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HomeMy WebLinkAbout12-2118 1111: 13 Neil W. Yalm, Esquire Attorney I.D. No. 82278 James Smith Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17036 Attorney for Plaintiff MARK FRESE ELECTRICIANS, INC., V. Plaintiff ERIC P. FIELDER, an adult individual and SUNNYROCK BUILDING & DESIGN, LLC, d/b/a SUNNYROCK HOMES "T..ERIAND COUNT' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. apl?- ?L/? C1Ut? Defendants : CIVIL ACTION - LAW NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by an attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, Pa 17013 (717) 249-3166 - Toll Free (800) 990-9108 9). a? Ck? 1(S?3 Neil W. Yahn, Esquire Attorney I.D. No. 82278 James Smith Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17036 Attorney for Plaintiff MARK FRESE ELECTRICIANS, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. ERIC P. FIELDER, an adult individual and SUNNYROCK BUILDING & DESIGN, LLC, d/b/a SUNNYROCK HOMES Defendants : CIVIL ACTION - LAW AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mds adelante en las siguientes pdginas, debe tomar accion dentro de los pr6ximos veinte (20) dias despu6s de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparencencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mds aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, Pa 17013 (717) 249-3166 - Toll Free (800) 990-9108 Neil W. Yahn, Esquire Attorney I.D. No. 82278 James Smith Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17036 Attorney for Plaintiff MARK FRESE ELECTRICIANS, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. ERIC P. FIELDER, an adult individual and SUNNYROCK BUILDING & DESIGN, LLC, d/b/ a SUNNYROCK HOMES Defendants CIVIL ACTION -LAW COMPLAINT AND NOW comes the Plaintiff, Mark Frese Electricians, Inc. (herein "Plaintiff '), by and through its undersigned counsel, JAMES, SMITH, DIETTERICK & CONNELLY, LLP, who hereby submits the within Complaint against the Defendants, Eric P. Fielder, an adult individual (herein "Fielder" individually) and Sunnyrock Building and Design, LLC, d/b/a Sunnyrock Homes (herein the "Contractor" individually and collectively the "Defendants" with Fielder). In support thereof, Plaintiff avers as follows: PARTIES Plaintiff is a Pennsylvania Corporation currently operating at 1135 Victor Lane, Dauphin, Pennsylvania 17018 and specializes in the field of electrical wiring and installation. 2. Fiedler is an adult individual currently residing at the Property as defined herein below. Contractor is a Pennsylvania Limited Liability Company doing business as Sunnyrock Homes located at 1780 Pinetown Road, Wellsville, Pennsylvania 17365. FACTS AND BACKGROUND 4. Plaintiff's dispute with the Defendants stems from the construction of a residential property located at 506 Halyard Way, Enola, Cumberland County, Pennsylvania 17025 (herein the "Property") Fielder is the owner of the Property who hired Contractor as the general contractor for the construction thereof. 6.. In or about February of 2009, Plaintiff was contacted by Contractor to provide the electrical wiring and installation for the Property (herein the "Agreement'). T The materials hereinafter referred to were furnished pursuant to an oral contract on or about February 20, 2009, wherein the Plaintiff agreed to furnish certain materials and labor of which an itemized statement is attached as Exhibit "A" and the Defendants agreed to pay for each item at the price set forth in Exhibit "A". 8. The materials were furnished and the labor was provided in and about the erection and construction of the Property from February 2009 to August 2009. 9. The total amount of the contract price agreed upon by the parties was Thirty Six Thousand Nine Hundred Thirteen Dollars ($36,913.00). 10. On or about May 4, 2009, Plaintiff received a payment in the amount of Eighteen Thousand Eight Hundred Fifty Dollars ($18,850.00). -2- 11. The amount still due and owing to Plaintiff is Eighteen Thousand Sixty Three Dollars ($18,063.00), being the agreed-on contract price less the amount received by Plaintiff on or about May 4, 2009. 12. The first materials were furnished by Plaintiff on or about February 27, 2009 and the last materials were furnished on August 19, 2009. 13. To date, the Defendants still have not tendered the balance owed to the Plaintiff, namely Eighteen Thousand Sixty Three Dollars ($18,063.00). 14. Plaintiff believes that Contactor may have not been fully compensated by Fielder for completion of the Property and in turn, Plaintiff has not been compensated by either Defendant. COUNT I - BREACH OF CONTRACT 15. On or about February 20, 2009, Plaintiff and Defendants entered into an agreement wherein Plaintiff was to provide a variety of supplies and labor to the Property for completion of the electrical wiring work over the course of construction. 16. The total amount of the contract price agreed upon by the parties was Thirty Six Thousand Nine Hundred Thirteen Dollars ($36,913.00). 17. On or about May 4, 2009, Plaintiff received a payment in the amount of Eighteen Thousand Eight Hundred Fifty Dollars ($18,850.00). 18. The amount still due and owing to Plaintiff is Eighteen Thousand Sixty Three Dollars (S 18,063.00), being the agreed-on contract price less the amount received by Plaintiff on or about May 4, 2009. -3- 19. The Defendants have not remitted any further payments to Plaintiff for the amount owed since the partial payment in breach of the Agreement. 20. Any and all conditions precedent to full payment have been satisfied by Plaintiff. 21. Defendants' obligation to pay for the work and supplies provided by Plaintiff under the terms of the Agreement remain unsatisfied. 22. Due to Defendants' breach, Eighteen Thousand Sixty Three Dollars ($18,063.00) is due and owing to Plaintiff. WHEREFORE, Plaintiff demands judgment in its favor and against the Defendants for the total amount due of Eighteen Thousand Sixty Three Dollars ($18,063.00), plus the legal rate of interest from August 19, 2009 and additional costs of suit. COUNT II - UNJUST ENRICHMENT 23. In the event it is determined that no contract existed in fact or at law between Plaintiff and the Defendants as alleged in Count I, Plaintiff alleges that the Defendants have been unjustly enriched by the labor and materials supplied by Plaintiff. 24. Plaintiff supplied certain equipment, materials and labor to the Defendants and the Defendants accepted the same as indicated in the attached Exhibit "A". 25. Plaintiff conferred an extensive benefit upon the Defendants by specifically providing them with equipment, materials and labor in the amount of Thirty Six Thousand Nine Hundred Thirteen Dollars ($36,913.00). 26. Plaintiff was denied return on the contribution as the Defendants have failed to remit the remaining balance of Eighteen Thousand Sixty Three Dollars ($18,063.00) to -4- Plaintiff, which is accurately accounted for and reflected in the amount owing (see Exhibit 27. Plaintiff was induced by the Defendants to provide the required equipment, materials and labor based upon anticipated payment by the Defendants. 28. Defendants have received the benefit of the equipment, materials and labor supplied by Plaintiff as they were accepted by the Defendants and installed on the Property. 29. Defendants will be unjustly enriched if they are allowed to retain the benefit of the equipment, materials and labor without compensating Plaintiff for the same. WHEREFORE, Plaintiff demands judgment in its favor and against the Defendants for the total amount due of Eighteen Thousand Sixty Three Dollars ($18,063.00), plus the legal rate of interest from August 19, 2009 and additional costs of suit. Respectfully submitted, JAMES, SMITH, DIETTERICK & CONNELLY,LLP Date: April ? , 2012 By: N'Lome* a A . No. 82278 13 enue Hown, PA 17036 (717) 533-3280 Attorney for Plaintiff -5- { L? r d fD i IN W t rw 0 N O W CD ? 00 p. (L b C/1 cr CD t••t ? CL ryr CD ?4 p r o CD ? c? Q•` C C? O O O CD V C ITj h EXHIBIT A Mark Frese Electricians 1135 Victor Lane Phone: 921-8637 Dauphin,, Pa. 17018 Fax: 921 -815 5 February 1, 2010 Bill To: fob Address: Sunnyrock Builders Lot 29,Fiedlers' Job Request: Date Started:. Date Finished: As directed 02 27 09 08 1909 Completion of contract 18,063.00 'Ree'd 5/4/09 18,850.00 Total Labor 19924.00 Total Materials 1-6989.00 Permit/Inspection 120.00 Please Pay this Amount: $18,063 Thank You Payment is clue-upon receipt., A monthly service charge of 2% will be added if this invoice is not paid within thirty days Mark Frese Electricians, Inc date labor hours 2/27/2009 4 3/2/2009 .18 3/3/2009 16 3/4/2009 16 3/5/2009 16 3/6/2009 16 3/9/2009 10 3/10/2009 16 3/11/2009 16 3/12/2009 16 3/17/2009 16 3/18/2009 11 3119/2009 16 . 312612009 .14 4/2/2009 '16 4/3/2009 16 4/6/2009 16 4/7/2009 16 4/8/2009 16 4/9/2009 16 4122/2009 4 4/27/2009 6 5/13/2009 1 5/21/2009 10 6/25/2009 16 6/26%2009 10 6/29/2009 16 .6/30/2009 16 7/1012009 16 7/13/2009 16 7/14/2009 16 7/20/2009 16 7/22/2009 12 7/23/2009 16 7/24/2009 14 8/3/2009 16 8/4/2009 .16 8/5/2009 8 8/6/2009 16 8/17/2009 16 8/18/2009 16 8/19/2009 16 Total Hours 586 Hourly Rate 34 Total Labor $ 19,924.00 Lot 29 date materials cost 3/3/09 $979.00 3/4/09 $290.00 3/5/09 $29.00 3/5109 $980.00 3/11/09 $951.00 3/16/09 $241.00 3/16/09 $157.00 3/17/09 $292.00 3/17109 $492.00 3/19/09 $188.00 3/23/09 $325.00 3/23/09 $348.00 3/27/09 $481.00 4/1/09 $91;00 .4/2/09 $149.00 4/3/09 $464.00 417/09 $176.00 4/8/09 $355.00 4/9/09 $19.00 4/9/09 $188.00 4/10/09 $68.00 4/10/09 -$259.00 return 4/22/09 $33.00 .4/8/09 $29.00 5/21/09 $15.00 6/26/09 $1,290.00 6/29/09 $749.00 7/10/09 $887.00 7/10/09 $580.00 7/10/09 $153.00 7/10/09 $344.00 7/10/09 $629.00 7/14/09 $137.00 7/20/09 $798.00 7/22/00 $719.00 7/24/09 $262.00 7/14/09 $1,627.00 7/23/09 $273.00 7/27109 $247.00 7/27/09 -$72.00 return 7/22/09 $171.00 7/24/09 $16.00 8/4/09 $323.00 8/5/09 $289.00 8/19/09 $22.00 815/09 $23.00 8/7/09 $489.00 8/7/09 $83.00 8/7/09 $67.00 8/7/09 -$401.00 return 8/19/09 $203.00 Total Materials $16,989.00 Neil W. Yahn, Esquire Attorney I.D. No. 82278 James Smith Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17036 Attorney for Plaintiff MARK FRESE ELECTRICIANS, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. ERIC P. FIELDER, an adult individual and SUNNYROCK BUILDING & DESIGN, LLC, d/b/a SUNNYROCK HOMES Defendants : CIVIL ACTION - LAW CERTIFICATE OF SERVICE AND NOW, this 4` Tay of April, 2012, I, Neil W. Yahn, Esquire, do hereby certify that I served a true and correct copy of the foregoing Complaint upon the following below- named individuals by depositing the same in the U.S. Mail, postage pre-paid at Hershey, Dauphin County, Pennsylvania: Craig I. Adler, Esquire Capozzi & Associates, P.C. P.O. Box 5866 Harrisburg, Pennsylvania 17110 Attorneys for Defendant Fiedler Sunnyrock Building & Design, LLC d/b/a Sunnyrock Homes 1780 Pinetown Road Wellsville, Pennsylvania 17365 Defendant (shall be served via Sheriffs Service) Craig 1. Adler Attorney ID: 52970 Capozzi & Associates, P.C. P.O. Box 5866 Harrisburg, PA 17011 Attorney for Defendant FILED-OFF ICj7 OF THE PR, 0TI10NOTA 2012 APR 27 Phi 2: 14 CUMBERLAND COUNT %` PENNSYLVANIA MARK FREESE ELECTRICIANS, INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. No. 2012-2118 CIVIL ERIC P. FIEDLER, an adult individual, and SUNNYROCK BUILDING & DESIGN LLC, d/b/a SUNNYROCK HOMES Defendants : CIVIL ACTION - LAW DEFENDANT'S ANSWER TO COMPLAINT AND NOW comes Defendant, Eric P. Fiedler ("Defendant Fiedler") by and through his counsel, Capozzi & Associates, P.C., and files this Answer to Plaintiff's Complaint received on April 9, 2012; and, in support thereof states the following: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied. The residential property at 506 Halyard Way, Enola, Cumberland County, Pennsylvania 17025 (the "Property") is owned by the Eric P. Fiedler, M.D. Revocable Trust, under which Defendant Fiedler is designated as the sole trustee. 6. Admitted. 7. Denied. Defendant Fiedler states that there never existed an oral contract between himself, Plaintiff, or Defendant Sunnyrock Building and Design, LLC ("Sunnyrock") to furnish materials or labor for the referenced itemized statements. Defendant Fiedler is unaware of and is certainly not a party to any contracts between Plaintiff and Sunnyrock, and Defendant Fiedler never entered into a contract with Plaintiff. The written Construction Agreement ("General Contractor's Agreement") entered into on November 14, 2008 by Sunnyrock and Defendant Fiedler concerning the Property required that any changes to the General Contractor's Agreement be made in writing. 8. Admitted. 9. Denied. Defendant Fiedler denies Paragraph 8 to the extent that it implies the existence of a contract between himself, Plaintiff, and Sunnyrock. Further, Defendant Fiedler states that the electrical work agreed upon between him and Sunnyrock pursuant to the General Contractor's Agreement was not completed by Sunnyrock or by Plaintiff. 10. Admitted. By way of further explanation, Defendant Fiedler wishes to note that the payment to Plaintiff was made by Sunnyrock. 11. Denied. Defendant Fiedler has no knowledge of the amount of payment still owed to Plaintiff by Sunnyrock. 12. Admitted. 13. Denied. Defendant Fiedler has no knowledge of Sunnyrock's tendering of payment to Plaintiff beyond the $18,063.00 already tendered to Plaintiff. Defendant Fiedler denies the implication that he is responsible for payment to Plaintiff. 14. Denied. Defendant Fiedler has paid all required compensation to Sunnyrock and has no ongoing obligation related thereto. ANSWER TO COUNT I - BREACH OF CONTRACT 15. Denied. By way of further explanation, Defendant Fiedler only contracted with Sunnyrock for the provision of services, and Defendant Fiedler never entered into an agreement with Plaintiff. 16. Denied. By way of further explanation, Defendant Fiedler contracted with Sunnyrock for electrical work pursuant to the General Contractor's Agreement:. Defendant Fiedler states that at the time that Defendant Fiedler and Sunnyrock entered into the General Contractor's Agreement, Plaintiff was not personally or otherwise known to Defendant Fiedler and that any price or pricing arrangement between Sunnyrock and Plaintiff for the electrical services to be performed on the Property on behalf of Sunnyrock was agreed upon between Sunnyrock and Plaintiff. Defendant Fiedler denies that he was a party to the negotiation or execution of the agreement between Sunnyrock and Plaintiff and further denies liability under their agreement. Further, Defendant Fiedler states that the electrical work agreed upon to have been performed by Sunnyrock pursuant to the General Contractor's Agreement was not completed by Sunnyrock or by Plaintiff. 17. Admitted. Defendant Fiedler wishes to note that the payment was tendered to Plaintiff by Sunnyrock. 18. Denied. Defendant Fiedler has no knowledge of the payments made to Plaintiff beyond the initial payment of $18,850.00 because Sunnyrock is responsible for paying Plaintiff. 19. Denied. Defendant Fiedler has no responsibility to remit payment to Plaintiff. Defendant Fiedler has no knowledge of the payments made to Plaintiff because Sunnyrock is responsible for paying Plaintiff. 20. Denied. Defendant Fiedler has no responsibility to remit payment to Plaintiff because Sunnyrock is responsible for paying Plaintiff. Defendant Fiedler denies that he was a party to any negotiation or execution of the agreement between Sunnyrock and Plaintiff concerning Plaintiff's work on the Property and further denies liability under their agreement. Defendant Fiedler has no knowledge of the amount owed to plaintiff for work completed by Plaintiff as of the time that Plaintiff discontinued work on the Property under the agreement between Plaintiff and Sunnyrock; however, Defendant Fiedler states that the electrical work agreed upon to have been performed by Sunnyrock pursuant to the General Contractor's Agreement was not completed by Sunnyrock or by Plaintiff at the time Plaintiff discontinued work on the Property. 21. Denied. Defendant Fiedler has no obligation to pay Plaintiff because there was no contract between Defendant Fiedler and Plaintiff, only between Sunnyrock and Plaintiff. 22. Denied. Defendant Fiedler has breached no contractual agreement because there is no contract between Defendant Fiedler and Plaintiff. There exists only an agreement between Defendant Fiedler and Sunnyrock. Defendant Fiedler denies knowledge of the nature of the agreement between Plaintiff and Sunnyrock. ANSWER TO COUNT II - UNJUST ENRICHMENT 23. Denied. Defendant Fiedler paid all amounts due to Sunnyrock and received no benefit in excess of that which was originally contracted for with Sunnyrock. 24. Denied. The General Contractors Agreement reflects materials, costs, and labor hours billed to Sunnyrock for work performed by Plaintiff on the Property between February 27, 2009 and August 19, 2009. Defendant Fiedler states that as of August 19, 2009, when Plaintiff discontinued work on the Property the electrical work agreed upon to have been performed by Sunnyrock pursuant to the General Contractor's Agreement had not been completed by Sunnyrock or by Plaintiff. Since Defendant Fiedler was not party to the agreement between Plaintiff and Sunnyrock, Defendant Fiedler cannot know whether Plaintiff had, as of August 19, 2009, completed all of the work on the Property required specifically under the agreement between Plaintiff and Sunnyrock and Defendant Fiedler cannot know or verify what the nature of the pricing arrangements were for the materials and labor provided by Plaintiff to Sunnyrock for the electrical work provided between February 27, 2009, and August 19, 2009, on the Property. Defendant Fiedler can only speak to the contents of the General Contractor's Agreement with respect to scope of the electrical work and costs to Defendant Fiedler for that electrical work. 25. Denied. Defendant Fiedler has no knowledge of the nature or extent of benefit conferred upon Sunnyrock by the efforts of Plaintiff. Defendant Fiedler also wishes to state that according to the General Contractor's Agreement and final settlement thereof, Defendant Fiedler has paid Sunnyrock fully for the services provided by Plaintiff, and thus has received no benefit not already paid. It is Sunnyrock's responsibility to pay Plaintiff. 26. Denied. Pursuant to General Contractor's Agreement and subsequent settlement thereof, Defendant Fiedler has paid all necessary monies to Sunnyrock. Any denial of a return on Plaintiff's contribution is the responsibility of Sunnyrock, not Defendant Fiedler. 27. Denied. Defendant Fiedler had no prior knowledge of Plaintiff, made no promises to Plaintiff, and therefore induced Plaintiff to do nothing. 28. Denied. Defendant Fiedler has no knowledge of benefit received on account of work performed or materials supplied by Plaintiff, it being specifically averred that Defendant Fiedler's contract was with Sunnyrock and it being further specifically averred that the work performed by Plaintiff was not completed. 29. Denied. By way of further explanation, Defendant Fiedler will not be unjustly enriched because Defendant Fiedler has paid all contracted for amounts as per the General Contractor's Agreement and subsequent settlement thereof. NEW MATTER REQUEST FOR AMENDED COMPLAINT 30. Paragraphs 1-29 are hereby incorporated by reference. 31. In response to Section Five (5) of this Answer, Defendant Fiedler answered by way of further explanation that the Property is owned by the Eric P. Fiedler, M.D. Revocable Trust, under which Defendant Fiedler is designated as the sole trustee. 32. The Complaint sets forth only Eric P. Fiedler in his individual capacity as a Defendant, and is thus improperly joined. WHEREFORE, Defendant Fiedler respectfully requests that Plaintiff amend its Complaint to remove Eric P. Fiedler in his individual capacity as a Defendant and add as Defendant Eric P. Fiedler as Trustee for the Eric P. Fiedler, M.D. Revocable Trust. NEW MATTER AFFIRMATIVE DEFENSE - WAIVER OF LIEN 33. Paragraphs 1-32 are hereby incorporated by reference. 34. Pursuant to 49 P.S. § 1402, "a written contract between the owner and a contractor, or a separate written instrument signed by the contractor, which provides that no claim shall be filed by anyone, shall be binding: but the only admissible evidence thereof, as against a subcontractor, shall be proof of actual notice thereof to him before any labor or materials were furnished by him; or proof that such contract or separate written instrument was filed in the office of the prothonotary prior to the commencement of the work upon the ground or within ten (10) days after the execution of the principal contract or not less than ten (10) days prior to the contract with the claimant subcontractor, indexed in the name of the contractor as defendant and the owner as plaintiff and also in the name of the contractor as plaintiff and the owner as defendant." 35. On or about November 14, 2008, Defendant Fiedler, as Trustee of the Eric P. Fiedler MD Revocable Trust, and Sunnyrock signed a Stipulation against Liens ("Stipulation) which waived Plaintiffs right to have file, or maintain any mechanic's lien against the Property. A true and correct copy of the Stipulation is attached hereto as Exhibit "A." 36. The Stipulation states affirmatively that Sunnyrock, its subcontractors, and all parties acting through or under it or them, "expressly waives and relinquishes any right to have, file, and maintain any mechanic's liens or claims against the said buildings or any of the improvements." 37. The Stipulation was filed with the Office of the Prothonotary of Cumberland County, Pennsylvania prior to the commencement of construction, on or about December 9, 2008. 38. Plaintiff contracted with Sunnyrock in or about February 2009. 39. The Stipulation was filed with the Office of the Prothonotary of Cumberland County, Pennsylvania prior to commencement of the work upon the ground and not less than ten days prior to the contract between Sunnyrock and Plaintiff. 40. Pursuant to 49 P.S. § 1402 and the Stipulation, Plaintiff has no right to have, file, or maintain any mechanic's lien or claim against Defendant Fiedler and their Complaint should therefore be dismissed by this Honorable Court. NEW MATTER AFFIRMATIVE DEFENSE TO COUNT II- ABSENCE OF CONTRACT 41. Paragraphs 1-40 are hereby incorporated by reference. 42. An action for unjust enrichment lies when a contract is unenforceable due to some reason such as impossibility, impracticability, or hardship, and a defendant is still enriched by the actions of the plaintiff such that value should be conferred for the benefit. AmeriPro Search, Inc. v. Fleming Steel Co., 787 A.2d 988, 991 (Pa.Super.2001) ("A quasi contract, also referred to as a contract implied in law imposes a duty, not as a result of any agreement, whether express or implied, but in spite of the absence of an agreement when one party receives an unjust enrichment at the expense of another.") 43. If there is no initial contract between two parties, an action for unjust enrichment cannot lie because there is no initial agreement that creates the enrichment. 44. There never existed any agreement or contract between Plaintiff and Defendant Fiedler. 45. Pursuant to Pennsylvania law, Plaintiff's action for unjust enrichment must fail and so their Complaint should be dismissed in its entirety. WHEREFORE, Defendant respectfully requests that this Honorable Court dismiss the Plaintiff s Complaint in its entirety, including but not limited to its actions for breach of contract and its action for unjust enrichment, with prejudice. NEW MATTER REQUEST FOR ATTORNEY'S FEES 46. Paragraphs 1-41 are hereby incorporated by reference. 47. Pennsylvania law provides that participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter where the attorney fee is awarded because of the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious, or in bad faith.42 Pa.C.S.A. § 2503(9). 48. Plaintiff filed a mechanic's lien on the Property on February 12, 2010, with the Prothonotary's Office in Cumberland County. 49. Plaintiff failed to file a complaint in support of his mechanic's lien within the two (2) year statutory limit. 50. Any remedy available to Plaintiff was under the Mechanic's Lien Complaint. 51. Plaintiff brings this action only after having missed that deadline. 52. Vexatious litigation may be found if a plaintiff files a suit "without sufficient grounds in either law or in fact and if the suit served the sole purpose of causing annoyance." Thunberg v. Strause, 682 A.2d 295, 299-300 (Pa. 1996). 53. It is believed that Plaintiff has filed its Complaint without sufficient grounds in fact because Plaintiff is well aware that there was no oral contract between the parties and that all payments to Plaintiff were to be made by Sunnyrock, thus making all arguments therein said Complaint inherently vexatious. (Remainder of page intentionally left blank) WHEREFORE, Defendant Fiedler respectfully requests that this honorable court award Defendant Fiedler court costs and attorney's fees in addition to the aforementioned request to dismiss Plaintiff's Complaint with prejudice. DATE: ) I ._ Z T I 1 2- _ Respectfully submitted, Craig I. Adler, Esquire Attorney ID: 52970 P.O. Box 5866 Harrisburg, PA 17110 (717) 233-4101 Attorney for Defendant DATE: Paul R. Vaneet, Esquire Attorney ID: 312135 P.O. Box 5866 Harrisburg, PA 17110 (717) 233-4101 Attorney for Defendant MARK FREESE ELECTRICIANS, INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. No. 2012-2118 CIVIL ERIC P. FIEDLER, an adult individual, and SUNNYROCK BUILDING & DESIGN LLC, d/b/a SUNNYROCK HOMES Defendants : CIVIL ACTION - LAW VERIFICATION I verify that the statement made herein are true and correct and understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. DATE: ?. Eric Fiedler MARK FREESE ELECTRICIANS, INC V. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2012-2118 CIVIL ERIC P. FIEDLER, an adult individual, and SUNNYROCK BUILDING & DESIGN LLC, d/b/a SUNNYROCK HOMES Defendants : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that I have, this date, mailed a true and correct copy of the foregoing pleading by United States mail, first-class, postage prepaid, addressed to the following individual(s): Neil W. Yahn, Esquire James, Smith, Dietterick & Connelly, LLP P.O. Box 650 Hershey, PA 17036 DATE: ? - z -q - ? Z Craig I. Adler EXHIBIT "A" r. VV1 t, lw. WWI F IED IFIR AND (-'() ti%LIC 7` COP Qj''? r??. rte.'- ( T p ?^-? J ^ V S71PULATION AGAINST LIENS Eric P. Fiedler, Trustee under the Eric P. Fiedler, MD Revocable Trust Agreement, Owner v. ?.1 : IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYT,vANIA NO. 0ff-'72,08 Jonathan L. Ruhsam Managing Member and SunnyRock Building & Design LLC Contractor c7 ; h, h c.; t ?. 4?+ ` f 5Z WHEREAS, Contractor has undertaken and agreed to perform the Construction on that certain parcel of land situate in East Pennsboro Township, Cumberland County, PennsyIvama, described more fully on Exhibit A. NOW, THEREFORE, TILLS AGREEMENT WITNESSETH: That the said Contractor, for and in consideration of the sum of One ($1.00) Dollar in band paid to it by Owner, the receipt whereof is hereby acknowledged, and the further consideration mentioned in the agreement aforesaid, for itself and its subcontractors, and al l parties acting through or under it or them, covenants and agrees that no mechanic's liens or claims shall be filed or maintained by it or any of them against the said buildings and the lot of ground appurtenant thereto for or on account of any work done or materials fim3ished by it or any of them under said contract or otherwise, for, towards, in or about the Construction of the residence on Lot No. 29, RiverBend, known as 506 Halyard way, on the lot above described, and the said Contactor; for itself, its subcontractors and others under it hereby expressly waives and relinquishes the right to have, file, and maintain any mechanic's liens or claims against the said buildings or any of the improvements, and agrees that this instrument, waiving the right of lien, shall be an independent covenant. IN WITNESS WHEREOF, the parties hereto intending to be legally bound have hereunto set their hands and seals the day and year first above written. OWNTER(S) EriP. Fiedler, Trustee P. 002 n CONTRACTOR: Sunnyrock Building & Design LLC: $y: L. Ruhsarn. managing Member Commonwealth of Pennsylvania County of Cumberland ss On this, f / t the day of 1?!P 2M- before me, the undersigned officer, personally appeared Eric F. Fiedler, Thistee under the Me P. Fiedler, NO Revocable Trust Agreement (Owner) And Jonathan L. Xiftam, Manging Member of Sunnyrock Building & Design,, LLC (Contactor), known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within i l"Ir meat, and acknowledged that they executed the same in their capacities as Trustee and Managing Member for the purposes therein contained. IN VfITNESS WHEREOF, I hereunto set my hand and official seal. 6- Jd?*i-444e Notary Public My Commission Expires: 17 f 2-?( COMMONWEALTH of PENNSYLVANIA Notarial Sens Barbara L. $auta * Notary Pubk .%S*Wrannfl Twp., Dauphin County W Comrnisa M e0M S Aug. 2a, 2010 Member, Pennsyl is A"odatlor of Notatrin OC:-01-2009 10:00 CT LAND RECEIPT FOR PAYMENT r. C_.mberlar_d Co;:nty Prothonotary's Office Receipt Date 12/09/20C3 Carlisle, Pa 17013 Receipt Time 14:08:44 Receipt No. 218234 FIEDLER ERIC P TRUSTEE (VS) RtJHSAM JONATHAN L ET AL Case Number 2008-07200 Received of PD CT L LND, SE'RV1CES CO Jv Total Noza-Cash..... + 21.00 Check# 26090Q Total Cash......... + .00 Change ............. 00 Receipt total...... _ $21.00 ------------------------ Distribution Of Payment ---------------------------- Transaction Description Payment Amount AUTOMATIONFEE' 16-00 CUMBERLAND L CO AU OMATION FUND $21.00 OCT-01-2009 10:00 CT LAND c 0 c- u? n ? m m W 0 m' 3 3 ? o g r' •C C m a O Q O Cs ?+ G a+ m 7 ?, Q S T =L m _? a w a C 8 ? m ?i FL o O a Cl> r m ? ? C 47 N S m 'i N C ? Q ? p '7'1 C'O?. d ? ? QN G O C N O ? ?C + C S C 3 O ol CA S c c D co 3 3 CCD ?a^3 3 W ? ID c ?? m d CD 'o m m (')cnp E Q X m lw _:3 3 R tt Z'1 v, O ~ a w N i3 Q a m ? m c m ' CL A 0 - 4 $ m_ O "0 N Q ? N '? ? 8 `T• ? TT ? rn C ? fl1 ? ? n v m m m r CO x S !V U CD 0 P. 004 !V C7 Cn 0 TOTAL P.004 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ???rf,r ct ?umbrr?y? OFFICE OFT".E SmERIFF I' : t..:„. 1.1 ' l.' i y F Tjjc RC? !Cfi C+If',?;'(' Jody S Smith Chief Deputy Richard W Stewart Solicitor !2 1 AY 24 PM 1: 5 CUM EMLAND COW W/ PEW43YLVANIA Mark Frese Electricians, Inc. I Case Number vs. 2012-2118 Sunnyrock Building & Design, LLC SHERIFF'S RETURN OF SERVICE 04/26/2012 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: Sunnyrock Building & Design, LLC d/b/a Sunnyrock Homes, but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of York County, Pennsylvania to serve the within Complaint and Notice according to law. 05/14/2012 Richard P. Keuerleber, Sheriff of York County, who being duly sworn according to law, states that on May 14, 2012, he was unable to serve a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Sunnyrock Building & Design, LLC. Deputies were unable to effectuate service before the Complaint and Notice expired. SHERIFF COST: $37.00 May 22, 2012 (c) CountySuite Sheriff. Teleosoft. Inc. SO ANSWERS, RON R ANDERSON, SHERIFF SHERIFF'S OFFICE OF YORK COUNTY Richard P Keuerleber PETER J. MANGAN, ESQ. Sheriff Solicitor Richard E Rice, II Reuben B Zeager Chief Deput Ilk Chief Deputy, Administration Deputy, Operations MARK FRESE ELECTRICIANS, INC., Case Number Vs. 2012-2118 CIVIL SUNNYROCK BUILDING & DESIGN, LLC, d/b/a SUNNYROCK HOMES SHERIFF'S RETURN OF SERVICE 05/14/2012 SHERIFF RICHARD P KEUERLEBER, BEING DULY SWORN ACCORDING TO LAW, STATES HE MADE DILIGENT SEARCH AND INQUIRY FOR THE WITHIN NAMED DEFENDANT TO WIT: SUNNYROCK BUILDING & DESIGN, LLC, D/B/A SUNNYROCK HOMES, BUT WAS UNABLE TO LOCATE THE DEFENDANT IN HIS BAILIWICK. THE SHERIFF THEREFORE RETURNS THE WITHIN REQUESTED COMPLAINT IN CIVILACTION (CICA) AS "NOT SERVED" AT 1780 PINETOWN ROAD, WELLSVILLE, PA 17365. NOT SERVED BY EXPIRATION DATE. SHERIFF COST: $38.98 May 16, 2012 RS, SO 7.2 ::72PLjL? RICHARD P KEUERLEBER, SHERIFF COMMOMWEALTH OF PENNSYLVANIA NOS Sep Public Sh9ft E. COOK T,V.. York County 2018 sod Comte peb. j. 20 of Notarbs Member, P NOTARY Affirmed and subscribed to before me this 16TH day of MAY 2012 ir,`. 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