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HomeMy WebLinkAbout11-8915IN THE COURT OF COMMON PLEAS OF THE 9 m JUDICIAL DISTRICT OF PENNSYLVANIA-CUMBERLAND COUNTY P. Roger Stival, Jr. and Judy Beitzel-Stival, Civil Action - Law c -am ? -*a --? Plaintiffs am rrn rn- - Z:d C 7 N r -urn ? vs. No. 11 - 8915 -< :X r-z : ° a 5-n Brian M. Dorsey t/d/b/a ?a = o Dorsey Construction, Defendant DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 1028 NOW comes Defendant Brian M. Dorsey, by his attorneys, Kulla, Barkdoll, Ullman & Painter, P.C., and sets forth the following: PRELIMINARY MATTER 1. The Plaintiffs in the above referenced matter are P. Roger Stival, Jr. and Judy Beitzel- Stival, who reside at 1000 Highfield Court, Mechanicsburg, Pennsylvania 17055. 2. The Defendant in this instant matter is Brian M. Dorsey, an adult individual t/d/b/a Dorsey Construction, residing at 61 Lenwood Park, Shippensburg, Pennsylvania 17257, and who is represented by the undersigned counsel. 3. On November 30, 2011, the Plaintiff filed the attached Complaint, marked as Exhibit A, to the Cumberland County Prothonotary's office and forwarded same to the undersigned, via certified mail. PRELIMINARY OBJECTION PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 1028 (a)(3) 4. The Plaintiff s attached Complaint is lacking based on insufficient specificity in said pleading. The Plaintiff fails to specifically plead inter alia to the following: A. In Counts I-III, what specifically the Defendant's failure to perform the work in a "workmanlike manner" means. B. In Counts I-VI, how the seemingly arbitrary amounts for damages are calculated or explained for the separate contracts and what the damages are specifically. C. In Count VII, how the Defendant's alleged failure to comply with certain provisions of the Pennsylvania Home Improvement Consumer Protection Act caused $250,000 in damages. D. In Count VIII, the specific sections and/or subsections of the Pennsylvania Unfair Trade Practices and Consumer Protection Law the Defendant allegedly violated and what acts the Defendant engaged in to violate the section or subsection. WHEREFORE, it is requested that this Honorable Court dismiss the Plaintiff's Complaint. Date: /)-- 2 r , 2011 Stephen D. Kulla, Esquire Supreme Court ID 59003 Kulla, Barkdoll, Ullman & Painter, P.C. 9 East Main Street Waynesboro, PA 17268 717-762-3374 40 VERIFICATION I verify that the statements made in the attached document are true and correct to the best of my knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.§4904, relating to unworn falsifications to authorities. Date: -- 1- i , 2011 Stephen D. Kulla, Esquire IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA-CUMBERLAND COUNTY BRANCH P. Roger Stival, Jr. and Judy Beitzel-Stival, Civil Action - Law Plaintiffs vs. No. 11 - 8915 Brian M. Dorsey t/d/b/a Dorsey Construction, Defendant NOTICE TO PLEAD To: P. Roger Stival, Jr. and Judy Beitzel-Stival. You are hereby notified to plead to the enclosed Preliminary Objections within twenty days (20) from service hereof or a judgment may be entered against you. KULLA, B 7 AN PAINTER 77-- Stephen D. Kulla, Esquire Pa. Supreme Court ID # 59003 9 East Main Street Waynesboro, PA 17268 (717) 762-3374 Attorney for Defendant CERTIFICATE OF SERVICE I DO HEREBY CERTIFY that on this date I caused the foregoing Preliminary Objections to be served via regular U.S. mail, addressed as follows: Ronald L. Finck, Esquire Mette, Evans & Woodside 3401 North Front Street Harrisburg, PA 17110-0950 Date: December, 2011 Step en D. Kulla, Esquire Attorney for Defendant P. Roger Stival, Jr. and Judy Beitzel-Stival, Plaintiffs vs. Brian M. Dorsey t/d/b/a Dorsey Construction, Defendant Civil Action - Law No. 11 - 8915 PRAECIPE TO WITHDRAW APPEARANCE TO THE PROTHONOTARY:. c M, =M m r r. x= r- = .C Z ? Please withdraw the appearance of Stephen D. Kulla, Esquire, of Kulla, Barkdoll, i Tllman & Painter, P.C., as counsel for Defendant Brian M. Dorsey t/d/b/a Dorsey Construction. PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of Defendant, Brian M. Dorsey t/d/b/a Dorsey Construction in the above captioned case. Respectfully submitted, Christopher M. Reeser, Esquire 4200 Crums Mill Rd., Suite B Harrisburg, PA 17112 9 E. Main St. Waynesboro, PA 17268 r r MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID#73632 4200 Crums Mill Road Harrisburg, PA 17112 717-651-3509 Our File No. 13571-00119 Attorney for Defendant P. ROGER STIVAL, JR. and COURT OF COMMON PLEAS JUDY BEITZEL-STIVEL CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs No 11-8915 vs. CIVIL ACTION - LAW BRIAN DORSEY t/d/b/a DORSEY CONSTRUCTION JURY TRIAL DEMANDED Defendants CERTIFICATE OF SERVICE I, Christopher M. Reeser, Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on January 4, 2012, I served a copy of Defendants Withdrawal of Appearance and Entry of Appearance via First Class United States mail, postage prepaid as follows: Ronald L. Finck, Esquire Mette, Evans & Woodside 3401 North Front Street P O Box 5950 Harrisburg, PA 17110-0950 Attorney for Plaintiffs Stephen D. Kulla, Esquire Kulla Barkdoll Ullman & Painter, PC 9 East Main Street Wayn sboro, PA 17268 ? f. Christopher M. Reeser SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson F11 1.. E C t r°, t. Sheriff f l. C T 'r I ' r v `iG? u iAPti Jody S Smith Chief Deputy Richard W Stewart Solicitor V V OFF ? . cRiF?- L-11.?A,-1 10 Phi 4* 10 P. Roger Stival, Jr. Case Number vs. 2011-8915 Brian Dorsey SHERIFF'S RETURN OF SERVICE 12/01/2011 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: Brian Dorsey, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of Franklin County, Pennsylvania to serve the within Complaint and Notice according to law. 12/07/2011 09:25 AM - Franklin County Return: And now December 7, 2011 at 0925 hours I, Dane Anthony, Sheriff of Franklin County, Pennsylvania, do hereby certify and return that I served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Brian Dorsey by making known unto Natalie Dorsey, Wife of Defendant at 61 Lenwood Park, Shippensburg, Pennsylvania 17257 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $38.32 January 05, 2012 ?,r; Jou! ?iL. Shag `E t c'. ??sc+4. ? _, SO ANSWERS, RON R ANDERSON, SHERIFF SHERIFF'S RETURN - REGULAR CASE NO: 2011-00264 T COMMONWEALTH OF PENNSYLVANIA: COUNTY OF FRANKLIN P ROGER STIVAL JR ET AL VS BRIAN DORSEY T/D/B/A DORSEY CO ANGEL L LAVIENA Deputy Sheriff of FRANKLIN County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT AND NOTICE was served upon DORSEY BRIAN the DEFENDANT , at 0925:00 Hour, on the 7th day of December-, 2011 at 61 LENWOOD PARK SHIPPENSBURG, PA 17257 NATALIE DORSEY WIFE by handing to a true and attested copy of COMPLAINT AND NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: .00 .00 ANGEL L A .00 .00 B .00 Deputy Sheriff .00 12/27/2011 RONALD L FINCK ESQ Sworn and Subscribed to before me this day of o20 // A.D. Notary COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL RICHARD D. McCARTY, Notary Public Charr;hersburg Soro., Franklin County MY Commission Expires Jan. 29, 2015 r, iLED-OFFICE ' OF THE PROTHONOTARY 2012 JAN 1 i AM 11: IS CUMBERLAND COUNTY Ronald L. Finck, Esquire PENNSYLVANIA Pa. Sup. Ct. I.D. No. 89985 METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Phone: (717) 232-5000 Fax: (717) 236-1816 rlfinck(a,mette.com P. ROGER STIVAL, JR. and JUDY IN THE COURT OF COMMON PLEAS BEITZEL-STIVAL, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. : NO. 11-8915 BRIAN DORSEY t/d/b/a DORSEY CONSTRUCTION, CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED PLAINTIFFS' RESPONSE TO PRELIMINARY OBJECTIONS OF DEFENDANT The Plaintiffs, Roger Stival, Jr. and Judy Beitzel-Stival (collectively, the "Plaintiffs") by and through their attorneys, METTE, EVANS & WOODSIDE, file this Response to the Preliminary Objections of Defendant, Brian M. Dorsey t/d/b/a Dorsey Construction ("Defendant") as follows: PRELIMINARY MATTER 1. Admitted. 2. Admitted. 3. Admitted in part, denied in part. It is admitted that the Plaintiffs filed a Complaint against the Defendant on November 30, 2011. It is further admitted that the undersigned counsel for the Plaintiffs forwarded a copy of the Complaint to former counsel for the Defendant, Stephen D. Kulla, Esquire by United States Mail along with a request to accept service. It is specifically denied that the Complaint was forwarded by certified mail. By way of further answer, Plaintiffs did not receive an acceptance of service from counsel for Defendant. At the time of the Complaint was filed, Plaintiffs also arranged for personal service by the Cumberland County Sheriff. PRELIMINARY OBJECTION PURSUANT TO PENNSYLVANIA RULES OF CIVIL PROCEDURE 1028(a)(3) 4. Denied. The averments of paragraph 4 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent paragraph 4 refers to the Plaintiffs' Complaint, said Complaint is a written document which as such speaks for itself. To the extent the Defendant mischaracterizes, misinterprets, misrepresents, misquotes, elaborates upon, or removes the contexts of the writing from their context, said averments are denied and strict proof thereof is demanded. WHEREFORE, Plaintiffs respectfully request that this Court enter an Order denying the Defendant's Preliminary Objections and instructing the Defendant to file an Answer to the Plaintiffs' Complaint. In the alternative, Plaintiffs request leave to amend the Complaint. Respectfully submitted, METTE, EVANS & WOODSIDE By: 6?OM4? 1 _ 446n,. Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 2 (717) 232-5000 - Phone (717) 236-1816 - Fax rlfinck@mette.com Attorneys for Plaintiffs Date: January 10, 2012 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Christopher M. Reeser, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorneys for Defendant METTE, EVANS & WOODSIDE BY: Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiffs DATE: January 10, 2012 549977v1 c? IA PRAECIPE FOR LISTING CASE FOR ARGUMENT ; °'4c?`..`.`` Gar ic, L- PROTHONOTAR'i (Must be typewritten and submitted in triplicate) M12 JAN 2b PPS 1:59 TO THE PROTHONOTARY OF CUMBERLAND COUNTY: CUMBERLAND COUNTY PENNSYLVANIA P. ROGER. STIVAL, JR. and COURT OF COMMON PLEAS JUDY BEITZEL-STIVEL CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs vs. BRIAN DORSEY t/d/b/a DORSEY CONSTRUCTION No. I1-8915 CIVIL ACTION -- LAW JURY TRIAL DEMANDED Defendants etc.): 1. State matter to be argued (i.e.., plaintiffs motion for new trial, defendant's demurrer to complaint, Defendant's Preliminary Objections 2. Identify counsel who will argue cases: a. for plaintiff. Ronald L. Finck, Esquire Mette, Evans & Woodside 3401 North Front Street P O Box 5950 Harrisburg, PA 17110-0950 b, for defendant: Christopher M. Reeser, Esquire Marshall Dennehey Warner Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendant 3. I will notify all parties in writing within two days that this case has been listed for argument. Certificate of Service is attached hereto. 4. Argument Court Date: February 24, 2012 Q ua iq.9S a ? k ? as Nay F a?va?7 L Signature Christopher M. Reeser, Esquire Attorney for Defendant Dated: January 18, 2012 MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID#73632 4200 Crums Mill Road Harrisburg, PA 17112 717-651-3509 Our File No. 13571-00119 Attorney for Defendant P. ROGER STI`'AL, JR. and COURT OF COMMON PLEAS JUDY BEITZEL-STIVEL CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs No. 11-8915 VS. CIVIL ACTION - LAW BRIAN DORSEY t/d/b/a DORSEY CONSTRUCTION JURY TRIAL DEMANDED Defendants CERTIFICATE OF SERVICE I, Christopher M. Reeser, Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on January 18, 2012, I served a copy of Defendants Praecipe for Listing Case for Argument via First Class United States mail, postage prepaid as follows: Ronald L. Finck, Esquire Mette, Evans & Woodside 3401 North Front Street P O Box 5950 Harrisburg, PA 17110-0950 Attorney for Plaintiffs Stephen D. Kulla, Esquire Kulla Barkdoll Ullman & Painter, PC 9 East Main Street Wayne- Pro, PA 17268 Christopher M. Reeser i ?.. ? Fes' 1i7'v TM '0 TiA F' CUMBERLAND COUNTY PENNSYLVANIA MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID#73632 4200 Crums Mill Road Harrisburg, PA 17112 717-651-3509 Our File No. 13571-00119 Attorney for Defendant P. ROGER STIVAL, JR. and JUDY BEITZEL-STIVAL Plaintiffs VS. BRIAN DORSEY t/d/b/a DORSEY CONSTRUCTION Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 11-8915 CIVIL ACTION - LAW JURY TRIAL DEMANDED STIPULATION The parties hereby Stipulate and Agree as follows: 1. Defendants' Preliminary Objections filed on or about December 27, 2011, are withdrawn. 2. Defendants shall Answer plaintiffs Complaint filed on November 30, 2011. Defendants shall have 30 days from the date of the filing of this Stipulation to file its Answer to plaintiffs Complaint. Page 1 of 2 Mette, Evans & Woodside Marshall Dennehey Warner Coleman & Goggin By: V pnd, By: Ronald L. Finck, Esquire Christopher M. Reeser, Esquire 3401 North Front Street 4200 Crums Mill Road P O Box 5950 Harrisburg, PA 17112 Harrisburg, PA 17110-0950 Attorney for Defendants Attorney for Plaintiffs Page 2 of 2 MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID#73632 4200 Crums Mill Road Harrisburg, PA 17112 717-651-3509 Our File No. 13571-00119 Attorney for Defendant P. ROGER STIVAL, JR. and COURT OF COMMON PLEAS JUDY BEITZEL-STIVEL CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs No. 11-8915 VS. CIVIL ACTION - LAW BRIAN DORSEY t/d/b/a DORSEY CONSTRUCTION JURY TRIAL DEMANDED Defendants CERTIFICATE OF SERVICE I, Christopher M. Reeser, Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on March 15, 2012, I served a copy of Stipulation via First Class United States mail, postage prepaid as follows: Ronald L. Finck, Esquire Mette, Evans & Woodside 3401 North Front Street P O Box 5950 Harrisburg, PA 17110-0950 Attorney for Plaintiffs Christopher M. Reeser MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID#73632 4200 Crums Mill Road Harrisburg, PA 17112 717-651-3509 Our File No. 13571-00119 Attorney for Defendant 't Vil Iy P. ROGER STIVAL, JR. and JUDY BEITZEL-STIVEL Plaintiffs vs. BRIAN DORSEY t/d/b/a DORSEY CONSTRUCTION Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 11-8915 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO: P. Roger Stival, Jr. and Judy Beitzel-Stivel c/o Ronald L. Finck, Esquire Mette, Evans & Woodside 3401 North front Street Harrisburg, PA 17110-0950 Attorney for Plaintiff You are hereby notified to plead to the enclosed Answer with New Matter within twenty (20) days from service hereof or a default judgment may be filed against you MARSHALL DENNEHEY WARNER COLEM . GGIN By: -L eff:. Christopher M. Reeser, Esquire Attorney for Defendant ID# 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3509 Dated: May 1, 2012 05/83471 Lv1 13571-00119 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire Attorney Identification No.: 73632 4200 Crums Mill Road Harrisburg, PA 17112 (717) 651-3509 Attorneys for Defendant P. ROGER STIVAL, JR. and JUDY BEITZEL-STIVAL Plaintiffs vs. BRIAN DORSEY t/d/b/a DORSEY CONSTRUCTION Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 11-8915 CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER OF DEFENDANT BRIAN DORSEY T/D/B/A DORSEY CONSTRUCTION, TO PLAINTIFFS' COMPLAINT WITH NEW MATTER 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. The allegation in Paragraph 7 is a legal conclusion, to which no responsive pleading is required. 8. Admitted. 9. Plaintiffs sought to perform alterations to portions of their residence. It is denied that the decision to perform such alterations was made by Plaintiffs prior to February, 2011, as Answering Defendant does not have sufficient information to form a belief as to the truth or falsity of that allegation. 10. Admitted in part; denied in part. It is admitted that Plaintiffs solicited proposals from Dorsey in approximately February, 2010. It is denied that Plaintiffs solicited proposals from another contractor, as Answering Defendant does not have sufficient information to form a belief as to the truth or falsity of that allegation. 11. It is admitted that Defendant Dorsey held himself out as having the requisite knowledge, experience and capacity to perform the work for which he contracted with the Plaintiffs or that he would hire subcontractors to perform the work. 12. Denied. Defendant, Dorsey Construction ("Dorsey"), does not have any employees and Dorsey did not inform Plaintiffs that the contracted work would be performed by a crew of six people. Dorsey did inform Plaintiffs that subcontractors would be hired to perform portions of the contracted work. 13. Admitted. 14. Admitted. 15. Admitted. 16. Admitted. 17. Admitted. 18. Denied pursuant to Pa.R.C.P. 1029(e). 19. Admitted. 20. Admitted. 21. Admitted. 22. Admitted. 23. Admitted. 24. Admitted. 25. Admitted in part; denied in part. It is admitted that the application does not specifically state that it is for the bathroom remodel contract or the kitchen remodel contract. However, it is denied that a building permit was necessary specifically for a bathroom remodel or kitchen remodel contract. 26. Admitted. 27. Admitted. 28. Admitted. 29. It is admitted that the excavation work began in the timeframe within a week of July 11, 2011. 30. Denied. The written contracts provide for delegation of any portion of the work to a subcontractor. The excavator was a subcontractor. By way of further answer, Dorsey had verbally advised Plaintiffs that he would use subcontractors on the job and that he did not have any employees of his own. 31. Admitted upon information and belief. 32. Admitted upon information and belief. 33. Admitted upon information and belief. 34. Admitted upon information and belief. 35. Denied as stated. While it is admitted that there were discussions about installing a new roof on the existing portion of Plaintiffs' residence, discussions regarding the new roof were triggered by a request made by Plaintiff, Roger Stival. 36. Admitted. 37. Admitted. 38. Admitted. 39. No response is required. 40. Denied as stated. While there was not a "demand" made for the second job in the amount of $37,500 on or about August 19, 2011, Dorsey did speak with both Plaintiffs about needed the next draw to purchase the materials for the roof, the lumber and work related to closing in the garage and great room. 41. It is denied that a demand was made. The request for the second draw was made to both Mr. and Mrs. Stival. 42. Denied. Dorsey had spoken with the Plaintiffs about the second draw, and it is unknown who authorized payment to be made. 43. Denied pursuant to Pa.R.C.P. 1029(e). 44. Admitted in part; denied in part. It is admitted that Judy Stival submitted a check representing the second draw in the amount of $37,500 to Dorsey. The draw was never "demanded." 45. Denied. Upon information and belief, Plaintiffs were fully aware of the purpose of the second draw of $37,500. 46. Admitted. 47. Denied. Plaintiffs decided that they did not want brick on the garage addition. The Plaintiffs changed their minds multiple times about what they wanted the space that was originally to be a garage to become. Eventually, the Plaintiffs decided to turn the garage into additional living space, instead of an extension of the garage itself. As a result, substantial changes had to be made to the original plans. The decisions on these changes were not made unilaterally, but were made in conjunction with the Plaintiffs. 48. Denied pursuant to Pa.R.C.P. 1029(e). Dorsey believes that he began removing existing the shingle roof from the residence around August 25, but cannot confirm that it was on that exact date. 49. Admitted. 50. Denied pursuant to Pa.R.C.P. 1029(e). 51. Denied as stated. It is admitted that Plaintiffs contacted Dorsey and informed Dorsey of a small amount of water entering into the main part of the residence where a reverse gable meets a wall. 52. Admitted. 53. Admitted. 54. Denied. Felt paper was used while shingles were removed, which serves as a weather barrier. 55. Denied. The substantial rainfall to which the home was subjected occurred after Dorsey was fired from the job. 56. Denied pursuant to Pa.R.C.P. 1029(e). 57. Denied pursuant to Pa.R.C.P. 1029(e). 58. Denied. What is attached to Plaintiffs' Complaint as Exhibit "H" is a restoration estimate, which was apparently entered on September 17, 2011. The report does not speak to the issue of any damage "as a result of Dorsey's failure to protect the residence's interior from the elements during the installation of the new roof," and in fact, upon information and belief, most, if not all, of the interior water damage suffered by the Plaintiffs was caused after Dorsey was fired from the job. 59. The allegation in Paragraph 59 is denied to the extent that any representation made by Musser Builders to the Plaintiffs regarding work performed by Dorsey is accurate. By way of further answer, the document attached to Plaintiffs' Complaint as Exhibit "I" speaks for itself. 60. Admitted. 61. Denied, pursuant to Pa.R.C.P. 1029(e). 62. Denied as stated. The money paid by Plaintiffs to Dorsey were funds paid specifically for labor and materials expended during the course of construction. 63. Denied, pursuant to Pa.R.C.P. 1029(e). By way of further answer, it is denied that plans for a kitchen remodel or bathroom remodel are required to be submitted to Monroe Township for approval. COUNTI BREACH OF EXPANSION CONTRACT 64. No responsive pleading is required. 65. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 65 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 66. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 66 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 67. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 67 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 68. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 68 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Defendant requests that judgment be entered it its favor. COUNT II BREACH OF GARAGE CONTRACT 69. No responsive pleading is required. 70. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 70 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 71. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 71 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 72. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 72 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 73. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 73 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Defendant requests that judgment be entered it its favor. COUNT III BREACH OF PORCH CONTRACT 74. No responsive pleading is required. 75. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 75 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 76. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 76 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 77. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 77 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 78. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 78 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Defendant requests that judgment be entered it its favor. COUNT IV BREACH OF KITCHEN REMODEL CONTRACT 79. No responsive pleading is required. 80. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 80 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 81. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 81 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 82. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 82 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 83. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 83 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 84. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 84 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e) 85. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 85 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e) WHEREFORE, Defendant requests that judgment be entered it its favor. COUNT V BREACH OF BATHROOM REMODEL CONTRACT 86. No responsive pleading is required. 87. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 87 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 88. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 88 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 89. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 89 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 90. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 90 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 91. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 91 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e) 92. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 92 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e) WHEREFORE, Defendant requests that judgment be entered it its favor. COUNT VI BREACH OF ROOFING CONTRACT 93. No responsive pleading is required. 94. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 94 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 95. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 95 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 96. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 96 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 97. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 97 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Defendant requests that judgment be entered it its favor. COUNT VII VIOLATION OF THE PENNSYLVANIA HOME IMPROVEMENT CONSUMER PROTECTION ACT 98. No responsive pleading is required. 99. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 99 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e) 100. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 100 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e) 101. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 101 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 102. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 102 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 103. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 103 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 104. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 104 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). 105. The allegations contained in this paragraph of Plaintiffs' Complaint are conclusions of law, to which no responsive pleading is required. To the extent that the allegations in Paragraph 105 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Defendant requests that judgment be entered it its favor. COUNT VIII VIOLATION OF THE PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 106. No responsive pleading is required. 107. The allegations contained in this paragraph of Plaintiffs' Complaint is a legal conclusion, to which no responsive pleading is required. To the extent that the allegations in Paragraph 107 are deemed to be factual, those allegations are denied pursuant to Pa.R.C.P. 1029(e) WHEREFORE, Defendant requests that judgment be entered it its favor. NEW MATTER 108. Defendant incorporates Paragraphs 1 through 107 of their Answer, as if set forth at length. 109. Plaintiffs have failed to state a claim upon which relief can be granted. 110. Defendant has breached no duty of care or contract described by Plaintiffs in their Complaint. 111. Plaintiffs dismissed Defendant, Brian Dorsey, on September 5, 2011, per a telephone call made by Plaintiffs' counsel or Plaintiffs' counsel's office to Mr. Dorsey. 112. Following Defendant's dismissal from the job site, Defendant could take no further action to protect any exposed areas of the property. 113. Upon information and belief, much, if not all, of the damages claimed by Plaintiffs occurred as a result of rainfall, which occurred in the week following the dismissal of Brian Dorsey. 114. To the extent that Brian Dorsey did not technically comply with the Home Improvement Consumer Protection Act, any such failure to comply with the Act was not the cause of any damages sustained by the Plaintiffs. 115. Defendant was not able to complete some partially finished work on the job site as a result of being unexpectedly terminated from the contracts on September 5, 2011. 116. All work performed by Defendant at Plaintiffs' home was of sound construction in both materials and installation procedures. WHEREFORE, Defendant requests that judgment be entered it its favor. Respectfully submitted: By: Dated: S l I i 05/83471 Lv I MARSHALL DENNEHEY WARNER COLE GOGGIN Christopher M. Reeser, Esquire Attorney for Defendant VERIFICATION The undersigned hereby verifies that the statements in the foregoing Answer to Complaint with New Matter are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparation of the defense of this lawsuit. The language of the Answer to Complaint with New Matter is that of counsel and not my own. I have read the Answer to Complaint with New Matter, and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the Answer to Complaint with New Matter are that of counsel, I have relied upon my counsel in making this verification. The undersigned also understands that the statements therein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. BY: Brian Dorsey C DATE: 13571-00119 /Answer MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID#73632 4200 Crums Mill Road Harrisburg, PA 17112 717-651-3509 Our File No. 13571-00119 Attorney for Defendant P. ROGER STIVAL, JR. and COURT OF COMMON PLEAS JUDY BEITZEL-STIVEL CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs No. 11-8915 VS. CIVIL ACTION - LAW BRIAN DORSEY t/d/b/a DORSEY CONSTRUCTION JURY TRIAL DEMANDED Defendants CERTIFICATE OF SERVICE I, Christopher M. Reeser, Esquire, of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on May 1, 2012, I served a copy of Defendant's Answer with New Matter via First Class United States mail, postage prepaid as follows: Ronald L. Finck, Esquire Mette, Evans & Woodside 3401 North Front Street P O Box 5950 Harrisburg, PA 17110-0950 Attorney for Plaintiffs Stephen D. Kulla, Esquire Kulla Barkdoll Ullman & Painter, PC 9 East Main Street Waynesboro, PA 17268 Christopher M. Reeser THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: 72668 P.O. Box 999 Harrisburg, PA 17108-0999 717/237-7132 Attorneys for Plaintiff MMG INSURANCE COMPANY 44 Maysville Street Presque Isle, ME 04769-07209, Plaintiff V. BRIAN M. DORSEY, P. ROGER STIVAL, JR. and JUDY BEITZEL- STIVAL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA r 7U: - 11-8915 CIVIL TERM =? NO _ . C--; a - = JURY TRIAL DEMANDED MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW, comes MMG Insurance Company, by its attorneys, Thomas, Thomas & Hafer, LLP, and moves for judgment on the pleadings based upon the following: 1. This is a declaratory judgment action initiated by MMG which is related to insurance coverage under a Special Trade Contractors Policy issued to Brian Dorsey by MMG Insurance Company under policy number SC10975677. A copy of said policy was attached to MMG's Declaratory Judgment Complaint as Exhibit "A." 2. Mr. Dorsey has been sued in the Cumberland County Court of Common Pleas by P. Roger Stival, Jr. and Judy Beitzel-Stival at Docket Number 11-8915 (The "Stival Action"). The substance of the allegations in the Stival Action are that Brian Dorsey breached a series of construction contracts for renovations to the Stival's home. 3. Following the initiation of litigation by the Stivals, Mr. Dorsey reported the lawsuit to MMG seeking a defense and indemnification for the claims raised in the Stival Action. 4. MMG subsequently agreed to provide a defense under a reservation of rights and initiated this declaratory judgment action seeking a determination from the Court as to whether a duty to defend arose by virtue of the allegations made in the Stival Action. 5. In Pennsylvania, an insurer's duty to defend is determined solely based upon the allegations in the underlying Complaint. 6. Based upon the facts alleged in the Stival Action, MMG has no coverage for the claims and has no duty to defend Mr. Dorsey in the Stival Action. WHEREFORE, Plaintiff MMG Insurance Company respectfully requests that the Court issue a declaratory judgment that MMG has no duty to defend or indemnify Brian Dorsey in the Stival Action. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Date: By: Kevin C. McNamara, Esquire I.D.#72668 Jason C. Giurintano, Esquire I . D.#89177 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-7132 CERTIFICATE OF SERVICE I, Kevin C. McNamara, Esquire, of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I have served a true and correct copy of the foregoing document on the following persons by placing same in the United States mail, postage prepaid, on the 5th day of June, 2012: Ronald L. Fink, Esquire Mette, Evans & Woodside P. O. Box 5950 Harrisburg, PA 17110 Stephen D. Kulla, Esquire Kulla, Barkdoll, Ullman & Painter, P.C. 9 East Main Street Waynesboro, PA 17268 THOMAS, THOMAS & HAFER, LLP By: e"'?? C /2-4 Kevin C. McNamara, Esquire Attorney I.D. 72668 Jason C. Giurintano, Esquire Attorney I.D. 89177 1077339.1 MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher r/1. Reeser, Esquire ID#73632 4200 Crums Mill Road Harrisburg, PA 17112 717-651-3509 Our File Ivio. 13571-00119 Attorney for Defendant t ', ~s p _.... ' C'7 . ~ -,:? '" N N ~t'~ ~ r« p ~'~ ~ ~ ;~°" . ,;~ ~ , _~ ' . ~ ~ - .C- P. ROGER STIVAL, JR. and JUDY BEITZEL-STIVAL Plaintiffs vs. BRIAN DORSEY t/d/b/a DORSEY CONSTRUUCTION Defendants COURT OF COMMON PLEAS CUMBERLAND COU]vTY, PENNSYLVANIA No. 11-8915 CIVIL ACTION -LAW JURY TRIAL DEMANDED PETITION OF CHRISTOPHER M. REESER, ESQUIRE OF MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN TO WITHDRAW AS COUNSEL FOR DEFENDANT BRIAN DORSEY T/D/B/A DORSEY CONSTRUCTION PURSUANT TO Pa.R.C.P. 1012(c) 1. Petitioner, Christopher M. Reeser, Esquire of Marshall, Dennehey, ~Narner, Coleman & Goggin, brings this Petition to Withdraw pursuant to Cumberland County Local Rule 206.1(a), as Pa.R.C.F'. 1012(c) designates this matter as a "Petition." 2. This matter arises out of a breach of contract action for Defendant Brian Dorsey's alleged breach of several home remodel/repair construction contracts, and alleged violations of the Pennsylvania Home Improvement Consumer Protection Act, and the Pennsylvania Unfair Trade Practices Act. 3. The Stival Plaintiffs initiated this matter by filing a Complaint on I~~:wember 30, 2011. 4. Plaintiffs' Complaint makes several allegations against Defendant concerning alleged defects in renovations to the Plaintiffs' home. The Summer 2011 renovations included expanding certain portions of the home and replacing a roof. 5. According to Plaintiffs' Complaint, Cumberland County experienced a hurricane beginning on or about Saturday, August 27, 2011. (Plaintiffs' Complaint at paragraph 49). 6. On August 28, 2011, Plaintiffs alleged they discovered significant flood damage in their kitchen, garage and in a new portion of their garage. 7. After some additional rainfall, Plaintiffs discovered more flood damage in their home on September 4, 201 1. 8. According to the Complaint, Plaintiffs terminated all contracts with Defendant on September 5, 2011. 9. At the time of the hurricane, Defendant Brian Dorsey t/d/b/a Dorsey Construction was insured under a policy of insurance with Maine Mutual Group (1\~IMG), policy no. SC 1097677. 10. After being served with the Complaint, L>efendant Brian Dorsey t/d,rb/a Dorsey Construction sought <~ defense and indemnification under this policy. 11. MMG issued a reservation of rights and assigned Petitioner and his firm as counsel for Defendant Brian Dorsey t/d/b/a Dorsey Construction. 2 1:?. MMG subsequently brought a declaratory judgment action against Brian M. Dorsey, P. Roger Stival, Jr., and Judy Beitzel-Stival in t:he Court of Common Pleas of Cumberland County, Docket No. 2012-1509. Defendant Brian M. Dorsey was represented by counsel, Stephen D.:Kulla, Esquire in that action. 13. MMG contended its policy of insurance with Brian Dorsey did not c-over the claims as described in the Stival Plaintiffs' Complaint. 1 ~~. MMG Insurance filed a Motion for Judgment on the Pleadings on April 20, 2012. See true and correct copy of MMG Insurance Company's Motion for Judgment on t:he Pleadings attached hereto as Exhibit A. l `i. Judge Placey and Judge Guido reviewed the parties' briefs and heard oral argument. "They determined MMG Insurance Company had no duty to defend or indemnify Brian Dorsey in the action styled P. Roger Stival and Judy Bietzel-Stival vs. Brian Dorsey t/d/b/a Dorse~onstruction . See true and correct copy of Judge Edward E. Guido's Order dated July 26, 2012 attached hereto as Exhibit I3. 16. The time to appeal the July 26, 201.2, Order has passed, and no appeal has been taken by MMG or thc; declaratory judgment Defendants.. 1 ~ . Pursuant to this Honorable Court's July 26, 2012 Order indicating MMG Insurance Company has no duty to defend and indemnify Brian Dorsey t/d/b/a Dorsey Construction, MMG has withdrawn t:he defense provided by Christopher M. Reeser, Esquire of Marshall, Dennehey, Warner, Coleman &Goggin. 18. Christopher M. Reeser and Marshall, Denrrehey, Warner, Coleman &Goggin respectfully request that where there is no duty to defend Defendant Brian Dorsey, he and his firm should be permitted to withdraw as counsel. 3 19. Consistent with Cumberland County Local Rule 208.2(d), undersigned counsel certifies ghat he requested the concurrence of Plaintiffs, through their counsel, and Mr. Brian Dorsey. Plaintiffs do not oppose this Petition. Mr. Brian Dorsey did not provide a response to our request for a concurrence in the relief requested in this Petition. 20. Undersigned counsel further certifies he has served a itrue and correc°t copy of this Petition and all Exhibits to Plaintiffs through their counsel and Mr. Brian Dorsey, whose address is 61 Lenwood Park, Shippensburg, PA 17257. 21. Petitioner respectfully requests this Honorable Court enter a Rule to Show Cause why he and his firm should not be permitted to withdraw as counsel i=or Defendant Brian Dorsey t/d/bia Dorsey Construction. WhIEREFORE, undersigned counsel, Christopher M. Reeser, Esquire and his firm, Marshall Dennehey AJarner Coleman & Goggin respectfully request that this Honorable Court enter a Rule to Show Cause why this Petition to Withdraw should not be granted, ~a1d to provide sufficient time for Defendant Brian Dorsey t/d/b/a Dorsey Construction to obtain substitute counsel of his choosing to avoid any potential prejudice to him. Respectfullly submitted, Dated MARSHALL DENNEH[EY WARNER COLEMAN & GOGGIyTJ Christopher M. Reeser, ]Esquire Attorney fc-r Defendant ID# 73632 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3 ~~09 4 F,LED-QFFIC G~ THE F'ROTtf4N0~":~r~`,'r THOMAS, THOMAS & HAFER, LLP Kevin C. McNamara, Esquire Identification Number: '72668 P.O. Box. 999 Harrisburg, PA 17108-0999 717/237-7132 Attorneys for Plaintiff MMG INSURANCE COMPANY 44 Maysville Street Presque Isle, ME 04769-07209, Plaintiff v. 2Ql2 APP 20 AM I I ~ 2~l CUMBEN~.ANO CQUNTY P~NNSYtVAN1A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 1a-150q NO.-~-89~4~-61VIL TERM BRIAN M. DORSEY, P. ROGER STIVAL, JR. and JUDY BEITZEL- STIVAL, Defendants JURY TRIAL DEMANDED MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW, comes MMG Insurance Company, by its attorneys, Thomas, Thomas & Hafer, LLP, and moves for judgment on the pleadings based upon the following: 1. This is a declaratory judgment action initiated by MMG which is related to insurance coverage under a Special Trade Contractors Policy issued to Brian Dorsey by MMG Insurance Company under policy number SC10975677. A copy of said policy was attached to MMG's Declaratory Judgment Complaint as E;Khibit "A." 2. Mr. Dorsey has been sued in the Cumberland County Court of Common Pleas by P. Roger Stival, Jr. and Judy Beitzel-Stival at Docket Number 11-8915 (The "Stival Action"}. The substance of the allegations in the Stival Action are that Brian Dorsey breached a series of construction contracts for renovations to the Stival's home. 3. Following the initiation of litigation by the Stivals, Mr. Dorsey reported the lawsuit to MMG seeking a defense and indemnification for the c;laims raised in the Stival Action. 4. MMG subsequently agreed to provide a defense under a reservation of rights and initiated this declaratory judgment action seeking a determination from the Court as to whether a duty to defend arose by virtue of the allegations made in the Stival Action. 5 In Pennsylvania, an insurer's duty to defend is determined solely based upon the allegations in the underlying Complaint. 6 Based upon the facts alleged in the Stival Action, MMG has no coverage for the claims and has no duty to defend Mr. Dorsey in the Stival Action. WHEREFORE, Plaintiff MMG Insurance Company respectfully requests that the Court issue a declaratory judgment that MMG has no duty to defend or indemnify Brian Dorsey in the Stival Action. Respectfully submitted, THOMAS, 7~iOMAS ~ HAFER, LLP J~- r ~i~f ... ~/~ By. ,~ !/{ Kevin ~~ Namara, Esquire I.D.# Jas n C. Giurintano, Esquire I.D.#8917'7 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 237-•7132 CERTIFICATE OF SERVICE I. Kevin C. McNamara, Esquire, of the law farm of Thomas, Thomas & Hafer, LLP, hereby certify that I have served a true and correct copy of the foregoing document on the following persons by placing same in the United States mail, postage prepaid, on the 19th day of April, 2012: Ronald L. Fink, Esquire Mette, Evans & Woodside P. O. Box 5950 Harrisburg, PA 17110 Brian Dorsey Dorsey Construction 61 Lenwood Park. Shippensburg, PA 17257 THOMAS, THOMAS 8 FER, LLP :~ By: Kevin C. M m ra, Esquire Attorney I.D 68 Jason C.. ntano, Esquire Attorney I.D. 89177 1077339.1 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY .Argument Court.) July 13, 2012 CAPTION OF CASE !entire caption must be stated in full) MMG Insurance Company vs. Brian M. Dorsey, P. Roger Stival, Jr., et al. (List the within matter for the next ~ 1i [~ .. __--_-__ __~~- fJ ~'f ..J. ~J :i uv ~ ~ c~ .n T ~ . -,,, ~ ~- -,- _._ No. 1509 2012 perm .^.~ 1. State matter to be argued (i.e., plaintiff s motion for new trial, defendant's demurrer to complaint, etc.}: Plaindfrs Molwn for .ludgmenl on the Pleadings 2. Identify all counsel who will argue cases: (a) for plaintiffs: Kevin C. McNamara, Esquire, 305 N. Front Street, Harrisburg, PA 17101 (Name and Address) Jason C. Giurintano, Esquire, 305 N. Front Street, Harrisburg, PA 17101 (b) for defendants: Ronald L. Fink, Esquire, P.O. Box 5950, Harrisburg, PA '17110 (Name and Address) Stephen D. Kulla, Esquire, 9 East Main Street, Waynesboro, PA `17268 3. I will notify all parties in writing within two days that this Ease has been fisted for argument. 4. Argument Court Date: July 13.2oi2 Date: 06/05/2012 Kevin C. M~;,Namara, Esquire SignJat/ure ~~j ~'I ~ !~ Print your name Plaintiff -MMG Insurance Campany Attorney for 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 parry shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be flied with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. ~~g. ~s ~~ . "" .~ C6c~ ~~l`g~ ~- ~~~~~v +..1 _. -, , ___ '?] f` 7;; i•J ~~ --~: ,=-, ~; e~~.~ I:N THE COURT OF COMMON PLEAS OF THE 9T" JUDICIAL DISTRICT OF PENNSYLVANLA-CUMBERLAND COUNTY MMG Insurance Company, Civil Action -Law Plaintiff vs. No. 2012 - 1509 Brian M. Dorsey, l'. Roger Stival, Jr., and Judy Beitzel-Stival, :_ ~' Defendants "-' ..:t~i .~ _ s. -,, , ~ ANSWER TO MOTION FOR JUDGMENT ON THE PLEADINCsS ~n ~.~ -- - NOW COMES Brian Dorsey by his attorneys. Kulla, Barkdoal, Ullman and Pain~r~'.C~' ~-_-= ~. ~= --{ and sets forth the fi~llowing response to the Plaintiff's Notice for Judgment on the Pleadirig~, -'-' , 1. Admitted. ,Admitted in part and Denied in part. It is Admitted that Brian Dorsey has been sued in the Cumberland County Court of Common Pleas. ~I~lae remaining allegation is a conclusion of la«~ to which no affirmative response is required. By way of further answer, the pleadings shall speak for themselves and do not require any interpretation. 3 Admitted. 4 Admitted. ~ Denied. The assertion is a conclusion of law to which no ,affirmative response is required. h. Denied. The assertion is a conclusion of law to which no affirmative response is required. The Defendant has filed an Answer to the Plaintiff s Complaint and has raised issues warranting a hearing on this matter and which raise a legitimate question as to the facts alleged by the Plaintiff in their petition for declaratory judgment. WHEREFCIRE, the Defendant, Brian Dorsey requests this Honorable Court deny a judgment on the pleadings and order that MMG has a duty to defend and /or indem.nii} Brian Dorsey in the initial court case filed by P. Roger Stival, Jr. and Judy Beitzal-Sti~aL Respectfully submitted, ~"`~ Stephen D. Kulla Attorney for Brian Dorsey VERIFICATION I verify tha}: the statements made in the attached document are true and correct to the best of my knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.§4904, relating to unsworn falsifications to authorities. Date: ~ 2012 -~ Stephen . Ku11a CERTIFICATE OF SERVICE I DO HEREBY CERTIFY that on this date I caused the foregoing Answer to be served via regular U.S. mail, addressed as follows: Kevin C. McNamara, Esquire Thomas, Thomas & Hafer, LLI' P.U. Box 999 Harrisburg, PA 17108-0999 12onald L. Finck, Esquire Mette, Evans & Woodside 3401 North Front Street Harrisburg, PA 17110-0950 ~1 Date: __~ -/S" i %~'.. , 2012 ~ _.__ Stephen D. Kulla. Esquire Attorney for Brian Dorsey ~~ MMG [NSURANCE CO., IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. BRIAN M. DORSEY, N0.2012 -1509 CIVIL TERM P. ROGER STIVAL, JR., & JUDY BEITZEL-STIVAL, Defendant l[N RE: PLAINTIFF' S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE GUIDO, PLACEY, JJ. ORDER OF COURT AND NOW, this 26~ day of JULY, 2012, after review of the briefs filed on behalf' of the parties and having heazd azgument thereon, we find that the cases of Kvaerner Metals v. Commercial Union Ins. 908 A.2d 888 (Pa. 2006) and Millers Capital Insurance Co., v. Gambone Brothers 941 A.2d 707 (Pa. Super. 2007) aze controlling. Plaintiff's motion is GRANTED. MMG Insurance Company has no coverage for and has no duty to defend or indemnify Brian Dorsey in the action brought by P. Roger Stival and Judy Beitzel-Stival in this Court at docket No. 2011 - 8915 CIVIL. /Kevin C. McNamara, Esquire Stephen D. Kulla, Esquire ;/ Ronald L. Finck, Esquire V Court Administrator :sld ~p~. ~s ~,• ~P.! ~~t f,~ By ,.~, ~~ T~ ' l ~ ~._ t'-' r --ter ;- ~~~ Edward E. Guido, ~~ oo ~' D ~- a ~~ ~ R -; Z C! ~,c c~ ~ r-: .r~: -; w - ~G ~l~ o .;c ` q. s . V ~l :. ~ ~yy~ ... A~i MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN r ~ ~' By: Christopher M. Reeser, Esquire +`:~ s `` ~`°~ ID#73632 ~ ca 4200 Crums Mill Road cr. °~ Harrisburg. PA 1 % 112 717-651-3509 Our File No. 13571-00119 Attorney for Defendant P. ROGER STIVA.L, JR. and COURT OF COMMON PLEAS .IUDY BEI"I'Z.EL-STIVEL CUMBERLAND COUNTY. PENNSYLVANIA Plaintiffs No 11-8915 vs. CIVIL ACTION -LAW BRIAN DORSEY t/d/b/a DORSEY CONSTRUCTION JURY TRIAL DEMANDED Defendants CERTIFICATE OF SERVICE I, Christopl-ier M. Reeser, Esquire, of Marshall, Dennehey, Warner, Coleman & Coggin, do hereby certify that on October 19, 2012, I served a copy of Petition of Christopher M. Reeser, Esquire to Withdraw as Counsel via First Class United States mail, postage prepaid as follows: Ronald L. Frock, F'.squire Mette, Evans & Woodside 3401 North Front Street P O BOX 59J0 Harrisburg, PA l7l 10-0950 Attorney for Plaintiffs Stephen D. Kulla, Esquire Kulla Barkdoll Ullman & Painter, PC 9 East Main Street Waynesboro, PA 17268 Christopher .Reeser MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By: Christopher M. Reeser, Esquire ID#73632. 4200 Crums Mill Road Harrisburg, PA 17112 717-651-3509 Our File No. 13571-00119 Attorney for Defendant P. ROGEK STIVAL, JR. and JUDY BEITZEL-STIVAL Plaintiffs vs. BRIAN DORSEY t/cUb/a DORSEY CONSTRUCTION Defendants COURT OI~ COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 11-891 `i CIVIL ACTION -LAW JURY TRIAL DEMANDED RULE TO_SHOW CAU E ~1 ANDNOW this ~~ day of ~ , 2012, upon consideration of Petitioner Christopher M. Reeser, Esquire and Marshall Dennehey Warner Coleman &. Goggin's Petition to Withdraw as counsel for Defendant Brian Dorsey; 1T IS HEREBY' ORDERED and DECREED that: 1. A Rule is issued upon the Respondent to show cause why the Petitioner is not entitled to the relief requested; I 2. "I'he Respondent shall file an Answer to the Petition within ~Q days within the date of this Order; 3. The Petition shall be decided under Pa.R.C.F'. 206.7; ~, ~,~Q ~ ~,.~ 4. Argument should be held on ~ ~ , 2012, in the courtroom of of the Cumberland County Courthouse, before the Hon. ~C~ .: ~~LNJ ;and 5. Notice of the entry of this Order shall be provided to all p~u-ties by Petitioner Christopher M. Reeser, Esquire and Marshall Dennehey Warner Coleman &Goggin. By the..Ctiurt: ~ _. _.~-_ J. Distribution List: Ronald L. Finck, Esquire Mette, Evans & Woodside 3401 North Front Street P O BOX 5950 Harrisburg, PA 17110-0950 Attorney for Plaintiff ,~ Christopher M. Reeser, Esquire Marshall Dennehey Warner Coleman &Goggin 4200 Crums Mill Road Harrisburg. PA 17112 Attorney for Defendant /Brian Dorsey t/d/b/a Dorsey Construction 61 Lenwood Park Shippensburg, PA 17257 /Stephen D. Kulla, Esquire Kulla Barkdoll Ullman & Painter, PC 9 East Main Street Waynesboro, PA 17268 i C r,a ~- ..1; ~ m c-3 =~ ~ ~ ~ r ~ ~", ~ CJ ~ E" r ~ ~ ~, _ ~~ ~ ~~ ,.,.r +... : 'J METTE,EVANS&WOODSIDE Ronald L.Finck,Esquire -TI Sup.Ct.ID No. 89985 771 3401 North Front Street P.O.Box 5950 r-, .1 Harrisburg,PA 17110-0950 n (717)232-5000-Phone (717)236-1816-Fax rlfinck@mette.com Attorneys for Plaintiffs P. ROGER STIVAL, JR. and JUDY IN THE COURT OF COMMON PLEAS OF BEITZEL-STIVAL, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 11-8915 BRIAN DORSEY t/d/b/a DORSEY CIVIL ACTION—LAW CONSTRUCTION, Defendant JURY TRIAL DEMANDED PLAINTIFFS' MOTION TO COMPEL RESPONSES TO WRITTEN DISCOVERY REQUESTS Plaintiffs, P. Roger Stival, Jr. and Judy Beitzel-Stival (collectively the "Plaintiffs"), file this Motion to Compel Responses to Written Discovery Requests against the Defendant, Brian Dorsey t/d/b/a Dorsey Construction ("Defendant") as follows: 1. Plaintiffs initiated the above-captioned action with the filing of a Complaint on November 30, 2011. 2. On December 21, 2011, Defendant,by and through his then attorney, Stephen D. Kulla, Esquire ("Attorney Kulla") of the law firm of Kulla, Barkdoll,Ulman and Painter, PC, filed Preliminary Objections to the Plaintiffs' Complaint. 3. On January 4, 2012, Attorney Kulla withdrew his appearance on behalf of the Defendant and Attorney Christopher M. Reeser, Esquire ("Attorney Reeser") of the law firm of Marshall, Dennehey, Warner, Coleman& Goggin, entered his appearance on behalf of the Defendant. 4. By Stipulation filed on or about March 15, 2012, Attorney Reeser and the undersigned counsel for the Plaintiffs stipulated to the withdrawal of the Defendant's Preliminary Objections. 5. On October 19, 2012, Attorney Reeser filed a Petition to Withdraw as Counsel for Defendant. 6. On October 25, 2012,this Honorable Court issued a Rule to Show Cause on the parties to show cause why Attorney Reeser's Petition to Withdraw as Counsel for Defendant should not be granted. 7. Defendant failed to file any response to the Petition to Withdraw and the Court granted said Petition on December 10,2012. 8. In Paragraph 3 of its December 10, 2012 Order,the Court provided Defendant with"reasonable time"to retain new counsel to represent his interests. 9. To date,no counsel has entered an appearance on behalf of Defendant. 10. On January 23, 2012,the Plaintiffs propounded a First Set of Interrogatories and First Set of Requests for Production of Documents on the Defendant. True and correct copies of said discovery requests are attached hereto as Exhibits "A"and"B", respectively and are made a part hereof by reference. 11. To date, Defendant has failed to provide any response(s)to the January 23, 2012 discovery requests. 2 12. By letter dated January 15, 2013,the undersigned counsel for the Plaintiffs demanded responses to the January 23, 2012 discovery requests. A true and correct copy of the January 15, 2013 letter is attached hereto as Exhibit"C"and made a part hereof by reference. 13. The Plaintiffs have not received any responses to the discovery requests or any other acknowledgment of receipt of the January 15, 2013 letter. 14. Pursuant to Cumberland County Local Rule No. 208.2(b),the undersigned counsel for the Plaintiffs certifies that a draft copy of this Motion to Compel Responses to Written Discovery Requests was provided to Defendant for his concurrence. Concurrence has not been provided. 15. No Judge of this Court has ruled on any substantive issue in this case. 16. This Court has authority to grant the relief requested in this Motion pursuant to Pa. R.C.P.No. 4019. WHEREFORE,the Plaintiffs, P. Roger Stival, Jr. and Judy Beitzel-Stival, respectfully request that this Court enter an Order compelling Defendant Brian Dorsey t/d/b/a Dorsey Construction to provide full, complete and accurate responses to the attached discovery requests, together with such other relief as this Court deems just and appropriate under the circumstances. Respectfully submitted, METTE, EVANS & WOODSIDE By: �orH�Q.t/< -4, 4" Ronald L. Finck, Esquire Sup. Ct. I.D.No. 89985 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717)232-5000 - Phone (717) 236-1816 - Fax Date: March 22, 2013 Attorneys for Plaintiffs 3 i Ronald L. Finck,Esquire Pa. Sup. Ct I.D.No. 89985 METTE,EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg,PA 17110-0950 Phone: (717)232-5000 Fax: (717)236-1816 rlfinck(@rnette.com Attorneys for Plaintiffs P. ROGER STIVAL,JR. and JUDY IN THE COURT OF COMMON PLEAS BEITZEL-STIVAL, CUMBERLAND COUNTY,PENNSYLVANIA Plaintiffs V. NO. 11-8915 Civil Term BRIAN DORSEY t/d/b/a DORSEY CONSTRUCTION, CIVIL ACTION- LAW Defendant JURY TRIAL DEMANDED PLAINTIFFS' FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANT TO: Brian Dorsey,t/d/b/a Dorsey Construction,Defendant c/o Christopher M. Reeser,Esquire Marshall,Dennehey, Warner, Coleman&Goggin 4200 Crums Mill Road, Suite B Harrisburg,PA 17112 PLEASE TAKE NOTICE that you are required,pursuant to Pennsylvania Rules of Civil Procedure Nos. 4001 et seq.,to serve upon the undersigned,within thirty(30)days of the date of this,Notice,your Answers, in writing and under oath,to the attached Plaintiffs' First Set of Interrogatories Directed to Defendant. Respectfully submitted, METTE,EVANS & WOODSIDE By: (tom\.. Ronald L. Finck,Esquire Sup. Ct. I.D.No. 89985 3401 North Front Street P. O. Box 5950 Harrisburg,PA 17110-0950 (717) 232-5000 -Phone Attorneys for Plaintiffs Date: January 23, 2012 2 I. INSTRUCTIONS A. The following Interrogatories shall be answered by you separately and fully in writing and shall include all information known or available to you,including but not limited to,information known or available to your attorneys,consultants, agents, representatives, employees, servants, and officers. B. If there is insufficient space to answer an Interrogatory,put the remainder of your answer on a supplemental sheet. C. These Interrogatories are deemed to be continuing so as to require supplemental answers if you obtain further information after your initial answers are served. D. If the information requested in an Interrogatory is fully or partially contained in documents,you may answer the Interrogatory by attaching a copy of the documents. E. If you have an objection to an Interrogatory,identify solely the substance of the objection and legal authority for the objection and provide sufficient information to substantiate the objection. F. - If the Interrogatory is answered based upon information not within the . affiant's direct personal knowledge, identify the person(s) and/or record(s) supplying the information in accordance with all the following instructions concerning identification of persons and documents. G. You must execute in connection with your answer a Verification affirming that your answers to the Interrogatories are true and correct. 3 II. DEFINITIONS A. As referred to herein,the term"document"includes any kind of written, printed,typed,recorded, computer generated or graphic matter,however produced or reproduced. This term shall include but is not limited to correspondence,telegrams, electronic messages, other written communications, data processing storage units,tapes,website contents, contracts, agreements,papers,notes,memoranda, analysis,projections, indices,work papers, studies,reports, surveys, diaries,calendars, films, photographs, diagrams,drawings,minutes of meetings, accounting books,tax returns,transcriptions,recordings or records now in your possession custody or control,or in the control of your former or present counsel, agents, employees, officers,insurers, or any other person acting on your behalf,relating to the subject matter with which it is used. This term shall apply to all originals, all file copies, all other copies,no matter how or by whom prepared, and all drafts prepared in connection with such documents whether or not used. This term shall also include copies of any of the foregoing, regardless of whether you are now in possession, custody or control of the original. B. Whenever you are asked to "identify" a document,the following information should be provided: (1) The nature of the document(e.g., letter,memorandum, computer print-out, minutes,resolution,tape recording, etc.); (2) Its date(or if it bears no date,the date when it was prepared); (3) The name, address, employer and position of the signer or signers(or if there is no signer, of the person who prepared it); (4) The name,address, employer and position of the person(s),if any,to whom the document was sent; 4 i I (5) Whether you have possession, custody or control of the document; (6 If you do not have possession, custody or control of the document,the present location thereof and the name and address of the person or organization having possession, custody or control thereof; (7) A brief statement of the subject matter of the document; (8) If the document was,but no longer is, in your possession or control, or that of your agent or representative, state what disposition was made to the document; and (9) The identity of each person(s)who has had custody or control of the document. C. The term"person"means and includes any natural persons, corporations, partnerships, associations, organizations and/or any other kind of business or legal entity. D. Whenever you are asked to"identify" a person,the following information should be provided: (1) The name; (2) present address; (3) telephone number; and (4) present employer and position of the person. E. The terms"identify"or"identity"which when used with respect to oral communication(s) or non-verbal communication(s)means to: (1) Identify each person who participated in the making thereof; (2) State the date of the making; 5 (3) State the place of the making; (4) Identify each person who was present when such oral communication was made; (5) Identify any document or other form of record made regarding the content of the oral communication; (6) Describe the type of document; (7) State the record's present location; and (8) Identify each person who has or has had custody or control of the document. F. The phrase"refers to"means anything that relates to,mentions, concerns, reflects,discusses, and analyzes,records,reports or studies in a particular subject or some aspect of the subject, or transmits, accompanies,forwards or is attached to documents relating to a particular subject; or which describes a particular subject; or which describes a particular subject regardless of its proper name, designation or title of the subject as specifically mentioned. Non- verbal documents relate to the subject that they depict or represent in any fashion. G. The term"you"and"your(s)"includes the person(s)to whom these Interrogatories are directed as well as your employees,attorneys, insurers, investigators, and any other agents insofar as the information requested is not privileged. H. The term"Lawsuit"means the above-captioned court proceeding. I. The term"Property"refers to Plaintiffs' residence located at 1000 Highfield Court, Mechanicsburg,Monroe Township, Cumberland County, Pennsylvania 17055. 6 I INTERROGATORIES 1. State the following: (a) Your full name; (b) Each other name, if any,which you have used or by which you have been known, and any fictitious name held by you; and i (c) Identify the business name(s)under which you have or had operated and/or performed any work and for each business name, identify the years of operation,business address, and business structure (i.e., corporation, limited partnership, sole proprietorship, etc.) ANSWER: 7 I 2. Identify any person(s)who may have knowledge of any facts pertaining to the above- captioned lawsuit(the"Lawsuit"). ANSWER:. 8 ' 1 I 3. Identify any person who you employed or sub-contracted in any manner to provide construction, excavating, engineering,plumbing, electrical,roofing or similar services to the Property that is the subject of the Lawsuit. ANSWER: 9 i I 4. Identify each oral and written communication between you and either or both of the Plaintiffs regarding the Property or any other matters set forth in the pleadings in the Lawsuit. For each communication so-identified, state: (a) The date of the communication; (b) The location of the communication; (c) The identities of all persons present during each communication; (d) Whether the communication was public or non-public; (e) The substance of each communication; (f) The identities of any speakers or presenters; and (g) Whether there are any memoranda or other documents pertaining to, created pursuant to, or in any way referencing each such communication. ANSWER: 10 5. Identify all oral or written communications between you and any governmental and/or quasi-governmental entities concerning the Property. For each such communication, identify: (a) The date of each communication; (b) The identity of all persons present during each communication; (c) The government or quasi-governmental entity(ies)represented during each communication; and (d) The substance of each communication. ANSWER: Il 6. Identify any person that participated, collaborated,designed, planned or estimated costs for alterations to the residence located on Plaintiffs' Property,including the kitchen remodel,the master bathroom remodel,the first floor expansion,the construction of a back porch,the addition of a room adjacent to the Plaintiffs' garage, or the installation of a new roof on the residence. For each person so-identified, state: (a) his or her name; (b) his'or her present address; (c) his or her present employer and position of the person; (d) a brief description of the services provided; and (e) the date(s) any such services were provided. ANSWER: 12 7. If you know of any person that has given any statement(as defined by the Rules of Civil Procedure)concerning this action or its subject matter, state: (a) his or her name; (b) his or her present address and telephone number; (c) his or her present employer and position of the person; (d) a brief description of the statement made; (e) the date(s) any such statement was made; (f) the identity of any person present when the statement was made; (g) the manner any such statement was made; and (h) whether any documents were generated during or as a result of the statement and the location of any such document. ANSWER: 13 8. Identify each person you intend to call as a non-expert witness at the trial of this case, and for each person so-identified state: (a) - his or her name; (b) his or her present address and telephone number; (c) his or her present employer and position of the person; and (d) a brief description of the testimony this person is expected to give. ANSWER: 14 9. Identify each expert you intend to call as an expert witness at any trial or hearing in this matter, and for each expert state: (a) his or her name; (b) his or her present address and telephone number; (c) his or her present employer and position of the person; (d) a brief description of the testimony this person is expected to give; and (e) what qualifications this person has to give the testimony he or she is expected to give. ANSWER: 15 i 10. Identify all exhibits that you intend to use at any trial or hearing in this matter. ANSWER: 16 11. If you intend to use any book,magazine, or other such document at trial, state: (a) The name of the document; (b) The author,creator and/or publisher of the document; -and- (c) The date of the document. ANSWER: 17 12. If you intend to use any admission(s) of a party at trial, identify such admission(s). ANSWER: 18 13. Identify and describe how the$18,500.00 check, dated July 2,2011 from Plaintiffs payable to Defendant Dorsey Construction representing a first draw for the project,was utilized. ANSWER: 19 14. Identify and describe how the$37,500.00 check, from Plaintiff's payable to Defendant Dorsey Construction representing a second draw for the project,was utilized. ANSWER: 20 15. State whether you still have possession of any deposits or other payments made to you by the Plaintiffs. If so, identify the amount and bank or other financial institution holding said monies. ANSWER: 21 16. Identify the manner in which you calculated the$18,500.00 deposit demand. ANSWER: 22 17. Identify the manner in which you calculated the $37,500.00 deposit demand. ANSWER: 23 18. State whether any documents relating to any information requested in these Interrogatories,the accompanying Request for Production of Documents, or in any way related to the subject matter of the Lawsuit,have been lost,destroyed, or are no longer in your custody. If so, explain why. Include a detailed description of your procedures and policies with respect to maintenance, preservation, and/or destruction of document s. ANSWER: 24 1 19. Identify each and,every person who assisted in the preparation of,or provided information to you that was used by you to draft any pleading(s),motions(s),written discovery request(s) and/or answer to any written discovery request(s) in the Lawsuit. For each person so identified, state: (a) his or her name, address and telephone number; (b) his or her present employer and position of the person; (c) a brief synopsis of the information given; and (d) the pleading(s),motion(s),written discovery request(s), and/or answer to any written discovery requests(s) for which this person's information was used. ANSWER: 25 20. Identify each and every document you used to assist you in the preparation of any pleading(s),motion(s), written discovery request(s)and/or answers to written discovery request(s) in the Lawsuit. For each document identified, state: (a) the nature of the document(e.g., letter,memorandum, computer print-out, minutes,.resolution,tape recording, etc.); (b) its date(or if it bears no date,the date when it was prepared); (c) the name,address, employer and position of the signer or signers (or if there is no signer, of the person who prepared it); and (d) whether you have possession,custody or control of the document and if you do not have possession, custody or control of the document,the present location thereof, and the name and address of the person or organization having possession, custody or control thereof. ANSWER: 26 21. If you, or anyone on your behalf,conducted an investigation concerning the subject matter of the Lawsuit, state: (a) The name,address and telephone number of each person who made such investigation; and (b) The name and address of each person presently in custody of any related report. ANSWER: 27 22. Identify any and all documents that you maintain or maintained as records,notes, calendars, and/or diaries which in any way evidence or relate to the subject Property or the subject matter of the Lawsuit. ANSWER: 28 23. Identify each bank or other financial institution into which monies obtained form the Plaintiffs were deposited. ANSWER: 29 24. Identify all materials purchased or ordered by you in anticipation of your performance of the work described in the Plaintiffs' Complaint in the above-captioned Lawsuit. ANSWER: 30 25. State whether you maintain a policy of liability insurance. If so,identify the insurance carrier and the limits of the policy. ANSWER: 31 Respectfully submitted, METTE,EVANS &WOODSIDE By: �iw�.�.-C d_ Ronald L. Finck,Esquire Sup. Ct. I.D.No. 89985 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717)232-5000 Attorneys for Plaintiffs Date: January 23,2012 32 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below,which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania,with first-class postage,prepaid, as follows: Christopher M. Reeser,Esquire Marshall,Dennehey,Warner, Coleman&.Goggin 4200 Crums Mill Road, Suite B Harrisburg,PA 17112 Attorneys for Defendant Respectfully submitted, METTE,EVANS &WOODSIDE By: A -�'_ +,:-t Ronald L. Finck,Esquire Sup. Ct. I.D.No. 89985 3401 North Front Street P.O.Box 5950 Harrisburg,PA 17110-0950 (717)232-5000 -Phone Attorneys for Plaintiffs Date: January 23,2012 550339x1 Ronald L. Finck,Esquire Pa. Sup. Ct. I.D.No.'89985 METTE,EVANS &WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Phone: (717) 232-5000 Fax: (717)236-1816 rlfinck a4nette.com Attorneys for Plaintiffs P. ROGER STIVAL,JR. and JUDY IN THE COURT OF COMMON PLEAS BEITZEL-STIVAL, CUMBERLAND COUNTY,PENNSYLVANIA Plaintiffs V. NO. 11-8915 Civil Term BRIAN DORSEY t/d/b/a DORSEY CONSTRUCTION; CIVIL ACTION-LAW Defendant JURY TRIAL DEMANDED PLAIl nWS' FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANT TO: Brian Dorsey,t/d/b/a Dorsey Construction,Defendant c/o Christopher M. Reeser,Esquire Marshall,Dennehey, Warner, Coleman&Goggin 4200 Crums Mill Road, Suite B Harrisburg,PA 17112 PLEASE TAKE NOTICE that you are required,pursuant to Pennsylvania Rules of Civil Procedure Nos. 4001 et seq.,to serve upon the undersigned,within thirty(30) days of the date of this Notice,your Answers, in writing and under oath,to the attached First Set of Requests for Production of Documents. i Respectfully submitted, METTE,EVANS &WOODSIDE Ronald L. Finck, Esquire Sup. Ct. I.D.No. 89985 3401 North Front Street P.O. Box 5950 Harrisburg,PA 17110-0950 (717)232-5000 Attorneys for Plaintiffs Date: January 23,-2012 2 I. DEFINITIONS AND INSTRUCTIONS Definitions The following definitions shall govern the interpretation of, or responses made to,these requests: 1. As referred to herein,the term"document"includes any kind of written,printed, typed,recorded, computer generated or graphic matter,however produced or reproduced. This term shall include but is not limited to correspondence,telegrams, electronic messages, other written communications, data processing storage units,tapes,website contents, contracts, agreements,papers, notes,memoranda, analysis,projections, indices, work papers, studies, reports, surveys, diaries, calendars, films,photographs,diagrams, drawings,minutes of meetings, accounting books,tax returns,transcriptions,checks,bank statements,tax returns,recordings or records now in your possession, custody, or control, or in the control of your former or present counsel, agents, employees,officers, insurers, or any other person acting on your behalf,relating to the subject matter with which it is used. This term shall apply to all originals, all file copies, all other copies,no matter how or by whom prepared,and all drafts prepared in connection with such documents whether or not used. This term shall also include copies of any of the foregoing, regardless of whether you are now in possession, custody or control of the original. 2. The term"person"means and includes any natural persons,corporations, partnerships, associations and any other kind of business or legal entity. 3. The phrase"refers to"means any document that relates to,mentions, concerns, reflects, discusses, analyzes,records,reports or studies a particular subject or some aspect of the subject, or transmits, accompanies,forwards,or is attached to documents relating to a particular 3 subject; or which describes a particular subject regardless of its proper name,designation or title of the subject as specifically mentioned. Non-verbal documents relate to the subject that they depict or represent in any fashion in any indicated subject. 4. The term"you"means and includes the person(s)to whom these requests are propounded. 5. The term"Lawsuit"means the above-captioned court proceeding. 6. The term"Property"means Plaintiffs' residence located at 1000 Highfield Court, Mechanicsburg, Monroe Township, Cumberland County,Pennsylvania, 17055. Instructions The following general instructions shall govern the interpretation or responses made to these requests: 1. Objections - If you contend that a response to a request calls for a privileged document, or if you otherwise object to any part of a request, or contend that any identified document would be excludible from production and discovery,please specify the following: (a)the reason and legal basis for such objection or ground for exclusion; (b)the identity of each person having knowledge of the factual basis, if any, of both the privileged subject or other ground you have stated; and (c)the individual documents alleged to be privileged,the author thereof,the addressee,the date and the names of all copied recipients. 2. Scope of Documents - Documents called for in these requests encompass all variety or character of materials now or formerly in your possession,custody and/or under your 4 i control. These requests admit no exception because documents are classified as"'private," "personal,""sensitive," "proprietary,"or the like. 3. Lost or Destroyed Documents - For documents responsive to these requests that have been lost or destroyed, state the date,last known location of the document,the last person in control or custody of the document, and the reason for the document's loss or destruction. 4. Revised,Amended and Superseded Documents - Documents called for herein include all documents relating to the indicated subject,regardless of whether the particular document has been superseded, amended,revised,rewritten,redrafted, rejected or rendered obsolete. 5. Marginalia,Notations,Etc. - Documents or copies of documents, otherwise identical should be each individually produced, if individual documents contain any communication,notation or recording that does not appear in another copy of the document or does not appear in the original. 6. General Not Qualified by a Specific- A general and categorical request is no way limited to or qualified by specific items that are provided as examples of the general category. The enumeration of specific items is for illustrative purposes only, and is not to be considered as a limitation. 7. Sg olementing Responses - Pursuant to Rule 4007.4 of the Pennsylvania Rules of Civil Procedure, each request is considered continuous so as to require modified or supplemental responses if you obtain information or documents that is/are responsive to these requests between the time your response is served and the time the above-captioned matter is concluded. Further, if you obtain information which renders your response to one or more of 5 I 1 these requests incomplete or inaccurate, you are obligated to serve amended responses on the undersigned. 8. Privileges- If any documents or information requested in any of these requests is withheld based on a claim that such documents or information constitutes attorney work product, please describe the document, as set forth in paragraph One above,identify the litigation in connection with which the document was obtained or prepared, and cite relevant legal support for your privilege claim. State the author(s) of the document,the addressee(s),the date, and all recipients of the document. 9. Interpretation of Requests- Singular includes plural, and plural includes the singular. The masculine includes the feminine and neutered genders and the feminine includes the masculine and neutered genders. The past tense includes the present tense and the present tense includes the past tense where the clear meaning is not distorted by change of tense. As used herein,the words"and"and"or"shall,where the context permits,be construed to mean "and/or." If, for example, a request calls for information about"a"or"b,"you should produce all information about"a" and all information about"b,"as well as information about"a" and 10. Clarification-If you feel that any of the requests herein are ambiguous or unclear in any way,notify the undersigned immediately so that the request may be properly clarified prior to responding. 6 i I DOMM ENTS REQUESTED 1. Any and all documents constituting or evidencing correspondence regarding the negotiations, estimating, designing,planning, construction,improvements, or are in any other way related to the subject matter of the Lawsuit. 2. Any invoices, contracts,bills of sale,bills of lading,employee payroll records or subcontracts relevant to work performed on the Property. 3. Daily reports, logs,calendars, diaries or other documents maintained by you or any of your agents, employees, contractors, subcontractors, etc. referencing or in any way evidencing the negotiations, estimating, designing,planning, construction and improvements on the Property. 4. Any photos,blueprints, sketches or other documents depicting the Property and/or the residence on the Property. 5. Any reports,letters,permits or other documents issued by, submitted to, or referencing any governmental and/or quasi-governmental entity that relate to the Property. 6. Any documents you intend to introduce at any trial or hearing in this matter. 7. The curricula vitae of any expert(s)you intend to call as a witness in this matter. 7 8. Any and all documents evidencing the disposition of the$18,500 first draw check from Plaintiffs to Defendant. 9. Any and all documents evidencing the disposition of the$37,500 second draw check from Plaintiffs to Defendant. 10. Any and all bank statements showing the deposit and/or disposition of any monies received by you from the Plaintiffs. RespectfWly submitted, METTE,EVANS &WOODSIDE By: Ronald L. Finck, Esquire Sup. Ct. I.D.No. 89985 3401 North Front Street P.O. Box 5950 Harrisburg,PA 17110-0950 (717)232-5000 Attorneys for Plaintiffs Date: January 23,2012 8 i CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below,which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure,by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with.first-class postage,prepaid,as follows: Christopher M. Reeser,Esquire Marshall,Dennehey, Warner, Coleman&Goggin 4200 Crums Mill Road, Suite B Harrisburg,PA 17112 Attorneys for Defendant Respectfully submitted, METTE,EVANS &WOODSIDE By: �" -'-t . - ^� Ronald L. Finck,Esquire Sup. Ct. I.D.No. 89985 3401 North Front Street P.O.Box 5950 Harrisburg, PA 17110-0950 (717)232-5000-Phone Attorneys for Plaintiffs Date: January 23,2012 550387v1 METTE, SPANS &WOODSME A PHOFESBIONAL OORPORATION ATTOffiOYB AT LAW HOWELL C.METTE THOMAS F.SPMA 9401 NORTH FRONT STAMM MARKS SILVER JANM W.EVANS ROBERT MOORS PAULA 7 LEKHT P.O.BOX 5950 BERNADETTE BARAT INI 1926-2008 CHARLES B.ZWALLY TIMOTHY A.ROY HAAMSBU3M,PA 17110-0950 RANDALL O.HURSI"• PETER J.RESSLER THOMAS A.ARCHER" MELISSA L VAN ECK JAMES A.ULSH HENRY W.VAN ECK IRS NO. MCLAPIIE L VANDERAU "NEW JERSEY BAR JEFFREY A.ERNICO MARK D.M" 28-1985005 AARON T.DOMOTO MARYLAND BAR MARY ALICE BUSBY RONALD L FINCK KEVIN;.HAYES KATHRYN L SDM`SON HEATHER Z.KELLY TELEPHONE FACEDAME (717)282-5000 (717)286-1816 TOIL FMM: 1-800-962-5097 xrrrc//www.adxTE.00as January 15, 2013 Brian Dorsey t/d/b/a Dorsey Construction 15411-1 61 Lenwood Park Shippensburg,PA 17257 Re: P.Roger Stival,Jr. and Judy Beitzel-Stival v. Brian Dorsey t/d/b/a Dorsey Construction Cumberland County Docket No. 11-8915 Dear Mr.Dorsey: As I believe that you are aware,I represent the Plaintiffs,P. Roger Stival, Jr. and Judy Beitzel-Stival in the lawsuit that they initiated against you in Cumberland County,Pennsylvania at Docket No. 11-8915. By now you should be in receipt of the Court's Order dated December 10, 2012 granting the Petition to Withdraw as Counsel of your former attorney, Christopher M. Reeser,Esquire and his law firm,Marshall,Dennehey,Warner, Coleman&Goggin. According to the Order,you were given a reasonable amount of time to retain counsel to replace Mr. Reeser. It has been more than thirty(30)days since the entry of that Order and,to date,no attorney has entered his or her appearance on your behalf. Please advise as to whether you intend to retain counsel or whether you will be representing yourself. Discovery in this matter was informally stayed pending disposition of the Declaratory Judgment action filed by MMG Insurance Company v. Brian M. Dorsey, et al. at Cumberland County Docket No. 12-1509. As the Declaratory Judgment action has been adjudicated,my clients wish to proceed with discovery without any further delay. Please recall that on January 23, 2012,1 provided your former counsel with a First Set of Interrogatories and a First Set of Requests for Production of Documents. Copies of the discovery requests are enclosed for your reference. Please provide your answers to said discovery requests within thirty(30) days of the date of this letter. f January 15,2013 Page 2 If you have obtained an attorney to represent you in this matter,please provide a copy of this letter to your attorney and ask him or her to contact me. I look forward to your prompt response. Very truly yours, NIETTE,EVANS &WOODSIDE Ronald L. Finck RLF:jas Enclosures cc: Roger&Judy Stival 614992v1 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below,which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, and via facsimile as follows: Brian Dorsey t/d/b/a Dorsey Construction 61 Lenwood Park Shippensburg, PA 17257 METTE, EVANS & WOODSIDE By: d .4'�- Ronald L. Finck, Esquire Pa. Sup. Ct. I.D.No. 89985 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717)232-5000 Date: March 22, 2013 �f F ?-rl FF f,, 2013 MAR 25 AN I,: 4 r`w�tYtr, Efil.�trtfl COUSTY PEN sY METTE,EVANS&WOODSIDE LV �{►A Ronald L.Finck,Esquire Sup.Ct.ID No. 89985 3401 North Front Street P.O.Box 5950 Harrisburg,PA 17110-0950 (717)232-5000-Phone (717)236-1816-Fax rlfinck @mette.com Attorneys for Plaintiffs P. ROGER STIVAL, JR. and JUDY IN THE COURT OF COMMON PLEAS OF BEITZEL-STIVAL, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 11-8915 BRIAN DORSEY t/d/b/a DORSEY CIVIL ACTION—LAW CONSTRUCTION, Defendant JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT 108. Plaintiffs incorporate the averments set forth in Paragraphs 1 through 107 of their Complaint filed with this Court on November 30, 2011, as if fully set forth. 109. Denied. The averments of Paragraph 109 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 110. Denied. The averments of Paragraph 110 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 111. Admitted. 112. Admitted. By way of further answer,the property had already been exposed to the elements prior to September 5, 2011 and despite repeated demands by the Plaintiffs,the Defendant failed to take any action,thereby resulting in damage to the Plaintiffs' property. 113. Denied. It is specifically denied that any damage was caused by rainfall after September 5, 2011. To the contrary,by September 5, 2011,the damages suffered by the Plaintiffs had already occurred. Strict proof to the contrary is demanded. 114. Denied. The averments of Paragraph 114 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 115. Denied as stated. Any implication that the Plaintiffs were not within their rights to terminate Defendant Dorsey's contract is specifically denied and strict proof thereof is demanded. 116. Denied. It is specifically denied that the work performed by Defendant Dorsey at the Plaintiffs' home was of sound construction in both materials and installation. Strict proof thereof is demanded. WHEREFORE,the Plaintiffs, P. Roger Stival, Jr. and Judy Beitzel-Stival, respectfully request that this Court enter judgment in their favor and against Defendant Brian Dorsey t/d/b/a Dorsey Construction,together with such other relief as this Court deems just and appropriate under the circumstances. Respectfully submitted, METTE, EVANS & WOODSIDE By: -�- A" Ronald L. Finck, Esquire Sup. Ct. I.D.No. 89985 3401 North Front Street P. O. Box 5950 Harrisburg,PA 17110-0950 (717)232-5000 - Phone (717)236-1816 - Fax Attorneys for Plaintiffs Date: March 22, 2013 2 VERIFICATION I,P. Roger Stival,have read the foregoing document and verify that the facts set forth therein are true and correct to the best of my knowledge, information and belief. To the extent that the foregoing document and/or its language are that of counsel,I have relied upon counsel in making this Verification. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Date: S;Le --7 P o g er Stival VERIFICATION I,Judy Beitzel-Stival,have read the foregoing document and verify that the facts set forth therein are true and correct to the best of my knowledge, information and belief. To the extent that the foregoing document and/or its language are that of counsel,I have relied upon counsel in making this Verification. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S. §4904 relating to unworn falsification to authorities. Date: 320113 Judy itzel-Stival 4 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage,prepaid, and via facsimile as follows: Brian Dorsey t/d/b/a Dorsey Construction 61 Lenwood Park Shippensburg, PA 17257 Pro Se METTE, EVANS & WOODSIDE By: �tM.a.��. X . 1- � Ronald L. Finck, Esquire Pa. Sup. Ct. I.D. No. 89985 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717)232-5000 Date: March 22, 2013 628952v1 HE 2013 MAR 28 PPS 3- ?3 CUMBERLAND COUNT`? PENNSYLVANIA; P. ROGER STIVAL, JR. and JUDY IN THE COURT OF COMMON PLEAS OF BEITZEL-STIVAL, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 11-8915 BRIAN DORSEY t/d/b/a DORSEY CIVIL AC&N—LAW CONSTRUCTION, Defendant JURY TRIAL DEMANDED ORDER AND NOW,this?"day of 1"M 4e- r ,2013, upon consideration of the Plaintiffs" Motion to Compel Responses to Written Discovery Requests in the above-captioned IT IS HEREBY ORDERED that Defendant Brian Dorsey t/d/b/a Dorsey proceeding, y y ' Construction shall provide full, complete,and accurate answers to Plaintiffs' discovery requests dated January 23, 2012. Said discovery requests shall be provided within 970 days of the date of this Order. BY THE C T: f J. 628847vr FILED- 1FF` CE 291,3 JUN --5 AM l I: it 9 CUMBERLAND COUNTY PENNSYLVANIA METTE,EVANS &WOODSIDE Ronald L.Finck,Esquire Sup. Ct. ID No. 89985 3401 North Front Street P.O. Box 5950 Harrisburg,PA 17110-0950 (717)232-5000-Phone (717)236-1816-Fax rlfinck @mette.com Attorneys,for Plaintiffs P. ROGER STIVAL, JR. and JUDY IN THE COURT OF COMMON PLEAS OF BEITZEL-STIVAL, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 11-8915 BRIAN DORSEY t/d/b/a DORSEY CIVIL ACTION—LAW CONSTRUCTION, Defendant JURY TRIAL DEMANDED MOTION TO HOLD DEFENDANT IN CIVIL CONTEMPT AND IMPOSE SANCTIONS The Plaintiffs', P. Roger Stival, Jr. and Judy Beitzel-Stival (collectively the "Plaintiffs") file this Motion to Hold Defendant in Civil Contempt and Impose Sanctions, against Defendant Brian Dorsey t/d/b/a Dorsey Construction ("Dorsey"), for disobedience of Court Order, as follows: Background 1. Plaintiffs are the owners of a two-story residential home located in Cumberland County, Pennsylvania (the "Residence"). 2. Dorsey owns and operates a contracting business which purports to perform restoration and/or remodeling work. 3. In the Spring of 2011, Plaintiffs executed five separate proposals/contracts for various work to be performed by Dorsey at Plaintiffs' Residence. 4. On or about July 2, 2011, Plaintiffs issued a check in the amount of$18,500.00 to Dorsey as a first draw on three of the proposals/contracts. 5. Subsequent to the payment of the first draw, limited work began pursuant to three of the contracts. 6. On or about August 2011, Plaintiffs and Dorsey entered into another contract relating to roofing work. 7. On or about August 19, 2011, upon demand by Dorsey, Plaintiffs issued a second draw check in the amount of$37,500.00. 8. Subsequent to the second payment, Dorsey continued to perform work under the proposals/contracts which included the removal of shingles from the roof of the Residence. 9. Due to extreme weather occurring from August 28, 2011 through September 5, 2011, Plaintiffs suffered severe flood damage to the interior of their Residence. 10. During this time, Dorsey failed to take steps necessary to protect the interior of the Residence. 11. Plaintiffs have been advised by another contractor that much of the partially performed work performed by Dorsey is substandard and will have to be corrected. 12. Plaintiffs terminated all contracts with Dorsey as of September 5, 2011. 13. Upon demand, Dorsey has failed and refused to return the unexpended monies that are or should be in possession of Dorsey from Plaintiffs. 2 Procedural History 14. Plaintiffs initiated the above-captioned action with the filing of a Complaint on November 30, 2011. 15. On December 21, 2011, Dorsey, by and through his then attorney, Stephen D. Kulla, Esquire ("Attorney Kulla") of the law firm of Kulla, Barkdoll, Ulman and Painter, PC, filed Preliminary Objections to the Plaintiffs' Complaint. 16. On January 4, 2012, Attorney Kulla withdrew his appearance on behalf of Dorsey and Attorney Christopher M. Reeser, Esquire ("Attorney Reeser") of the law firm of Marshall, Dennehey, Warner, Coleman & Goggin, entered his appearance on behalf of Dorsey. 17. On January 23, 2012, the Plaintiffs propounded a First Set of Interrogatories and First Set of Requests for Production of Documents on Dorsey ("Plaintiffs' Discovery Requests"). 18. By Stipulation filed on or about March 15, 2012, Attorney Reeser and the undersigned counsel for the Plaintiffs stipulated to the withdrawal of the Preliminary Objections filed by Attorney Kulla. 19. On October 19, 2012, Attorney Reeser filed a Petition to Withdraw as Counsel for Dorsey. 20. On October 25, 2012, this Honorable Court issued a Rule to Show Cause on the parties to show cause why Attorney Reeser's Petition to Withdraw as Counsel for Dorsey should not be granted. 21. Dorsey failed to file any response to the Petition to Withdraw and this Court granted said Petition on December 10, 2012. 22. In Paragraph 3 of its December 10, 2012 Order, the Court provided Dorsey with "reasonable time"to retain new counsel to represent his interests. 3 23. To date, no counsel has entered an appearance on behalf of Dorsey. 24. By letter dated January 15, 2013, the undersigned counsel for the Plaintiffs demanded responses to the January 23, 2012 Plaintiffs' Discovery Requests. 25. On March 25, 2013, Plaintiffs filed a Motion to Compel Responses to Written Discovery Requests. 26. By Order dated March 27, 2013, this Court granted Plaintiffs' Motion and compelled Defendant to provide full, complete and accurate answers to Plaintiffs' Discovery Requests on or before April 16, 2013. 27. To date, Defendant has failed to provide any response(s) to the Plaintiffs' Discovery Requests pursuant to the Court's March 27, 2013 Order. 28. As a result of Defendant's failure to comply with this Court's Order, Plaintiffs have incurred attorney's fees in excess of$750.00 for the filing and prosecuting of the March 25, 2013 Motion and the instant Motion, which would have been unnecessary but for Dorsey's refusal to comply with the Pennsylvania Rules of Civil Procedure governing Discovery and this Court's Order dated March 27, 2013. 29. Pursuant to Cumberland County Local Rule No. 208.2(b), Plaintiffs' counsel hereby certifies that he has sought concurrence in this Motion from Dorsey. Concurrence has not been provided. 30. No hearing or argument is requested with respect to this Motion 31. No discovery is necessary. 32. No Judge of this Court has previously ruled on any substantive issue in this case. 33. This Court has authority to grant this Motion pursuant to Pa.R.C.P. No. 4019. 4 WHEREFORE, Plaintiffs respectfully request that this Court find Defendant, Brian Dorsey t/d/b/a Dorsey Construction in contempt of this Court's March 27, 2013 Order enter Judgment as to liability against him. Alternatively, Plaintiffs request this Court to compel Defendant to strictly comply with this Court's Order dated March 27, 2013 and immediately provide full, complete and accurate answers to Plaintiff's January 23, 2013 discovery requests. Plaintiffs further request the Court to order Dorsey to immediately pay Plaintiffs $750.00 for attorneys fees incurred by Plaintiffs as a result of Defendant's failure to comply the March 27, 2013 Order together with punitive damages and such other relief as the Court deems just and appropriate under the circumstances. Respectfully submitted, METTE, EVANS & WOODSIDE By: Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Plaintiffs Date: June 3, 2013 5 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, and via facsimile as follows: Brian Dorsey t/d/b/a Dorsey Construction 61 Lenwood Park Shippensburg, PA 17257 Pro Se METTE, EVANS & WOODSIDE By: Ronald L. Finck, Esquire Pa. Sup. Ct. I.D. No. 89985 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys,for Plaintiffs Date: June 3, 2013 3 ,,,:, _., .._..,___, _ ,_ (..,:,.) ,,I. ;';L.- 2? 3 JUN -7 F 2: `.: CUi t3Et"iI_AN', C.ii ..j j FE N US'(LW ?4IA P. ROGER STIVAL, JR. and JUDY • IN THE COURT OF COMMON PLEAS OF BEITZEL-STIVAL, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : v. • NO. 11-8915 BRIAN DORSEY t/d/b/a DORSEY CIVIL ACTION—LAW CONSTRUCTION, . Defendant JURY TRIAL DEMANDED ORDER AND NOW, this 7 day ofifU/11L2013, upon consideration of the Plaintiffs' Motion to Hold Defendant in Civil Contempt and Impose Sanctions, it is hereby ORDERED as follows: (1) Defendant Brian Dorsey t/d/b/a Dorse Construction is in contempt of Court. . S (2) • . ..- . I. ' _ or �' T ? / .)o/3 • • A*30,4.ow. ,4.:• • - - _ • �. _ .. - - : : _: - the BYTH ,—' _ 'T:I'ex Pai Ist n '4- / R:b12 na � rr ��1-izccr.4 ran. `/?//3 rli 639079v1 PPIO 10 CUNSERt I- PFi,�'Sll I'D N cou y Yt VA NIA METTE, EVANS&WOODSIDE Ronald L. Finck, Esquire Sup. CtAD No. 89985 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717)232-5000-Phone (717)236-1816-Fax rifinck@mette.com Altoi-neysfbr Plaintiffs P. ROGER STIVAL, JR. and JUDY IN THE COURT OF COMMON PLEAS OF BETTZEL-STIVAL, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 11-8915 BRIAN DORSEY t/d/b/a DORSEY CIVIL ACTION—LAW CONSTRUCTION, Defendant JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE ],.Ronald L. Finck, having been duly sworn upon my oath, state that I did serve a copy of the Court Order dated June 7, 2013 in the above-captioned matter upon the Defendant, Brian Dorsey t/d/b/a Dorsey Construction on June 11, 2013 by regular mail addressed as follows: Brian Dorsey t/d/b/a Dorsey Construction 61 Lenwood Park Shippensburg, PA 17257 I verify that the statements made in this Affidavit of Service are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. Respectfully submitted, METTE, EVANS & WOODSIDE By: Ronald L. Finck, Esquire Sup. Ct. I.D. No. 89985 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone (717) 236-1816 - Fax Attorneys for Plaintiffs Date: June 11, 2013 2 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, and via facsimile as follows: Brian Dorsey t/d/b/a Dorsey Construction 61 Lenwood Park Shippensburg, PA 17257 Pro Ye METTE, EVANS & WOODSIDE By: 6eanxr Ronald L. Finck, Esquire Pa, Sup. Ct. I.D. No. 89985 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 -Phone (717) 236-1816 - Fax Attorneys, or Plaintiffs Date: June 11, 2013 653323vl IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, IN THE COMMONWEALTH OF PENNSYLVANIA P. ROGER STIVAL, JR. and =� JUDY BEITZEL-STIVAL, `=- PLAINTIFF, Civil Action---LAW ate. Z� r 1;0 Docket No. 2011-8915 1 VS. � E) BRIAN DORSEY t/d/b/a DORSEY ' CONSTRUCTION, DEFENDANT, SUGGESTION OF BANKRUPTCY Defendant, Brian Dorsey, shows the Court, that he has filed a petition for relief under Title 1 1 USC Chapter 13; in the Middle District of Pennsylvania, Harrisburg Division, that has been assigned case number 13-03478 and accordingly relief was ordered on July 3rd, 2013 by the implementation of the Automatic Stay pursuant to 11 USC 362. The undersigned verifies that he represents the defendant relative to this Bankruptcy filing and further certifies that he has furnished a copy hereof to Counsel Ronald Finck, Esquire who currently represents the plaintiff in the Civil Action. Respectfully Submitted, Gregory S. Hazlett, Esquire Creg 9. squ A rney fo efendant/Debtor West Main St. Mechanicsburg, PA. 17055 I.D. 69528 Phone: (717) 790-5500