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HomeMy WebLinkAbout11-8279 TABOM & Nu UL NKIS Jason P. Kutulakis, Esquire Attomev I.D. #: 80411 2 West I Iigh Street Carlisle, PA 17013 (717) 249-0900 WILLIAM 1. NOON 37 Nicholas Drive Carlisle, PA 17015 Plaintiff V. BACKYARD CREATIONS, INC. 1560 Tilco Drive, Suite A Fredrick, MD 21704 and STEVEN 11. BRAUN, President and Individually 1560 Tilco Drive, Suite A Fredrick, MD 21704 and LINDA M. BRAUN, Secretary/Treasurer and Individually 1560 Tilco Drive, Suite A Fredrick, MD 21704 Defendants FILE D-O FfC€ (t e t 4rj7 rA Q? & E ^t: 2tf I I NOV -I Pill 3:43 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FILE NO.: i, e , j CIVIL ACTION - LAW 7A NOTICE TO PLEAD TO: Backyard Creations, Inc. 1560 Tilco Drive, Suite A Fredrick, MD 21704 Pm Se Defendant And 3 V16 Steven B. Braun, President and individually 1560 Tilco Drive, Suite A Fredrick, MD 21704 Pro Se Defendant And Linda M. Braun, Secretary/Treasurer and individually 1560 Tilco Drive, Suite A Fredrick, MD 21704 Pro Se Defendant 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, ABOM & KUTULAKIS, LLP Date: Jas An P. utulakis, 9 Att ey # 80411 2 West High Street Carlisle, PA 17013 (717) 249-0900 Attorney far Plaintiff 2 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION WILLIAM J. NOON 37 Nicholas Drive Carlisle, PA 17015 Plaintiff V. FILE NO.: BACKYARD CREATIONS, INC. : CIVIL ACTION - LAW 1560 Tilco Drive, Suite A Fredrick, MD 21704 and STEVEN B. BRAUN, President and Individually 1560 Tilco Drive, Suite A Fredrick, MD 21704 and LINDA M. BRAUN, Secretary/Treasurer and Individually 1560 Ti1cq Drive, Suite A Fredrick, MD 21704 Defendants TO THE HONORABLE JUDGES OF SAID COURT: COMPLAINT AND NOW, comes the Plaintiff, Bill J. Noon, by and through his attorneys, Jason P. Kutulakis, Esquire, of ABOM & KUTULAKIS, L.L.P., and brings this action against the above- named Defendants to recover damages, attorney fees and costs, in an amount not to exceed the amount requiring arbitration, upon the following cause of action: PARTIES 4 l 1. Plaintiff, William J. Noon, is an adult individual who owns/resides at 37 Nicholas Drive, Carlisle, Cumberland County, Pennsylvania. 2. Defendant, Backyard Creations, Inc. is a Maryland corporation. 3. Defendant, Backyard Creations, Inc. is not registered with the Pennsylvania Department of State to conduct business in the Commonwealth of Pennsylvania. 4. Defendant, Backyard Creations, Inc. is registered with the Pennsylvania Attorney General's Office as a Licensed Residential Remodeler pursuant to the PA Home Improvement Consumer Protection Act (hereinafter referred to as "HICPA") 5. Defendant, Backyard Creations, Inc.'s HICPA number is PA076846. See, attached proof of registration attached hereto as "Exhibit A." 6. Defendant, Steven B. Braun, is an adult individual serving as President for Backyards Creations, Inc. 7. Defendant, Linda M. Braun, is an adult individual serving as Secretary/Treasurer for Backyards Creations, Inc. 8. Each defendant has a business address of 1560 Tilco Drive, Suite A, Fredrick, Maryland 21704. 9. Defendants have identified National Registered Agents, Inc. to act as their agents in Pennsylvania. See, Registered Agents certification, attached hereto as "Exhibit B." FACTUAL BACKGROUND 10. Plaintiff and Defendants entered into a written agreement (hereinafter the "Contract") on February 2, 2011. See attached as Exhibit C. 11. Said Contract demanded a two thousand five hundred dollar ($2,500) deposit to be paid by Plaintiff. 12. On February 2, 2011, Plaintiff paid Defendants $2,500 by check # 2663. 5 13. The Contract provided that Defendants construct a 24' X 42' freeform pool and related appurtenances (hereinafter the "project") located at Plaintiff's residence listed above in exchange for the sum of $100,000.00. 14. The Contract provided that construction would begin February 15, 2011 and be completed in late May 2011 subject to weather conditions. 15. Defendant commenced work on or about. March 17, 2011, when excavation equipment arrived on sight. 16. Plaintiff made a payment to Defendants on March 17, 2011 in the amount of $24,000 by check #2693. 17. On June 18, 2011, the defendants had the Gunite arrive on sight. 18. Plaintiff made a payment to Defendants on June 18, 2011 in the amount of $19,646.20 by check #2773. 19. Defendants provided two written Change Orders for work outside the initial Contract. See, Change Orders, attached hereto as "Exhibit D." 20. On July 1, 2011, Tile and Coping arrived on sight. 21. Plaintiff made a payment to Defendants on July 1, 2011 in the amount of $13,430.00 by check #2782. 22. On July 5, 2011, the stream/waterfall equipment arrived on sight. 23. Plaintiff made a payment to Defendants on July 5, 2011 in the amount of $9,650.00 by check #2789. 24. Grading was to be performed by Defendants pursuant to the Contract. 25. Grading was not performed by the Defendants. 26. On July 13, 2011, Rosenbaum's issued an invoice upon Plaintiff for materials ordered by Defendants in the amount of $3,841.65. See, Invoice attached hereto as "Exhibit E." 6 27. The Rosenbaum's invoice has not been paid by Defendants and remains outstanding. Rosenbaum's have threatened to file a lien on the Plaintiff s property. 28. Rosenbaums have filed a Complaint against Plaintiff as a result of Defendants' failure to pay Rosenbaums. See, Complaint filed by Rosenbaums, attached hereto as "Exhibit F." 29. On July 28, 2011, Plaintiff again informed Defendants by email to pay Rosenbaum's. 30. On or about July 24, 2011, grading was performed by Curt Rhoads. 31. Plaintiff made payment to Curt Rhoads on July 24, 2011, in the amount of $1,600 by check #2799. 32. Curt Rhoads has submitted another bill to Plaintiff for $600 for excavation. 33. On July 24-25, 2011, the deck materials arrived on sight. 34. Plaintiff made payments to R&D Masonry in the amount of $14,000 on July 24, 2011, and to R&D Masonry in the amount of $5,716.00 on July 25, 2011. See, invoice from R&D Masonry, Inc. is attached hereto as "Exhibit G." 35. On July 27, 2011, fence measurements were taken. 36. Plaintiff made a payment to Defendants on July 27, 2011 in the amount of $9,362.10 by check #2790. 37. The fence was never installed by Defendants. 38. Plaintiff was forced to hire R. Perry Fence Company, L.L.C. to erect the fence for a contract price of $9,885.00. 39. Plaintiff paid R. Perry Fence Company, L.L.C. on August 18, 2011, $3,295. The remainder of the contracted price was paid by Plaintiff to R. Perry Fence Company, L.L.C. See, Invoice attached hereto as "Exhibit H." 40. On July 27, 2011, Pebbletec materials were delivered on sight. 7 41. Plaintiff made a payment to Wilcoxon Construction on July 27, 2011, in the amount of $11,732.65 by check #2804. 42. On July 29, 2011, a partial shipment of electrical equipment and supplies arrived on sight. These materials consisted of one gas heater, one pool pump and one pool filter. A large portion of the necessary equipment as provided in the Contract were not delivered by Defendants. 43. Plaintiff made a payment to Jake Witmer on July 29, 2011, in the amount of $4,356.50 by check #2805. See, Invoice dated July 29, 2011, attached hereto as "Exhibit I." 44. On July 20, 2011 gas for the pool arrived on sight. 45. Plaintiff made a payment to Aero Energy on July 20, 2011, in the amount of $581.91 by check #2797. 46. Defendants ceased work on the project on or about August 5, 2011. 47. The progression of the pool on August 5, 2011 was absent. 48. On or about August 5, 2011, Defendants abandoned the job sight and the pool was incomplete. 49. Due to Defendants' refusal to complete work on the project, Plaintiff was forced to secure the services of a substitute contractor to complete the installation of his swimming pool and related appurtenances incurring additional costs in excess of $40,000.00. 50. Defendants failed to complete the following: a. Supply and Install two (2) Pentair Intellibrite L.E.D. Pool Lights with 150' Cord b. Supply and Install two (2) Pentair Intellibrite L.E.D. Spa Lights with 100' Cord c. Supply and Install ten (10) Waterway Spa jets d. Supply and Install three (3) Tan Skimmer Lids 8 e. Supply and Install Pentair Intelliflo Variable Speed Pump with built in S.V.R.S. Device f Supply and Install Pentair Intellitouch i9+3 Personality Kit for Pool/Spa Combination with Shared Equipment g. Supply and Install Motorized Pentair Valve Actuators h. Supply and Install Polaris 3900 Robot Cleaner i. Supply and Install Pentair Intellichlor IC40 Cell for Pools up to 40K Gallons J. Supply and Install AquaComfort AC-1500 Electric heat Pump Pool Heater k. Supply and install Loop Loc Pool & Spa cover 1. One pool opening and closing 51. Plaintiff hired Aquavisions, Inc. to complete the Plaintiff's pool for an amount of $26,888. 52. Plaintiff hired R. Perry Fence Company, Inc. to install the fence that Defendants failed to install in the amount of $9,885.00. 53. Plantiff paid Boulan $1,600 for work that Defendants were to provide. 54. Plaintiff paid $1,600 to have clean topsoil hauled in to complete the job. 55. Defendants failed to show up for work on several occasions and their employees were caught sleeping on the job numerous times. 56. On or about August 4, 2011, during a conversation with Plaintiff, Defendants admitted there was no money available to complete the work on Plaintiff's project. 57. Plaintiff hired Clearwater Pool Care Inc. to supply and install the pool and spa cover. 58. Plaintiff made a payment to Clearwater Pool Care Inc. on October 8, 2011, in the amount of $7468.00 by check #2856. 59. Plaintiff is also being billed $800 by Clearwater Pool Care Inc. for the installation of the pool and spa covers. 9 60. Plaintiff is also being billed $700 by Clearwater Pool Care Inc. for one opening and one closing of the pool. These tasks were to be provided by Defendants as per the Contract. 61. During the same phone conversation, Defendant admitted to using Plaintiff's money to pay off other jobs as the reason why Defendants ran out of money to complete Plaintiff's project. COUNT I - PIERCING THE CORPORATE VEIL 62. Paragraphs one (1) through sixty-one (61) are herein incorporated by reference. 63. A domestic business corporation is formed in Pennsylvania upon the filing of the articles of incorporation in the Department of State or upon the effective date specified in the articles of incorporation, whichever is later. 15 Pa. C.S.A. § 1309. 64. The following statutes govern Foreign Business Corporations conducting business Pennsylvania: a. 15 Pa.C.S.A. §4121 states: (a) General rule.--A foreign business corporation, before doing business in this Commonwealoi, shall procure a certificate of authority to do so from the Department of State, in the manner provided in this subchapter. A foreign business corporation shall not be denied a certificate of authority by reason of the fact that the laws of the jurisdiction governing its incorporation and internal affairs differ from the laws of this Commonwealth. (b) Qualification under former statutes.--If a foreign corporation for profit was on March 19, 1966, admitted to do business in this Commonwealth by the filing of a power of attorney and statement under the act of June 8, 1911 (P.L. 710, No. 283), the power of attorney and statement shall be deemed an approved application for a certificate of authority issued under this subchapter and the corporation shall be deemed a holder of the certificate. The corporation shall include in its initial application, if any, for an amended certificate of authority under this subchapter the information required by this subchapter to be set forth in an application for a certificate of authority. A certificate of authority issued under the former provisions of the Business Corporation Law of 1933 shall be deemed to be issued under this subchapter, and the certificate of authority shall be deemed not to contain any reference to the kind of business that the corporation proposes to do in this Commonwealth. 10 b. 15 Pa.C.S.A. §4141(b) states: (b) Contracts, property and defense against actions unaffected.-The failure of a foreign business corporation to obtain a certificate of authority to transact business in this Commonwealth shall not impair the validity of any contract or act of the corporation, shall not prevent the corporation from defending any action in any court of this Commonwealth and shall not render escheatable any of its real or personal property. 65. The Court in Good v. Holstein states the following regarding piercing the corporate veil, "There is a strong presumption in Pennsylvania against piercing the corporate veil. Also, the general rule is that a corporation shall be regarded as an independent entity even if its stock is owned entirely by one person. Nevertheless, a court will not hesitate to treat as identical the corporation and the individuals owning all its stock and assets whenever justice and public policy demand and when the rights of innocent parties are not prejudiced thereby nor the theory of corporate entity made useless. The corporate form will be disregarded only when the entity is used to defeat public convenience, justify wrong, protect fraud or defend crime. However, there appears to be no clear test or well settled rule in Pennsylvania... as to exactly when the corporate veil can be pierced and when it may not be pierced." Good v. Holstein, 787 A.2d 426, 430 (Pa. Super. 2001). 66. Defendant Steven Braun failed to procure a certificate of authority necessary for Backyard Creations Inc. to conduct business in Pennsylvania pursuant to 15 Pa. C.S.A.. §4121(a). 67. Defendant Linda Braun failed to procure a certificate of authority necessary for Backyard Creations Inc. to conduct business in Pennsylvania pursuant to 15 Pa. C.S.A.. §4121(a). 68. Defendant, Steve Braun admitted to misuse of corporate funds by stating there was no money available to complete the work on Plaintiff's project because Defendant had been using Plaintiff's money to pay off jobs for customers other than Plaintiff. 69. When a domestic Pennsylvania business corporation is conducted without the certificate being registered, the subscribers are liable as partners. Tonge v. Item Pub. Co., 244 Pa. 417 (Pa. 1914). 70. Plaintiff is seeking to pierce the corporate veil of Backyard Creatibns, Inc. based on the following: 11 a. Defendant Braun's misuses of corporate funds; b. Defendant Braun's failure to comply with the requirements of 15 Pa. C.S.A.. §4121(a); 71. 15 Pa.C.S.A. §4141(b) is available to the Defendants as a potential defense for failing to procure a certificate of authority. WHEREFORE, it is prayed that This Honorable Court will find for Plaintiff and against Defendant by piercing the corporate veil of Backyard Creations, Inc. and holding Defendant Steven Braun personally liable for damages including actual and treble damages as well as attorneys fees, costs and other fees/sanctions as the Court deems appropriate. This action is in excess of the jurisdiction for Arbitration. COUNT II- VIOLATION OF PENNSYLVANIA HOME IMPROVEMENT CONSUMER PROTECTION ACT - 73 P S 5171, et Sea PLAINTIFF BILL J. NOON v DEFENDANT BACKYARD CREATIONS, INC 72. Paragraphs one (1) through seventy (70) are herein incorporated by reference. 73. The Pennsylvania Home Improvement Consumer Protect Act (hereinafter referred to as "HICPA") was enacted and effective July 1, 2009. 74. HICPA applies to the case sub 'udice. 75. 73 P.S. 517.7(a)(6) requires that the written contract provide a start and completion date. 76. The contract start date was vague stating only, "construction will commence on approximately Mid to Late February, 2011." 77. The contract contained only a vague completion timeline stating, "will be completed approximately Late May, 2011." 78. 73 P.S. 517.7(a)(10) requires the Contract to include the names, addresses and telephone numbers of all subcontractors to be provided to the home owner. 79. The contract failed to identify the subcontractors. 80. 73 P.S. 517.7(a)(13) requires a notice of right to rescind to be provided in the Contract. 81. Defendant's Contract is devoid of a notice of right to rescind. 12 82. 73 P.S. 517.7(a)(7) requires that a set of specifications be attached to the contract and that those specifications may not be changes without a written change order. 83. Defendant charged Plaintiff for items or services which were not expressly set forth in the Contract. 84. Failure to obtain a Change Order, yet charge plaintiffs for items or services not expressly provided in the Contract, is a violation of 517.7. 85. 73 P.S. 517.10 provides that, "Any violation of the provisions of [HICPA] shall be deemed a violation of the [...] Unfair Trade Practices and Consumer Protection Law (UTPCPL). 86. It is believed and therefore averred that Defendant's Contract violated HICPA and therefore also violates UTPCPL. WHEREFORE, it is prayed that This Honorable Court will find for Plaintiff and against Defendant and award damages including actual and treble damages as well as attorneys fees, costs and other fees/sanctions as the Court deems appropriate. This action is in excess of the jurisdiction for Arbitration. COUNT III - VIOLATION OF PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW PLAINTIFF BILL J. NOON v DEFENDANT BACKYARD CREATIONS, INC 87. Paragraphs one (1) through eighty-five (85) are hereinafter incorporated by reference. 88. The Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCL), 73 P.S. §§ 201-1 et seq., applies to this case. 89. Title 73 P.S. § 201-2(4)(xiv) and ? 201-3 states that "failing to comply with the terms of any written guarantee or warranty given to the buyer at, prior to or after a contract for the purchase of goods or services is made" is an "unfair or deceptive act or practice" and is unlawful. 90. Defendant failed to comply with the written guarantee that "Seller shall proceed diligently to complete the pool..." 13 91. Defendant committed an unlawful "unfair or deceptive act or practice," as per the UTPCL, when it failed to comply with this written guarantee to diligently complete the pool. 92. The Contract provided that Defendants construct a 24' X 42' freeform pool and related appurtenances (hereinafter the "project") located at Plaintiff's residence listed above in exchange for the sum of $100,000.00. 93. The Contract provided that construction would begin February 15, 2011 and be completed in late May 2011 subject to weather conditions. 94. Defendant commenced work on or about March 17, 2011. 95. On or about August 4, 2011, during a conversation with Plaintiff, Defendants admitted there was no money available to complete the work on Plaintiff's project and work was being delayed because of Defendants' in ability to pay for supplies, equipment, and labor. During the same phone conversation, Defendant admitted to using Plaintiff's money to pay off other jobs as the reason why Defendants ran out of money to complete Plaintiff's project. 96. Tide 73 P.S. § 201-2(4) (xvi) and § 201-3 states that "making repairs, improvements or replacements on tangible, real or personal property, of a nature or quality inferior to or below the standard of that agreed to in writing" is an "unfair or deceptive act or practice" and is unlawful. 97. Defendant failed to complete the project as per the specifications listed in the contract and failed to complete the work specified in the contract. 98. Plaintiff committed an unlawful "unfair or deceptive act or practice," as per the UTPCL, when it failed to complete the project as per the specifications listed in the contract and failed to complete the work specified in the contract. 14 99. Tide 73 P.S. § 201-2(4)(xxi) and § 201-3 states that "engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding" is an "unfair or deceptive act or practice" and is unlawful. WHEREFORE, it is prayed that This Honorable Court will find for Plaintiff and against Defendant and award damages including actual and treble damages as well as attorneys fees, costs and other fees/sanctions as the Court deems appropriate. This action is in excess of the jurisdiction for Arbitration. COUNT IV -FRAUD 100. Paragraphs one (1) through ninety-eight (98) are hereinafter incorporated by reference. 101. The following actions of Defendant constitute fraudulent or deceptive conduct that created confusion and misunderstanding: a. § 517.8(a)(2) of the PA Home Improvement Consumer Protection Act defines fraud when the contractor "receives any advance payment for performing home improvement services or providing home improvement materials and fails to perform or provide such services or materials when specified in the contract [...]." b. Plaintiff paid defendants $78,588.83 and defendant failed to complete his obligations pursuant to the contractual terms. c. Defendants ceased work on the project on or about August 5, 2011. d. The progression of the pool on August 5, 2011 was absent. e. On or about August 5, 2011, Defendants abandoned the job sight and the pool was incomplete. f. Due to Defendants' refusal to complete work on the project, Plaintiff was forced to secure the services of a substitute contractor to complete the installation of his swimming pool and related appurtenances incurring additional costs in excess of $40,000.00. 15 g. Defendants failed to show up for work on several occasions and their employees were caught sleeping on the job numerous times. h. On or about August 4, 2011, during a conversation with Plaintiff, Defendants admitted there was no money available to complete the work on Plaintiff's project. L During the same phone conversation, Defendant admitted to using Plaintiff's money to pay off other jobs as the reason why Defendants ran out of money to complete Plaintiff's project. 102. Plaintiff committed an unlawful "unfair or deceptive act or practice," as per the UTPCL, when it engaged in the above fraudulent or deceptive conduct that created confusion and misunderstanding. 103. Defendant is entitled to actual damages, treble damages and attorney fees for violations of the UTPCL, in accordance with 73 P.S. § 201-9.2(a). WHEREFORE, it is prayed that This Honorable Court will find for Plaintiff and against Defendant and award damages including actual and punitive damages as well as attorneys fees, costs and other fees/sanctions as the Court deems appropriate. This action is in excess of the jurisdiction for Arbitration. COUNT V - BREACH OF IMPLIED WARRANTY PLAINTIFF BILL T. NOON v. DEFENDANT BACKYARD CREATIONS, INC 104. Paragraphs one (1) through one hundred and two (102) are hereinafter incorporated by reference. 105. For the reasons enunciated above, Plaintiff's are not satisfied with the work of the Defendant. 106. Despite Defendant's cessation of work on the project, Plaintiff's feel that the project is not completed. 107. Defendant did not complete the work per the written and oral specifications discussed between the parties. 16 108. Plaintiffs have made contact with Defendant to express dissatisfaction. 109. Plaintiffs have made many demands on Defendant to correct the defects and complete the project, but Defendant has refused and indicated that he does not have money to complete work on the project because he spent Plaintiff's money on other projects. 110. The defects in the project are a direct result of Defendant's failure to provide good and workmanlike labor, equipment and materials. 111. Defendant has breached its obligation to complete the Plaintiffs project in a timley and workmanlike manner. 112. The work performed by Defendant on the project falls outside the standards of quality as measured by the prevailing standards of construction in south-central Pennsylvania and the surrounding areas. WHEREFORE, Plaintiff demands judgment in their favor and against the Defendant in the amount damages in excess of the compulsory arbitration limits, attorneys fees, costs and interest association with this bringing of the within action. COUNT VI - BREACH OF CONTRACT PLAINTIFF BILL J. NOON v DEFENDANT BACKYARD CREATIONS, INC 113. Paragraphs one (1) through one hundred and eleven (111) are hereinafter incorporated by reference. 114. Plaintiff and Defendants entered into a written agreement (hereinafter the "Contract") on February 2, 2011. See attached as Exhibit C. 115. The Contract provided that Defendants construct a 24' X 42' freeform pool and related appurtenances (hereinafter the "project") located at Plaintiff's residence listed above in exchange for the sum of $100,000.00. 116. The Contract provided that construction would begin February 15, 2011 and be completed in late May 2011 subject to weather conditions. 17 117. Defendant commenced work on or about March 17, 2011, when excavation equipment arrived on sight. 118. The progression of the pool on August 5, 2011 was absent. 119. On or about August 5, 2011, Defendants abandoned the job sight and the pool was incomplete. 120. Due to Defendants' refusal to complete work on the project, Plaintiff was forced to secure the services of a substitute contractor to complete the installation of his swimming pool and related appurtenances incurring additional costs in excess of $40,000.00. 121. The Contract between Defendant and Plaintiff states that "the project will be constructed according to plans and specifications." 122. The Contract between Defendant and Plaintiff states that Seller shall proceed diligently to complete the pool.." and "It is hereby noted that starting and completion dates are subject to weather conditions and rain days where construction cannot be resumed because of ground conditions." 123. There were several instances in which the Defendant failed to construct the project according to plans and specifications. 124. Plaintiff does not believe that Defendants has completed the work on the project. 125. Defendants failed to complete the work in a timely and efficient manner as promised in the contract. 126. Failure to comply with the terms of a written contract constitutes a breach of that contract. 127. Defendant failed to comply with all of the terms of the written contract. 128. Defendant breached the contract by failing to comply with the terms of the written contract. 18 129. Plaintiff notified Defendant on several occasions that he was not in compliance with the terms of the written contract. 130. Defendant has refused to address the issues Plaintiff identified. 131. Plaintiff has and will continue to expend considerable sums of money to address and correct the omissions and defects of Defendant's workmanship. 132. The costs incurred by Plaintiff to put himself in the position that he would have been in had Defendants adequately satisfied their obligations under the contract are damages. WHEREFORE, Plaintiff demands judgment in their favor and against the Defendant in the amount damages in excess of the compulsory arbitration limits, attorneys fees, costs and interest association with this bringing of the within action. Respectfully Submitted, ABOM & KUTULAKTS, LLP Date: October 26, 2011 kis, Esquire Jaso P. Ku V180411 Atto ey ID 2 We High Street Carlisle, PA 17013 (717) 249-0900 Attorney for Plaintiff 19 VERIFICATION I verifv that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of Pa.-S.A. §4904, relating to unsworn falsification to authorities. ? i. G' Date William j. i. bon 17 T- ome improvement Contractor Search Page 1 of 1 7_ at e: i?; >earc!7 R - € '„ - ack hie bu - "! -, s name t 3 . th e 1x3115 HIC Number: .... Business Backyard Creations 'nr - HIC # PA076864 Registered Since 2/3/2011 Expiration 2/3/2013 Business Name. backyard creations Phone 301- 668- Fax 301-668-4416 4420 City: Address 1 1560 Tilco Drive Address 2 Suite A Zip: City Frederick State MD Zip 21704 Website _:v4w,,b: oxis,_pnr h' M111M a C Backyard Creations is a builder of medium to high end in9round gunite swimming pools and Description spas. We also offer paver decks and retaining walls as well as fencing , outdoor fireplaces, and Helpful Links outdoor kitchens. Backyard Creations also will do some landscaping around our pool projects. 3rtte sires' - oq b'iw map ., ° (The accuracy of distance is based on provided address.) r' nrl {r .:..Business 13ackvard CreatiZU ar;:-Ster u :Ier HIC # PA044635 Registered Since 7/20/2009 Expiration 7/20/2011 ,. ,..., rs Phone 8950 717-431- Fax 717-431-7429 0 09wmtlr Address 1 254 Cool Creek Way city Lancaster State PA Zip 17602 Website ht-n. 4 ww am st;hac?a d "E;a:l?;,s,. m t. i ?fi' _e Of )! .SIPler - Description We sell sheds and children's playhouses to retail customers. We also deliver them fully built or we build them on-site. Our only sales are done through the website. Jier._h1I _ (The accuracy of distance is based on provided address.) 7hr:;,lfer ar , 'as pro"cer tq "he wtracwr o . <:12 rr•? s,',oat oc ; rh: e ?o;?re .rrprovemen; C:o n>:;,Te= Pretectrav act. e atlooU e. i u. 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Address 1 600 North Second St. Address 2 Suite 401 City Harrisburg State Pennsylvania Zip 17101 http:/,/hicsearch attorneygeneral.gov/Detail.aspx?id=07b599ce-d371-e011-afO8-00505 Backyard Creations Inc. 1560-A 'Filco Drive Frederick, MD 21704 Phone: (301) 668-4420 Fax: (301) 668-4416 Pool Contract This AGREEMENT, submitted on Fe\o 2, 120 \1 , by and between BACKYARD CREATIONS, INC., hereinafter referred to as "Seller", and hereinafter referred to as "Buyer", whose residence is 331 ?Ji@ ol? D`• , City ?a•.??5?? , State p? ,Zipl'1b1s Home Phone_ Business Phone Cell Phone ll'S-?t34s -16" for the construction of a swimming po 1 an _ related equipment, herein described to be installed at County/City of Ou#- e9 ? ? , 146r the cash price of $ \001000, cn Buyer has paid a deposit of $ 2,5DC?"° , receipt hereby acknowledged, and agrees to pay the balance of $ R1600, , according to the attached draw schedule. Upon contract cancellation, deposit will be refunded at Seller's discretion less all costs associated with permitting and contract processing. This contract agreement, if submitted as a proposal, is void unless accepted and signed by Buyer prior to ? e2011 Construction will commence n approximately (VVK 20 \\ and will be completed approximately V,K\f- N%&A , 20A Completion is defined as the pool filling with water. It is hereby noted that starting and completion dates are subject to weather conditions and rain days where construction cannot be resumed because of ground conditions. Specifications Pool Shape: V?-, eeqmvh Pool Size: 21 X 40. Pool Perimeter: lin. ft. Total Square Footage- 11 l?- Water Depth: 3Y? To Raised Bond Beam (L) \i (W) (Facing of beam by others, unless Otherwise noted - see item # 16) For Your Protection, Your Pool Is: ® Approved For Diving. Always dive with Caution into the center of the deep end with Arms out in front of your head and steer up. ? Not Approved For Diving. DO NOT Put a diving board on this pool Standard Construction Specifications Included 1. Plans - Seller to supply pool layout plans and structural engineering plans. Included 2. Layout - Seller to stake out pool on day of excavation. (Buyer to approve. Pool location) ves ? No 3. Building permit-Seller to obtain normal swimming pool construction Permits for buyer. ? Yes DCQ No 4. Access wall or fence to be removed by Buyer Seller Wall or fence to be replaced by Buyer Seller 54 Yes ? No 5. Excavation - Seller to excavate pool, hand shape and remove excess soil e* , 4ay of exca;,ogiq ,..1., 131Ik Vt , a. Seller to include i 1110 FEW grading preparation of pool areaoon By Buyer b. Trees in access and pool site areas to be cut down so that stumps will be approximately 4' in height. 8 Y' 6 V C Yes ? No c. Seller to uproot only 4' high stumps at time of excavation in pool area. Yes ? No 1-6"_ 7-12" _ 13-18" _ 19-24" _ 25-30" _ 31-36" Over 37" d. Stumps buried adjacent to pool area at Buyer's request. ? Yes 9 No e. Stumps hauled off Buyer's property. 6. Hydrostatic Control System: Included a. Standard relief plugs in shallow end, at transition to slope and/or deep end. Included b. Gravel stone base for relief plug operation. Included 7. Steel Reinforcement Specifications - Structurally engineered to comply with American Society for Testing and Materials (ASTM) No. A615 Included 8. Electrical Bonding - Seller to electrically bond entire steel reinforcing and deck equipment for the pool and have it inspected by appropriate inspectors. Included 9. Gunite Shell Specifications - Used throughout pool structures and spas, love seats and play pools that my be included in this contract. Included a. Pool structure to be gunited with CONTINUOUS BOND BEAM around pool, skimmer(s) and if included spa, loveseat and play pool. Included b. Gunite designed in compliance with Gunite Contractors Association publication G-36 to attain 4,000 PSI compressive strength at 28 days. Included 10. Steps - Seller to install one Deluxe Set of Four (4) shallow end steps with 6' benches on each side. --ra9 S Yes ? No 11. Tile - Seller to install 6" band of FROST PROOF water line tile: Z Yes E] No Manufacturer Color # 12. Accent Tile on steps, love seats and benches: Manufacturer Color # ? Yes 19 No 13. Accent Tile delineating (#) racing lanes. Manuf. Color ? Yes ® No T 14. Raised Beam Tile Face - ' ' Sq. Ft. Manufacturer Color ## Yes ? No 15. Raised Beam Stone Face - Standard Dry Stack Other °j ® Yes ? No 16.Coping: Flagstone: Rectangular Tumbled(Up charge) Brick Pre-cast Cantilevered Deck Other _ JV0 ® ? *Some bricks are not locally obtainable and require an upcharge 17 Fil Yes No . tration and Pump - Installed on Precast Pads. ? Yes ? No Filter Type Manufacturer Size 1. High Rate Sand ? Yes ? No 2. Diatomaceous Earth Vertica4 Grid Quad ? Yes ? No If Diatomaceous Earth separation tank is required by local jurisdiction, there will be an up charge. $ ? Yes ? No 3. Cartridge Filter 2 rVi Lif,J Yes ? No a. Pump Specifications: UL approved energy efficient, non corrosive pump with motor and hair & lint strainer. Size of pump will be determined by BYC engineers and wipbe`based on length of plumbing runs and size of pool. Mfr: eu\- Single Speed Two Speed IntelliFlo 4 x 160 e s IntelliFlo b. Equipment Location: Pool equipment to be located l4 ` L e- k4K bed • Total Footage I?r+r-T+ng IIYWY??Rnn?nna 1!1? i , 1 chargm. sues ? No c. Skimmers: 2 Deluxe self-adjusting weir and extra large leaf basket standard. Pools larger than 800 sq. ft. will require 3 skimmers. KYes ? No d. Main Drains: 2 Deluxe VGB Compliant. Pools with water features may require more VGB compliant main drains. Yes ? No e. Returns: 3 Directional flow filter returns. (Surface flow returns for maximum cleaning action). Pools larger than 800 sq. ft. will require 4 returns. $ Yes ? No f. Hose Bib: One (1) installed at filter for lowering water level in pool. Not required for backwash type filters. ® Yes ? No 18. Interior Finish - Pool interior finished in a waterproof, hand troweled plaster finish ? a. Marblite - Color: [9 b. PebbleTec - Color: ? c. Other - Color: 0 Yes ? No 19. Safety Rope - rope rings ro e and floats t 'd u 1 d Included 20 Included V Yes ? No Optional Specifications and Equipment ? Yes ®, No 23. Automatic Pool Cover- Color: ? a. Standard Lid ? c. Electronic Drive V o f en i y s ope to eep end. a. There will be no additional cost to Buyer resulting from damage to pool during construction unless the damages result from the Buyer. b. Site to be cleared of all excess materials, tools, equipment and construction debris upon completion of each workday that BYC is on site. 21. Insurance - Workmen's Compensation, General Liability and Property Damage Insurance during construction. 22. Indoctrination - Comprehensive introduction on the running and maintenance of the pool equipment. Delivery of the pool equipment warranty and specification manual. Instructions on the importance of maintaining good pool water chemistry. Scheduled at the buyer's convenience after the pool has been filled with water and equipment is operational (Approx. 2-3 weeks after fill). ? b. Match Coping Style ? d. Hydraulic Drive Yes ? No 24. Custom Loop-Loc Standard Green Mesh Safety Cover Installed. ® Yes ? No a. First season pool close and plugs included. Yes ? No b. First season pool opening included. ? Yes ® No 25. Custom Loop Loc Colors (Up charge): ? a. Gray ? b. Black ? c. Blue ? Yes 9 No 26. Diving Board - Professional Fiberglass - non-skid safety tread. Ft. Length with Flight Deck Stand. Auto Cover pools require 8 ft. diving boards. ? Yes 19 No 27. Ladder - Heavy duty Stainless Steel Rails with Safety Steps. ? Yes RNo 28. Hand Rail - Heavy Duty Stainless Steel Hand Rails. ® Yes ? No 29. Love Seat a. Outside of pool and feet in length. b. Vo Inside of pool and G feet in length ? Yes ? No 30. Love Seat Step ® Yes ? No 31. Underwater Lights - # 11, Watt 36t W UL approved heavy-duty underwater marine lights with stainless steel niche. ? Yes ® No 32. Sam Lights: - # Sam Lights ® Yes ? No 33. IntelliBrite Lights - # IntelliBrite Lights ? Yes ® No 34. Fiber Optic Light System - Manufacturer: ' ? a. Light Lenses (#) ? b. Perimeter Cable (#) Length ft. Yes ? No 35. Vacuum Kit - Includes vacuum head and vacuum hose sized to pool. 36. Automatic Pool Cleaner w/Time Clock: ® Yes ? No Brand: 90\-,&%t5 ':AO® Model: D? Yes ? No 37. Sanitizing System: ? a. BioGuard 3 Step Program Inqluded in Start Up ChAv. c lit) b. Salt Generator Brand: C?TU? Model: er C?t7 Sa? ? c. Ozonator: Brand: Model: ® Yes ? No 38. Heater - Installed on pre-case pad adjacent to filter. ? a. Natural Gas Model: BTU's: gb. Propane Model:pe-u'ra•, 7-BTU's: tAOp,000 ? c. Oil Model: _BTU's: d. Heat Pump Model: "P--- BTU's: 1006&Ie5 4 ® Yes ? No `Act 39. Spa: With tw Deluxe VGB Compliant Bottom Drains Shape:p u? Sq.Ft.: 49 Size: _j Spa Light E] Sal Light IntelliBrite Light Raised Wall Spa - Attached Wall Height jV1 "Coping Width '2q ? Skimmer ? In-Pool Spa ? Attached Deck Level Spa ? Unattached Deck Level Spa Spa Spill Ways 1- " width 2 - " width *3 - " width * or more than 3 spillways there are additional water requirements Spa Spillways Open ? Spa Spillways Closed ? Spa Wall Jets # ? Spa Foot well Jets # QT Blower 2 HP Standard Intelliflow Pump ell Spa Cover - BeLite Deluxe Cover - Color: 40. Com terized Control System: Brand: Cuu Model: Function: ? a. In Home Control Panel ? b. Spa Side Remote 9 c. Wireless Remote 41. Decking y Backyard Creations Type: Oou j,^- Style: ?=? Pattern: Sq. Ft. to 50 $ ' "6 per Sq. Ft. Steps - Quantity: 0 Length: Height of Riser: Step Lights - Yes No ? 42. Retaining Walls by Backyard Creations Manufacturer: Style: Height: Length $ per Sq. Ft. Caps - Manufacturer: Total Sq. Ft. with sub base Style: Total Lin. Ft.: $ per Lin. Ft. ?,a 43. Fencing by Backyard Creations f j P4,0,0,, '?4fl Manufacturer: P`tr•.?, _ [i 3 c f? Color: Style: V\a? a. Install 'IOC:3 lin. ft. of fence 5' ft. in height.at $ per linear foot. b. Install standard gates and self closing latches at $ each. c. Install double gates and self closing latches at $ each. d. Install arched gates and self closing latches at $ each. :1 u- oAc- Total Fencing and Gates $ 9,400 Additional Specifications FIN 6 Total Estimated Appurtenance Items Payments made directly to subcontractors unless Backyard Creations chooses to at its own sole discretion to perform work and in such case would receive payment directly from buyer. All warranties of any appurtenance items listed below are to be established with the individual contractor performing the work. Backyard Creations, Inc. does not warranty any appurtenance work that is performed by other contractors. All items are estimates actual amounts to be estimated by contractor at time of work KYes ? No 1. Electrical Work - The specified electrical package includes: Permit, ground fault interrupter, or low voltage transformer as required by local code, outdoor receptacle, Allowance hookup of pool lights and all motors. The amount shown is an allowance, and may or Amount may not be sufficient for electrical work. The buyer will be responsible for the true $ cost, as determined by the electrical contractor. Credit will be applied to the payment schedule if the cost is less than the allowance. .Yes ? No 2. Concrete Deck Work - Install &5V sq. ft. of eo-t4r decking having a - L finish. (Additional decking over square footage shown is $ S per sq. ft.) Price includes expansion joint and stone bed. ?Yes V No 3. Piers (to help support deck) if required will be installed as needed. The number to be placed will be determined by the seller, and will be of a depth sufficient to provide for adequate protection. Additional steel reinforcing as needed in extreme ground condition (by bid only). ?Yes KNO 4. Install steps. wide x high with a finish. Additional footage at $ per linear foot. ?Yes *No 5. Concrete pump at additional cost of $ ?Yes ? No 6. Drainage: $ ?Yes 4No 7. Retaining Walls: Install sq. ft. of retaining wall of material. Additional retaining wall at $ per linear foot. Install approximately tall by long. Footer for above wall included in square footage of retaining wall specified. Note: The footing design quoted is subject to normal installation. Any variation required by the Building Department will be at the buyer's expense. Exact square footage of wall required to be determined at the time of work. 14Yes ? No 8. Fencing: Install linear feet of _ fence. ft. in height. Additional footage at $ per linear foot. Install gates of material and self-closing latches at $ each. KYes ? No 9. Gas Line and Special Plumbing Work: Allowance Install up to linear feet of gas line, hook up to gas meter and heater, and acquire Amount permits. Additional ft. $ oop w Propane tanks gal. and hook up. Above Ground Buried Estimated Appurtenances $ Ca??Ob `" Total Pool & Appurtenance Items $ 7 Finance - In the event this transaction is to be financed, this agreement is subject to credit approval of Buyer and the execution of such additional documents as may be required by the Seller or Lender. Amount Financed $ All Maryland Home Improvement Contractors and Sub-Contractors must be licensed by the Maryland Home Improvement Commission. Inquiries about a contractor should be transmitted to the Home Improvement Commission at telephone number 410-333-6309 or Virginia State Board 804-257-8511 or Washington, DC Consumer Affairs 202-727- 7000. The undersigned jointly and severely agree that the terms and conditions on the following pages are part of the agreement and that this writing contains the entire agreement between the Buyer and Seller, and further acknowledges that each of them has read and understood this entire contract, and has received a copy thereof. This contract may be amended by addendum, signed by any one of the buyers whose name appears below. Notice Any holder of this consumer credit contract is subject to all claims and defenses which the debtor could assert against the seller of goods or services obtained pursuant hereto or with the proceeds hereof. Recovery hereunder by the debtor shall not exceed amounts paid by the debtor hereunder. Notice of Cancellation You, the Buyer may cancel this transaction at any time, prior to the midnight of the third business day after the date of this transaction, cancellation notices to be sent certified mail or telegraph to Backyard Creations, Inc.; 1560-A Tilco Drive, Frederick, Maryland 21704. HOMEOWNER IS ENTITLED TO A COPY OF CONTRACT AT THE TIME OF AFFIXING SIGNATURE BACKYARD fTZE?ATIONS, INC. By: Sales Repr e tiv MHIC # Date Contract Accepted: BUYER: / Co-Buyer: 8 I Backyard Creations, Inc. Warranties Pool Structure Warranty Warranty on Pool Shell and Integral Plumbing for as long as you own the pool; transferable once. Backyard Creations, Inc. warrants that the Pneumatically Applied Gunite Shell Structure will be free of structural cracks, and will hold water, for as long as you own your pool. If a structural crack or leak should develop Backyard Creations, Inc. will repair the shell structure as required without charge. The Warranty on the pool is transferable one time within the first ten years of ownership. Inspection by Backyard Creations, Inc. is required. Component parts and other warranties are not transferable. Full Three (3) Year Warranty on Integral Components. Backyard Creations, Inc. warrants the integral components of the pool structure, such as skimmers, drains, coping, tile, and Marblite plaster finish, against defects in workmanship and material for three (3) years from the date the pool is plastered. Should defects occur, Backyard Creations, Inc. will repair the defective component without charge. Pool Accessories Warranty Ten (10) year warranty on Filter Tank Backyard Creations, Inc. warrants that the filter tank, which is installed in accordance with the contract, will not leak due to defects in workmanship or material for a period often (10) years. If Backyard Creations, Inc. is unable to fix any leak, it will replace the filter tank without charge or will refund the purchase price of the filter tank. Full three (3) year warranty on ladders, handrails and diving boards. Backyard Creations, Inc. warrants the stainless steel ladders, hand rails or diving boards which are installed in accordance with the contract, against defects in workmanship and material for three (3) years from the date the pool is plastered. If Backyard Creations is unable to repair any defect, the item will be replaced without charge or a refund of the purchase price of the defective item will be provided. Full two (2) year warranty on parts and accessories. Backyard Creations, Inc. warrants part and accessories, such as pump, motor, heater and underwater lights (with the exception of the bulb) which are installed in accordance with the contract, against defects in workmanship and material for two (2) years from the date when the pool is plastered: If Backyard Creations, Inc. is unable to repair any such defect, the item will be replaced or a refund of the purchase price of the defective item will be provided. 9 Limitations and Exclusions Backyard Creations, Inc. is not liable for defects or damage caused by improper drainage, maintenance, winterization, misuse, or other reasons beyond its control. Backyard Creations, Inc. is not liable for incidental or consequential damage caused by any defect including leakage. This warranty does not cover discoloration or staining of the Marblite Plaster Finish, since such discoloration and staining is due to the physical and chemical nature of the plaster, local water conditions, lack of or improper use of chemicals or improper cleaning and maintenance. (Hairline cracks in coping and coping joints are normal and not considered defects.) The warranties set forth in this contract are the sole warranties with respect to the pool structure and there are no other warranties expressed or implied. This warranty pertains provided Buyer is a person and not a corporation or other fictitious entity. Customer Rights and Responsibilities In order to keep the forgoing warranties in effect and receive the utmost benefit and enjoyment from your new pool, you must use, maintain and winterize the pool and accessories in accordance with the pool owner's guide (Industry Standards) and Backyard Creations, Inc. must be paid in full. This warranty gives you specific legal rights, and you may have other rights, which vary, from state to state. Questions regarding this warranty service may be directed to Customer Service, Backyard Creations, Inc.; 1560-A Tilco Drive, Frederick, Maryland 21704. 10 Backyard Creations Terms and Conditions of Contract I. Changes or Extra Work. It is agreed that this contract contains the entire agreement between the parties hereto: That all prior dealings, conversations, negotiations, agreements and understandings of every name, nature and description have been merged in or superseded by this contract, and that no representations, warranties or understandings of any kind exist or shall be binding on either party, unless incorporated in writing in this contract and agreement. 2. Permits. Seller shall obtain for the Buyer normal building permits for construction of the pool. If Seller cannot obtain permits, Buyer shall attempt to secure permit at Buyer's cost. If permit cannot be obtained, contract will be canceled and deposit refunded. Unless otherwise provided for, Buyer shall install fence per county or city code prior to plastering of pool. 3. Pool Location. Buyer represents that he/she has title to the land and has selected and directed the location and elevation of the pool and all other improvements and equipment. Where such locations are used, there shall be no other liability on the part of the seller of incorrect location of the pool, improvements, or requirements for the encroachment upon or interference with the property, easements or rights of any third parties. Buyer represents that the pool floor will rest on original ground and that it will not interfere with support of existing or proposed structures. 4. Pool Area Preparation (Unless otherwise provided for) Buyer responsible for all site preparation including, but not limited to, removing trees, stumps, power lines, underground piping, any other underground obstructions and any extra grading needed unless otherwise provided for. Buyer to provide Seller with adequate access. Pool area is defined as square footage of pool at its water line plus 10' on each of its sides. In the event the Buyer obtains permission for access through adjacent properties for pool construction, Buyer agrees to be responsible and to hold Seller harmless and accept any risks thereof. Buyer shall be responsible for providing adequate drainage around the pool to protect pool from damage due to drainage conditions and draining the pool. Buyer is also responsible for providing Seller with necessary electricity and water during construction, guniting, tile/coping and plastering of pool. Filling of pool with water shall commence immediately upon completion of plastering and will be continuously filled to the middle of the tile line with trucked in water. Seller shall not be responsible for damage to lawns, shrubbery, trees, curbs, sidewalks, driveways, sprinklers, or sewage systems, or to any real or personal property caused by moving equipment to and from the pool within the access way or around the pool area. I1 5. Excavation. This contract is based upon normal excavation conditions. Normal is defined as any soil that can be removed from its bed in one day, using CAT 939C or equivalent front-end loader operated in normal fashion. If during the excavation operation, hard pan, rock or other material, which requires drilling, blasting, additional or special excavation equipment, or other earth caving are encountered, water seepage is uncovered and/or any other unusual situation is found to exist where additional excavation time and material is required, Seller shall not be liable for the resulting delay and Seller shall have the right: a) To cancel this contract with no further liability to Seller. b) Upon Buyer's approval and at Buyer's expense amend this contract in writing to deal with such events. c) If fill is required it will be hauled to site upon Buyer's approval and at Buyer's expense. Buyer shall have the right to remove rock or hard pan in accordance with excavation drawings. If excavation is not done to specifications there will be a charge for any work and materials needed to shape or re-excavate pool or control water. If contract is canceled due to excavation conditions, Buyer agrees to pay actual accrued costs for excavation and permits as liquidation damages for the work to date of cancellation d) Normal excavation is calculated at 8 hours tractor allowance. 6. Construction and Schedule Construction shall commence after permits have been obtained and financing arrangements and documents have been completed, if applicable. Seller shall proceed diligently to complete pool, but shall not be responsible for delays caused by: acts of God, Buyer or Buyer's agents, war, riot, inclement weather, government action or inaction, vandalism, Buyer's failure to make payments when due, or other reasons beyond Seller's control. Construction shall be deemed completed when the pool is plastered, and if applicable, (notwithstanding the fact) that the Buyer has not connected water, electricity or fuel or that repairs or warranty work may be outstanding. The date of completion shall be extended three (3) days for each day of delay caused by any of the events referred to herein. Should certain materials or accessories become unavailable, Seller shall have the right to make a substitution equal to or better at no extra cost to the Buyer. All pool dimensions are approximate having reasonable tolerances either way. If Seller has not started excavation within 120 days from the date of this contract for any reason beyond Seller's control, Seller may, at its option, cancel this contract by notice to the Buyer. The parties agree that damages to Buyer for any variation in pool dimensions would not be readily ascertainable and thus agree to liquidated damages of $10.00 per square foot for any deviation in water surface or depth are below the amount specified in this contract. Backyard Creations, Inc. may assign or subcontract all or any portion of the work to be performed. Seller shall not be responsible for check cracks, and or damage to concrete caused by weather, expansive soil, or swelling, soil shrinkage or movement of soil, nor fading or discoloration of concrete. 12 7. Post Construction If deck is not included in Seller's contract, Buyer must provide protection for the pool shell between coping and deck, tile, and coping from damage by the deck by using standard expansion joint of t/2" by 4" followed by the use of a polysulfide or equal expansion joint material. Seller shall not be liable for damage to pool shell, tile, or coping caused by improper installation of deck by Buyer or his/her contractor. If deck is not included as part of this contract, and Buyer has purchased a diving board and/or ladder, then Seller will deliver the diving jig on which the diving board rests and/or ladder rails or sockets. Buyer agrees that he will follow manufacturer's instructions for location and installation of such equipment, and Seller is hereby relieved of ALL responsibility or liability for location or installation of such equipment. The aforementioned applies to all deck mounted equipment. Caution: If pool is not approved for diving (see Swimming Pool Design Construction Document) you should not install or use a diving board or jump board. Do not dive into this pool. If pool is approved for diving, exercise caution by always diving into the center of the deep end with arms out in front of your head and steer up. Do not permit or practice fancy dives, stunts, or horseplay. All pool users should be instructed in these limitations. Never dive into the shallow area. Buyer is responsible for landscaping and for having water, electricity, venting and fuel connected to pool equipment unless otherwise noted in Swimming Pool Design Document. Plumbing/electrical utilities/service, unless otherwise noted, are not to be changed, upgraded, relocated or replaced and are not included under the terms and conditions of this contract. All panel changes are Buyer responsibility. 8. Draining Pool. In the event the pool is drained for any reason whatsoever, none of the warranties or guarantees hereinabove shall apply unless the Buyer (a) removes caps and clears the relief plugs as soon as they are above the level of declining water and (b) refills the pool within ten (10) days after draining. Where Buyer has work performed by others that is not provided for in this contract such as, but not limited to, electrical work, deck, landscaping, fences and retaining walls, Seller does not warrant such work. Seller shall not be liable for such work or for loss or damages, if any, may result there from. 9. Payment. Buyer warrants that he/she owns, and until the pool is completed and paid for will continue to own the premises where the pool is to be or has been installed. In the event the Buyer transfers or encumbers the premises upon which the pool is being installed or has been installed, the entire unpaid balance shall become due and payable forthwith, and all warranties are void. 10. Default. In the event of default by the Buyer, either by cancellation preventing Seller's performance hereunder or failure to make payments or otherwise complying with the terms and conditions of this contract, Seller at its option, may declare the entire balance of this contract immediately due and payable, together with reasonable attorney's fees, and any other remedies available by law to the Seller. 13 11. Miscellaneous. If any provisions (or portions thereof) of this contract shall be deemed invalid, it is agreed that such invalidity shall affect only such portions (or portion thereof) and that the remainder of the contract shall remain in force and effect. In no event shall the Seller be liable for incidental or consequential damages for any breach of contract. 12. Warranty or Replacement. The repair or replacement of the pool shell or of non-pool shell items, as specifically required or provided for herein, shall constitute the sole and exclusive remedy of the Buyer and the fulfillment of all Seller's responsibilities under their limited warranties, whether on warranty, contract, or negligence. Seller shall in no event be liable for special or consequential damages including but not limited to damage from leakage. 14 of/ Backyard Creations Inc. 1560-A "hilco Drive Frederick, MD 21704 Phone: (301) 668-4420 Fax: (301) 668-4416??????? DRAW SCHEDULE TOTAL PRICE OF POOL PER CONTRACT $ NCO k 000, BUYER HAS PAID A DEPOSIT OF $ RECEIPT HEREBY ACKNOWLEDGED AND AGREES _ TO PAY THE BALANCE OF AS FOLLOWS: UPON ARRIVAL FOR EXCAVATION $ 1q, 0CV^ f ?. 77& UPON ARRIVAL FOR GUNITE $ UPON ARRIVAL FOR TILE & COPING $ k-J, •'?3C?•"'/l ¢??er y6 d? UYPON ARRIVAL FOR STREAM/WATERFALL $ UPON ARRIVAL FOR WALLS $ UPON ARRIVAL FOR DECKS ??? L, opts • ??°? y /y?Gv ul UPON ARRIVAL FOR FENCE MEASUREMENTS $ `I DID •`? Z 3 ?? 49 r ? UPON ARRIVAL FOR ELECTRIC' UPON ARRIVAL FOR GAS AP 74/ $ fl4too •&P -V ?-' UPON ARRIVAL FOR WHITE COAT/PEBBLETEC 7, APPURTENANCE ITEMS TO BE PAID AS PER INDIVIDUAL CONTRACTS ,m Failure to pay in accordance with the approved draw schedule will cause the project to be placed on hold until payment is made. ( ?7,')35 15 azo C,4e-t? '?? 5 1560TILCO DR., SUITE A, FREDERICK MD 21704 301-668-4420 800-232-9066 WWW.BYCPOOLS.COM ADDENDUM DATE' CONTRACT DATED. .20 BETWEEN BACKYARD C TIO S, INC. AND " t 1.+ y No. and Street City State Zip IS HEREBY AMENDED AS FOLLOWS: 1? 8 i 3+ 1;.. t ; t? } ri FOR ATOTAL CONTRACT PRICE INCREASE OF DECFIEASE OF THE REASON(S) FOR THE FOREGOING AMENDMENT(S) IS AS FOLLOWS: (PLEASE ATTACH YOUR CHECK) (WILL BE DEDUCTED FROM FINAL PAYMENT) BACKYARD CREATIONS, INC. BY Y.L . ...j _ ..?w We authorize these changes in the v for which we agree to the contract p OWNER OWNER 4aing performed under the above-referenced contract increase or decrease shown above. 1560 TILCO DR., SUITE A, FREDERICK MD 21704 301-668-4420 800-232-9066 WWW.B)fCPOOLS.CO6 M y ? k ADDENDUM DATE CONTRACT DATED tl ?."2'0 BETWEEN BACKYARD CREATIONS, INC. AND ? , 1 T V No. and Street I # City State Zip IS HEREBY AMENDED AS FOLLOWS: tt " . FOR ATOTAL CONTRACT PRICE INCREASE OF $ (PLEASE ATTACH YOUR CHECK) DECREASE OF $( I (WILL BE DEDUCTED FROM FINAL PAYMENT) THE REASON(S) FOR THE FOREGOING AMENDMENT(S) IS AS FOLLOWS: We authorize these changes in the work being performed under the above-referenced contract for which we agree to the contract,prioe increase or decrease shown above. f' BACKYARD CREATIONS, INC. / s OWNER F BYE,- OWNER 500/6.05 • Rosenbaum's Landscaping Services, Inc. Contractor # PA019396 3780 Sycamore Grove Road 717-26l-1911 Chambersburg, PA 17202 Chl90 S) mb- enOow"° Phone: (717) 261-1911 ceo.?a.I,.e...?, N 17202 Fax: (717) 261-9991 Web: www.rosenbaumsiandscaping.com KVME Noon Residence Backyard Creations, Inc. 37 Nicolas Drive 1560-A Tilco Drive Carlisle, PA 17015 Frederick, MD 21704 Phone: (301) 668-4420 Invoice #: 1093 Invoice Date: 13-Jul-11 Terms: Due on Receipt We hereby submit an invoice for: 102 14" x 24" x 2" Bullnose Tennessee Tan 2 24" x 24" x 1" Tennessee Tan Flag Stone Delivery Charge TOTAL AMOUNT OF INVOICE: Late Fees: TOTAL BALANCE DUE NOW: $ 35.98 Each $ 6.25 Sq. Ft. Past Due Balance! Payment Due Immediately! $ 3,669.96 49.92 65.00 $ 3,784.88 56.77 $ 3,841.65 ?JI 3 `1 For several months our suppliers have been adding fuel surcharges to our shipments. To date we have absorbed the charges with the hope that fuel prices would level off. Due to the expected long-term outlook for the fuel situation, we feel we must make changes to our invoicing policy. A fuel surcharge will be added to all invoices based upon travel distance and a percentage of the total amount due. Invoice due upon receipt. Please send payment to the above address within ten (10) days. A service charge of one and one half percent (1 % %) per month, or a minimum charge of $5.00, will be charged on all unpaid amounts after the due date. THANK YOU FOR DOING BUSINESS WITH US! Page 1 of 1 . NNSYLVANIA COIJPJ'l-v OF: FRANKLIN C--'-NTT Ma;] Gee. N, MDJ Nome is 3;9-3-04 NVIL COMPLAINT PLAINTIFF: NAME and ADDRESS rRa5e n baurn `5 .and,3capl n Ser-v* C e5 ZnC. 3?ea Sycgr?pr-e Grave (4(3aqJ LChar-nb,,r1buq PIP I-lao DEFENDANT: NN e and ADDRESS I I noon 3, I-)IC01as Drive LCQr-I1-3 fie, pq 1,015 _J Docket No.: QV- 2,TJ_ y Date Filed: 3011 Social security numbers and financial information (e.g. PINs) should not be listed. If the identity of an account number must be established, list only the last four digits. 204 Pa.Code §§ 213.1 -213.7. TODD R. 'WILLIAMS Adc"',s 1157 CARVER LN PO BOX 460 SCOTLAND, PA Telephone: (717) 263-7949 17254-0460 AMOUNT DATE PAID FILING COSTS $ 102.00 / POSTAGE SERVICE COSTS $ CONSTABLE ED $ TOTAL S /?.? h30 / It I U I HL DEFENDANT The above named plaintiff (s) asks judgment against you for $ 3, q 5-7 . -116. together with costs upon the following claim (Civil fines must include citation of the statute or ordinance violated): Fa.l I Uf- e C) PQy Qu! 1 na5e Znvo*j c e -=t i pq 3 1-inne55ee -Tan --gyp r S4one Scott ? Qas e ?, bQu m verify that the facts set forth in this complaint are true and correct to the best of my knowledge, information, and belief. This statemet idhe p alties of Section 4904 of the Crimes Code (18 Pa.C.S. § 4904) related to !Z= tie . horize Agen The plaintiff's attorney shall file an entry of appearance with the magisterial district court pursuant to Pa. R. C. P. M. D.J. 207.1 IF YOU INTEND TO ENTER A DEFENSE TO THIS COMPLAINT, YOU SHOULD NOTIFY THIS OFFICE IMMEDIATELY AT THE ABOVE TELEPHONE NUMBER. YOU MUST APPEAR AT THE HEARING AND PRESENT YOUR DEFENSE. UNLESS YOU DO, JUDGMENT MAY BE ENTERED AGAINST YOU BY DEFAULT. If you have a claim against the plaintiff which is within magisterial district judge jurisdiction and which you intend to assert at the hearing, you must file it on a complaint form at this office at least five days before the date set for the hearing. If you are disabled and require a reasonable accommodation to gain access to tl Court and its services, please contact the Magisterial District Court at the above telephone number. We-are unable to provide transportation. AOPC 308A-10 Date-07/21/2011 R&D MASONRY, INC. Contract#-1223-11 MHIC# 124285 CONTRACTOR SERVICES AGREEMENT We hereby propose to furnish all materials and perform all labor necessary for the completion of the following specifications: POOL DECK ?? p/ Prepare area for new pool deck Install stone dust over pipes ($500) Fill trenches Install new gravel base for pool deck and compact Install bond grid on pool deck ($800) Pour new exposed aggregate concrete pool deck Total sq ft of pool deck-1567 (@$8=$12,536.00) Prepare area for new slab with footers with gravel base Excavate footers and pour concrete footers for slab (76 linear ft=$3000.00) Pour new concrete slab (Total sq ft-360@$8=$2,880.00) This work is to be performed at 37 Nicholas Drive, Carlisle, PA 17015 for William Noon, owner in accordance with the specifications discussed for the above work, the total cost of the job is $19,716.00. Payments to be made as follows: 1st Payment of $7,000.00 to be paid upon the approval of this contract, 2nd Payment of $7,000.00 to be paid when pool deck is prepped and Last Payment of $5,716.00 to be paid when concrete is poured. All contract payments are to be done by cash or check. Credit card charges will be charged an extra 3% convenience fee. Any returned checks will be charged $75 extra. Any requests for changes or alterations from the above specifications involving extra costs of material or labor will only be commenced upon signed written change orders and will become an extra charge over the total contract price. In the event Owner shall fail to pay any periodic or installment payment due hereunder, Contractor may cease work without breach pending payment or resolution of any dispute. Materials provided are property of R&D until final payment has been received. The contractor shall be responsible for Workmen's Compensation and Liability insurance for all his employees while working at the above job site. In the event that R&D Masonry, Inc. is required to bring an action to collect any sums that are due, owner agrees to pay all attorney fees and costs incurred if R&D prevails. Warranty for the work mention in this contract will consist of workmanship defects to be covered for a period of one year from completion date. R & D will not be held responsible for any concrete damage such as scaling or flaking from chemicals such as salt or deicers. Concrete cracks are not covered under R&D warranty and are normal in concrete. If warranty repairs are completed, they are to be completed only on damaged sections of work and not complete job. Customer is aware if any machines are needed to complete the job that they will have to maneuver in grass areas leading and around work area and those areas will be disturbed. R&D is not responsible for any landscaping unless otherwise mentioned. ACCEPTED; Owner Date r? f A 600 c4 ae?z 4 222 Bowen Ct., Annapolis, MD 21401. Ph:(410)224-2290 Fax: (410)224-6552 Website: www.randdmasoniy.com email: randdmasonry@verizon.net_ R. PERRY FENCE COMPANY, LLC. PROPOSAL 6280 Lincoln Way East Fayetteville, PA 17222 (717) 352-8999 or 1-800-910-0204 FAX (717) 352-8984 PA Contractor # PA018413 MHIC# 101880 Proposal Submitted To: Bill Noon Date: 8/17/2011 Phone: 443-838-1659 37 Nickolas Dr Fax: 397-3242 Carlisle PA 17013 Email: bnoon@packagingcorp.com The R. Perry Fence Co. proposes to furnish and install 292' of 54" high bronze Delgard aluminum Aero Grade Elba fence which includes two 54" high X 5' wide single walk gates and one arched 54" X 8' wide double swing gate. Cap style is standard flat. Posts are 2 t/2" square set in dry packed cement. NOTE: Please read the following "Please Read" statement because of all the rock I saw at job site we may need to jackhammer the rock to install post which would incur additional costs. Please Read: Fence to follow the general contour of the ground. Price does not include clearing of brush, trees, old fencing, rock, or disposal of excess dirt from digging holes, unless so specified. Extra charge will be made for holes in concrete, amesite, shale, rock, frozen ground & tree root removal on the basis of time & materials. Layout of fence lines, corners and gates will be the responsibility of the owner or authorized agent. Damage to underground structures & utilities are the responsibility of the owner. Owner will provide water needed to mix concrete. Proposal is subject to credit approval. Buyer grants permission for any necessary credit investigation. Owner will secure necessary permits and zoning approval. All electrical grounding is to be done by others. Terms: Cash: Due & payable on receipt of Invoice. Unpaid accounts after 10 days of Invoice are subject to 1 '/% per month service charge, minimum $15 monthly charge, whichever is greater. If fencing project is not paid in full, within 90 days of completion, we have the right to remove the fencing from your property and proceed with legal action. Special orders: deposit is non-refundable on special orders. We propose hereby to furnish material and labor-complete in accordance with above specs for sum of: P ).f 1/3 down; Balance upon Completion Note: Proposal may be withdrawn by us If not accepted within 10 days Authorized Signature _ Rand, Perry_ All material is guaranteed to be as specified. All work to be completed in a substantial workmanlike manner according to specifications submitted, per standard practices. All work is guaranteed for one year. Any alteration or deviation from above specifications involving extra costs will be executed only upon written orders and will become an extra charge over and above the estimate. All agreements are contingent upon strikes, accidents or delays beyond our control. Owners are to carry fire, tornado and other necessary insurance. Our workers are fully covered by Workmen's Compensation Insurance. ACCEPTANCE OF PROPOSAL The above prices, specifications and conditions are satisfactory and are hereby accepted. I hereby authorize you to do the work as specified. Payment will be made as outlined above. I have 3 days after date signed to withdraw from project without penalty. If I cancel after that my deposit is non-refundable. By signi be?w, I certify thjila the pr operty owner of the above address. DATE OF ACCEPTANCESIGNATURES: Nine Thousand Eight Hundred and Eighty Five Dollars $9,885.00 Payment Terms YAR ELECTRIC Jason Witmer 380 Poplar Rd. lll_LSBURG, PA 17019 2481 (717) 432-8504 TO _IC? /VCS PHONE -QggC)F ORDER 9 ORDER TAKEN BV CUSTOM ORDER N SPR DAY WORK [ CONTRACT EXTRA JOB NAME/NUMBER JOB LOCATION JOB PHONE STARTING DATE TERMS: OTY. MATERIAL A / ?,2`> i'v Sv d'°? PRI CE AMOU -? NT 0 0 DESCRIPTION OF WORK LAC MCAL 4A L- ?ec ? ?- oo _!° i s v J C L oD MP DOwSA POZ e t°A P9' T N S s? BRefil KZU Z P ??' T N-I g d OTHER CHARGES `S/I ?FCT Dui 0. I'i ell- 1! (COM/0"1 TS Sl oo PVC F. ?nN s T 3 0 ? ?? ?o S6o ,2r?e,? srg _57 ? H N PPC' PW7 ?0 a& 191-4 b / T t 41Zjr4ex YE-1 TOTAL OTHER A T IVAJ ?oPPee / LABOR HRS. RATE AMOU NT > ?s N? ?/va7 HCA M PbP a Tv rI' _r+4 8 S -- Svc .moo ?,? rca. ?! A L I4 So - DATE COMPLETED _ TOTAL MATERIALS 8 S? TOTAL LABOR TOTAL MATERIALS TOTALOTHER S OO S? Work ordered by _ Signature TAX 1 hereby acknowledge the satisfactory completion of irte above described work. TOTAL 5 6 ?d CERTIFICATE OF SERVICE AND NOW, this I t 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 Complaint by depositing, or causing to be deposited, same in the United States Mail, First-class mail, postage prepaid addressed to the following: Backyard Creations, Inc. 1560 Tilco Drive, Suite A Fredrick, MD 21704 Pro Se Defendant And Steven B. Braun, President 1560 Tilco Drive, Suite A Fredrick, MD 21704 Pro Se Defendant And Steven B. Braun, President 1560 Tilco Drive, Suite A Fredrick, MD 21704 Pro Se Defendant And National Registered Agents, Inc. 600 North Second Street Suite 401 Harrisburg, PA 17101 i 1 ? on Freem 21 SHERIFF'S OFFICE OF CUMBERLAND COUNTY r ?i Ronny R Anderson + ,J;`1 ` -n ??? Sheriff C! I--' 1 'EE nth Jody S Smith [js 1 J Chief Deputy Richard W Stewart CUMBER AHO COUNTY Solicitor P E I IN 5 Y LVA t4l A William J. Noon Case Number vs. 2011-8279 National Registered Agents, Inc. SHERIFF'S RETURN OF SERVICE 11/03/2011 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: National Registered Agents, Inc., but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Dauphin County, Pennsylvania to serve the within Complaint and Notice according to law. 11/07/2011 Jack Lotwick, Sheriff of Dauphin County, who being duly sworn according to law, states that on November 7, 2011, he was unable to serve a true copy of the within Complaint and Notice, upon the within named defendant, to wit: National Registered Agents, Inc. National Registered Agents, Inc. doing business at 600 N. 2nd Street, Suite 401, Harrisburg, PA 17101 refused service on this Complaint and Notice. SHERIFF COST: $40.00 November 14, 2011 SO ANSWERS, RON R ANDERSON, SHERIFF ?ou 7 i „he E . _su't_ h "-, AB OM CST KUTULAKIS Jason P. Kutulakis, Esquire Attorney I.D. #: 80411 2 West I Iigh Street Carlisle, PA 17013 (717) 249-0900 WILLIAM J. NOON, Plaintiff V. BACKYARD CREATIONS, INC., and STEVEN B. BRAUN, President and Individually, and LINDA M. BRAUN, Secretary/Treasurer and Individually, Defendants FILEO-OFFiCE ,0F THE PROTHONOTARY 2011DEC21 PM 1=39 G,WBERLAND COUNTY p't,114S'YLVANIA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FILE NO.: 2011-8279 CIVIL ACTION - LAW 2 , being duly sworn according to law deposes and says that I am a competent adult, and that on ©Q-C- ?_-- , 2011, at o'clock IN_m., I personally served S' VET BRAUN at 156 Tilco Drive, Suite A 1,3 Rc-i i> n C_N a C?? Frederick, Maryland 21704, with a true and correct copy of tb(e Complaint and Notice to Plead dated I '). ??' ` ? , issued v DATE Upw11Ma- n wam2 (am) Of Un STATE OF MARYLAND COUNTY OF 7CQN-?,C-,C,f On this, the- !ll--' day ofA2011, before me, the undersigned officer, personally appeareO?r? k , bvdr- 'known to me to be the person whose name is subscribed to the within instrument and that he executed same for the purpose therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. N TARY PUBLIC 2o?PKY ?f jy??n ANNE M. DAUGHERTY Notary Public State of Maryland Frederick County My commission exp. March 13, 2014 4 _ ABOM ?' KLITLILAKIS Jason P. Kutulakis, Esquire Attomev I.D. #: 80411 2 West high Street Carlisle, PA 17013 (717) 249-0900 WILLIAM J. NOON, Plaintiff V. BACKYARD CREATIONS, INC., and STEVEN B. BRAUN, President and Individually, and LINDA M. BRAUN, Secretary/Treasurer and Individually, Defendants FILED-OFFICE uF THE PROTHONOTA" 2011 DEC 21 PM 1' 39 CUMB NNSYLVANIA TY PE IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FILE NO.: 2011-8279 CIVIL ACTION - LAW AFFIDAVIT OF SERVICE being duly sworn according to law deposes and says that I am a competent adult, and that , 2011, at o'clock I personally served L DA UN at 1560 Tilco-ve, Suite e?Frederick, ? Maryland 21704, with a true and correct copy of-the Com1a tand and Notice t0 issued in the above-captioned matter. ?Ca ??! CNV) %I r--"\ n ( DATE • T a/wio hoein ftr,*w IM ow Yunow Low UPW MOM. MD 207!2 (M) 006 2020 t ? STATE OF MARYLAND C(--)LINTY OF On this, then day o , 2011, before me, the undersigned officer, personally appeared CAS U"C 'known to me to be the person whose name is subscribed to the within instrument and that he executed same for the purpose th°rein contained. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. IQ U NOTARY PUBLIC }c?n?.. rtb??? ANNE M. DAUGHERTY Notary Public State of Maryland Frederick County My commission exp. March 13, 2014 f DEC r rrr rr rrr?rrrr..rawrrr.Qor M ABOM cSZ' 1CLITLILAKIS )anon P. Kutulakis, Lsquirc Attorney I.D. #: 80411 2 West High Street Carlisle, PA 17013 (717) 249-0900 WILLIAM J. NOON, Plaintiff V. BACKYARD CREATIONS, INC., and STEVEN B. BRAUN, President and Individually, and LINDA M. BRAUN, Secretary/Treasurer and Individually, Defendants FILED-OFFICE OF THE PROTHONOTARY 2011 DEC 27 PM 1: 39 CUMBERLAND COUNTY PENNSYLVANIA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FILE NO.: 2011-8279 CIVIL ACTION - LAW I, ? `? n being duly sworn according to law deposes and says that I am a competent adult, and that on D -c -- , 2011, at lbaCD o'clock P?.m., I personally serve A ?C ?-?`of BACKYARD CREATIONS, INC. at 1560 Tilco Drive, Suite A, Frederick, Maryland 21704, with a true and correct copy of the Complaint and Notice to Plead datedbe-c--_? V, issued in the above-captioned matter. DATE 6 T §* Mft PM68 8WW" sm am YOMW LOW UPWMW1W01= 20M (M) ns 20 STATE OF MARYLAND COUNTY OF ?KCD(L?C!f? On this, the % day of 2011, before me, the undersigned 5'` officer, personally appeareZ%t?Q?R ??es?; known to me to be the person whose name is subscribed to the within instrument and that he executed same for the purpose therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. r-- NO ARY PUBLIC ro??Rr Nny n ANNE Vii. Dikz'a' +.. i 7-y Notary -14 XP. 1,? 14 r ! rk ?- lC ] 2011 -------------- F IL D-()F,p1,E `d S n HE POTN??r) 2012 J"p! P!, 4. f WILLIAM J. NOON, CUMBERLAND CBERLAND HE COURT OF COMMON PLEAS OF P t&AVANIA COUNTY, PENNSYLVANIA V. Civil Action No. 11-8279 Civil BACKYARD CREATIONS, INC., CIVIL ACTION -LAW STEVEN B. BRAUN, President and Individually, and LINDA M. BRAUN, Secretary/Treasurer and Individually, Defendants NOTICE TO PLEAD TO: WILLIAM J. NOON, Plaintiff --and-- JASON P. KUTULAKIS, ESQUIRE, his attorneys You are hereby notified to file a written response to the enclosed Preliminary Objection within twenty (20) days from service hereof or a judgment may be entered against you. SHUMAK WILL P.C. -gZ _ Dated: January 5, 2012 By Evan C. Pappas, I.D. 20 103 P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 ,?BOM ?' ICuTULaxis -Jason P. KmLil;tkis, lisquire Vt(rncc LI). #: 80411 2 W cst [ [igh Street Carlisle, P:1 17013 (7171 249-(')(),) WILLIAM J. NOON : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 37 Nicholas Drive Carlisle, PA 17015 Plaintiff V. : FILE NO.: 20::1-8279 BACKS"AIRD CREATIONS, INC. : CIVIL ACTION - LAW 1560 Tilco Drive, Suite A Fredrick, MD 21704 and STEVEN B. BRAUN, President and Individually- 1560 Tilco Drive, Suite A Fredrick, MD 21704 and LINDA M. BRAUN, Secretary/Treasurer and Individually 1560 Tilco, Drive, Suite A Fredrick, P?fD 21704 Defendants NOTICE TO PLEAD TO: Evan Pappas, Esquire Shumaker Williams, P.C. P.O. Box 88 Harrisburg, PA 17108 YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN PRELIMINARY OBJECTIONS OF PLAINTIFF TO DEFENDANT'S PRELIMINERY OBJECTIONS TO THE PIA,INTIFF'S AMENDED _COMPLAINT WITHIN TWENTY (20) DAYS OF THE DATE OF SERVICE OF THIS PLEADING. Respectfully Submitted, AB,OM & KU7LAIOS, L.L.P. 1,4 A Date Jason P. utulakis, Esq Supreme urt I.D. 80411 2 West Higf`ttreet Carlisle, PA 17013 (717) 249-0900 & &U Mom LAKIS Cason 1'. liutulakis, Lsquire Attorney Lll. #: 80411 2IX,st Ihuh street Carlisle, 1?17013 717; 249-P)HO V ILLIA)-I J. NOON _- ? ? Y C '0?2 JARS 26 PK 'ENNSYL VAit 1, IN THE COUNT OF COMMON PLEAS CUMBERLAND COUNTY, PENNS'YT.VANIA 37 Nicholas Drive Carlisle, PA 17015 Plaintiff V. BACKYARD CREATIONS, INC. 1560 Tilco Drive, Suite A Fredrick, MD 21704 FILE NO.: 20"1-8279 CIVIL ACTICN - LAW and STEVEN B. BRAUN, President and Individually 1560 Tilco Drive, Suite A Fredrick, MD 21704 and LINDA M. BRAUN, Secretary/Treasurer and Individually 1560 Tilco Drive, Suite A Fredrick, ?4D 21704 Defendants PRELIMINARY OBJECTIONS OF PLAINTIFF WILLIAM J. NOON TO DEFENDANT'S PRELIMINARY OBJECTIONS TO THE PLAINTIFF'S AMENDED COMPLAINT NOW COMES, Plaintiff, William J. Noon, by and through his attorneys, Jason P. Kutulakis, Esquire, of ABOM & KUTULAKIS, L.L.P., and files the following Preliminary Objections to Defendants' Preliminary Objections and avers the following: 1. On December 16, 2011, Plaintiff William J. Noon filed an Amended Complaint against Defendants Backyard Creations, Inc., Steven B. Braun, and Linda M. Braun. 2. On January 6, 2012, Plaintiff William J. Noon, through his attorney, Jason P. Kutulakis, Esquire of ABOM & KUTULAKIS L.L.P., received the Defendants' Preliminary Objections to Plaintiff s Amended Complaint. 3. Included in Defendants' Preliminary Objections to Plaintiffs Amended Complaint was a Notice To Plead as well as new facts not contained in the Plaintiffs Amended Complaint. 1. MOTION TO DISMISS FOR LACK OF VERIFICATION 4. Paragraphs one (1) through three (3) are incorporated herein. 5. Pennsylvania Rules of Civil Procedure, Rule 1024 requires a party to verify a pleading, which includes a verification for any Preliminary Objections to a Complaint. 6. Furthermore, "the verification shall be made b,y one or more of the parties filing the pleading unless all parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and verification of none of them can be obtained within the time allowed for filing the pleading." Pa.R.C.P. 1024(b). 7. As such, Defendants Backyard Creations, Inc., Steven B. Braun, and Linda M. Braun do not lack sufficient knowledge or information and could have easily signed a verification on the Preliminary Objections in the time allowed for filing the pleading. 8. Furthermore, "the verification may be made by any person having sufficient knowledge or information and belief" Pa.R.C.P 1024(b). 9. As such, the Defendants' Preliminary Objections to the Amended Complaint contains no verification of any kind by anyone. WHEREFORE, the Plaintiff, William J. Noon, respectfully requests this Honorable Court Dismiss the Defendants' Preliminary Objections to the Plaintiff's Amended Complaint. Respectfully Submitted, ABOM & KUTULAKIS, LLP Date: January 26, 2012 n-V /4N ,-- _ Jas n P. K tulakis, Esquire Att rney ID 80411 2 West High Street Carlisle, PA 17013 (717) 249-0900 Attorney for Plaintiff CERTIFICATE OF SERVICE AND NOW, this 26 h day of January, 2012, I, Shannon Freeman, of ABOAI d? KuT L- ibis, LLP, hereby certify that I did serve a true and correct copy of the foregoing Preliminary Objections of Plaintiff William J. Noon to Defendant's Preliminary Objections to the 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: Evan C. Pappas, Esquire Shumaker Williams, P.C. P.O. Box 88 Harrisburg, PA 17108 i i? annon Freeman WILLIAM J. NOON, V. Plaintiff BACKYARD CREATIONS, INC., STEVEN B. BRAUN, President and Individually, and LINDA M. BRAUN, Secretary/Treasurer and Individually. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSY14A& A ; : Civil Action No. 11-8279 Civil ..rn""„ cam' I c?iY, CIVIL ACTION - LAW 4 PRAECIPE TO ATTACH VERIFICATION TO DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT PLEASE attach the Verification of Steven B. Braun, President of Backyard Creations, Inc., to Defendants' Preliminary Objections to Plaintiff's Amended Complaint which was filed in the above-referenced matter on January 5, 2012. Dated: February 1, 2012 SHUMAKER WILLIAMS, P.C. By Evan 6 .as, I.D. #200103 Ryan P. Siney, I.D. #209190 P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 Attorneys for Defendants :245038 VERIFICATION The undersigned, Stephen B. Braun, hereby verifies and states that: He is the President of Backyard Creations, Inc., a Defendant herein; 2. He is authorized to make this Verification on its behalf; 3. The facts set forth in the foregoing Preliminary Objections to Plaintiffs' Amended Complaint are true and correct to the best of his knowledge, information and belief; and 4. He is aware that any false statements herein are made subject to the penalties of 18 Pa.C.S.A.. §4904, relating to unsworn falsification to authorities. .1 Dated: Stephen B. Braun, President Backyard Creations, Inc. CERTIFICATE OF SERVICE I, Evan C. Pappas, Esquire, of the law firm of Shumaker Williams, P.C., hereby certify that I served a true and correct copy of the foregoing Praecipe to Attach Verification to Defendants' Preliminary Objections to Plaintiff's Amended Complaint, on this date by depositing a. copy of the same in the possession of the United States mail, first-class, postage prepaid, addressed as follows: Jason P. Kutulakis, Esquire ABOM & KUTULAKIS 2 West High Street Carlisle, PA 17013 Attorneys for Plaintiff SHUMAKER WILLIA C. Dated: February 1, 2012 By Evan C. Pappas P.O. Box 88 Harrisburg, PA 17108 (717) 763-11212 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) ' TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Argument Court.) CAPTION OF CASE (entire caption must be stated in full) WILLIAM J. NOON, Plaintiff (,, R -'At' -v= N (List the within matter f;* nor; r.. fit V ?,.., vs. BACKYARD CREATIONS, INC. STEVEN B. BRAUN, President and Individually, and LINDA M. BRAUN, Secretary/Treasurer and Individually, Defendants No 11-8279 CIVII Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Preliminary Objections to Plaintiff's Amended Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: Jason P. Kutulakis, Esquire, Abom & Kutulakis, 2 West High Street, Carlisle, PA 17013 (Name and Address) Evan C. Pappas, Esquire, Shumaker Williams, P.C., P.O. Box 88, Harrisburg, PA 17108 (b) for defendants: (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. a_ Argument Court Date: _ . -, -- Defendants February 1, 2012 Attorney for Date: INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 75-P 'Al 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. 6k5A P--'f A7 L) W Evan C. Pappas, I.D. #200103 Print your name WILLIAM J. NOON, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW BACKYARD CREATIONS, INC., and STEVEN B. BRAUN, President and Individually, and LINDA M. BRAUN, No. 11-8279 Civil Term Secretary/Treasurer and Individually, Defendants IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT & PLAINTIFF'S PRELIMINARY OBJECTION TO DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE HESS, P.J. AND EBERT AND PECK, JJ. ORDER OF COURT AND NOW, this 28`h day of June, 2012, upon consideration of the preliminary objections of Defendants Backyard Creations, Inc., and Steven B. Braun, President and Individually, and Linda M. Braun, Secretary/Treasurer and Individually to Plaintiff's Amended Complaint, the preliminary objection of Plaintiff William J. Noon to the Defendants' Preliminary Objections to Plaintiff's Amended Complaint, the briefs filed by the parties, and after argument, IT IS HEREBY ORDERED AND DIRECTED that: 1. Defendants' Preliminary Objections to Plaintiff's Amended Complaint are OVERRULED. 2. Plaintiff's Preliminary Objection to the Defendants' Preliminary Objections to Plaintiff's Amended Complaint is OVERRULED. BY THE COURT, az N T = '' ZI ? ^' r c r- <° co Z:-11 Christylee L. Peck, J. ? a : F' C4 Q ? Jason P. Kutulakis, Esq. Attorney for Plaintiff Evan C. Pappas, Esq. Attorney for Defendant 44- WILLIAM J. NOON, IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. :Civil Action No. 11-8279 Civil BACKYARD CREATIONS, INC., :CIVIL ACTION -LAW ~' '_~' STEVEN B. BRAUN, President and ~=~ `~:`' Individually, and LINDA M. BRAUN, ~.,.., ~ a Secretary/Treasurer and Individually, c~; ~" r~~ Defendants -~~ ~_ ~ - a '' c-~ NOTICE TO PLEAD ~ ~' ~, ~ -- TO: WILLIAM J. NOON, Plaintiff _.~ c.,~ -~ `~'' --and-- JASON P. KUTULAKIS, ESQUIltE, his attorney You are hereby notified to file a written response to the enclosed New Matter a~ Counterclaims within twenty (20) days from service hereof or a judgment may be entered agair you. Dated: August 23, 2012 By Evan C. Pappas, I.D. #200163 Kenneth J. McDermott, I.D. #205555 P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 Attorneys for Defendants its ~ -'-' -~-. ~.~ ~.,.>: ~~,' , ,c''"~ ci. ~. _w ..~ 7 WILLIAM J. NOON, IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLV ANI v. :Civil Action No. 11-8279 Civil ~ ~, . ~ . `.-~ BACKYARD CREATIONS, INC., CIVIL ACTION -LAW ,-~ ~7 ~' ~~ r_~ .-~ rn STEVEN B. BRAUN, President and ~•J~S :~~ t~ ~~ -~~ Individually, and LINDA M. BRAUN, `_'~r ~' ~ ~' Secretary/Treasurer and Individually, ~ ~ ., ~ ~' Defendants ~~ ~ ~, - ~ ~~'-. ~' n y c = ;'- c -~ r''] DEFENDANTS' ANSWER WITH NEW MATTER AND ~~ ~ ~' COUNTERCLAIMS TO PLAINTIFF'S AMENDED COMPLAINT AND NOW COME Defendants, Backyard Creations, Inc. ("Backyard Creations" ), Ste e B. Braun, as President and Individually, and Linda M. Braun, as Secretary/Treasurer Individually, by and through their attorneys, Shumaker Williams, P.C., to state and aver following Answer to Plaintiff's Amended Complaint: PARTIES 1. Admitted. 2. Admitted. 3. Denied. Backyard is registered as a home improvement contractor as required 1 the Home Improvement Contractors Protection Act. 4. Admitted. 5. Denied. The HICPA number in paragraph 5 does not match the HICPA in Plaintiffs "Exhibit A." By way of further answer, Backyard Creations, Inc.'s HICPA is PA076864. 6. Denied. Stephen B. Braun serves as President for Backyard Creations, Inc. 7. Admitted. 8. Denied. Each Defendant has a business address of 1560 Tilco Drive, Suite ~ Frederick, Maryland 21704. 9. Admitted. FACTUAL BACKGROUND 10. Admitted. 11. Denied. The averments of paragraph 11 attempt to summarize a document which speaks for itself and any characterization of the same is hereby denied. 12. Admitted. 13. Denied. The averments of paragraph 13 attempt to summarize a writs document which speaks for itself and any characterization of the same is hereby denied. 14. Denied. The averments of paragraph 14 attempt to summarize a writs document which speaks for itself and any characterization of the same is hereby denied. By w of further answer, the Contract provided that construction would begin approximately in mid late February 2011, and would be completed by approximately late May 2011. 15. Admitted with clarification. Work commenced on or about March 17, 2011, of Backyard Creations had received all necessary permits from the Township. By way of furls answer, the permitting process took longer than expected because Dickinson Township had partner with a neighboring township to issue the permits due to budget and/or persorv constraints. 16. Admitted. 17. Admitted. 18. Admitted. 2 19. Admitted. 20. Admitted. 21. Admitted. 22. Admitted. 23. Admitted. 24. Denied. The averments of paragraph 24 attempt to summarize a writs document which speaks for itself and any characterization of the same is hereby denied. By w of further answer, grading was to be completed by the deck contractor, but Plaintiff's failure properly pay Backyard Creations prevented the grading from occurring. 25. Admitted with clarification. Defendants were awaiting proper payments by 1 Plaintiff before the deck contractor could commence grading. 26. Admitted with clarification. The invoice issued to Plaintiff was for pool materials that were outside of the scope of the Contract and more expensive than the pool materials provided for under the Contract. Byway of further answer, the materials were or by Plaintiff, not Defendants. 27. Admitted in part and denied in part. It is admitted that Backyard Creations h s not paid the Rosenbaum's invoice. Byway of further answer, said invoice was issued to Plaint ff because he ordered the materials directly from Rosenbaum's. By way of further answ r, Rosenbaum's filed a District Judge Complaint against Plaintiff related to Plaintiff's non-paym t of the invoice. Rosenbaum's won said action and Plaintiff appealed the judgment to the Court f Common Pleas of Franklin County. Plaintiff has attempted to join Defendant to the proceedi g 3 I in Franklin County, however, Plaintiff has not yet property served Defendants to join them i~ that action. 28. Admitted in part and denied in part. It is admitted that Rosenbaum's has filed a Complaint against the Plaintiff (see also, response to paragraph 27). By way of further Defendants had no obligation to pay Plaintiff's invoice. 29. Admitted in part and denied in part. It is admitted that Plaintiff sent Defendants an email. The remaining averments are denied as the email is a written which speaks for itself. By way of further answer, the unsupported implication that a email had been sent is also denied. By way of further answer, the fact that Plaintiff sent email, does not mean Defendants are obligated to pay an invoice which was incurred by Plaint 30. Denied. After reasonable investigation, Defendants are without suffici information to admit or deny the averments contained in paragraph 30 and, therefore, the are denied. Byway of further answer, the excavation and grading believed to have been done Curt Rhoads was outside of the Contract. 31. Denied. After reasonable investigation, Defendants are without information to admit or deny the averments contained in paragraph 31 and, therefore, the are denied. 32. Denied. After reasonable investigation, Defendants are without information to admit or deny the averments contained in paragraph 32 and, therefore, the are denied. 4 33. Denied. After reasonable investigation, Defendants are without information to admit or deny the averments contained in paragraph 33 and, therefore, the are denied. 34. Denied. After reasonable investigation, Defendants are without s information to admit or deny the averments contained in paragraph 34 and, therefore, the sar are denied. By way of further answer, Plaintiffs Exhibit "G" fails to reveal what payments, any, were actually made by the Plaintiff. Additionally, the Contract between Plaintiff a Backyard Creations called for 650 sq. ft. of deck at $8.00/sq. ft. for a total of $5,200.( Accordingly, these amounts paid to R & D Masonry were for items outside of the scope of t parties' Contract. 35. Denied. After reasonable investigation, Defendants are without information to admit or deny the averments contained in paragraph 35 and, therefore, the are denied. By way of further answer, Plaintiff's Exhibit "G" fails to reveal what payments, any, were actually made by the Plaintiff. 36. Admitted. 37. Admitted 38. Denied. After reasonable investigation, Defendants are without information to admit or deny the averments contained in paragraph 38 and, therefore, the are denied. By way of further answer, Backyard Creations denies that Plaintiff was "forced" hire R. Perry Fence Company, L.L.C. In fact, Plaintiff only waited 21 days from the date he paid Backyard Creations before securing R. Perry Fence Company, L.L.C. to construct the Plaintiff provided no opportunity to cure the alleged default before hiring an alternate if 5 39. Denied. After reasonable investigation, Defendants are without information to admit or deny the averments contained in paragraph 39 and, therefore, the are denied. By way of further answer, Exhibit "H" fails to reveal what payments, if any, actually made by the Plaintiff. 40. Admitted upon information and belief. 41. Denied. After reasonable investigation, Defendants are without sufficie information to admit or deny the averments contained in paragraph 41 and, therefore, the are denied. By way of further answer, Wilcox Construction was a subcontractor hired Backyard Creations and, therefore, it was inappropriate for Plaintiff to pay Wilcox directly. 42. Admitted in part and denied in part. It is admitted that certain equipment supplies were delivered on July 29, 2011. However, it is denied that "a large portion of necessary equipment as provided in the Contract were not delivered by Defendants" and proof the same is hereby demanded at time of trial. 43. Denied. After reasonable investigation, Defendants are without information to admit or deny the averments contained in paragraph 43 and, therefore, the are denied. By way of further answer Exhibit "I" fails to reveal what payments, if any, actually made by the Plaintiff. By way further answer, it is believed and therefore averred Mr. Witmer was Plaintiff s personal electrician and, therefore, Defendants are unaware of relevance such payment has on Plaintiff's claims against Defendants. 44. Denied. After reasonable investigation, Defendants are without information to admit or deny the averments contained in paragraph 44 and, therefore, the 6 are denied. By way of further answer, it is believed and therefore averred that personally contracted for the delivery of the gas noted in paragraph 44 and, therefore, are unaware of what relevance such a payment has on Plaintiff s claims against Defendants. 45. Denied. After reasonable investigation, Defendants are without information to admit or deny the averments contained in paragraph 45 and, therefore, the are denied. By way of further answer, it is believed and therefore averred that Pl personally contracted with Aero Energy as noted in paragraph 45 and, therefore, Defendants unaware of what relevance such payment has on Plaintiff's claims against Defendants. 46. Denied. It is denied that Backyard Creations ceased work on the project August 5, 2011 and proof the same is hereby demanded at trial. By way of further answ~r, shortly before August 5, 2011, Plaintiff failed to make any further payments to Back Creations for the pool construction. 47. Denied. It is denied that the "progression of the pool" was absent on August ~, 2011 because Plaintiff immediately hired contractors to continue Backyard Creations' work his pool because he owed money to Backyard Creations. 48. Denied. Defendants' responses to paragraphs 46 and 47 are incorporated as if fully set forth. 49. Denied. Plaintiff was not forced to hire another contractor, but rather, refused to pay Defendants which created delays in the project. Moreover, Plaintiff failed to gi Defendants any opportunity to complete their job prior to Plaintiff hiring alternate contractors complete the job. (See also, New Matter). By way of further answer, after 7 investigation, Defendants are without sufficient information to admit or deny the contained in paragraph 49 and, therefore, the same are denied. 50. Admitted in part and denied in part. Any and all characterizations of events unfounded opinions which are denied. a. Denied. Relocation of Plaintiffs equipment at his request additional wire. These items would have been installed at a upcharge to Plaintiff for the additional wire if Plaintiff had current payments. b. Denied. Relocation of Plaintiffs equipment at his request additional wire. These items would have been installed at a upcharge to Plaintiff for the additional wire if Plaintiff had current payments. c. Denied. The Contract only called for eight (S) spa jets (see Plaintiff's Exhibit "C" at pg. 5). By way of further answer, the agreed upon would have been delivered and installed had Plaintiff made payments to Backyard Creations. d. Denied. Three (3) white skimmer lids were supplied. By way of furtl answer, the Contract did not specify the color of the skimmers. Byway further answer, the other agreed upon supplies would have been and installed had Plaintiff made proper payments to Backyard 8 e. Admitted with clarification. The Contract called fora 4 x 160 manufactured by Pentair, and not an S.V.R.S. pump device. By way further answer, the agreed upon supplies would have been delivered installed had Plaintiff made proper payments to Backyard Creations. f. Admitted with clarification. It is admitted that the Pentair i9+3 Personality Kit for PooUSpa Combination with Shared Equipme was not supplied. By way of further answer, the agreed upon suppli would have been delivered and installed had Plaintiff made payments to Backyard Creations. g. Admitted with clarification. The equipment alleged by Plaintiff to been installed in paragraph 50(g) is a component to the mentioned in paragraph 50(f) and is not a separate item. h. Admitted with clarification. It is admitted that the 3900 Robot was not supplied. By way of further answer, the agreed upon would have been delivered and installed had Plaintiff made payments to Backyard Creations. By way of further Answer, B Creations did install the booster for Plaintiff's Robot Cleaner. i. Admitted with clarification. It is admitted that the IC40 Cell for Pools to 44K Gallons was not supplied, nor was the same required under Contract. Byway of further answer, the agreed upon supplies would ha been delivered and installed had Plaintiff made proper payments Backyard Creations. 9 j. Admitted with clarification. It is admitted that an AquaComfort AC-1 Electric heat pump was not delivered to Plaintiff's property. By way further answer, Plaintiff s Contract neither required such model, nor is known to exist. Plaintiff's Contract specified a Pentair Thermaflo Plaintiff s Exhibit "C" at page 4). k. Admitted with clarification. It is admitted that the Loop Loc Pool & Cover was not supplied. By way of further answer, the agreed supplies would have been delivered and installed had Plaintiff proper payments to Backyard Creations. 1. Admitted with clarification. It is admitted that the pool opening closing was not performed. By way of further answer, the servi referred to in paragraph 50 1. would have been performed had made proper payments to Backyard Creations. 51. Denied. After reasonable investigation, Defendants are without s information to admit or deny the averments contained in paragraph 51 and, therefore, the are denied. 52. Denied. After reasonable investigation, Defendants are without information to admit or deny the averments contained in paragraph 52 and, therefore, the are denied. By way of further answer, the total fencing and gates cost in the Contract $7,400.00. 10 53. Denied. After reasonable investigation, Defendants are without information to admit or deny the averments contained in paragraph 53 and, therefore, the are denied. 54. Denied. After reasonable investigation, Defendants are without information to admit or deny the averments contained in paragraph 54 and, therefore, the s are denied. By way of further answer, the Contract does not include a provision regarding soil. 55. Denied. It is denied that Defendants failed to show up for work and proof same is hereby demanded at time of trial. Byway of further answer, Defendants are aware of alleged incident involving a laborer asleep on the job and such was an isolated incident, did ~ cause any delay on Plaintiff's job, and said employee was reprimanded. 56. Denied. It is denied that Defendants admitted there was no money available complete the job. By way of further answer, Plaintiff failed to make necessary payments Defendant, which substantially delayed the project. 57. Denied. After reasonable investigation, Defendants are without information to admit or deny the averments contained in paragraph 57 and, therefore, the are denied. 58. Denied. After reasonable investigation, Defendants are without suffici information to admit or deny the averments contained in paragraph 58 and, therefore, the are denied. 11 59. Denied. After reasonable investigation, Defendants are without suffici information to admit or deny the averments contained in paragraph 59 and, therefore, the are denied. 60. Denied. After reasonable investigation, Defendants are without s information to admit or deny the averments contained in paragraph 30 and, therefore, the are denied. By way of further answer, the remaining averments of paragraph 60 are of law to which no response is required. To the extent a response is deemed to be required, opening and closing for the pool is not required under the Contract since Plaintiff failed to the necessary payments. 61. Admitted with clarification. It is admitted that Plaintiff's money was spent on other debts of Backyard Creations. However, such expenditure of corporate funds other debts did not cause delay in Plaintiff's pool construction. To the contrary, Plaintiffl's failure to pay necessary amounts under the Contract caused a breach and no further work required. COUNT I -PIERCING THE CORPORATE VEIL 62. Paragraph 62 is an incorporation paragraph to which no response is required. 63. Denied. The averments contained in paragraph 63 are conclusions of law 1 which no response is necessary. 64. Denied. The averments contained in paragraph 64 and subparagraphs a. and are conclusions of law to which no response is necessary. 65. Denied. The averments contained in paragraph 65 are conclusions of law which no response is necessary. 12 66. Admitted with clarification. Stephen Braun did not obtain a Pennsyly certificate of authority, however, the remaining averments are denied as conclusions of law. y way of further answer, Pa.C.S.A. §4141(b) states that, "[t]he failure of a foreign busine s corporation to obtain a certificate of authority to transact business in this Commonwealth sh 11 not impair the validity of any contract or act of the corporation." By way of further answer, o authority exists for a court to pierce the corporate veil of a company due to its not having file a certificate of authority. 67. Admitted with clarification. Linda Braun did not obtain a Pennsylvania certi of authority, however, the remaining averments are denied as conclusions of law. By way further answer, Pa.C.S.A. §4141(b) states that, "[t]he failure of a foreign business corporation obtain a certificate of authority to transact business in this Commonwealth shall not impair validity of any contract or act of the corporation." Byway of further answer, no authority for a court to pierce the corporate veil of a company due to its not having filed a certificate authority. 68. Denied. The averments contained in paragraph 68 are conclusions of law which no response is required. To the extent a response is deemed to be required, Stephen Braun did not admit to misuse of corporate funds. Byway of further answer, the use corporate funds to pay corporate debt is not a misuse of corporate funds. 69. Denied. The averments contained in paragraph 69 are conclusions of law which no response is required. To the extent a response is deemed to be required, Stephen Braun did not admit to undercapitalization. By way of further answer, the use corporate funds to pay off corporate debt does contribute to undercapitalization. 13 70. Admitted. WHEREFORE, Defendants, Backyard Creations, Inc., Steven B. Braun, as President individually, and Linda M. Braun, as Secretary/Treasurer and individually, respectfully this Honorable Court to enter judgment in their favor and against Plaintiff, William J. N together with costs, attorneys' fees, and such other relief as the Court may deem appropriate. COUNT II -VIOLATION OF THE PENNSYLVANIA HOME IMPROVEMENT CONSUMER PROTECTION ACT 71. Paragraph 71 is an incorporation paragraph to which no response is required. 72. Denied. By way of further answer, the Pennsylvania Home Improve Consumer Protection Act was enacted in October 2008, and became effective on July 1, 2009. 73. Denied. The averments contained in paragraph 73 are conclusions of law which no response is required and, therefore, the same are denied. 74. Denied. The averments contained in paragraph 74 are conclusions of law which no response is required and, therefore, the same are denied. 75. Denied. Defendants admit that they were acquainted with several prior to the signing of the Contract. Defendants deny any allegation that they knew specific subcontractors would ultimately be hired when the Contract was signed. By way further answer, 73 P.S. 517.7(a)(10) only requires the inclusion of subcontractors who "known at the date of signing the contract." By way of further answer, Plaintiff desired to his own recommended electric and gas subcontractors. 76. Admitted in part and denied in part. It is admitted that certain subcontractors been hired more than once by the Defendants. Any allegation that the same subcontractors used exclusively is denied. Further, any averments that Defendants knew which 14 would ultimately be used is denied. By way of further answer, 73 P.S. 517.7(a)(10) on}y requires the inclusion of subcontractors who are "known at the date of signing the contract." 77. Denied. The averments contained in paragraph 77 attempt to summarize a wri document which speaks for itself and any characterization of the same is hereby denied. By of further answer, 73 P.S. 517.7(a)(10) only requires the inclusion of subcontractors who "known at the date of signing the contract." See also, responses to paragraphs 74 through 76. 78. Denied. The averments contained in paragraph 78 are conclusions of law which no response is required and, therefore, the same are denied. 79. Admitted. 80. Denied. It is denied that Backyard Creations charged Plaintiff for items outside the Contract. 81. Admitted in part and denied in part. It is admitted that the specifications listed subparagraphs a. through d. were changed, but only as directed by Plaintiff. It is denied that a~y written change orders were necessary. 82. Denied. The averments contained in paragraph 82 are conclusions of law which no response is required and, therefore, the same are denied. By way of further answ~r, Defendants were not required to obtain a Change Order from the Plaintiff because the were minor, orally agreed upon alterations that did not change the overall specifications. 83. Denied. The averments contained in paragraph 83 are conclusions of law which no response is required and, therefore, the same are denied. 84. Denied. The averments contained in paragraph 84 are conclusions of law which no response is required and, therefore, the same are denied. 15 WHEREFORE, Defendants, Backyard Creations, Inc., Steven B. Braun, as President individually, and Linda M. Braun, as Secretary/Treasurer and individually, respectfully this Honorable Court to enter judgment in their favor and against Plaintiff, William J. together with costs, attorneys' fees, and such other relief as the Court may deem appropriate. COUNT III -VIOLATION OF THE PENNSYLVANIA HOME IMPROVEMENT CONSUMER PROTECTION ACT 85. Paragraph 85 is an incorporation paragraph to which no response is required. 86. Denied. The averments contained in paragraph 86 are conclusions of law which no response is required and, therefore, the same are denied. 87. Denied. The averments contained in paragraph 87 are conclusions of law which no response is required and, therefore, the same are denied. 88. Denied. The averments contained in paragraph 88 are conclusions of law which no response is required and, therefore, the same are denied. By way of further answer, is denied that Defendant failed to diligently complete the pool. 89. Denied. The averments contained in paragraph 89 are conclusions of law which no response is required. To the extent a response is deemed to be required, it is that Defendant failed to diligently complete the pool. To the contrary, Plaintiff s failure properly pay Backyard Creations hindered the pool's completion. 90. Denied. The averments of paragraph 90 attempt to summarize a document which speaks for itself and any characterization of the same is hereby denied. 91. Denied. The averments of paragraph 91 attempt to summarize a document which speaks for itself and any characterization of the same is hereby denied. 92. Admitted. it 16 93. Denied. See Defendants' response to paragraph 55. 94. Denied. See Defendants' response to paragraphs 68 and 69. 95. Denied. The averments contained in paragraph 95 are conclusions of law which no response is required. To the extent a response is deemed to be required, denies misusing corporate funds, and further denies that Defendant caused any delays. To contrary, Plaintiff s failure to properly pay Defendant caused any and all delays. 96. Denied. The averments contained in paragraph 96 are conclusions of law which no response is required. By way of further answer, Defendant denies that any work material was inferior to what was agreed upon in the Contract and proof to the contrary is required at time of trial. 97. Denied. See responses to paragraphs 50 a.-1. By way of further answer, Contract is a written document which speaks for itself and any characterization of the same hereby denied. 98. Denied. The averments contained in paragraph 98 are conclusions of law which no response is required. To the extent that a response is deemed to be Defendants deny that services were below standards agreed to and that any delays were by actions of the Defendant. 99. Denied. The averments contained in paragraph 99 are conclusions of lave which no response is required. To the extent that a response is deemed to be required, it denied that Defendants committed an unfair or deceptive trade practice. 100. Denied. The averments contained in paragraph 100 are conclusions of law which no response is required and, therefore, the same are denied. is is 17 101. Denied. The averments contained n paragraph 101 are conclusions of law which no response is required. To the extent a response is deemed to be required, Defendant's use of corporate funds to pay off corporate debt is not "fraudulent," and proof of the same hereby demanded at time of trial. WHEREFORE, Defendants, Backyard Creations, Inc., Steven B. Braun, as President individually, and Linda M. Braun, as Secretary/Treasurer and individually, respectfully this Honorable Court to enter judgment in their favor and against Plaintiff, William J. N together with costs, attorneys' fees, and such other relief as the Court may deem appropriate. COUNT IV-FRAUD 102. Paragraph 102 is an incorporation paragraph to which no response is required. 103. Denied. The averments contained in paragraph 103 are conclusions of law which no response is required. To the extent a response is deemed to be required, denies that any of its actions were fraudulent or deceptive. a. Denied. The averments contained in paragraph 103 a. are conclusions law to which no response is required and, therefore, the same are denied. b. Admitted in part and denied in part. It is admitted that Plaintiff p~ Defendant $78,588.30. By way of further answer, Plaintiff admits that has not paid the full amount due under the Contract. By way of furtl answer, it is denied that Defendant failed to complete any components the project for which the $78,588.30 was intended. c. Admitted with clarification. It is admitted that Defendants were awaiti proper payment from the Plaintiff before continuing work. d. Denied. See responses to paragraphs 46 and 47. e. Denied. See responses to paragraphs 46 and 47. f. Denied. See response to paragraph 49. 18 g. Denied. See responses to paragraphs 55 and 98. h. Denied. See responses to paragraphs 68, 69 and 94. i. Denied. See responses to paragraphs 68, 69, 94 and 103. j. Denied. It is denied that Defendant ever misrepresented how Plaintif 's money would be spent and proof to the contrary is hereby demanded t time of trial. 104. Denied. The averments contained in paragraph 104 are conclusions of law which no response is required and, therefore, the same are denied. To the extent that a is deemed to be required, Defendants deny engaging in "fraudulent" or "deceptive" conduct proof to the contrary is hereby demanded at time of trial. 105. Denied. The averments contained in paragraph 105 are conclusions of law which no response is required and, therefore, the same are denied. WHEREFORE, Defendants, Backyard Creations, Inc., Steven B. Braun, as President individually, and Linda M. Braun, as Secretary/Treasurer and individually, respectfully this Honorable Court to enter judgment in their favor and against Plaintiff, William J. N together with costs, attorneys' fees, and such other relief as the Court may deem appropriate. COUNT V -BREACH OF IMPLIED WARRANTY 106. Paragraph 106 is an incorporation paragraph to which no response is required. 107. Denied. Paragraph 107 is an opinion containing no facts, to which no response required. 108. Admitted in part, and denied in part. It is admitted that Defendant has completed the project until Plaintiff makes the proper payments. By way of further answer, remaining averments of paragraph 108 are denied because they are opinions containing no is 19 109. Denied. The averments contained in paragraph 109 are conclusions of law which no response is required and, therefore, the same are denied. Byway of further answer, , responses to paragraphs 50 a. through 50 1. 110. Admitted. 111. Admitted in part and denied in part. It is admitted that Plaintiff has completion of the project, however, immediately hired alternate contractors to compl to Backyard Creations' job. The remaining averments of paragraph 111 are denied as Plaintif s failure to properly pay Backyard Creations delayed construction. 112. Denied. Defendant denies providing inferior labor, equipment, and materials proof to the contrary is demanded at time of trial. 113. Denied. The averments contained in paragraph 113 are conclusions of law which no response is required. To the extent an answer is deemed to be required, Plaintiff's failure to make proper payments created delays in the construction. 114. Denied. See responses to paragraphs 55 and 98. 115. Denied. The averments contained in paragraph 115 are conclusions of law which no response is required. To the extent an answer is deemed to be required, Defends specifically denies the project fell below prevailing local standards and strict proof of the s hereby demanded at time of trial. is 20 WHEREFORE, Defendants, Backyard Creations, Inc., Steven B. Braun, as President individually, and Linda M. Braun, as Secretary/Treasurer and individually, respectfully this Honorable Court to enter judgment in their favor and against Plaintiff, William J. together with costs, attorneys' fees, and such other relief as the Court may deem appropriate. COUNT VI -BREACH OF CONTRACT 116. Paragraph 116 is an incorporation paragraph to which no response is required. 117. Admitted. 118. Denied. The averments contained in paragraph 118 attempt to summarize written document which speaks for itself and any characterization of the same is hereby a 119. Denied. The averments contained in paragraph 119 attempt to summarize ~ a written document which speaks for itself and any characterization of the same is hereby 120. Admitted. See also, paragraph 15. 121. Denied. See responses to paragraphs 46 and 47. 122. Denied. See responses to paragraphs 46 and 47. 123. See response to paragraph 49. 124. Denied. The averments contained in paragraph 124 attempt to summarize written document which speaks for itself and any characterization of the same is hereby a 125. Denied. The averments contained in paragraph 125 attempt to summarize ~ a written document which speaks for itself and any characterization of the same is hereby 126. Denied. See responses to paragraphs 50 a. through 501. 127. Denied. The averments contained in paragraph 127 are opinions containing ~ facts to which no response is required. See also, response to paragraph 108. 21 128. Denied. The averments contained in paragraph 128 attempt to summarize a written document which speaks for itself and any characterization of the same is hereby By way of further answer, Plaintiffs failure to make proper payments created delays in construction. 129. Denied. See response to paragraph 55. 130. Denied. The averments contained in paragraph 130 are conclusions of law which no response is required and, therefore, the same are denied. 131. Denied. The averments contained in paragraph 131 are conclusions of law which no response is required and, therefore, the same are denied. 132. Denied. The averments contained in paragraph 132 are conclusions of law which no response is required and, therefore, the same are denied. 133. Denied. It is denied that Plaintiff notified Defendant on several occasions that was not in compliance with the Contract. To the contrary, Plaintiff immediately hired contractors to complete Defendant's work without providing an opportunity for Defendant complete the work. 134. Denied. Backyard Creations was ready and willing to complete Plaintiff's however, Plaintiff s failure to make proper payments prevented Defendant from proceeding any additional work. 135. Denied. After reasonable investigation, Defendants are without information to admit or deny the averments contained in paragraph 135 and, therefore, the are denied. By way of further answer, the excavation and grading believed to have been done Curt Rhoads was outside of the Contract. Byway of further answer, it is denied that there 22 __ ___ T____ _ _____ , defects in Defendant's workmanship and proof to the contrary is hereby demanded at time trial. Byway of further answer, it is believed that Plaintiff hired contractors to complete the who charged more than Defendant and who completed additional services and/or materials that were outside of the scope of the Contract. 136. Denied. The averments contained in paragraph 136 are conclusions of law which no response is required and, therefore, the same are denied. WHEREFORE, Defendants, Backyard Creations, Inc., Steven B. Braun, as President individually, and Linda M. Braun, as Secretary/Treasurer and individually, respectfully this Honorable Court to enter judgment in their favor and against Plaintiff, William J. N together with costs, attorneys' fees, and such other relief as the Court may deem appropriate. NEW MATTER 137. Paragraphs 1 through 136 above are hereby incorporated by reference as set forth at length. 138. During the course of the excavation and construction of Plaintiff's additional rock was discovered underground. 139. Removal of this rock required additional equipment to be rented by Creations and many man hours to excavate the area necessary fro the installation of Plaintiff's pool. 140. Backyard Creations made Plaintiff aware that additional excavation would necessary to continue the pool construction and that the additional work necessary was outside the scope of the original Contract as contemplated by the parties. 23 141. Plaintiff orally acknowledged the additional work needed to excavate additional rock and encouraged Backyard Creations to complete said work. 142. Based on the representations from Plaintiff that Plaintiff would pay for additional work to be done, Backyard Creations completed the excavation work necessary proceeded to install the remaining elements of the pool. 143. The additional work and rental of equipment required to remove the rock encountered at Plaintiff s pool resulted in an additional charge of $11,880.00 plus for the fuel necessary to operate the equipment. 144. Shortly after the excavation work was completed on the pool Backyard Creati sent an invoice to Plaintiff for the extra work that was completed to excavate the additional 145. In addition to the additional expense incurred for the excavation of rock, Backyard Creations completed additional work fro Plaintiff which was outside of, or addition to the work contemplated in the contract. 146. Namely, Backyard Creations completed the following work: a. Changed the location of pool equipment that required extra trenching PVC pipe compared to the original location behind the spa. Such generated an additional cost of $532.60. b. Longer light cords were necessary due to new equipment location (for two pool lights). Such work generated an additional cost of $212. c. Trenching for pool plumbing and electrical equipment requiring ~ a jackhammer due to the rocky conditions of Plaintiff's pool site. work generated an additional cost of $600.00. 24 ~- d. Additional upgraded accent the to be purchased and installed on Such accent the was applied and then subsequently scraped off. work generated an additional cost of $771.00. e. Extra stone for raised beam over and above the original two tons (1 Tons). Such work generated an additional cost of $127.50. f. Actual fence length and orientation was in excess of what was agreed to the Contract. Such work generated an additional cost of $2,647.70. 147. Plaintiff refused to pay the invoice for any of the additional work that B Creations completed. 148. As a result of Plaintiff s refusal to pay the additional invoice the project delayed. 149. Although Backyard Creations was forced to cease working on the project, pool was about 95°Io complete. 150. Plaintiff has failed to pay for the complete cost of the pool as required under tl Contract. 151. Plaintiff has failed to pay at least $21,417.70 under the original Contract. 152. In addition to the original contract price, Plaintiff has failed to pay $12,212.80 i the additional excavation and rock removal that was performed. 153. In total, Plaintiff has failed to pay the amount of $33,630.50 to B Creations. .5 25 154. Rather than make necessary payments to Backyard Creations to enable completion of the pool, Plaintiff immediately hired alternate contractors to complete his pool. 155. Plaintiff failed to provide any notice to Backyard Creations prior to hiri alternate contractors to complete the pool. 156. Plaintiff contracted with alternate contractors to not only complete items that part of Backyard Creations' scope of work, but also included new items not originally part of contract between Plaintiff and Backyard Creations. 157. For example, the allegations in Plaintiff's Complaint related to Rosenbaurn~'s Landscaping are for services and materials in excess of those in the contract. 158. Specifically, the deck stone ordered by Plaintiff from Rosenbaum's was more expensive than the variety called fro in the Contract. 159. Nonetheless, Plaintiff believes that Backyard Creations should pay for Plaintiffs materials even though they were more expensive than those provided for in the contract ordered specifically by Plaintiff, not Backyard Creations. 160. At most, Plaintiff is entitled to a credit against what he owes Backyard for the cost of the materials that were included in the Contract that were purchased Rosenbaums. 161. Plaintiff s claims may be barred in whole or in part by the doctrine of waiver Plaintiff has waived his claims for damages against Backyard Creations since he hired alternate contractor. 162. Plaintiff s claims may be barred in whole or in part by the doctrine of performance. 26 163. Plaintiff s claims maybe barred in whole or in part by the doctrine of release. 164. Plaintiff's claims may be barred in whole or in part by the doctrine of accord satisfaction. 165. Plaintiff s claims may be barred in whole or in part by the doctrine of because Plaintiff has not paid the amount he owes Backyard Creations. COUNTERCLAIMS COUNTI BREACH OF CONTRACT 166. Paragraphs 1 through 165 are incorporated herein by reference as though fully s forth at length. 167. Plaintiff and Backyard Creations entered into a contract for the construction Plaintiff s pool at the contract price of $100,000.00. 168. Plaintiff was to make periodic payments to Backyard Creations at certain of the project's completion. 169. Plaintiff failed to make required payments as required by the contract. 170. As noted above, Plaintiff also failed to pay for the costs associated with 1 additional excavation and rock removal from the site. 171. Plaintiff s failures to pay amounts that were owed are material breaches of t Contract. 27 172. As a result of Plaintiff's breach, Backyard Creations has suffered damages in a amount in excess of $$33,630.50. COUNT II UNJUST ENRICI~Il~NT (In the Alternative) 173. Paragraphs one 1 through 172 above are incorporated herein by reference though set forth at length. 174. Plaintiff has received the goods and services of Backyard Creations for which has not paid. 175. These goods and services relate to the installation of a pool at Plaintiff's home. 176. Plaintiff knowingly accepted and retained the benefit conferred upon him by tl delivery of such goods and services. 177. Plaintiffs acceptance and retention of the benefits conferred by Creations resulted in Plaintiff being unjustly enriched at the expense of Backyard Creations. 178. It would be unjust for Plaintiff to retain the benefit of the goods and delivered by Backyard Creations in the absence of payment for those goods and services. 179. Plaintiff has been unjustly enriched in the amount of at least $33,630. representing the costs of the goods and services provided by Backyard Creations and accepted Plaintiff without payment. it 28 WHEREFORE, Defendants, Backyard Creations, Inc., Steven B. Braun, as President individually, and Linda M. Braun, as Secretary/Treasurer and individually, respectfully this Honorable Court to enter judgment in their favor and against Plaintiff, William J. together with costs, attorneys' fees, and such other relief as the Court may deem appropriate. Dated: August 23, 2012 B PP Kenneth J. McDermott, I.D. #205555 P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 Attorneys for Defendants :248281 SHU AI LIA .C. ~d Y van C. Pa as LD. #200103 29 //DTI ~[I~ The undersigned, Stephen B. Braun, her~:by verifies and states that: I. He is the President of Backyard Creations, inc., a Defendant herein; 2. He is authorized to make this Verification on its behalf; 3. The facts set fonh in the foregoing Answer with Ncw Matter to Plaintiffs' Amended Complaint are true and correct to the best of his knowledge, information and belief; and 4. He ib aware that any false statements herein are made subject to the penalties of 18 Pa.C.S.A. $4904. relating to unswom falsification to authorities. ~~ Dated: August 23, 2012 Stephen B. Braun, President Backyard Creations, lnc. T CERTIFICATE OF SERVICE I, Evan C. Pappas, Esquire, of the law firm of Shumaker Williams, P.C., hereby certi that I served a true and correct copy of the foregoing Defendants' Answer with New Matter a~ Counterclaims to Plaintiff's Amended Complaint, on this date by depositing a copy of the sar in the possession of the United States mail, first-class, postage prepaid, addressed as follows: Jason P. Kutulakis, Esquire ABOM & KUTULAKIS 2 West High Street Carlisle, PA 17013 Attorneys for Plaintiff SHUMAKER WII.LIAMS P.C. Dated: August 23, 2012 By Evan appas P.O. Box 88 Harrisburg, PA 17108 (717) 763-11212 c~ ~ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Argument Court.) CAPTION OF CASE (entire caption must be stated in full) WILLIAM J. NOON vs. (List the within matter for thed~xt,,~~ cs ~ -v ~ ---------------------------- zm o ~ ~ -c ~' ~_ w ~' ° c' `~ ~, ,a ~e ~~ '^f ~, ..,., '^ i _~ r*f~ ~~ ~~ o, --~~ -t, o -~ c~ ~ ~ ~. ~~ BACKYARD CREATIONS, INC., STEVEN B -< rv No. 2011-8279 Civil Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections of Plaintiff, William J. Noon, to Defendants' New Matter and Counterclaim 2. Identify all counsel who will argue cases: (a) for plaintiffs: Jason P. Kutulakis, 2 West High Street, Carlisle, PA 17013 (Name and Address) (b) for defendants: Evan C. Pappas, P.O. Box 88, Harrisburg, PA 17108 (Name and Address) 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: December 21, 2012 `Q ~ Sign ture ~I ~ ~L ufL~_LQ=ors Print your name Plaintiff November 12, 2012 Attorney for Date: INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ~"'~9. ?,~'~d ~~'~ J ADMINISTRATOR (not the Prothonotary) after the case is relisted. ~J C~Sac~9' /Zr~o2~30 0 `~ WILLIAM J. NOON, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION—LAW BACKYARD CREATIONS, INC., STEVEN B. BRAUN, President and Individually, and LINDA M. BRAUN, Secretary/ Treasurer and Individually, Defendants NO. 11-8279 CIVIL TERM IN RE: PLAINTIFF'S MOTION TO COMPEL RESPONSES TO DISCOVERY AND SANCTIONS DIRECTED TO DEFENDANTS BACKYARD CREATIONS INC. STEVEN B. BRAUN AND LINDA M. BRAUN ORDER OF COURT AND NOW, this 22nd day of April, 2013, upon consideration of Plai'ntiff's Motion To Compel and Defendant's Response thereto, a hearing is scheduled for Thursday, July 18, 2013, at 3:00 p.m., in Courtroom No. 5, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, � 1 Christyle/L. Peck, J. ason P. Kutulakis, Esq. 2 West High Street p Asa Carlisle, PA 17013 �7 Z, w Attorney for Plaintiffs /Evan C. Pappas, Esq. 3 r%3 C Kenneth J. McDermott, Esq. , ' CD-6 P.O. Box 88 -- ti CD Harrisburg, PA 17108 oars ?„ Attorneys for Defendants - :rc WILLIAM J. NOON, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW BACKYARD CREATIONS, INC., and STEVEN B. BRAUN, President and Individually, and LINDA M. BRAUN, Secretary/Treasurer and Individually, Defendants. No. 11-8279 Civil Tenn IN RE: PRELIMINARY OBJECTIONS OF PLAINTIFF WILLIAM J. NOON TO DEFENDANTS' NEW MATTER AND COUNTER CLAIM BEFORE HESS, P.J. and PECK, J. ORDER OF COURT AND NOW, this ;44day of April, 2013, upon consideration of the Preliminary Objections of Plaintiff William J. Noon to Defendants' New Matter and Counterclaim, Defendants' Response to Preliminary Objections of Plaintiff William J. Noon to Defendants' New Matter and Counterclaim, and after oral argument on the matter, IT IS HEREBY ORDERED THAT: (1) Plaintiffs- preliminary objections to Defendants' breach of contract counterclaim is SUSTAINED; and (2) Plaintiffs preliminary objections to Defendants' unjust enrichment counterclaim is OVERRULED. Defendants' request for attorneys' fees and costs contained in Defendants' Response to Preliminary Objections of Plaintiff William J. Noon is DENIED. BY THE COURT, XChristyle L. Peck, J. Jason P. Kutulakis, Esq. pe 2 West High St. Carlisle, PA 17013 A mey for Plaintiff Evan C. Pappas, Esq. P.O. Box 88 Harrisburg, PA 17108 r*_J ::Orr, Attorney for Defendants .9- C� 1"Yal LCL WILLIAM J. NOON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW BACKYARD CREATIONS, INC., and STEVEN B. BRAUN, President and Individually, and LINDA M. BRAUN, Secretary/Treasurer and Individually, Defendants. No. 11-8279 Civil Tenn IN RE: PRELIMINARY OBJECTIONS OF PLAINTIFF WILLIAM J. NOON TO DEFENDANTS' NEW MATTER AND COUNTER CLAIM BEFORE HESS, P.J., and PECK, J. OPINION and ORDER OF COURT Peck, J., April 2013 — Backyard Creations, Inc., and Steven B. Braun, President and Individually, and Linda M. Braun, Secretary/Treasurer and Individually ("Defendants") answered the amended complaint of William J. Noon ("Plaintiff) and raised new matter and counterclaims of breach of contract and unjust enrichment.' Plaintiff demurred on the grounds that Defendants are in violation of the Home Improvement Consumer Protection Act, 73 P.S. §§ 517.1, et seq., ("HICPA").2 For the reasons discussed below, Plaintiffs preliminary objection to Defendants' breach of contract counterclaim is sustained and Plaintiffs preliminary objection to Defendants' unjust enrichment counterclaim is overruled. PROCEDURAL HISTORY On September 18, 2012, Plaintiff demurred to the new matter and counterclaims contained in Defendants' answer.3 On October 2, 2012, Defendants responded to Plaintiffs preliminary objections.4 Briefs were subsequently submitted by Plaintiff and Amended Complaint,Dec. 16,2011; Defs.' Answer with New Matter and Countercls. To Pl.'s Am. Compl.,Aug. 24,2012 (hereinafter"Defs.' Answer"). 2 Prelim. Objs. of P1.William J.Noon to Def.'s New Matter and Countercl., Sept. 18,2012. 3 Prelim. Objs. of Pl.William J.Noon to DeVs New Matter and Countercl., Sept. 18,2012. 4 Defs.' Resp.to Prelim. Objs. of Pl. William J.Noon to Defs.'New Matter and Countercl., Oct. 2,2012. Defendants in support of their respective positions.5 On December 21, 2012, argument was heard regarding Plaintiffs preliminary objections. Plaintiffs preliminary objections to Defendants' new matter and counterclaims are now before this Court for disposition. STATEMENT OF FACTS Defendants have averred the following facts in their new matter and counterclaims: On February 2, 2011, Plaintiff contracted with Defendants to construct a swimming pool in exchange for a sum of$100,000.00.6 The contract provides under the heading "Changes or Extra Work" that "no representations, warranties or understandings of any kind exist or shall be binding on either party, unless incorporated in writing in this contract and agreement." 7 "The contract [was] based upon normal excavation conditions."8 In the event rock was found and additional excavation was required, the contract provided that "[Defendants] shall have the right: ... b) [u]pon [Plaintiffs] approval and at [Plaintiffs] expense [to] amend this contract in writing to deal with such events."9 During the excavation of the pool additional rock was discovered underground.10 Removal of this rock required additional excavation work by Defendants." Plaintiff orally acknowledged the additional work needed to excavate this rock and encouraged Defendants to complete the work.12 Plaintiff represented to Defendants that he would pay for the additional excavation work to be done.13 Based on this representation by 5 Br. in Supp.of PL's Prelim. Objs.to Def.'s New Matter and Countercl.,Dec. 7,2012;Defs.' Br. in Opp. to Prelim.Objs.of Pl. William J.Noon to Defs.'New Matter and Countercl.,Dec. 14,2012. 6 Amended Complaint,Dec. 16,2011,T 10; Ex. C; admitted in Defs.' Answer at T 10; Defs.' Answer at T 167. 7 Amended Complaint;Ex. C at 11. 8 Amended Complaint;Ex. C at 12. 9 Amended Complaint;Ex.C at 12. '0 Defs.' Answer at¶ 138. " Defs.' Answer at 1 13 9-40. 12 Defs.' Answer at¶ 141. 13 Defs.' Answer at¶ 142. 2 Plaintiff, Defendants completed the excavation work.14 Defendants also completed work for Plaintiff which was outside of, or in addition to, the work originally contracted.1 5 This work included a change in the location of pool equipment, longer light cords, jackhammering of rocky conditions, upgraded accent tile, extra stone, and a changed fence length.16 Defendants sent an invoice to Plaintiff for these additional expenses, however, Plaintiff refused to pay.17 The pool was about ninety-five percent complete when Defendants were forced to cease work on the project.'s Plaintiff failed to pay Defendants $21,417.70 under the original contract and $12,212.80 for the additional excavation work that was performed.19 DISCUSSION The General Standards for a Demurrer A demurrer, under Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure, is an assertion that a complaint does not set forth a cause of action or a claim on which relief can be granted. Lerner v. Lerner, 954 A.2d 1229, 1234 (Pa. Super. 2008). In ruling on a demurrer, the court may consider only matters that arise out of the complaint itself, it cannot supply a fact missing in the complaint. Hess v. Fox Rothschild, LLP, 925 A.2d 798, 805 (Pa. Super. 2007). In evaluating a demurrer, all material facts set forth in the complaint and all inferences reasonably deducible therefrom must be admitted as true. Id. at 806. The question presented by a demurrer is whether, based on the facts averred, the law says with certainty that the contested pleading is legally insufficient and no recovery is possible. Schuylkill NM v. Langbord, 728 A.2d 964, 968 (Pa. Super. 1999). If there is any doubt as to whether a demurrer should be sustained, the doubt should be resolved in favor of overruling it. Lerner, 954 A.2d at 1234. Therefore, a preliminary 14 Defs.' Answer at 142. 15 Defs.' Answer at¶ 145. 16 Defs.' Answer at¶ 146. 17 Defs.' Answer at TT 144, 147. 18 Defs.' Answer at T 149. 19 Defs.' Answer at 1151-52. 3 objection in the nature of a demurrer may be properly granted only where the contested pleading is legally insufficient. Hess, 925 A.2d at 805. This Court now turns to Plaintiffs specific grounds for the demurrers. Demurrer to Breach of Oral Contract Defendants' breach of contract counterclaim as it pertains to the oral contract that existed between the parties is legally insufficient based on the requirements of HICPA. Generally, "[a] cause of action for breach of contract must be established by pleading (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages." CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. 1999). Defendants entered into an oral contract with Plaintiff to remove unforeseen rock necessary for the completion of the excavation for the pool. Defendants were to provide the additional excavation and rock removal in exchange for payment from Plaintiff. The excavation was performed; Plaintiff failed to pay. Therefore, as averred by Defendants, Plaintiff breached an oral contract. HICPA requires, however, that "[n]o home improvement contract shall be valid or enforceable against an owner unless it ... [i]ncludes a description of the work to be performed, the materials to be used and a set of specifications that cannot be changed without a written change order signed by the owner and the contractor." 73 P.S. § 517.7(a)(7). Under HICPA it is a prohibited act to "[d]eviate from or disregard plans or specifications, in any material respect, without a written change order dated and signed by both the contractor and owner, which contains the accompanying price changes for each deviation." 73 P.S. § 517.9(6)(emphasis added). The written contract specified that the work contracted for therein was "based on normal excavation conditions." Amended Complaint, T 10; Ex. C at 12; admitted in Defs.' Answer at T 10. The written contract further specified that in the event rock was found and additional excavation was required, Defendants had the right to amend the contract in writing upon Plaintiff s approval of the change and at Plaintiff s expense. The discovery of additional rock and the need for additional excavation is alleged to have generated a cost in excess of $12,000.00. Such a change was a material deviation from the normal excavation conditions specified as the basis for the original contract. Because 4 the additional excavation and work performed by Defendants was a material change, HICPA required the change to be in writing. The oral contract for the change is accordingly invalid and unenforceable and Plaintiffs demurrer to Defendants' breach of contract counterclaim must therefore be sustained. Demurrer to Unjust Enrichment Defendants' unjust enrichment counterclaim is legally sufficient, based on the facts averred by Defendants. "The elements necessary to prove unjust enrichment are: (1) benefits conferred on [plaintiff] by [defendant]; (2) appreciation of such benefits by [plaintiff]; and (3) acceptance and retention of such benefits under such circumstances that it would be inequitable for [plaintiff] to retain the benefit without payment of value." Durst v. Milroy Gen. Contracting, Inc., 52 A.3d 357, 360 (Pa. Super. 2012)(citations omitted). The Pennsylvania Superior Court has held "that quasi-contract theories of recovery survive ... HICPA." Id. at 361. Defendants' new matter alleges that it conferred a benefit on Plaintiff in the form of additional goods and services for which payment was not received. It alleges it performed additional goods and services related to the installation of Plaintiffs pool, that Plaintiff accepted and retained those goods and services, and that under the circumstances it would be inequitable for the Plaintiff to retain the additional work without compensating Defendants. Such allegations meet the elements necessary to support an unjust enrichment counterclaim. Plaintiffs preliminary objection in the nature of a demurrer to Defendants' unjust enrichment counterclaim, therefore, is overruled. Accordingly, the following order is entered: 5 ORDER OF COURT AND NOW, this 24h day of April, 2013, upon consideration of the Preliminary Objections of Plaintiff William J. Noon to Defendants' New Matter and Counterclaim, Defendants' Response to Preliminary Objections of Plaintiff William J.. Noon to Defendants' New Matter and Counterclaim, and after oral argument on the matter, IT IS HEREBY ORDERED THAT: (1) Plaintiffs preliminary objections to Defendants' breach of contract counterclaim is SUSTAINED; and (2) Plaintiffs preliminary objections to Defendants' unjust enrichment counterclaim is OVERRULED. Defendants' request for attorneys' fees and costs contained in Defendants' Response to Preliminary Objections of Plaintiff William J. Noon is DENIED. BY THE COURT, s/Christylee L. Peck Christylee L. Peck, J. Jason P. Kutulakis, Esq. 2 West High St. Carlisle, PA 17013 Attorney for Plaintiff Evan C. Pappas, Esq. P.O. Box 88 Harrisburg, PA 17108 Attorney for Defendants 6 t° LEB-, r,€� r ,1 T'ABIOM & 2013 i U L I I N I Nu ULAKIS 'UMBER�SLAtO COiUN'Y Jason P.Kutulakis,Esquire P E N I i S Y LVA N i A Attorney I.D.#: 80411 2 West High Street Carlisle,PA 17013 (717)249-0900 WILLIAM J. NOON : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 37 Nicholas Drive Carlisle,PA 17015 Plaintiff V. : FILE NO.: 2011-8279 BACKYARD CREATIONS,INC. : CIVIL ACTION—LAW 1560 Tilco Drive,Suite A Fredrick,MD 21704 and STEVEN B.BRAUN,President and Individually 1560 Tilco Drive,Suite A Fredrick,MD 21704 and LINDA M.BRAUN,Secretary/Treasurer and Individually 1560 Tilco Drive, Suite A Fredrick,MD 21704 Defendants PLAINTIFF'S MOTION TO COMPEL RESPONSES TO DISCOVERY AND SANCTIONS DIRECTED TO DEFENDANTS BACKYARD CREATIONS INC STEVEN B. BRAUN, AND LINDA M. BRAUN or in the alternative MOTION IN LIMINE TO PRECLUDE DEFENDANTS FROM ADMITTING EMDENCE ASSOCIATED WITH THE REQUESTED DISCOVERY AND NOW, this 11`" day of July, 2013, comes Plaintiff by and through his counsel, Jason P. Kutulakis, Esquire, of Abom& Kutulakis,L.L.P., and hereby files the within Motion to Compel Responses to Discovery and hereinafter avers as follows: 1. Plaintiff, William J. Noon, is an adult individual who owns/resides at 37 Nicholas Drive, Carlisle, Cumberland County, Pennsylvania. 2. Defendant, Backyard Creations, Inc. is a Maryland corporation. 3. Defendant, Backyard Creations, Inc. is registered with the Pennsylvania Attorney General's Office as a Licensed Residential Remodeler pursuant to the PA Home Improvement Consumer Protection Act (hereinafter referred to as "HICPA"). 4. Defendant, Steven B. Braun,is an adult individual serving as President for Backyards Creations, Inc. 5. Defendant, Linda M. Braun, is an adult individual serving as Secretary/Treasurer for Backyards Creations, Inc. 6. Each defendant has a business address of 1560 Tilco Drive, Suite A, Fredrick, Maryland 21704. 7. Plaintiff and Defendants entered into a written agreement (hereinafter the "Contract") on February 2, 2011 whereby Defendants would construct a 24' Z 42' freeform pool and related appurtenances (hereinafter the "project") located at Plaintiff's residence listed above in exchange for the sum of$100,000.00. 8. Defendants ceased work on the project on or about August 5, 2011 even though it was not finished, forcing the Plaintiff to hire additional contractors to complete the project. 9. On November 1, 2011, Plaintiff filed a Complaint in the Cumberland County Court of Common Pleas against the above named Defendants. 10. On December 16, 2011, Plaintiff's filed an Amended Complaint against the above named Defendants. 11. On August 28, 2012, Plaintiffs served all above named Defendants with Interrogatories and Requests for Production of Documents giving Defendants thirty (30) days to provide responses. 12. Having received no responses from the Defendants within the thirty (30) day timeframe, Plaintiffs Counsel sent a letter dated October 8, 2012 inquiring as to when discovery responses from the Defendants could be expected. 13. Defendants still did not respond to Plaintiff regarding Discovery. 14. On January 26, 2013, still having heard nothing by way of responses to the requested discovery, Plaintiff's counsel phoned Defendants' attorney. 15. Defendants'Attorney acknowledged that he had the Discovery requests and was still awaiting responses from his clients. 16. On February 11, 2013, the Honorable Christylee Peck issued a Rule to Show Cause upon the Defendant why the requested relief should not be granted answerable within thirty (30) days of service of the Rule. 17. On March 15, 2013, Defendants filed Answers to Interrogatories and Responses to Requests for Production of Documents. Those responses to discovery contained numerous objection: a. Defendant Linda Braun objected 7 of 18 questions to Plaintiffs 1" set of Interrogatories. b. Defendant Stephen Braun objected 10 of 18 questions and failed to answer the 18" question to Plaintiffs V set of Interrogatories. c. Defendant Backyard Creations objected to 10 of 18 questions and failed to answer the 18th question to Plaintiffs Vt set of Interrogatories. d. Defendant Linda Braun objected to 7 of 8 requests of Plaintiffs 1st set of Request for Production of Documents. e. Defendant Stephen Braun objected to 7 of 8 requests of Plaintiffs 1St set of Request for Production of Documents. In response to Plaintiffs 8th request, defendant Stephen Braun responded, "Any documents responsive to this Request will be produced at a mutually convenient time." f. Defendant Backyard Creations objected to 7 of 9 of Plaintiffs 1St Request for Production of Documents. In response to Plaintiffs 8t" and 9th Requests, defendant Backyard Creations responded, "Any documents responsive to this Request will be produced at a mutually convenient time." 18. To date, Defendants have yet to supplement their response or provide documentation as promised at a "mutually convenient time." 19. On May 8, 2013, Plaintiff served Plaintiffs 2nd Set of Interrogatories and 2"' Request for Production of Documents upon the Defendants. See, Plaintiffs 2t d Set of Interrogatories and Plaintiffs 2nd Request for Production of Documents attached hereto as Exhibits A &B respectively. 20. Plaintiffs tad set of discovery demands provided appropriate Notices to Plead requiring responses within 20 days. 21. To date,Defendants have failed any of the discovery demanded in his 2"d request. 22. It is believed and therefore averted that Defendants' are being unnecessarily uncooperative in answering the Plaintiffs Discovery Requests as they have had over four and a half months to initially compile the Vt requested discovery. 23. It has been nearly two months since Plaintiff served his 2"' set of discovery demands upon defendants. 24. On June 17, 2013, undersigned counsel spoke to Attorney Papas regarding the overdue discovery from Plaintiffs 2"d set of discovery demands. Attorney Papas acknowledged receipt of the discovery demands and that he was awaiting responses from his clients. 25. No requests for additional time have been requested by Defendants. 26. No objections have been made by Defendants. 27. Argument of Plaintiff's Motion to Compel responses to his V set of discovery is set for July 18, 2013. 28. It is believed and therefore averted that Defendants are being obstructive in their intention delay in production of discovery. 29. It is believed and therefore averred that Plaintiff is unnecessarily incurring attorney fees due to the Defendants' failure to produce discovery, 30. It is believed and therefore averred that Plaintiff is being prejudiced by the delays caused by Defendants, 31. On July 11, 2013, undersigned counsel spoke to Attorney Papas who does not concur in the within Motion nor its requested relief WHEREFORE, Plaintiff requests that This Honorable Court grant Plaintiffs Motion to Compel Discovery and not only order that the discovery Requests be answered within ten (10) days of the date of any order related thereto, but also impose sanctions upon the Defendants, including attorney fees and monetary fine of$1,000. In the alternative,it is prayed that This Honorable Court will preclude the admission or usage of any information sought in the discovery demands. Respectfully submitted, ABOM&KUTULAKIS,LLP DATE Jason Kutulakis, squire 2 West igh Street Carlisle, A 17013 (717) 249- 0 Attorney for Plaintiff .�BOM �' UTLILAKIS Jason P.Kutulakis,Esquire Attorney I.D.#: 80411 2 West High Street Carlisle,PA 17013 (717)249-0900 WILLIAM J.NOON :IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 37 Nicholas Drive Carlisle,PA 17015 Plaintiff V. : FILE NO.:2011-8279 BACKYARD CREATIONS,INC. : CIVIL ACTION—LAW 1560 Tilco Drive,Suite A Fredrick,MD 21704 and STEVEN B. BRAUN,President and Individually 1560 Tilco Drive,Suite A Fredrick,MD 21704 and LINDA M.BRAUN, Secretary/Treasurer and Individually .1560 Tilco Drive,Suite A Fredrick,MD 21704 Defendants PLAINTIFF'S SECOND SET OF INTERROGATORIES DIRECT TO DEFENDANT BACKYARD CREATIONS INC. The following Interrogatories are addressed to Defendant Backyard Creations, Inc.pursuant to Pa-R.C.P. 3117, 4005, and 4006. You are required to serve a copy of your within answers,under oath, or.objections,if any, to the following interrogatories on the undersigned within thirty (30) days after service. EXHIBIT Definitions 1. "Control" shall mean the possession, directly or indirectly,of the power to direct or cause the direction of management and policies of a person or entity,whether through ownership of stock,by contract or otherwise. 2. ."Date" shall mean the exact day,month and year,if ascertainable,or if not, the best approximation,including relationships to other events. 3. "Identify" shall mean: a. when used in reference to a natural person or individual,to state such person's name, present residence and address and telephone number (or if not known, the last known residence address and telephone number indicating that it is the last known), present place of business and present business address (or if not known or ascertainable, the last known residence address and telephone number indicating that it is the last known), and employer(or if not known or ascertainable, the last known residence address and telephone number indicating that it is the last known); b. when used in reference to any other person or individual,to state its name, the nature of the person (e.g. corporation,partnership,government department, etc) and the location of the its principal office; c. when used in reference to a document,to describe the date it was prepared or created, the identity of its author or originator, the type of document (e.g, letter, telegram,chart,photograph,sound recording,etc.),and the identity of its addressee, its present location, and the identity of its present or last known custodian. 4. "List","describe," "specify,"and/or"state" shall mean to set forth fully and unambiguously each and every fact of which you have knowledge which is-relevant to the answer called for by the interrogatory. 5. "Person"and/or"Individual" shall mean any natural person,partnership, firm, corporation, association,joint venture, trust estates,public agencies,departments,bureaus,and boards, and any other form of business organization or arrangement, and also,where relevant the individual representing each person. 6. "You"and "your" shall mean Backyard Creations Inc. any and all of his agents and representatives,and where appropriate,any and all other persons acting for or on behalf of himself. INSTRUCTIONS 1. The masculine shall include the feminine,and the feminine, the masculine. 2. The singular shall include the plural,and the plural, the singular. 3. The term "and" shall include the term"or," and the term "or" shall include the term"and." 4. These interrogatories should be deemed continuing and should be modified or supplemented as further or additional information is received by you, or anyone acting on your behalf,up to the time of payment in full of the subject judgment. 5. If any of the following interrogatories cannot be answered fully after exercising due diligence to secure the information to do so, so state, answer to the extent possible, and state wherever information or knowledge you have concerning the unanswered portions. 6. If you contend that information sought in this set of interrogatories is exempt from discovery because it falls within the attorney/client privilege or some other privilege or protection, you are to provide the following information in each instance in lieu of setting for the information sought by the interrogatories: a. The privilege or protection that you contend applies; b. The subject matter of the information that you contend is privileged or protected c. Every fact upon which you rely in support of your contention that the privilege or protection applies; d. The form in which the information is contained (e.g. document,recollection of judgment debtor);and e. The nature of the information that is contained in a document, the author,the recipient, the date of the document;if the information is not contained in a document, the persons involved in and the place of the communication giving rise to the privilege or protection you claim. 7. To the extent that the documents are not otherwise identified in the 'course of answering these interrogatories,identify with respect to each interrogatory all documents upon which you rely in answering. INTERROGATORIES 1. State the nature of any and all excavation work and/or removal of rock that occurred from the Plaintiff,William J. Noon's,residence by you or any of your agents. Answer: 2. Describe.the nature and extent in detail of the excavation and/or rock removal provided to Plaintiff, William J. Noon's, residence beyond the scope of the written contract and the reasoning behind why the additional excavation was needed at Plaintiff's residence. Answer: 3. State the name of any excavation and/or rock removal company utilized at Plaintiff William J. Noon's residence employed by or subcontracted by or used by Backyard Creations, Inc. at Plaintiff's residence and include for each company,if more than one: a. The name of the company utilized. b. The business address of the company utilized. c. The telephone number of the company utilized. d. . The terms of the contract between Backyard Creations, Inc. and the company utilized. Answer: Respectfully Submitted, ABOM&KUTULAIaS,LLP Date: /` ( Jas P. ID o. 80411 2 est Kul High Street Carlisle,PA 17013 (717)249-0900 Attorney for Plaintif CERTIFICATE OF SERVICE AND NOW, this day of May, 2012, I, Shannon Freeman, of Abom & Kutulakis, LLP, hereby certify that I did serve a true and correct copy of the foregoing Plaintiffs Second Set of Interrogatories Directed to Defendant by depositing, or causing to be deposited, same in the United States Mail, first-class mail,postage prepaid addressed to the following: Evan C. Pappas, Esquire Shumaker Williams,P.C. P.O.Box 88 Harrisburg, PA 17108 'L41D71. annon Freeman WILLIAM J. NOON : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 37 Nicholas Drive Carlisle,PA 17015 Plaintiff V. : FILE NO.: 2011-8279 BACKYARD CREATIONS,INC. : CIVIL ACTION—LAW 1560 Tilco Drive, Suite A Fredrick,MD 21704 and STEVEN B. BRAUN,President and Individually 1560 Tilco Drive, Suite A Fredrick,MD 21704 and LINDA M. BRAUN,Secretary/Treasurer and Individually 1560 Tilco Drive, Suite A Fredrick,MD 21704 Defendants NOTICE TO PRODUCE To: Defendant,Backyard Creations, Inc. You are directed to produce the documents and things requested in the attached Request for Documents to Jason P. Kutulakis,Esquire,ABOM &KUTULAKIS,L.L.P.,2 West High Street, Carlisle,PA 17013. EXHIBIT s If you fail to produce the document or things required by this Request to Produce Documents,you may be subject to the sanctions authorized by Rules 234.5 and 4019(c) of the Pennsylvania Rules of Civil Procedure. OM & KUTULAKIS,L.L.P. Date Ja on P. Kutulakis, squ re orney I.D. No. 80411 West High Street Carlisle, PA 17013 (717) 249-0900 Attorney for Plaint r AM= Jason P.Kutulakis,Esquire Attorney I.D.No:80411 2 West High Street Carlisle,Pennsylvania 17013 (717)249-0900 WILLIAM J. NOON : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA 37 Nicholas Drive Carlisle, PA 17015 Plaintiff V. FILE NO.:2011-8279 BACKYARD CREATIONS,INC. : CIVIL ACTION—LAW 1560 Tilco Drive, Suite A Fredrick,MD 21704 and STEVEN B. BRAUN,President and Individually 1560 Tilco Drive, Suite A Fredrick, MD 21704 and LINDA M. BRAUN, Secretary/Treasurer and Individually 1560 Tilco Drive, Suite A Fredrick, MD 21704 Defendants PLAINTIFF'S SECOND REQUEST FOR PRODUCTION OF DOCUMENTS FROM DEFENDANT, BACKYARD CREATIONS INC Plaintiff, William J. Noon, by and through his attorney, Jason P. Kutulakis, Esquire, of Abom& Kutulakis,L.L.P., hereby make the following requests for production of documents: C, INSTRUCTIONS AND DEFINITIONS Plaintiff hereby propounds the following requests for production of documents and tangible things pursuant to Rule 4009.1 et seq. of the Pennsylvania Rules of Civil Procedure. The documents and tangible things requested herein must be produced at Aborn & Kutulakis,L.L.P.,within thirty (30) days. Each of the following requests is intended as a separate request. Where a request has subparts, please respond to each subpart separately and in full.. Do not limit any response to the numbered request as a whole. If you have any objection to any request, please state your objection fully and set forth,the factual basis for your objection in lieu of production of the documents. You must file and serve a written response to these requests within thirty (30) days of service of these requests upon you, regardless of the time set for production of the documents and things requested herein. You are reminded that any objections not raised within the thirty (30) day period provided for by Pa.R.C.P. 4009.12 will be deemed to have been waived by you. These requests are not only for documents and tangible things that are owned by you, but also for documents and tangible things that are in your possession, custody, or control. This means that you must produce all documents and tangible things that are responsive to a particular request and that are in your possession (regardless of whether they are your property), or over which you have control even if they are not in your possession. It also means you must produce documents and tangible things that are in the possession, custody; or control of your agents, employees, and/or attorneys. Before responding to these requests you are required to make a diligent search of your files and records to ascertain whether you have documents that would be responsive to a given request. Your agents, employees,and attorneys must do the same. To avoid any possibility of confusion with respect to these requests, please note that the following terms have the following meanings in these requests, unless a particular request clearly indicates otherwise: "You" or"your"refer to the person to whom these requests have been addressed. "Person" means any natural person, corporation, unincorporated association, trust, partnership, and/or any other legally cognizable entity. It is contemplated that any corporation or other business entity acts only through its agents, officers, employees, and attorneys, and requests that apply to any such legal entity should be construed accordingly. "Plaintiff"means the plaintiff or plaintiffs named in this action. "Defendant" means the particular defendant or defendants in this action to whom this request is addressed,as set forth above. "Document,". "record," "file," and "report" all refer to and contemplate all written, recorded, or graphic information, whether preserved in writing, on magnetic tape, by electronic means,in photographic form, on rMicrofilm or microfiche, computer disc, or by any other means of information retrieval or storage. "Identify"when used in reference to an individual means: (i) To state his/her full name. (ii) Present residence or last known residence. REQUESTS FOR PRODUCTION OF DOCUMENTS 1. Provide all invoices regarding excavation and removal of rock at the Noon Residence either submitted by you to the Plaintiff or submitted to you from any subcontractors. 2. Provide any written change orders to the contract regarding excavation and removal of rock at the Noon residence. 3. Provide any and all written correspondence between Backyard Creations, Inc.,its officers, or agents, to or from Plaintiff,William J. Noon regarding the excavation and removal of rock. Respectfully submitted, ABOM&KUTULAUS,LLP N DATE: ` Jaso P.Ku Es Att rney ID # 80411 2 West High Street Carlisle,PA 17013 (717)249-0900 Attorney for Plaintiff i CERTIFICATE OF SERVICE AND NOW, this w1day of May, 2013, I, Shannon Freeman, of Abom & Ku tulakis, LL.P, hereby certify that I did serve a true and correct copy of the foregoing Requests for Production of Documents in Aid of Execution of Judgment by depositing, or causing to be deposited, same in the United States Mail, first-class mail,postage prepaid addressed to the following: Evan C. Pappas, Esquire Shumaker Williams,P.C. P.O. Box 88 Harrisburg, PA 17108 Attorney for Defendants annon Freema CERTIFICATE OF SERVICE AND NOW, this 11`h day of July, 2013, I, Shannon Freeman, of Abom & Kutulakis, LLP, hereby certify that I did serve a true and correct copy of the foregoing PLAINTIFF'S MOTION TO COMPEL RESPONSES TO DISCOVERY AND SANCTIONS DIRECTED TO DEFENDANTS BACKYARD CREATIONS, INC., STEVEN B. BRAUN, AND LINDA M. BRAUN, or in the alternative, MOTION IN LIMINE TO PRECLUDE DEFENDANTS FROM ADMITTING EVIDENCE ASSOCIATED WITH THE REQUESTED DISCOVERY by depositing, or causing to be deposited, same in the United States Mail, first-class mail, postage prepaid addressed to the following: Evan C. Pappas, Esquire Shumaker Williams, P.C. P.O. Box 88 Harrisburg,PA 17108 Attorney for Defendants nt PALLMIA S nnon Freema WILLIAM J. NOON, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION—LAW BACKYARD CREATIONS, INC., STEVEN B. BRAUN, President and Individually, and LINDA M. BRAUN, Secretary/ Treasurer and Individually, Defendants NO. 11-8279 CIVIL TERM IN RE: PLAINTIFF'S MOTION TO COMPEL RESPONSES TO DISCOVERY AND SANCTIONS DIRECTED TO DEFENDANTS BACKYARD CREATIONS, INC., STEVEN B. BRAUN, AND LINDA M. BRAUN, or in the alternative, MOTION IN LIMINE TO PRECLUDE DEFENDANTS FROM ADMITTING EVIDENCE ASSOCIATED WITH THE REQUESTED DISCOVERY ORDER OF.COURT AND NOW, this 22"d day of April, 2013, upon consideration of Plaintiff s above- captioned motion, a Rule is hereby issued upon Defendants to show cause why the relief requested should not be granted. THE RULE is returnable at the hearing previously scheduled for Thursday, July 18, 2013, at 3:00 p.m., in Courtroom No. 5, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Christy'lee L. Peck, J. V/Jason P. Kutulakis, Esq. CD 2 West High Street Carlisle, PA 17013 Attorney for Plaintiff --4 -r- Evan C. Pappas, Esq. `Kenneth J. McDermott, Esq. P.O. Box 88 Harrisburg, PA 17108 Attorneys for Defendants :rc WILLIAM J. NOON, IN THE COURT OF COMMON PLEAS Oar; Plaintiff CUMBERLAND COUNTY, PENN V&1IA—i V. Civil Action No. 11-8279 Civil :Z-::u r— BACKYARD CREATIONS, INC. CIVIL ACTION—LAW < "' STEVEN B. BRAUN, President and Individually, and LINDA M. BRAUN, ' ' cn _c Secretary/Treasurer and Individually, — Defendants DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL RESPONSES TO DISCOVERY AND SANCTIONS DIRECTED TO DEFENDANTS BACKYARD CREATIONS, INC., STEPHEN B. BRAUN, AND LINDA M. BRAUN NOW COMES Defendants, Backyard Creations, Inc., Stephen B. Braun, and Linda M. Braun, by and through their counsel, to respond to Plaintiff's Motion to Compel Responses to Discovery and Sanctions, and state and aver the following in opposition thereof- 1. Admitted upon information and belief. 2. Admitted. 3. Admitted, 4. Admitted with clarification. Stephen B. Braun serves as the President of Backyard Creations, Inc., not Backyards Creations, Inc. 5. Admitted with clarification. Linda M. Bruan serves as the Secretary/Treasurer of Backyard Creations, Inc., not Backyards Creations, Inc. 6. Admitted. 7. Denied. The averments of paragraph 7 attempt to summarize a written document which speaks for itself and any characterization of the same is hereby denied. 8. Denied. It is denied that Defendants ceased work on the project on August 5, 2011. By way of further information, shortly before August 5, 2011, Plaintiff failed to make any further payments to Defendant Backyard Creations, Inc. for the pool construction. In addition, it is further denied that Plaintiff was forced to hire another contractor, but rather, Plaintiff refused to pay Defendants which created delays in project. Moreover, Plaintiff failed to give Defendants any opportunity to complete their job prior to Plaintiff hiring alternate contractors to complete the job. 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted with clarification. Admitted that as of October 8, 2012 Defendant's discovery responses were not yet forthcoming. However, later on March 15, 2013 Defendants responded to all then pending discovery requests of Plaintiff, with the exception that documents would be provided at a later date. 14. Admitted upon information and belief. 15. Admitted upon information and belief. 16. Admitted. 17. Admitted with clarification. It is admitted that Defendant's discovery responses were filed on March 15, 2013. However, until Plaintiff's most recent motion to Compel was filed on July 11, 2013, Plaintiff never provided notice to Defendants of alleged deficiencies in discovery responses already provided. Had these responses been raised prior to the filing of the instant Motion to Compel, perhaps they could have been resolved without the need for protracted 2 motion practice and hearings, which have led to the increased attorneys fees incurred by Plaintiff. See also response to paragraph 29 which is incorporated herein by reference. 18. Denied. On July 16, 2013 Defendants produced all of the documents in their possession that were responsive to Plaintiff's First and Second Request for Production of Documents and also responses to Plaintiff's Second Set of Interrogatories. 19. Admitted. 20. Denied. Plaintiff's requests had attached a Notice to Produce providing 30 days within which to respond. 21. Denied. On July 16, 2013 Defendants produced all of the documents in their possession that were responsive to Plaintiff's First and Second Request for Production of Documents and also responses to Plaintiff's Second Set of Interrogatories. 22. Denied. It is denied that Defendants have been unnecessarily uncooperative in their responses to Discovery. To the contrary, although the same has taken longer than anticipated, Defendants have complied with all of Plaintiff's discovery requests. 23. Admitted upon information and belief. 24. Admitted upon information and belief. 25. Denied. It is denied that no additional time has been requested by Defendants to respond to Plaintiff's discovery requests. To the contrary, during the June 17th conference call and a more recent phone call believed to have occurred in early July between the undersigned counsel and counsel for Plaintiff, the undersigned counsel represented that his client was in the process of gathering all documents responsive to the discovery requests and that the Motion to Compel would be unnecessary. 3 26. Denied. Defendants responses to all discovery requests contain general and, in some cases, specific objections. 27. Admitted. 28. Denied. It is denied that Defendants are being obstructive. To the contrary, as of the date of filing this response, Defendants have responsed to all of Plaintiff's discovery requests. 29. Denied. As previously stated, Defendants were unaware of any alleged deficiencies in previous discovery responses until the filing of Plaintiffs July 11, 2013 Motion to Compel. Therefore, Defendant can not be held accountable for any expenses Plaintiff has incurred related to allegedly deficient responses to interrogatories. Moreover, prior to the filing of Plaintiffs July 11, 2013 Motion to Compel, undersigned counsel represented that documents responsive to the First and Second Request for Production of Documents were recently in his possession (as of that day) and that the Motion would not be necessary because undersigned counsel needed a few days to review and produce the documents received. Nonetheless, Plaintiff filed the July 11, 2013 Motion to Compel. All responsive documents have been produced on July 16, 2013. Therefore, any expense sustained by Plaintiff in this action related to the discovery motions are the result of Plaintiffs inability to wait a few additional days for the documents to be sent. 30. Denied. It is denied that Plaintiff has been prejudiced and proof of the same is hereby demanded. 31. Admitted with clarification. It is admitted that the undersigned counsel did not concur with the filing of the instant motion. By way of further clarification, this is the same phone call referenced above in paragraph 29 whereby undersigned counsel represented that he 4 had the documents in his possession (as of that date) and needed time to review and send to Plaintiff. WHEREFORE, Defendants respectfully request that this Honorable Court deny Plaintiff's Motion to Compel Responses to Discovery and Sanctions. SHUMAKER WILLIAMS, P.C. Dated: July 18, 2013 By van appas, LD. 0 103 Kenneth J. McDermott, I.D. #205555 P.O. BOX 88 Harrisburg, PA 17108 (717) 763-1121 Attorneys for Defendants :255004 5 CERTIFICATE OF SERVICE I, Evan C. Pappas, Esquire, of the law firm of Shumaker Williams, P.C., hereby certify that I served a true and correct copy of the foregoing Defendants' Response in Opposition to Plaintiff's Motion' to Compel Responses to Discovery and Sanctions Directed to Defendants Backyard Creations, Inc., Stephen B. Braun, and Linda M. Braun on this date by hand delivering copy of the same to counsel for Plaintiff at the hearing scheduled for this date. Jason P. Kutulakis, Esquire ABOM & KUTULAKIS 2 West High Street Carlisle, PA 17013 Attorneys for Plaintiff SHUMAKER WILLIAMS, P.C. Dated: July 18, 2013 By Pvan . appas P.O. BOX 88 Harrisburg, PA 17108 (717) 763-11212 WILLIAM J. NOON, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA C-) ', V. CZ cz.S rn M BACKYARD CREATIONS, INC. , CIVIL ACTION LAW rte. raw' STEVEN B. BRAUN, President and Individually, and r\) Q) LINDA M. BRAUN, Secretary/ Treasurer and Individually, C-) as Q) Defendants 11-8279 CIVIL TERM Cn ORDER OF COURT AND NOW, this 18th day of July, 2013, this being the time and place set for a hearing on the Plaintiff ' s Motion to Compel Responses to Discovery and Sanctions, and pursuant to an agreement between the parties, the hearing in this matter is hereby continued until Wednesday, September 11, 2013 , at 3 : 30 p.m. It is noted that the parties have indicated they will try to work together to see if there is any further discovery that still is outstanding. Should the parties not be able to agree and provide all the necessary discovery to the Plaintiff, this Court will then entertain at the next hearing whether sanctions should ensue against the defendant. The defendants, Stephen B. Braun and Linda M. Braun, shall appear at the next hearing. It is hereby further ordered that defendants shall respond to the fifth interrogatory question from the first set of interrogatories issued against the defendants . The parties further agree that they will submit to this Court a stipulated proposed timeline for the proceedings to occur, to include all discovery deadlines and trial deadlines, and this Court shall sign off on that order without further hearing. The 1 (Noon v. Backyard Creations, Inc . , 11-8279 Civil) parties shall submit said proposed order on or before Friday, August 9, 2013 . By the Court, Christ lee L. Peck, J. �auren E. Hokanp, Esquire Jason P. Kutulakis, Esquire 2 West High Street Carlisle, PA 17013 Attorneys for Plaintiff Evan C. Pappas, Esquire Kenneth J. McDermott, Esquire P.O. Box 88 Harrisburg, PA 17108 ' Attorneys for Defendants :vae f WILLIAM J. NOON, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION—LAW BACKYARD CREATIONS, INC., STEVEN B. BRAUN, President and Individually, and LINDA M. BRAUN, Secretary/ Treasurer and Individually, Defendants NO. 11-8279 CIVIL TERM IN RE: PLAINTIFF'S MOTION TO COMPEL RESPONSES TO DISCOVERY AND SANCTIONS ORDER OF COURT AND NOW, this 9fl' day of September, upon agreement of counsel, the hearing previously scheduled in this matter for September 11, 2013, is rescheduled to Monday, November 4, 2013, at 3:30 p.m., in Courtroom No. 5, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Christyles(L. Peck,' J. .., auren E. Hokanp, Esq. Jason P. Kutulakis, Esq. 2 West High Street Carlisle, PA 17013 Attorneys for Plaintiff ✓'Evan C. Pappas, Esq. rn,co Kenneth J. McDermott, Esq. P.O. Box 88 Harrisburg, PA 17108 Attorneys for Defendants :rc WILLIAM J.NOON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : Civil Action No. 11-8279 BACKYARD CREATIONS, INC., : CIVIL ACTION—LAW STEVEN B. BRAUN, President and • Individually, and LINDA M. BRAUN, • Secretary/Treasurer and Individually, Defendants STIPULATION OF COUNSEL NOW COME Plaintiff, William J. Noon, and Defendants, Backyard Creations, Inc., Steven B. Braun, and Linda M. Braun, by and through their counsel, to respectfully file this Stipulation of Counsel, and in support thereof aver that: 1. Counsel for Plaintiff and counsel for Defendants have agreed and stipulated that Defendants shall remove all objections as to admissibility in their Answers to Plaintiff's Interrogatories and Requests for Production of Documents, however, Defendants reserve all rights to challenge the admissibility of information and/or documents at trial and/or for the purposes of the filing of any dispositive motions. 2. This Stipulation shall serve as the necessary amendment to Defendants' Answers to Plaintiff's Interrogatories and Requests for Production and no further amendment to those discovery responses shall be required. t110 ; tZ f r� T 3. It is hereby further agreed and stipulated that counsel for Plaintiff will file a Praecipe to Withdraw his Motion to Compel Responses to Discovery and Sanctions and cancel the hearing presently scheduled for November 4, 2013, at 3:30 p.m. : •M &KUT LAKIS SHU : WWILLI : *.C. By M 1L Jason '. Kutul. is, I.D. #80411 van . Pappas, I.D. ° 01103 2 We High St -et Kenneth J. McDermott, I. #205555 Carlisle, PA 17013 P.O. Box 88 (717) 249-0900 Harrisburg, PA 17108 Attorneys for Plaintiff (717) 763-1121 Attorneys for Defendants BY THE COURT: J. :256708 lc Mal IccL j E'_ Cdr �s WILLIAM J. NOON, v. Plaintiff BACKYARD CREATIONS, INC., STEVEN B. BRAUN, President and Individually, and LINDA M. BRAUN, Secretary/Treasurer and Individually, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : Civil Action No. 11-8279 : CIVIL ACTION — LAW -r a� r, cn PETITION FOR LEAVE OF COURT TO WITHDRAW AS COUNSEL PURSUANT TO PA.R.C.P. 1012(b) AND NOW COMES Evan C. Pappas, Esquire, Kenneth J. McDermott, Esquire, and the law firm of Shumaker Williams, P.C. (collectively referred to as "Counsel"), to state the following Petition for Leave of Court Pursuant to Pa.R.C.P. 1012(b) to Withdraw as Counsel for Defendants, Backyard Creations, Inc., Steven B. Braun, and Linda M. Braun (collectively, "Defendants"): 1. This action was commenced by Plaintiff's filing of a Complaint on or about November 1, 2011. 2. Counsel were retained by Defendants to defend their interests in the above matter. 3. Counsel represented Defendants by filing and responding to various pleadings, serving and responding to discovery and attendance at a deposition. 4. Counsel's representation of Defendants was at all times zealous and diligent. 5. During the course of their representation of Defendants, Counsel incurred attorneys' fees and expenses. 6. Defendant has not paid Counsel in full for the attorneys' fees and expenses incurred in this action. 7. By letter dated February 19, 2014, Counsel informed Defendants that since their account was past due, Counsel would move to withdraw as their counsel within 30 days of February 19, 2014. A true and correct copy of the February 19, 20.14 letter is attached hereto as Exhibit "A." 8. On or about May 8, 2014, having not received any payments from Defendants, Counsel sent an email to Defendants indicating that since no payments had been received, Counsel would proceed to withdraw as counsel of record for Defendants. A true and correct copy of the May 8, 2014 email correspondence is attached hereto as Exhibit "B." 9. To date, no payments have been received by Counsel. 10. Counsel believes that Defendant would not be unduly prejudiced by having to obtain new counsel to represent them in this action. 11. Counsel contacted counsel for Plaintiff, William J. Noon, and Plaintiff's counsel concurs in the filing of this Petition. WHEREFORE, Evan C. Pappas, Esquire, Kenneth J. McDermott, Esquire, and the law firm of Shumaker Williams, P.C., respectfully request that this Honorable Court grant their Petition for Leave of Court Pursuant to Pa.R.C.P. 1012(b) to Withdraw as Counsel for Defendant. Dated: July 10, 2014 :260883 By��► Evan C. Pappas, I.D. 11 13\ Kenneth J. McDermott, I.D. #205555 P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 (� O SH UMAKER WILLIAMSP.c. LEGAL AND BUSINESS COUNSEL Stephen B. Braun, President Linda M. Braun, Treasurer/Secretary Backyard Creations, Inc. 1560 Tilco Drive, Suite A Frederick, MD 21704 WRITER'S DIRECT DIAL NUMBER: 717.909.1655 WRITERS E-MAIL: pappas(d3shumakerwilliams.com Admitted to Pennsylvania and New Jersey Bars February 19, 2014 Re: William J. Noon v. Backyard Creations, Inc., et al. C.C.P. Cumberland County, No. 11-8279 Our File No. 11-945(2) Dear Steve and Linda: Enclosed is this firm's invoice in the total amount of $ Please note that this invoice includes a ,this balance forward of $ . As we have previously discussed with Steve, this amount is significantly past due and must be brought up to date as soon as possible in order for this firm to continue to represent you and Backyard Creations, Inc. in the above matter. If we do not receive payment from you within the next 30 days, we will be left with no other option than to file a motion with the Court withdrawing as counsel in this matter. As always, if you wish to discuss this matter, please contact me. ECP/mac:258427 Enclosure Sin -rely By van C. Pappas Exhibit "A" CORRESPONDENCE: P.O. BOX 88 HARRISBURG, PA 17108 PHONE: 717.763.1121 FAX: 717.763.7419 CAMP HILL, PA 717.763.1121 STATE COLLEGE, PA 814.234.3211 TOWSON, MD 410.825.5223 YORK, PA 717.848.5134 mail@shumakerwilliams.com From: Evan Pappas To: SteveB@BYCPools.com Date: 5/8/2014 12:30 PM Subject: Re: Backyard Creations A/R Steve, In light of the last phone conversation we had more than two months ago, wherein you promised Backyard Creations, Inc. would make payments on outstanding invoices to the Firm, I was surprised to learn today that Backyard Creations, Inc. has made no such payment. In fact, it was disheartening to see that the last payment received was in September 2013. At this time, the total amount Backyard Creations owes, including invoices for both the Noon case and Rosenbaum case, is I expect this payment before the end of May, no exceptions. If this amount is not received, the Firm will have no choice but to draft a Motion to Withdraw as counsel and collect the amount owed from Backyard Creations, you and Linda pursuant to the Representation Agreement. Sorry it has come to this. Evan C. Pappas, Esquire SHUMAKER WILLIAMS, P.C. 3425 Simpson Ferry Road Camp Hill, PA 17011 Phone: (717) 763-1121 Fax: (717) 763-7419 www.shumakerwilliams.com Exhibit "B" VERIFICATION The undersigned, Evan C. Pappas, Esquire, hereby verifies and states that: 1. He is counsel for Defendants, Backyard Creations, Inc., Steven B. Braun and Linda M. Braun, in the within action; 2. The facts set forth in the foregoing Petition for Leave of Court Pursuant to Pa.R.C.P. 1012(b) to Withdraw as Counsel are true and correct to the best of his knowledge, information, and belief; and 3. He is aware that any false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. SHUMA ER ILLIAMS, P Dated: July 10, 2014 By POIrfliM van C. Pappas, I.D. #200103 P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 CERTIFICATE OF SERVICE I, Evan C. Pappas, Esquire, of the law firm of Shumaker Williams, P.C., hereby certify that I served a true and correct copy of the foregoing Petition for Leave of Court Pursuant to Pa.R.C.P. 1012(b) to Withdraw as Counsel this date by depositing a copy of the same in the possession of the United States mail, first-class, postage prepaid, addressed as follows: Dated: July 10, 2014 Jason P. Kutulakis, Esquire Abom & Kutulakis 2 West High Street Carlisle, PA 17013 By Evan C. Pappas P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 SHUMAKER ILLIAMS, P WILLIAM J. NOON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : Civil Action No. 11-8279 BACKYARD CREATIONS, INC., : CIVIL ACTION — LAW STEVEN B. BRAUN, President and Individually, and LINDA M. BRAUN, Secretary/Treasurer and Individually, Defendants AND NOW, this/u day of ORDER (5; cr r ; , 2014, upon consideration of the Petition for Leave of Court Pursuant to Pa.R.C.P. 1012(b) to Withdraw as Counsel, IT IS HEREBY ORDERED THAT : (1) A Rule is issued upon Respondents, William J. Noon, Backyard Creations, Inc., Steven B. Braun and Linda M. Braun, to show cause, if any they may have, why Evan C. Pappas, Esquire, Kenneth J. McDermott, Esquire, and the law firm of Shumaker Williams, P.C., should not be granted leave to withdraw as counsel; (2) Respondents shall file an answer to the Petition within twenty (20) days of service of this Order; (3) (4) stribution: Evan C. Pappas, Esquire, Shumaker Williams, P.C., P.O. Box 88, Harrisburg, PA 17108 ,Aason P. Kutulakis, Esquire, Abom & Kutulakis, 2 W. High Street, Carlisle, PA 17013 ckyard Creations, Inc., 1560 Tilco Drive, Suite A, Frederick, MD 21704 ephen B. Braun, 1560 Tilco Drive, Suite A, Frederick, MD 21704 Linda M. Braun, 1560 Tilco Drive, Suite A, Frederick, MD 21704 The Petition shall be decided under Pa.R.C.P. 206.7. Notice of the entry of this Order shall be provided to all parties by Petitioner. BY THE COURT: k.z/C Copie s Mat Lt_ 7 y J. WILLIAM J. NOON, v. Plaintiff BACKYARD CREATIONS, INC., STEVEN B. BRAUN, President and Individually, and LINDA M. BRAUN, Secretary/Treasurer and Individually, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : Civil Action No. 11-8279 : CIVIL ACTION — LAW 3 -t" Fri rn c c) cn r-- <> cn < CD ri C] --C T N r.n N PETITION TO MAKE RULE/ORDER ABSOLUTE AND NOW COMES, Evan C. Pappas, Esquire, Kenneth J. McDermott, Esquire, and the law firm of Shumaker Williams, P.C. (collectively, "Counsel"), to petition this Court to make the previous Order//Rule to show cause why Counsel should not be granted leave to withdraw as counsel for Defendants, Backyard Creations, Inc., Steven B. Braun, and Linda M. Braun (collectively, "Defendants") absolute and in support thereof, aver as follows: 1. Counsel were retained by Defendants to defend their interests in the instant action. 2. On or about July 10, 2014, Counsel filed a Petition for Leave of Court to Withdraw as Counsel Pursuant to Pa.R.C.P. 1012(b). 3. On or about July 15, 2014, this Court entered an Order/Rule directing Plaintiff and Defendants to show cause why Counsel's Petition should not be granted. A copy of the July 15, 2014 Order is attached hereto as Exhibit "A." 4. The Rule was returnable August 11, 2014. 5. No responses to the Rule or responses to Counsel's Petition for Leave to Withdraw as Counsel have been filed; therefore, Counsel request that this Rule be made absolute and that Counsel be permitted to withdraw as counsel for Defendants. WHEREFORE, Evan C. Pappas, Esquire, Kenneth J. McDermott, Esquire, and Shumaker Williams, P.C., respectfully request this Honorable Court to enter an Order allowing Evan C. Pappas, Esquire, Kenneth J. McDermott, and the law firm of Shumaker Williams, P.C. to withdraw as counsel for Defendants, Backyard Creations, Inc., Steven B. Braun, and Linda M. Braun. Dated: August 13, 2014 By :261553 Evan=C: P$pas, I. . # 00'03 Kenneth J. McDermott, I.D. #205555 P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 c WILLIAM J. NOON, : IN THE COURT OF COMMON PLEAS OF Plaintiff v. BACKYARD CREATIONS, INC., STEVEN B. BRAUN, President and Individually, and LINDA M. BRAUN, Secretary/Treasurer and Individually, Defendants : CUMBERLAND COUNTY, PENNSYLVANIA : Civil Action No. 11-8279 : CIVIL ACTION — LAW ORDER AND NOW, this /0 -.day of , 2014, upon consideration of the Petition for Leave of Court Pursuant to Pa.R.C.P. 1012() to Withdraw as Counsel, IT IS HEREBY ORDERED THAT : (1) A Rule is issued upon Respondents, William J. Noon, Backyard Creations, Inc., Steven B. Braun and Linda M. Braun, to show cause, if any they may have, why Evan C. Pappas, Esquire, Kenneth J. McDermott, Esquire, and the law firm of Shumaker Williams, P.C., should not be granted leave to withdraw as counsel; (2) Respondents shall file an answer to the Petition within twenty (20) days of service of this Order; (3) D rn c.<.1 The Petition shall be decided under Pa.R.C.P. 206.7. (4) Notice of the entry of this Order shall be provided to all parties by Petitioner. BY THE COURT: Distribution: Evan C. Pappas, Esquire, Shumaker Williams, P.C., P.O. Box 88, Harrisburg, PA 17108 Jason P. Kutulakis, Esquire, Abom & Kutulakis, 2 W. High Street, Carlisle, PA 17013 Backyard Creations, Inc., 1560 Tilco Drive, Suite A, Frederick, MD 21704 Stephen B. Braun, 1560 Tilco Drive, Suite A, Frederick, MD 21704 Linda M. Braun, 1560 Tilco Drive, Suite A, Frederick MD 21704 CERTIFICATE OF SERVICE I, Evan C. Pappas, Esquire, of the law firm of Shumaker Williams, P.C., hereby certify that I served a true and correct copy of the foregoing Petition to Make Order/Rule Absolute on this date by depositing a copy of the same in the possession of the United States mail, first-class, postage prepaid, addressed as follows: Dated: August 13, 2014 Jason P. Kutulakis, Esquire Abom & Kutulakis 2 West High Street Carlisle, PA 17013 Backyard Creations, Inc. 1560 Tilco Drive, Suite A Frederick, MD 21704 Stephen B. Braun 1560 Tilco Drive, Suite A Frederick, MD 21704 Linda M. Braun 1560 Tilco Drive, Suite A Frederick, MD 21704 Evan C. Pappas P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 WILLIAM J. NOON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION — LAW BACKYARD CREATIONS, INC., STEVEN B. BRAUN, President and Individually, and LINDA M. BRAUN, Secretary/ Treasurer and Individually, Defendants : NO. 11-8279 CIVIL TERM IN RE: PETITION TO MAKE RULE/ORDER ABSOLUTE ORDER OF COURT AND NOW, this 22nd day of August, 2014, upon consideration of the Petition To Make Rule Absolute, IT IS HEREBY ORDERED that Evan C. Pappas, Esquire, Kenneth J. McDermott, Esquire, and the law firm of Shumaker Williams, P.C., shall be granted leave to withdraw as counsel for Defendant, Backyard Creations, Inc., Steven B. Braun, and Linda M. Braun, in the above -captioned action. IT IS NOTED that the record reflects that there has been a Stipulation filed by the parties which may have resolved the litigation. To the extent that the litigation has not been resolved, Backyard Creations, Inc., shall obtain new counsel within 30 days of the date of this Order. Jason P. Kutulakis, Esq. Lauren E. Hokamp, Esq. 2 West High Street Carlisle, PA 17013 Attorneys for Plaintiff Xan C. Pappas, Esq. q Kenneth J. McDermott, Esq. P.O. Box 88 Harrisburg, PA 17108 BY THE COURT, We -‘x Chrisfylee L. Peck, J. C-.) r^a cza cur— N -3c:::. —< D CTS c—) i G ,; t ,/backyard Creations, Inc. 1560 Tilco Drive Suite A Frederick, MD 21704 —&ephen B. Braun 1560 Tilco Drive Suite A Frederick, MD 21704 Linda M. Braun 1560 Tilco Drive Suite A Frederick, MD 21704 :rc eapi I. es Mai tcr.L. eALfly --�-r► J WILLIAM J. NOON, : IN THE COURT OF COMMON PLEAS OF Plaintiff v. BACKYARD CREATIONS, INC., STEVEN B. BRAUN, President and Individually, and LINDA M. BRAUN, Secretary/Treasurer and Individually, Defendants : CUMBERLAND COUNTY, PENNSYLVANIA : Civil Action No. 11-8279 : CIVIL ACTION — LAW PRAECIPE TO WITHDRAW APPEARANCE TO: PROTHONOTARY Pursuant to the August 22, 2014 Order of Court, please withdraw the appearance of Evan C. Pappas, Esquire, Kenneth J. McDermott, Esquire, and the law firm of Shumaker Williams, P.C. as counsel for Defendants, Backyard Creations, Inc., Steven B. Braun and Linda M. Braun, in the above -captioned matter. a a, r) -u Dated: August 27, 2014 By :261828 ' .. ILLIAM: ' f&o,{P-) r10 ----.---- — van C. Pappas, I.D. #200103 Kenneth J. McDermott, LD: #205555 P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 CERTIFICATE OF SERVICE I, Evan C. Pappas, Esquire, of the law firm of Shumaker Williams, P.C., hereby certify that I served a true and correct copy of the foregoing Praecipe to Withdraw Appearance on this date by depositing a copy of the same in the possession of the United States mail, first-class, postage prepaid, addressed as follows: Jason P. Kutulakis, Esquire Abom & Kutulakis 2 West High Street Carlisle, PA 17013 Backyard Creations, Inc. 1560 Tilco Drive, Suite A Frederick, MD 21704 Stephen B. Braun 1560 Tilco Drive, Suite A Frederick, MD 21704 Linda M. Braun 1560 Tilco Drive, Suite A Frederick, MD 21704 Dated: August 27, 2014 By SHU I •_. S ow, , P.C. Ivan C. Pappas P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 OM& LITULAKIS Jason P. Kutulakis, (Esquire Attorney I.D. #: 80411 2 West 1 ligh Street Carlisle, Pel 17013 (717) 249-0900 WILLIAM J. NOON 37 Nicholas Drive Carlisle, PA 17015 Plaintiff v. BACKYARD CREATIONS, INC. 1560 Tilco Drive, Suite A Fredrick, MD 21704 and STEVEN B. BRAUN, President and Individually 1560 Tilco Drive, Suite A Fredrick, MD 21704 and LINDA M. BRAUN, Secretary/Treasurer and Individually 1560 Tilco Drive, Suite A Fredrick, MD 21704 Defendants THE PROT ONO n dli4 DEC 17 P11 2:.2.3 CUPENN YLVA1 A COUNT f : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, : PENNSYLVANIA : FILE NO.: 2011-8279 : CIVIL ACTION — LAW PLAINTIFF'S MOTION TO COMPEL DEFENDANT, BACKYARD CREATIONS, INC. TO OBTAIN LEGAL COUNSEL PURSUANT TO COURT ORDER DATED AUGUST 22, 2014 AND NOW, this 17`x' day of December, 2014, comes Plaintiff by and through his counsel, Jason P. Kutulakis, Esquire, of Abom & Kutulakis, L.L.P., and hereby files the within Motion to Compel Defendant, Backyard Creations, Inc., to obtain Legal Counsel pursuant to the Court Order dated August 22, 2014, and hereinafter avers as follows: 1. On or about August 22, 2014, this Honorable Court entered an Ordering permitting leave for Evan C. Pappas, Esquire, Kenneth J. McDermott, Esquire, and the law firm of Shumaker Williams, P.C., to withdraw as Defendants' Counsel in the above- referenced matter. (See Order of Court, attached and marked as Exhibit A). 2. The August 22, 2014 Order also directed Backyard Creations, Inc. to obtain new counsel within thirty (30) days of the Order. 3. Thirty days (30) days from the Order elapsed on September 22, 2014. 4. On or about August 29, 2014, Evan C. Pappas, Esquire, Kenneth J. McDermott, Esquire, and the law firm of Shumaker Williams, P.C., filed their Praecipe to Withdraw as attorneys for Defendants. (See Praecipe, attached and marked as Exhibit B.) 5. To date, Defendant, Backyard Creations, Inc., has not obtained new legal counsel in the matter as directed by the Court's Order. 6 In fact, on October 16, 2014, Undersigned sent Backyard Creations, Inc. correspondence .reminding them of the Court Order and the need to obtain new legal counsel in this matter. (See Correspondence dated October 16, 2014, attached and marked as Exhibit C). 7. Backyard Creations, Inc. has failed to obtain legal counsel to date. 8. Defendant, Backyard Creations, Inc., has been dilatory in failing to obtain new counsel and has caused Plaintiff to incur unnecessary Attorney's fees in this matter due to their dilatory conduct. 9. It is imperative that Backyard Creations, Inc. be compelled to obtain new legal counsel in this matter to move the case forward. WHEREFORE, Plaintiff respectfully requests this Honorable Court Compel Defendant, Backyard Creations, Inc., to comply with the Court's Order from August 22, 2014, and obtain new legal counsel; as well as, award Plaintiff's Attorney's fees in the amount of $454.50. DATE Respectfully submitted, ABO & KUTU s, LLP. k 1 Jaso . I �E kis, squire 2 W-st High Street Carlisle, PA 17013 (717) 249-0900 Attorney for Plaintiff ID No. 80411 WILLIAM J. NOON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION — LAW BACKYARD CREATIONS, . INC., STEVEN B. BRAUN, . President and Individually, and . LINDA M. BRAUN, Secretary/ : Treasurer and Individually, Defendants : NO. 11-8279 CIVIL TERM IN RE: PETITION TO MAKE RULE/ORDER ABSOLUTE ORDER OF COURT AND NOW, this 22nd day of August, 2014, upon consideration of the Petition To Make Rule Absolute, IT IS HEREBY ORDERED that Evan C. Pappas, Esquire, Kenneth J. McDermott, Esquire, and the law firm of Shumaker Williams, P.C., shall be granted leave to withdraw as counsel for Defendant, Backyard Creations, Inc., Steven B. Braun, and Linda M. Braun, in the above -captioned action. IT IS NOTED that the record reflects that there has been a Stipulation filed by the parties which may have resolved the litigation. To the extent that the litigation has not been resolved, Backyard Creations, Inc., shall obtain new counsel within 30 days of the date of this Order. Jason P. Kutulakis, Esq. Lauren E. Hokamp, Esq. 2 West High Street Carlisle, PA 17013 Attorneys for Plaintiff Xan C. Pappas, Esq. Kenneth J. McDermott, Esq. P.O. Box 88 Harrisburg, PA 17108 BY THE COURT, WILLIAM J. NOON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : Civil Action No. 11-8279 c� c-); --, BACKYARD CREATIONS, INC., : CIVIL ACTION — LAW -off 1-'1-_-1Y STEVEN B. BRAUN, President and cC' �" rri Individually, and LINDA M. BRAUN,C. v +.a Secretary/Treasurer and Individually, :_ y Defendants <C' -o Cr -/I x- PRAECIPE TO WITHDRAW APPEARANCE x c; > TO: PROTHONOTARY Pursuant to the August 22, 2014 Order of Court, please withdraw the appearance of Evan C. Pappas, Esquire, Kenneth J. McDermott, Esquire, and the law firm of Shumaker Williams, P.C. as counsel for Defendants, Backyard Creations, Inc., Steven B. Braun and Linda M. Braun, in the above -captioned matter. ILLIAM Dated: August 27, 2014 By van C. Pappas, I.D. #200103. Kenneth J. McDermott, I.D: #205555 P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 :261828 EXHIBIT I i'r'k ri . CERTIFICATE OF SERVICE I, Evan C. Pappas, Esquire, of the law firm of Shumaker Williams, P.C., hereby certify that I served a true and correct copy of the foregoing Praecipe to Withdraw Appearance on this date by depositing a copy of the same in the possession of the United States mail, first-class, postage, prepaid, addressed as follows: Jason P. Kutulakis, Esquire Abom & Kutulakis 2 West High Street Carlisle, PA 17013 Backyard Creations, Inc. 1560 Tilco Drive, Suite A Frederick, MD 21704 Stephen B. Braun 1560 Tilco Drive, Suite A Frederick, MD 21704 Linda M. Braun 1560 Tilco Drive, Suite A Frederick, MD 21704 Dated: August 27, 2014 By SHU I S, P.C. 0211°'^ van C. Pappas P.O. Box 88 Harrisburg, PA 17108 (717) 763-1121 Backyard Creations, Inc. 1560 Tilco Drive Suite A Frederick, MD 21704 OM .L[TLILAKIS ATTORNEYS AT LAW October 16, 2014 Re: William J. Noon v. Backyard Creations, Inc., et al. Docket No: 2011-8279 Our File No: 11-351 To Whom It May Concern: OFFICE LOCATIONS CARLISLE OFFICE (717) 249-0900 HARRISBURG OFFICE (717) 232-9511 CHAMBERSBURG OFFICE (717) 267-0900 YORK OFFICE (717) 846-0900 The Court Order, dated August 22, 2014, has elapsed, wherein Backyard Creations, Inc. was to retain legal counsel. Once again, I would like to discuss the opportunity to reach an amicable resolution before proceeding. If I do not hear from you by October 24, 2014, we will file a Motion to Compel Backyard Creations, Inc. to retain counsel. We would also require your cooperation in identifying a pathway to trial in this case, but are impeded by the fact that Backyard Creations, Inc. has not retained counsel. Certainly individuals may continue to be represented, pro se, that is without counsel, however corporations may not do so. It is imperative that we move this case forward as there has been a protracted delay directly related to Backyard Creations. I look forward to hearing from you promptly. Very truly yours, & Kutulakis, LLP on P. Kutulakis JPK/slf cc: William J. Noon Reply To: 2 WEST HIGH STREET CARLISLE, PENNSYLVANIA 17013 (717) 249-0900 Fax (717) 249-3344 EXHIBIT do CERTIFICATE OF SERVICE AND NOW, this 17`h day of December, 2014, I, Shannon Freeman, of Abom & Kutulakis, LLP, hereby certify that I did serve a true and correct copy of the foregoing Plaintiffs Motion to Compel Defendant, Backyard Creations, Inc., to obtain new legal counsel pursuant to the August 22, 2014 Order of Court by depositing, or causing to be deposited, same in the United States Mail, first-class mail, postage prepaid addressed to the following: Backyard Creations, Inc. 1560 Tilco Drive Suite A Frederick, MD 21704 Stephen B. Braun 1560 Tilco Drive Suite A Frederick, MD 21704 Linda M. Braun 1560 Tilco Drive Suite A Frederick, MD 21704 LULL2 W. e n.O Shannon Fre man WILLIAM J. NOON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION — LAW BACKYARD CREATIONS, INC., STEVEN B. BRAUN, President and Individually, and LINDA M. BRAUN, Secretary/ Treasurer and Individually, Defendants : NO. 11-8279 CIVIL TERM IN RE: PLAINTIFF'S MOTION TO COMPEL DEFENDANT BACKYARD CREATIONS, INC., TO OBTAIN LEGAL COUNSEL PURSUANT TO COURT ORDER DATED AUGUST 22, 2014 ORDER OF COURT AND NOW, this 29th day of December, 2014, upon consideration of Plaintiff's motion to compel, and the Court noting Defendants were previously ordered to obtain counsel as they are a corporation, and the Court noting no counsel has yet entered an appearance on behalf of Defendants, the motion to compel is hereby granted to the extent that Defendants are ordered to obtain counsel within 30 days of the date of this Order. Defendants are advised that, should they fail to do so, this Court may impose sanctions on them without a hearing, including ordering the payment of Plaintiff's counsel fees and other monetary sanctions upon further petition by Plaintiff's counsel. In all other respects, Plaintiff's motion to compel is denied. BY THE COURT, fPee4. Q Zason P. Kutulakis, Esq. Chris ylee L. Peck, J. zc� Lauren E. Hokamp, Esq. 2 West High Street --� Carlisle, PA 17013 Attorneys for Plaintiff #'ckyard Creations, Inc. 1560 Tilco Drive Suite A Frederick, MD 21704 'ephen B. Braun 1560 Tilco Drive Suite A Frederick, MD 21704 inda M. Braun 1560 Tilco Drive Suite A Frederick, MD 21704 :re L'o iES riZti-CcLo