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Home My WebLink About12-1014 C-5 r C Salzmann Hughes, P.C. i rnCo3. r re BY: David H. Martineau, Esqu m. ?? Attorney I.D. No. 84127 S i I R d i fir-- -per u te ng oa , 354 Alexander Spr Carlisle, PA 17015 Telephone: (717) 249-6333 Attorney for Plaintiff C5 E-mail: dmartineau@a salzmannhughes.com L JOHN'S MOBILE REPAIR SERVICE, INC., R4F IN THE COURT OF COMMON P Plaintiff CUMBERLAND COUNTY, PENNS LVA V. DOCKET NO: ?01 1 vi t ? KEPHART TRUCKING CO., Defendant JURY TRIAL DEMANDED NOTICE TO DEFEND TO: Kephart Trucking Co., Defendant 983 Woodland Bigler Hwy Bigler, PA 16825 You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone Nos. (717) 249-3166 (800) 990-9108 G 41o3.e75 Pp A7r` C* Ito 153 et 471 IV Salzmann Hughes, P.C. BY: David H. Martineau, Esquire Attorney I.D. No. 84127 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 Telephone: (717) 249-6333 Attorney for Plaintiff E-mail: dmartineaunasalzmannhughes.com JOHN'S MOBILE REPAIR SERVICE, INC., Plaintiff V. KEPHART TRUCKING CO., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO: JURY TRIAL DEMANDED COMPLAINT AND NOW comes the Plaintiff, JOHN'S MOBILE REPAIR SERVICE, INC., by and through its counsel, SALZMANN HUGHES, P.C., and files this Complaint and in support thereof avers the following: 1. Plaintiff, John's Mobile Repair Service, Inc., is a Pennsylvania business corporation with its registered address at 1511 East Commerce Avenue, Carlisle, Cumberland County, Pennsylvania 17015. 2. Defendant, Kephart Trucking Co., is a Pennsylvania business corporation with its registered address at 983 Woodland Bigler Highway, Bigler, Clearfield County, Pennsylvania 16825. 3. Defendant is in the business of, inter alia, owning and operating tractor trailers. 4. Plaintiff is in the business of, inter alia, providing recovery, repair, storage and related services to tractor trailers. 5. On or about May 16, 2011, Defendant's Sterling, Day Cab Model, tractor, Serial No. 2FWJA3 CV77AX3 65 10 (the "Tractor") and the trailer it was hauling (the "Trailer") were involved in an accident in which the Tractor and the Trailer rolled over. 6. The accident occurred at the Cumberland County Landfill in Cumberland County Pennsylvania. 7. At Defendant's request, Plaintiff recovered Defendant's Tractor and Trailer. 8. Plaintiffs charges for the recovery of Defendant's Tractor and Trailer is Four Thousand Five Hundred Seventy-Five and 00/100 Dollars ($4,575.00). 9. At all times since May 16, 2011, Plaintiff has provided Defendant with storage for the Tractor at its facility at 1511 East Commerce Avenue, Carlisle, Cumberland County, Pennsylvania, having released the Trailer to Defendant at the time of the recovery. 10. Plaintiff charges Thirty Dollars ($30) per day for storage of the Tractor. 11. Storage fees for the Tractor as of February 16, 2012 are Eight Thousand Two Hundred Eighty and 00/100 Dollars ($8,280.00) and continue to accrue at the rate of Thirty Dollars ($30) per day until all fees due to Plaintiff are paid and Defendant removes the Tractor from Plaintiff s property. 12. Plaintiff's charges for the recovery of the Tractor and Trailer are reasonable and similar to fees charged by other providers of similar services. 13. Plaintiff's charges for the storage of the Tractor are reasonable and similar to fees charged by other providers of similar services. 14. Defendant has made five (5) separate payments of Five Hundred and 00/100 Dollars ($500.00) each, totaling Two Thousand Five Hundred and 00/100 Dollars ($2,500.00). 15. As of February 16, 2012, the total amount due and owing from Defendant to Plaintiff is Ten Thousand Three Hundred Fifty-Five and 00/100 Dollars ($10,355.00). 16. Plaintiff has made demand upon Defendant for payment. 17. Despite promises to pay, Defendant has failed to pay the full amount due to Plaintiff. COUNT I BREACH OF CONTRACT 18. Paragraphs 1 though 17 are incorporated herein as if set forth in full. 19. Defendant offered to Plaintiff to have Plaintiff perform the recovery and storage of the Tractor and Trailer as set forth above on or about May 16, 2012. 20. Plaintiff accepted Defendant's offer, performing the services set forth above, forming an oral contract for the recovery of the Tractor and Trailer and the storage of the Tractor. 21. Despite Plaintiff s demand for payment, Defendant has failed to pay Plaintiff the sum of Ten Thousand Three Hundred Fifty-Five and 00/100 Dollars ($10,355.00) as of February 16, 2012. WHEREFORE, Plaintiff requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant in the amount of Ten Thousand Three Hundred Fifty-Five and 00/100 Dollars ($10,355.00) plus additional storage fees accruing at the rate of Thirty Dollars ($30) per day from February 16, 2012 until such time as said judgment is paid and Defendant's Tractor is removed from Plaintiff's property, plus reasonable attorney fees and costs of suit. COUNT II QUANTUM MERUIT 22. Paragraphs 1 through 21 are incorporated herein as if set forth in full. 23. Plaintiff conferred a benefit upon Defendant in the performance of recovery services and storage of the Tractor and Trailer as set forth above. 24. Defendant accepted the benefit conferred upon it by Plaintiff. 25. The fair and reasonable value of the recovery services provided is Four Thousand Five Hundred Seventy-Five and 00/100 Dollars ($4,575.00). 26. The fair and reasonable value of the storage provided is Thirty Dollars ($30) per day, totaling Eight Thousand Two Hundred Eighty and 00/100 Dollars ($8,280.00) as of February 16, 2012. 27. Despite Plaintiffs reasonable demands, Defendant has failed to pay fully for the benefit conferred upon it and accepted by it. WHEREFORE, Plaintiff requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant in the amount of Ten Thousand Three Hundred Fifty-Five and 00/100 Dollars ($10,355.00) plus additional storage fees accruing at the rate of Thirty Dollars ($30) per day from February 16, 2012 until such time as said judgment is paid and Defendant's Tractor is removed from Plaintiff s property, plus reasonable attorney fees and costs of suit. COUNT III UNJUST ENRICHMENT 28. Paragraphs 1 through 27 are incorporated herein as if set forth in full. 29. As more fully set forth above, the recovery and storage services provided by Plaintiff to Defendant for which Defendant has not paid, has enriched Defendant in the amount of Ten Thousand Three Hundred Fifty-Five and 00/100 Dollars ($10,355.00) plus additional storage fees accruing at the rate of Thirty Dollars ($30) per day from February 16, 2012 until such time as said judgment is paid and Defendant's Tractor is removed from Plaintiff's property. 30. Such enrichment of Defendant would be unjust if Defendant were permitted to retain the benefit of Plaintiff's services without paying Plaintiff for the fair value of such services. WHEREFORE, Plaintiff requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant in the amount of Ten Thousand Three Hundred Fifty-Five and 00/100 Dollars ($10,355.00) plus additional storage fees accruing at the rate of Thirty Dollars ($30) per day from February 16, 2012 until such time as said judgment is paid and Defendant's Tractor is removed from Plaintiff's property, plus reasonable attorney fees and costs of suit. SALZMANN HUGHES, P.C. By David H. Martineau, Esquire Attorney I.D. No. 84127 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 (717) 249-6333 Attorneys for Plaintiff Date: February 16, 2012 VERIFICATION I, John A. Cunningham, Jr., President of John's Mobile Repair Service, Inc., Plaintiff in the attached Complaint, certify that I have read the statements made in this Complaint and that they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unsworn falsification to authorities. JOHN'S MOBILE REPAIR SERVICE, INC. r By: ?. 1ohn A. Cunningham, Jr., Pre ident Date: February 16, 2012 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy ?$?,t?tr nt ?at+ttbr?f??,D LE.t?-?;? ? I4 i ON" 2012 MAR 20 AM9 (0: 46 Richard W Stewart Solicitor AFF C"c ::'rr ;rERIFF CUMBERLAND CUUNo_,, PENNSYLVANIA John's Mobile Repair Service, Inc. vs. Case Number Kephart Trucking Co. 2012-1014 SHERIFF'S RETURN OF SERVICE 02/27/2012 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: Kephart Trucking Co., but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Clearfield County, Pennsylvania to serve the within Complaint and Notice according to law. 03/05/2012 10:10 AM -Clearfield County Return: And now March 5, 2012 at 1010 hours I, Chester A. Hawkins, Sheriff of Clearfield 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: Kephart Trucking Co. by making known unto Susan Conaway, Administrative Assistant for Kephart Trucking Co. at 983 Woodland Bigler Highway, Bigler, Pennsylvania 16825 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $37.45 March 16, 2012 SO ANSWERS, RON r R ANDERSON, SHERIFF ci CountySuite ShenYf, Teleo.<.cft. Inc. To Deputy 2/29/12 IN THE COURT OF COMMON PLEAS OF CLEARFIELD COUNTY, PENNSYLVANIA NO: 12-1014 JOHN'S MOBILE REPAIR SERVICE, INC. vs KEPHART TRUCKING CO. COMPLAINT SERVE BY: 03/17/2012 HEARING PAGE: 109366 DEFENDANT: KEPHART TRUCKING CO. ADDRESS: 983 WOODLAND/BIGLER HWY BIGLER. PA 16825 ALTERNATE ADDRESS SERVE AND LEAVE WITH: DEFENDANT/PIC CIRCLE IF THIS HIGHLIGHTED ADDESS IS: VACANT SHERIFF'S RETURN OCCUPIED NOW, ??S?o/off AT /d"/C) A PM SE V THE WITHIN COMPLAINT ON KEPHART TRUCKING CO., DEFENDANT BY HANDING TO r., A TRUE AND ATTESTED COPY OF THE ORIGINAL DOCUMENT AND MADE KNOW TO HIM / HER THE CONTENTS THEREOF. ADDRESS SERVED ( )Residence Office ( ) NOW AT COMPLAINT FOR KEPHART TRUCKING CO. AT (ADDRESS) AM / PM POSTED THE WITHIN NOW AT AM / PM AFTER DILIGENT SEARCH IN MY BAILIWICK, I MAKE RETURN OF NOT FOUND AS TO KEPHART TRUCKING CO. REASON UNABLE TO LOCATE SWORN TO BEFORE ME THIS DAY F 'Moo. 2012 WILLIAM A. SHAW Prothonotary My Commission Expires 1 st Monday in Jan, 2014 Clearfield Co., Clearfield, PA So Answers:CHESTER A. HAWKINS, SHERIFF BY:Oi?/,i Deluty Signa E Print Deputy ame ` SERVICE # 1 OF 1 JOHN'S MOBILE REPAIR SERVICE, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. KEPHART TRUCKING CO., Defendant DOCKET NO: 12-1014 ANSWER Kephart Trucking Co., through its corporate Vice President, files this answer to the Complaint of Plaintiff. 1. Admitted. 2. Admitted. 3. Admitted. p 4. Admitted. f , 5. Admitted. = - 6. Admitted. - 7. It is denied that the recovery occurred at Defendant's request, as it was the landfill that requested Plaintiff s actions. 8. Defendant acknowledges that the recovery fee has been correctly stated. While Defendant anticipated being billed for recovery charges, it never agreed to pay the storage charges that have been assessed, as storage provided no benefit for Defendant. 9. Denied. It is denied that storage was provided, but instead Defendant believes the tractor was involuntarily detained. 10. Defendant denies that it agreed to these storage charges and denies that they are reasonable. 11. Denied. See answer to 10 above. 12. Admitted. 13. Denied. 14. Defendant admits to having made such payments as it presented these payment for the purpose of making payment toward the recovery charges. 15. It is denied that any charge in excess of the recovery charge of Four Hundred Seventy-Five and 00/100 Dollars ($4,575.00) is due and owing. 16. Admitted, but Defendant denies the full amount is due. 17. It is denied that the full amount of the lawsuit is due. COUNT 1 BREACH OF CONTRACT 18. No answer required. 19. Denied as stated. Defendant is agreeable to only paying the recovery charge and did not request that storage services be provided. 20. Denied, legal conclusion. 21. Denied, legal conclusion. WHEREFORE, Defendant requests the Honorable Court to enter judgment in its favor and against Plaintiff, and to rule that no additional storage fees are owed because Plaintiff improperly detained the Defendant's equipment and to deny Plaintiff's request for attorney's fees. COUNT II QUANTUM MERIT 22. No answer required. 23. It is denied that the storage services produced a benefit for Defendant, as they instead were assessed to produce a benefit for Plaintiff that Defendant did not agree to. 24. Defendant denies that it received any benefit from the storage as the storage was an involuntary detention by Plaintiff of Defendant's equipment. 25. Defendant admits that a reasonable charge for recovery fees is owed. 26. Defendant denies that any storage is due and owing, as the equipment was detained solely for Plaintiff's benefit in order to assess fees and not for the benefit of the Defendant. 27. The "benefits" that Plaintiff seeks to recover were benefits for it and Defendant denies that it is obligated to pay any storage fees and to pay anything above a reasonable recovery fee. WHEREFORE, Defendant requests the Honorable Court to enter judgment in its favor and against Plaintiff, and to rule that no additional storage fees are owed because Plaintiff improperly detained the Defendant's equipment and to deny Plaintiff's request for attorney's fees. COUNT III UNJUST ENRICHMENT 28. No answer required. 29. It is denied that Defendant has been enriched by the storage fees that have been assessed, as such fees produced a benefit for Plaintiff only and no benefit for Defendant. 30. Defendant denies that it has been unjustly enriched. To the contrary, Defendant submits that it is Plaintiff that has been unjustly enriched by assessing storage fees which were of no benefit to Defendant, but were assessed only to produce a benefit for Plaintiff. WHEREFORE, Defendant requests the Honorable Court to enter judgment in its favor and against Plaintiff, and to rule that no additional storage fees are owed because Plaintiff improperly detained the Defendant's equipment and to deny Plaintiff's request for attorney's fees. KEPHART TRUCKING CO. David . Kephart Vice President Kephart Trucking Co. PO Box 386 Bigler, PA 16825 (814) 768-0300 Date: April 6, 2012 VERIFICATION I, David J. Kephart, Vice President of Kephart Trucking Co., Defendant in the subject proceeding, certify that I have read the statements in this Answer and that they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unsworn falsification to authorities. KEPHARTJRU K CO. David J. Kep is P sident Date: April 6, 2012 CERTIFICATE OF SERVICE I certify that on April 6, 2012,1 served a copy of the foregoing Answer of Kephart Trucking Co. upon the attorney for Plaintiff at the following address: David H. Martineau, Esquire Salzmann Hughes, P.C. 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 KEPHART T CKING CO. Dated: April 6, 2012 B . avi J. h Vice President Kephart Trucking Co. P.O. Box 386 Bigler, PA 16825 (814) 768-0300 ? U, Salzmann Hughes, P.C. BY: David H. Martineau, Esquire ?.- -- Attorney I.D. No. 84127 r. 354 Alexander Spring Road, Suite 1 -71 Carlisle, PA 17015 Telephone: (717) 249-6333 Attorney for Plaintiff ry E-mail: dmartineaua,?lzmannhuehes.com - JOHN'S MOBILE REPAIR SERVICE, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. KEPHART TRUCKING CO., : DOCKET NO: 12-1014 Defendant : JURY TRIAL DEMANDED PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: I, David H. Martineau, Esquire, counsel for the Plaintiff in the above action, respectfully represents that:: 1. The above-captioned action is at issue. 2. The claim of the plaintiff in the action is $13,445.00. There is no counterclaim. The following' attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: David H. Martineau, Esquire - counsel for Plaintiff WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. SALZMANN HUGHES, P.C. ----- Dated: May 29, 2012 By: David H. Martineau, Esquire Attorney I.D. No. 84127 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 _*aB.=ro pp AT7y Attorneys for Plaintiff Cif c2&31/0 ea'75 983 CERTIFICATE OF SERVICE I, David H. Martineau, counsel for the Plaintiff, hereby certify that on this 29th day of May 2012, I served a copy of the foregoing Petition for Appointment of Arbitrators upon Defendant by placing the same in the United States Mail, postage prepaid, and addressed as follows: Kephart Trucking Co. 983 Woodland Bigler Hwy Bigler, PA 16825 ------- ------- - David H. Martineau S JOHN'S MOBILE REPAIR SERVICE, INC., Plaintiff V. KEPHART TRUCKING CO., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : DOCKET NO: 12-1014 : JURY TRIAL DEMANDED ORDER OF COURT 9 AND NOW, this & 4day of 2012, in consideration of the foregoing petition, ?,Esq•? ?7'!?GZ? ??i,?N, Esq., and "/AW_f ;Z. ", Esq., are appointed arbitrators in the above captioned action as prayed for. By the Court, P.J. -7 f= v V. T ,i11e S ?,el h 'epc' I (lobs ?.1?01 l??te?ia Salzmann Hughes, P.C. +- - - ; BY: David H. Martineau, Esquire W a°)` Attorney LD. No. 84127 -< -- _ -? . . 354 Alexander Spring Road, Suite 1 E - Carlisle, PA 17015 ?- ri y Telephone: (717) 249-6333 Attorney for Plaintiff ,- - ?- - i E-mail: dmartineau(a?salzmannhughes com .D JOHN'S MOBILE REPAIR SERVICE, INC., Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEPHART TRUCKING CO., Defendant DOCKET NO: 12-1014 : JURY TRIAL DEMANDED PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: I, David H. Martineau, Esquire, counsel for the Plaintiff in the above action, respectfully represents that: 1. The above-captioned action is at issue. 2. The claim of the plaintiff in the action is $13,445.00. There is no counterclaim. The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: David H. Martineau, Esquire - counsel for Plaintiff WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. SALZMANN HUGHES, P.C. Dated: May 29, 2012 By: H. Martineau, Esquire Attorney I.D. No. 84127 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 _*48.50 pp AT?-f Attorneys for Plaintiff 0W 0%3q0 e,2-75 983 CERTIFICATE OF SERVICE I, David H. Martineau, counsel for the Plaintiff, hereby certify that on this 29th day of May 2012, I served a copy of the foregoing Petition for Appointment of Arbitrators upon Defendant by placing the same in the United States Mail, postage prepaid, and addressed as follows: Kephart Trucking Co. 983 Woodland Bigler Hwy Bigler, PA 16825 David H. Martineau VL? Plaintiff In The Court of Common Pleas of Cumberland! County, Pennsylvania No. - I Q J Civil Action - Law. Defendant Oath W 'e do solemnly swear (or affirm) that we will support, obey and defend the Constitution of the U i States and the Constitution of this Commonwealth and that we will discharge the duties of our o a v.ah fidelity. Sign ure Signature Signature ,E. Narhe (Chairman) G- cc?rtak ?Lav FirmW Address ?li?e ? ?G13 City, Zip ?kaucusE.T l,>Wetr? Name t1-etoEra- [aw LL-C Law Firm /0 V 91& s7-, Address (A&usI-6 i 7o j? City, Zip LA J G. Name Lfo l? 7r 1 Law Firm (2?l S'Vr? Address ? # City, Zip Award We, the undersigned arbitrators; having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay are awarded; they shall be separately stated.) . I . r.r .. Date of Hearina: 12 Date of Award: L Arbitrator, dissents. (Insert name if applic (Chairman) Notice of Entry of Award Now, the %'A day of , 20 /--)_ , at /J- / 7 , A .M., the above award entered upon the docket and notice then of given by mail to the parties or their attorneys. Arbitrators' compensation to be paid upon appeal: S By: Deputy Y?-v 1A tic Jq /C'S ?L