defendant in the action is The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Jason P. Kutulakis, Esquire, and Stacy B. Wolf, Esquire WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submi ORDER OF COURT AND NOW, , 20 , in consideration of the foregoing petition, Esq., and Esq., and Esq., are appointed arbitrators in the above captioned action (or actions) as prayed for. By the Court, KEVIN A. HESS, P.J. . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA• Dozier Contracting, LLC • Plaintiff r F., No.2011-7694 CIVIb,TRlvismm VS • Joshua and Tamra Thompson : Defendant 'c 7-4„.,� Sky C..s RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in the:. _ 1 following form: .-...i ya.g d AL17 THE PETITION FOR APPOINTMENT OF ARBITRATORS Ci/C 4S1 r TO THE HONORABLE,THE JUDGES OF SAID COURT: Jason P. Kutulakis 363031 counsel for the plaintiff/defendant in the above action(or actions),respectfully represents that: ]. The above-captioned action(or actions)is(are)at issue. 2. The claim of plaintiff in the action is$4,897.87 plus interest,penalty,attorney fees,costs and expenses The counterclaim of the defendant in the action is The following attorneys are interested in the case(s)as counsel or are otherwise disqualified to sit as arbitrators: Jason P. Kutulakis, Esquire, and Stacy B. Wolf, Esquire WHEREFORE,your petitioner prays your Honorable Court to appoint three(3)arbitrators to whom the case shall be submitted. Respectfully submi//ee, • ORDER OF COURT AND NOW, Qh °A/ , 20/( , in consideration goff,the foregoing petition, ,4 iJ l Vii j�'/% � � Esq.,and J . . /, A, w”= cJ iJ/L Esq., and #AA,.."/� 7 Esq., are appointed arbitrators in the above captioned action(or actions)as prayed for. ,, s.—.. By the Court, 091—", 44, a c` ' "SAS©yn )0` ��idk iuK,S� ' KEVIN A. S,P.J. 61)teS i &a,'/e s '� ` N7-/eY 00-Y\4/ri.i / LLC In The Court of Common Pleas of Cumberland PIaintiff ...JJJJJJ County, Pennsylvania No. 1 1 - 7( cf U jostfluelawa.1-01)sz Defendant Civil Action—Law. 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 discharg: the duties e.f our office with fidelity. ,�/%!" ,/i - 'aa 4 „ 4A l VIII- Mil Sig-ature Signature Si-nature I hahleb-dw ok 6i//c .w. L. V64vire, 4 m 3, 4 Q 4 Cs Nam (Chairman) Name. Name (�Y IG E - ieik ��f?iii,. + //p4n 1 ,4C. �01cridevl Lao 'tc�S LawiFirm Law Firm Law Firm 61 WLo v er e3se/a,c 0a-e.g. 25/' 41 id ID Skzc I-- Address Address Address �I 1sle 1. 1C7 f S 6141 re 170 x 5 Cerlisk, I'700 City, Zip City, Zip City, Zip 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.) Fer -the //f414 ori -e aim # `-y/er9 7 17 . l Arbitrator.. dissents.(Insert-name-if-ap name-if-applicable.)r / A / Date of Hearing:Co 26 /r'z.L41i;. ' ''4 / 7 (Chairman) (� Date of Award: 26- I ' ( OJ( 4 V/LA Notice of Ent of Awardl Now, the $5 `day of , 20/of , at a:.2') , f .M., the above award was entered upon the docket and notic, hereof given by mail to the parties or their attorneys. Arbitrators' compensation to be paid upon appeal: S 4'1 .,-5- lig, -5- n ��iBy: Prothonotary Deputy • . {HE- POTHUJ • JUN 25 PH 2: 27 CUMBERLAHO COUNTY PENNSYLVANIA y Lap/1-r, je) 9-54.,17/ •