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Home My WebLink About12-3469 F \FILES\Clients\12302 G&R Westbrook\12302.6 Mann Realty\12302.6.complaint.wpd Christopher E. Rice, Esquire I.D. Number 90916 .:'UMBE LANID' 0-?JLJV 9 R. Christopher VanLandingham, Esquire P E N N Q., Y L VAN' ! I.D. No. 307424 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 717-243-3341 Attorneys for Plaintiffs G & R WESTBROOK IN THE COURT OF COMMON PLEAS OF WELL DRILLING, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. MANN REALTY ASSOCIATES, INC., Defendant NO.2012 - NOTICE 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 Plaintiffs. 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: Cumberland County Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street / 103. 7 < d,44 Carlisle, PA 17013 l Telephone:(717) 249-3166 6- F?FILES\Clients\12302 G&R Westbrook\12302.6 Mann Realty\12302.6.complaint.wpd Christopher E. Rice, Esquire I.D. Number 90916 R. Christopher VanLandingham, Esquire I.D. No. 307424 MARTSONDEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 717-243-3341 Attorneys for Plaintiffs G & R WESTBROOK WELL DRILLING, INC., Plaintiff V. MANN REALTY ASSOCIATES, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2012 - COMPLAINT AND NOW, comes the Plaintiff, G & R Westbrook Well Drilling, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and hereby avers as follows: 1. Plaintiff, G & R Westbrook Well Drilling, Inc. ("Plaintiff'), is a Pennsylvania corporation with a registered address at 562 East Old York Road, Boiling Springs, Cumberland County, Pennsylvania. 2. Defendant, Mann Realty Associates, Inc. ("Defendant"), is a Pennsylvania Corporation with an address of 840 Market Street 4164, Lemoyne, Cumberland County, Pennsylvania 17043. 3. Plaintiff is in the business of providing goods and services, mainly well drilling and related services, to certain businesses and individuals. 4. Plaintiff has provided both goods and services to Defendant at 9509 Carlisle Pike, York Springs, Adams County, Pennsylvania. 5. Plaintiff has provided both goods and services to Defendant for a total value of $19,981.85. A true and correct copy of Plaintiff's invoices are attached hereto as Exhibit "A." 6. Defendant has failed to pay for such goods and services and, therefore, is liable to Plaintiff for the amounts owed plus interest at 1'/2% per month and costs. 7. Despite repeated demands, no payments have been made by the Defendant for amounts due nor has Defendant disputed this debt. COUNT I - BREACH OF CONTRACT 8. Plaintiff hereby incorporates by reference the averments contained in paragraphs 1 through 7 as if fully set forth. 9. Defendant has breached an expressed or implied agreement, directly or through agents, to pay for the goods and services provided to Defendant from Plaintiff and/or Plaintiff's agents. WHEREFORE, Plaintiff demands judgment against Defendant in the total amount of $19,981.85, plus interest at 1'/2% per month and costs. COUNT II - QUANTUM MERUIT 10. Plaintiff hereby incorporates by reference the averments contained in paragraphs 1 through 9 as if fully set forth. 11. In the alternative and should this Court find that no agreement exists, Defendant is liable to the Plaintiff and/or has been unjustly enriched in the amount of $19,981.85. WHEREFORE, Plaintiff demands judgment against Defendant in the total amount of $19,981.85, plus interest at 1'/2% per month and costs. MARTSON LAW OFFICES Christopher E. Rice, Esquire I.D. Number 90916 R. Christopher VanLandingham, Esquire I.D. Number 307424 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Date: Attorneys for Plaintiff This a debt collecting firm attempting to collect a debt for G&R Westbrook Well Drilling, Inc. Any information obtained will be used for that purpose. EXHIBIT "A" G & R Westbrook "Nell Drilling, Inc. 562 E. Old York Road Boiling Springs, PA 17007 Phone # (717) 258-6403 McDermitt Concrete and Paving PO Box 34 Camp Hill, PA 17001 Invoice Invoice # 2009-63 Invoice Date 12/5/2009 Well # Project Job # Job Date Terms: Net cash 10 days -1 1/2% per month on unpaid balance after 30 days Drilling Reamed 6" Ironstone Well to S" 525 10:00 5,250.00 Production Well Casing 10" Heavy Wall 50 58.00 2,900.00 Casing 8" Heavy Wall 80 27.00 2,160.00 Drive Shoe 10" 1 310.25 310.25 Drive Shoe 8" 1 280.75 280.75 Well Cap 10" Locking Well Cap 1 85.00 85.00 Grout 1 450.00 450.00 Straw 50 3.50 175.00 Labor Brush Hog Mowing 2.5 Days 2,000.00 2,000.00 Site: York Springs Mobile Home Park Approximately 100 Gallons Per Minute Total $13,611.00 19, F 1 Payments/Credits 9LJ e7'"'" $0.00 Balance Due $13,611.00 G & R Westbrook Well Drilling, Inc. 562 E. Old York Road Boiling Springs, PA 17007 Phone # (717) 25";403 McDermitt Concrete and Paving PO Box 34 Camp Hill, PA 17001 Invoice Invoice # 2009-62 Invoice Date 12/5/2009 Well # Project Job # Job Date Terms: Net cash 10 days - 1 1/2% per month on unpaid balance after 30 days Drilling 400 7.00 2,800.00 Casing Steel 6-1/4' Heavy Wall 60 22.50 1,350.00 Drive Shoe 1 80.00 80.00 Well Cap 6' Locking Well Cap 1 40.00 40.00 Grout Bentonite Grout Pump Around Casing 1 200.00 200.00 Stone 4 ton of stone to get into site 1 50.00 50.00 York Springs Mobile Home Park Approximate 30 Gallons Per Minute Total $4,520.00 JF" f Payments/Credits $0.00 Balance Due $4,520.00 G & R Westbrook Well Drilling, Inc. 562 E. Old York Road Boiling Springs, PA 17007 Bill To McDennitt Concrete and Paving PO Box 34 Camp Hill, PA 17001 Finance Charge Date Invoice # 3/10/2010 FC 57 I Description I Amount I Finance Charges on Overdue Balance Invoice #2009-62 for 4,320.00 on 12/05/2009 Invoice #2009-63 for 13,611.00 on 12/092009 849.43 Total Payments/Credits Terms $849.43 $0.00 I Balance Due $849.43 1 G`& R Westbrook Well Drilling, Inc. 562 E. Old York Road Boiling Springs, PA 17007 Bill To McDermitt Concrete and Paving PO Box 34 Camp Hill, PA 17001 r finance Charge Date Invoice # 6/30/2010 FC 62 I Terms I I Description I Amount I Finance Charges on Overdue Balance 1,001.42 Invoice #2009-62 for 4,320.00 on 12/05/2009 Invoice #2009-63 for 13,611.00 on 12/05/2009 Total $1,001.42 Payments/Credits $000 I Balance Due $1,001.42 1 VERIFICATION The foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information, and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to ulnsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. G & R WESTBROOK WELjG DRILLING, INC. By: FAFILESTlients\12302 G&R Westbrook\12302.6 Mann Realty\ 12302.6.complanampd Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY F!I ED-OFFIC G & R Westbrook Well Drilling, Inc. vs. Mann Realty Associates, Inc. SHERIFF'S RETURN OF SERVICE 20!2 JLIL -9 AM $: 44 CUMBERLAND CO TTY PENNSYLVAN Case Numbe 2012-3469 07/03/2012 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states that on July 3, 2012 at 14 hours, he was unable to serve a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Mann Realty Associates, Inc. After several attempts the Complaint and Notice has expired. SHERIFF COST: $44.45 July 05, 2012 SO ANSWERS, RON R ANDERSON, SHERIFF ,.?. ??OU;'.tySU-le 5hE3r';K' i?2ip0:?ft' I.•,C. ___ _ _ _ ~_ ~ ~' >.~ F.AFIL6SVClie~ts'V 2302 G&R Westbrook\123026 Mann Rea1ryU 2302.6. pra te !V Christopher E. Rice, Esquire ~ ~ b " LD. Number 90916 ~'''C'j ~~ ~ ss a "~ ~:. R. Christopher VanLandingham, Esquire ~~ ~.~'. I.D. No. 307424 ~ w MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES T ~ ~~ ~ ~ ~ ~ ~~~ en East High Street Carlisle, PA 17013 ~~%~~`~ 717-243-3341 2~ ~ ~y 5~5 ~ Attorneys for Plaintiffs G & R WESTBROOK IN THE COURT OF COMMON PLEAS OF WELL DRILLING, INC., :CUMBERLAND COUNTY, PENNSYLVANI Plaintiff v. MANN REALTY ASSOCIATES, INC., Defendant To the Prothonotary: NO. 2012 - 3469 PRAECIPE Please reinstate the Complaint in the above-referenced matter. MARTSON LAW OFFICES B c~ Y• Christopher E. Rice, Esquire I.D. Number 90916 R. Christopher VanLandingham, Esquire I.D. Number 307424 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Date: 8`~;j~/~~i Attorneys for Plaintiff This a debt collecting firm attempting to collect a debt for G&R Westbrook Well Inc. Any information obtained will be used for that purpose. SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson -v; ;Pl Sheriff Jody S Smith r? (?` Chief Deputy. L; Richard W Stewart ?RiFF ?,it?i8 E??LA?i[? G?U°?T' Solicitor OFF I? OF gME PENNSYLVANIA G & R Westbrook Well Drilling, Inc. Case Number vs. 2012-3469 Mann Realty Associates, Inc. SHERIFF'S RETURN OF SERVICE 09/04/2012 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: Mann Realty Associates, Inc., but was unable to locate theme in his bailiwick. He therefore deputized the Sheriff of Dauphin County, Pennsylvania to serve the within Complaint and Notice according to law. 09/07/2012 Dauphin County Return: And now, September 7, 2012 I, Jack Lotwick, Sheriff of Dauphin County, Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for Mann Realty Associates, Inc. the defendant named in the within Complaint and Notice and that I am unable to find them in the County of Dauphin and therefore return same NOT FOUND. Request for service at 614 N. Front Street, Harrisburg, Pennsylvania 17101 the Defendant is no longer doing business at. Deputies were advised, Mann Realty Associates, Inc. is located at 840 Market Street, Suite 164, Lemoyne, Pennsylvania 17043. SHERIFF COST: $37.45 September 11, 2012 SO ANSWERS, RbNI`V R ANDERSON, SHERIFF {c? CcuntySude Sheriff, Teleesoft, Inc. Of the ?W?vrr-.f Shelley Ruhl Real Esta a Deputy William T. Tully Solicitor Dauphin County 101 Market Street Harrisburg, Pennsylvania 17101-2079 ph: (717) 780-6590 fax: (717) 255-2889 Jack Duignan Chief Dep ty Michael W. Rinehart Assistant Chief Deputy Jack Lotwick Sheriff Commonwealth of Pennsylvania County of Dauphin G & R WESTBROOK WELL DRILLING, INC. VS MANN REALTY ASSOCIATES, INC. Sheriff s Return No. 2012-T-2463 OTHER COUNTY NO. 2012-3469 I, Jack Lotwick, Sheriff of the County of Dauphin, State of Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for MANN REALTY ASSOCIATES, INC. the DEFENDANT named in the within REINSTATED COMPLAINT & NOTICE and that I am unable to find him/her in the County of Dauphin, and therefore return same NOT FOUND, SEPTEMBER 7, 2012. DEFENDANT IS NO LONGER LOCATED AT ADDRESS: 614 NORTH FRONT STREET, HARRISBURG, PA 17101. NEW ADDRESS FOR DEFENDANT IS: 840 MARKET STREET, SUITE 164, LEMOYNE, PA 17043. Sworn and subscribed to before me this 10TH day of September, 2012 -)P? F COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL Karen M. Hoffman, Notary Public City of Harrisburg, Dauphin County M Commission Ex ires August 17, 2014 So Answers, k;7 Z7?4 Sheriff of auphin Cou By Deputy eriff Deputy: WILLIAM T SNYDER Sheriffs Costs: $41.25 9/6/2012 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff F1LED-OFF I r Jody S Smith OF THE PROTHONO Chief Deputy �� s 2013 MAR 20 PM T �7 Richard W Stewart Solicitor OFFICE OF ThE$SERIE= CUMBERLAND COUNTY p��SYLW>�kN1A G &R Westbrook Well Drilling, Inc. Case Number vs. Mann Realty Associates, Inc. 2012-3469 SHERIFF'S RETURN OF SERVICE 03/14/2013 09:00 AM-Deputy Richard Howell, being duly sworn according to law, served the requested Complaint& Notice by handing a true copy to a person representing themselves to be Robert Mumma,who accepted as"Adult Person in Charge"for Mann Realty Associates, Inc. at The Cumberland County Courthouse, One Courthouse Square, Carlisle, PA 17013. RICH RD HOWELL, DEPUTY SHERIFF COST: $44.46 SO ANSWERS, ~- March 14, 2013 RON R ANDERSON, SHERIFF {c}CountySuite Sheriff,Teieosoft Inc, G & R WESTBROOK WELL IN THE COURT OF COMMON PLEAS OF DRILLING, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 12.3469—CIVIL TERM V. CIVIL ACTION — LAW MANN REALTY ASSOCIATES, INC., Defendant NOTICE TO PLEAD To: G & R Westbrook Well Drilling, Inc. c/o Christopher E. Rice, Esquire MARTSON DEARDORFF WILIAMS OTTO GILORY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, Pennsylvania 17013 You are hereby notified to plead to the enclosed Preliminary Objections within twenty (20) days from the date of service hereof or a default judgment may be entered against you. Respec ally S bmitt , Date: ,'1 L400 .nom ' ry . Shook, Esquire I.D. #203250 '121 °- 2132 Market Street r�.. — c' Camp Hill, Pennsylvania 17011 '� =' ,;; Attorney for Defendant3>c: Bryan W.Shook, Esquire ID#203250 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone—(717)975-9446 Fax—(717)975-2309 BShookQdplgla_wrcom Attorney for Defendant G & R WESTBROOK WELL IN THE COURT OF COMMON PLEAS OF DRILLING, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 12-3469 — CIVIL TERM V. CIVIL ACTION — LAW MANN REALTY ASSOCIATES, INC., Defendant PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW comes the Defendant, Mann Realty Associates, Inc. by and through its counsel the Dethlefs-Pykosh Law Group, LLC, by Bryan W. Shook, Esquire, who brings forth the within Preliminary Objections to Plaintiffs Complaint and in support thereof avers the following: 1. On or about June 1, 2012, Plaintiffs commenced this action with the filing of a Complaint. 2. Service of the Complaint was effectuated upon Defendant on March 14, 2013. 3. Plaintiffs Complaint includes two counts: a. Count I — Breach of Contract; and b. Count II — Unjust Enrichment DEFENDANT'S FIRST PRELIMINARY OBJECTION Pa. R.C.P. 1028(a)(2) — Failure to State Specifically whether claimed agreement is oral or written; attach copy— Pa. R.C.P. 1019 4. Paragraphs 1 through 3 are incorporated herein by reference and as though fully set forth below. 5. Rule 1028(a)(2) allows a party to preliminarily object to a pleading if the pleading fails to conform to law or rule of court. 6. Plaintiffs' Complaint fails to conform to Pennsylvania Rules of Civil Procedure. 7. Pursuant to the Pennsylvania Rules of Civil Procedure, the complaint must not only apprise the defendant of the claim being asserted, but it must also summarize the essential facts to support the claim. The purpose of Pa. R.C.P. 1019 is to require the pleader to disclose the 'material facts' sufficient to enable the adverse party to prepare his case. McShea v. City of Philadelphia, 995 A.2d 334 (Pa. 2010) (internal citations omitted). 8. Specifically, Plaintiff's in their Complaint plead the existence of an agreement but failed to state, specifically, whether the agreement was oral or written in violation of Pa. R.C.P. 1019(h). (See Plaintiff's Complaint¶¶6, 8-9). 9. Similarly, if the agreement is in writing, it must be attached to the Complaint. See Pa. R.C.P. 1019(h) note and 1019(1). 10.Plaintiff has failed to attach a copy of an agreement to their Complaint. 11.By way of further argument, the documents attached to Plaintiff's Complaint are identified in the pleading as "Invoices" (See Plaintiffs Complaint $ 5, Exhibit "A") plainly indicate that Plaintiff's dealings were with McDermitt Concrete and Paving a now bankrupt non-party company.' WHEREFORE, Defendant, Mann Realty Associates, Inc., respectfully requests that this Honorable Court sustain its first preliminary objection and dismiss Plaintiff's Complaint with prejudice. DEFENDANT'S SECOND PRELIMINARY OBJECTION Pa. R.C.P. 1028(a)(4) — Demurrer— Count I (Breach of Contract) 12.Paragraphs 1 through 11 are incorporated herein by reference and as though fully set forth below. 13.Pa. R.C.P. 1028(a)(4) allows a party to preliminarily object to a pleading for legal insufficiency. 14.Plaintiff's Complaint is legally insufficient in establishing a cause of action for breach of contract. 15.To support a claim for breach of contract in Pennsylvania, a plaintiff must allege three elements: (1) the existence of a contract, including its essential terms, (2) a breach of duty imposed by the contract, and (3) resulting damages. Pittsburgh Connt. Co. v. Griffith, 834 A.2d 572, 580 (Pa. Super. Ct. 2003), citing CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. Ct. 1999). See also Flynn v. La Salle Univ., 1998 U.S. Dist. LEXIS 14077 (E.D. Pa. 1998). 16.Plaintiff's breach of contract claim is wholly predicated on their being a valid enforcement contract between Plaintiff and Defendant however as pleaded in 'In Re: Caco Three, Inc. (fka McDermitt, Inc.; fka McDermitt Concrete; fka McDermitt Concrete, Inc.) Bankruptcy Petition#: 1:10-bk-03860-MDF; Filed May 7, 2010. Defendant's First Preliminary Objection, supra, no such agreement has been specifically identified or produced. 17.As pleaded, Count I — Breach of Contract does not show terms of an agreement which are sufficiently definite to so to survive Defendant's demurrer or ultimately be enforced. 18.Specifically, Plaintiff's agreement, if any, was with McDermitt Concrete, Inc., a now bankrupt non-party company. 19.Plaintiff seems to be attempting an end-run of McDermitt's bankruptcy filing in an attempt to collect an alleged debt without explaining to the court the legal basis or justification for doing so. 20.Therefore, without a valid and enforceable contract upon which Plaintiff can make its claim, its action must fail as legally insufficient pursuant to Pa. R.C.P. 1028(a)(4). WHEREFORE, for all the reasons set forth above, Defendant, Mann Realty Associates, Inc., respectfully requests that this Honorable Court sustain its second preliminary objection and grant Defendant's Demurrer and dismiss Plaintiff's Complaint for legal insufficiency pursuant to Pa. R.C.P. 1028(a)(4). DEFENDANT'S THIRD PRELIMINARY OBJECTION LEGAL INSUFFICIENCY Pa. R.C.P. 1028(a)(4)— Demurrer as to Count II (Unjust Enrichment) and Count III (Unjust Enrichment) 21.Paragraphs 1 through 20 are incorporated herein by reference and as though fully set forth below. 22.Plaintiff has alleged in paragraphs six (6) and nine (9) of its Complaint that there exists or existed a contract between the parties hereto for goods and services. 23.The cause of action listed for Count II of Plaintiff's Complaint is unjust enrichment. 24.The law of Pennsylvania holds that unjust enrichment is a quasi-contractual doctrine based in equity. See Wiemik v. P.H.H. U.S. Mortgage. Corp., 736 A.2d 616, 622 (Pa. Super. Ct. 1999), appeal denied, 561 Pa. 700, 751 A.2d 193 (2000). 25.Pennsylvania law further holds that "the doctrine of unjust enrichment is inapplicable when the relationship between the parties is founded upon a written agreement or an expressed contract ..." Wilson Area Sch. Dist. V. Skepton, 586 Pa. 513, 521, 895 A.2d 1250, 1254 (2006). 26.In the alternative, if Plaintiff's claim of unjust enrichment is permitted as a claim in the alternative to their breach of contact claim; the same must fail as Plaintiff did not adequately plead a direct contractual relation with Defendant or that Defendant misled Plaintiff. 27.By way of further objection, Plaintiffs agreement, if any, was with McDermitt Concrete, Inc. and not Defendant. 28.Defendant did not contract with Plaintiff. WHEREFORE, for all the reasons set forth above, Defendant, Mann Realty Associates, Inc., respectfully request that this Honorable Court sustain its third preliminary objection and grant Defendant's Demurrer and dismiss Plaintiffs Complaint for legal insufficiency pursuant to Pa. R.C.P. 1028(a)(4). Respectfully Submitted Date: R: 1 0�0/ By: n W. Shook, Esquire I.D. # 203250 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Attorney for Defendant #i statements to in #w foto going d� �F GC �! ,- f C _+ l u _ o, n ;'� Mme=submit to the pence cif 18 Pa. C.t 149" A Mann ReaftAssockow,,,Inc., '�k By: ROW M. Mum. , 11 Title: V G & R WESTBROOK WELL IN THE COURT OF COMMON PLEAS DRILLING, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 12-3469 — CIVIL TERM V. CIVIL ACTION — LAW MANN REALTY ASSOCIATES, INC., Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Preliminary Objections to Plaintiffs Complaint, were hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: Christopher E. Rice, Esquire 10 East High Street Carlisle, PA 17013 Attorney for Plaintiff Respectfully Submitt'��d"Date:�p 2�� 1 o�d�.� Brya . Shook, Esquire 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Attorney for Defendant f A FAFILES\Clients\12302 G&R Westbrook\12302.6 Mann Realty\12302.6.amend.complaint.wpd Christopher E. Rice, Esquire :"-o I.D. Number 90916 -<x' rro R. Christopher VanLandingham, Esquire I.D. No. 307424 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES - Ten East High Street Carlisle, PA 17013 717-243-3341 Attorneys for Plaintiffs G & R WESTBROOK IN THE COURT OF COMMON PLEAS OF WELL DRILLING, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 2012 - 3469 CIVIL TERM MANN REALTY ASSOCIATES, INC., Defendant NOTICE 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 Plaintiffs. 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: Cumberland County Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone:(717) 249-3166 F:\FILESTlients\12302 G&R Westbrook\12302.6 Mann Realty\12302.6.amend.complaint.wpd Christopher E. Rice, Esquire I.D. Number 90916 R. Christopher VanLandingham, Esquire I.D. No. 307424 MARTSON DEARDORFF WILLIAMS OTTO GILROY& FALLER MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 717-243-3341 Attorneys for Plaintiffs G &R WESTBROOK IN THE COURT OF COMMON PLEAS OF WELL DRILLING, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 2012 - 3469 CIVIL TERM MANN REALTY ASSOCIATES, INC., Defendant FIRST AMENDED COMPLAINT AND NOW, comes the Plaintiff, G & R Westbrook Well Drilling, Inc., by and through its attorneys,MARTSON DEARDORFF WILLIAMS OTTO GILROY&FALLER,and hereby avers as follows: 1. Plaintiff, G & R Westbrook Well Drilling, Inc. ("Plaintiff"), is a Pennsylvania corporation with a registered address at 562 East Old York Road, Boiling Springs, Cumberland County, Pennsylvania. 2. Defendant, Mann Realty Associates, Inc. ("Defendant"), is a Pennsylvania Corporation with an address of 840 Market Street #164, Lemoyne, Cumberland County, Pennsylvania 17043. 3. Plaintiff is in the business of providing goods and services,mainly well drilling and related services,to certain businesses and individuals. 4. Pursuant to an oral agreement between Plaintiff and Defendant's agent, Plaintiff provided both goods and services to Defendant at 9509 Carlisle Pike,York Springs,Adams County, Pennsylvania(the "Property"). 5. Plaintiff has provided both goods and services, consisting primarily of well drilling and related services,to Defendant for a total value of$19,981.85. The goods and services provided by Plaintiff are more fully described in Plaintiff's invoices. A true and correct copy of Plaintiff's invoices are attached hereto as Exhibit"A." 6. Defendant received and accepted the services outlined in Exhibit"A"at the Property. 7. Defendant has failed to pay for such goods and services and, therefore, is liable to Plaintiff for the amounts owed plus interest at 1'/2%per month and costs. 8. Despite repeated demands, no payments have been made by the Defendant for amounts due nor has Defendant disputed this debt. COUNT I - BREACH OF CONTRACT 9. Plaintiff hereby incorporates by reference the averments contained in paragraphs 1 through 8 as if fully set forth. 10. The oral agreement was made between Plaintiff and Defendant by way of its agent. 11. Defendant breached the oral agreement by failing to pay for the goods and services provided to Defendant from Plaintiff. WHEREFORE, Plaintiff demands judgment against Defendant in the total amount of $19,981.85, plus interest at 11/2%per month and costs of suit. COUNT II - QUANTUM MERUIT 12. Plaintiff hereby incorporates by reference the averments contained in paragraphs 1 through 11 as if fully set forth. 13. Defendant accepted and benefitted from the goods and services provided by Plaintiff, and it would be inequitable for Defendant to retain the benefit of those goods and services without payment for value. 14. In the alternative, and should this Court find that no agreement exists,Defendant is liable to the Plaintiff and/or has been unjustly enriched in the amount of$19,981.85. WHEREFORE, Plaintiff demands judgment against Defendant in the total amount of $19,981.85,plus costs of suit and interest. MARTSON LAW OFFICES By; (_ !ZA S Christopher E. Rice, Esquire I.D. Number 90916 R. Christopher VanLandingham, Esquire I.D. Number 307424 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Date: L/_ Z 2— 13 Attorneys for Plaintiff E�BIT "A" G R Westbrook Well Drilling, Inc. 562 E. Old York Road Boiling Springs, PA 17at}7 Phone# i�v,Nicze s :2009-62. '17 ianv; ik sfbia£r, 12/512009 ( )25,M403. ,}�t��we^C,,, ,\•a�\'m\•� C�•,C,.:.>:•:\',i.•,�:�'4.h'�`�v:\,:. �a`"`.r,v`4',,�r"�^c;.Nr .. x '4 \\•?'"v;\k`',.1,\a�`St,'+'�•`�m.e`• }i6 ,,�\,a\�`, i�'•` ,•�.: ,':`\:, ar ��.i,; ��to i .'"r�-z�i ,;•• 'vv }i• ``� +�'G�i @: -� x ♦�`•iti.Vin,v,.,:•:�.`:' ��Fw.�,r� ^:::>�>.-::is E:r z.=�%.a'r..w ,:}ak,�zt�,�G�•w::��i;:..r»:u-:;�:^<I .:.•.iv:?�• t�tc.;�;:f..^•.•f::t �r;t!$'�:: Mann Realty wfe:i}. .840 Market Street;#164 z�is `iC3 Leiti6"e:,PA 17043-1696 :'3'tl`t�i_ j'o-r•;';'.'iii le.cip"'s pei .:'•t%rQ{'!?.i'' cii�: •,,,,,,: :,,,,,,,, ,••,R-•-r•,�r�,< ;:;:'•�S}�:•�.r�+. „��w�eee.C, .....,,;ry.:e. .x,�\vi..\,�,.��•••.\v,> \\,,.,.,��+:,::3;..}Y.y:N+:}:�:K;,:}C'xSCiF:Xfrce,S?•.:c;,.;;?;�>••,.•'`w"^>, "`�•� ...::i:'•:i+t.w:•v::;•......:........v••::r.v.... ,. vv..::::: ;.L v..,.;.v.vv:::.;v .. .........\... ... e :.:v.ivyi N.;::i;�2i.;::•n•.fx;•:u.•. .....v.q:.. •.v::.,i•.,, ,.�},;.;Y•i::.;..,,;.i}i•:x:,;,.:>,•sv::::emu.,,.;..•:::.,,v ,n:.+,,. 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II'm $4,520.00 �G R Westbrook Well Drilling., Inc. .562 E. Old York Road Boiling Springs. PA 17007 Phone# fnvokcp n 2009-63 (717)-258.;6403 D'ate-121512009 11'1't•"`g\ N47 hiann ReattY 840 Market.Str'e'et#164 . BST, Lemoyne, PA 17043-1696: u te .................. . ............ S Net MW) 1.01 Ooys-.1 11 t3r..--)6- ;.\�.•:•. •T:,`:a,••; ,.:'..rc:?•:.,�.;:...aw��Jfi:,• �N<,., ,.:•.t ti::,,�•. rT•,�.�w:�::•.:.,,, :.{.T,.'�<. •;$:�<: <i!r`T,.:/.+ +V,.;., ..} ,�t2� 2T''�;�s,�`< g Rearne Pt6dUttian Well Casino ::1V' HeaVy'WWt 50. :S&OO 2,900.00 Casing 8" Heavy Wall 00: 27,00 2.1160.00 Drive Shoe 101, 1 310.25: 310.26 '280.75: 28'0.75 Drive Shoe �Well cap: 10" Locking Well Cap l 85.00:: KOO Grout :1 450,00 450.00 Straw 50 3,50: 175.00 Labor ,Brush Hog Mowing 2,5:Days 2;000400: 21000.00 S 'York Home Park ite, -Spriftgs Mobile Approximately 100 Gallons Per Minute €'v:W $13:6i 1:.00 ............................. $0.00: . ............... G&R Westbrook Well Drilling,Inc. Finance Charge 562 E.Old York Road Boiling Springs,PA 17007 Date Invoice# 6/30/2010 FC 62 Bill To Mann Realty 840 Market Street#164 Lemoyne,PA 17043-1696 Temts Description Amount Finance Charges on Overdue Balance 1,001.42 Invoice#2009-62 for 4,520.00 on 12105!2009 Invoice#2009-63 for 13,611.00 on I L052009 Total $1,001.42 Payments/Credits $a.00 TBalance Due $1,001.42 G&R Westbrook Well Drilling,Inc. Finance Charge 562 E.Old York Road Boiling Springs,PA 1")007 Date Invoice# 3/1012010 FC 57 Bill 70 Mann Realty 840 Market Street#164 Lemoyne,PA 17043.1696 Terms Description Amount Finance Charges on Overdue Balance 849.43 Invoice#2009.62 for 4,520.00 on IVOM009 Invoice#2009.63 for 13,611.00 on 12/05!1009 Total 5849.43 Payments/Credits $0.00 Balance Due $849.43 8 VERIFICATION The foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit.The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel,it is true and correct to the best of my knowledge,information,and belief.To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa.C.S.Section 4904 relating to unworn falsification to authorities, which provides that if I make knowingly false averments,I may be subject to criminal penalties. G&R WESTBROOK WELL DRILLING,INC. gy. 0q-1q-2013 FVREMk"12102GanWcdbroo MA Mau,ngh7g12I026mmmLcoa&W.wpd CERTIFICATE OF SERVICE I,Mary M. Price,an authorized agent for Martson Deardorff Williams Otto Gilroy&Faller, hereby certify that a copy of the foregoing Amended Complaint was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Bryan W. Shook, Esquire DETHLEFS-PYKOSH LAW GROUP, LLC 2132 Market Street Camp Hill, PA 17011 MARTSON LAW OFFICES By - � M. Price Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: X109.1:alla G & R WESTBROOK WELL IN THE COURT OF COMMON PLEAS OF DRILLING, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 12-3469 — CIVIL TERM V. . CIVIL ACTION —LAW MANN REALTY . ASSOCIATES, INC., Defendant NOTICE TO PLEAD To: G & R Westbrook Well Drilling, Inc. c/o Christopher E. Rice, Esquire MARTSON DEARDORFF WILIAMS OTTO GILORY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, Pennsylvania 17013 You are hereby notified to plead to the enclosed Preliminary Objections within twenty (20) days from the date of service hereof or a default judgment may be entered against you. Respectfully Submitte , Date: �- U-/3 Bryan . Shook, squire I.D. # 203250 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant rn cv =M �% r-- �> a c ' t-- --ae� —v r r r Bryan W.Shook, Esquire I D#203250 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone—(717)975-9446 Fax—(717)975-2309 BShooke-dplglaw.com Attorney for Defendant G & R WESTBROOK WELL IN THE COURT OF COMMON PLEAS OF DRILLING, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff , No. 12-3469 — CIVIL TERM V. CIVIL ACTION — LAW MANN REALTY ASSOCIATES, INC., Defendant PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW comes the Defendant, Mann Realty Associates, Inc. by and through its counsel the Dethlefs-Pykosh Law Group, LLC, by Bryan W. Shook, Esquire, who brings forth the within Preliminary Objections to Plaintiff's Complaint and in support thereof avers the following: 1. On or about June 1, 2012, Plaintiff's commenced this action with the filing of a Complaint. 2. Service of the Complaint was effectuated upon Defendant on March 14, 2013. 3. Plaintiff's Complaint included two counts: a. Count I — Breach of Contract; and b. Count li — Quantum Meruit 4. On April 1, 2013, Defendant filed Preliminary Objections to Plaintiff's Complaint asserting three objections. a. First Objection — Pa. R.C.P. 1028(a)(2) — Failure to state specifically whether the claimed agreement is oral or written; attach copy — Pa. R.C.P. 1019 b. Second Objection — Pa. R.C.P. 1028(a)(4) — Demurrer — Count (Breach of Contract) c. Third Objection — Pa. R.C.P. 1028(a)(4) — Demurrer — Count II — (Quantum Meruit) 5. On April 22, 2013, Plaintiff filed an Amended Complaint. 6. Plaintiff's Amended Complaint includes three counts: a. Count I — Breach of Contract; and b. Count II — Quantum Meruit 7. As Plaintiff's Amended Complaint only cures Defendant's first objection (failure to state whether agreement is oral or written (Pa. R.C.P. 1028(a)(2)), Defendant repleads its second and third objections herein. DEFENDANT'S FIRST PRELIMINARY OBJECTION Pa. R.C.P. 1028(a)(4) — Demurrer— Count I (Breach of Contract) 8. Paragraphs 1 through 7 are incorporated herein by reference and as though fully set forth below. 9. Pa. R.C.P. 1028(a)(4) allows a party to preliminarily object to a pleading for legal insufficiency. 10.Plaintiff's Complaint is legally insufficient in establishing a cause of action for breach of contract. ~ 11.To support a claim for breach of contract in Pennsylvania, a plaintiff must allege three elements: (1) the existence of a contract, including its essential terms, (2) a breach of duty imposed by the contract, and (3) resulting damages. Pittsburgh Connt. Co. v. Griffith, 834 A.2d 572, 580 (Pa. Super. Ct. 2003), citing CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. Ct. 1999). See also Flynn v. La Salle Univ., 1998 U.S. Dist. LEXIS 14077 (E.D. Pa. 1998). 12.Plaintiff's breach of contract claim is wholly predicated on their being a valid enforcement contract between Plaintiff and Defendant however as pleaded in Defendant's First Preliminary Objection, supra, no such agreement has been specifically identified or produced. 13.As pleaded, Count I — Breach of Contract does not show terms of an agreement which are sufficiently definite to so to survive Defendant's demurrer or ultimately be enforced. 14.Specifically, Plaintiff's agreement, if any, was with McDermitt Concrete, Inc. ("McDermitt"), a now bankrupt non-party company.' 15.Plaintiff seems to be attempting an end-run of McDermitt's bankruptcy filing in an attempt to collect an alleged debt without explaining to the court the legal basis or justification for doing so. 'in Re: Caco Three, Inc. (fka McDermitt, Inc.; fka McDermitt Concrete; fka McDermitt Concrete, Inc.) Bankruptcy Petition#: 1:10-bk-03860-MDF; Filed May 7, 2010. 16.Appended to Plaintiff's original Complaint and collectively marked as Exhibit "A" are the following invoices: Title Invoice Number. Invoice Date Amount Bill To ......... .......... ......... ..... . Invoice 2009-62 'December 5, 2009 $4,520.00 WcDermitt Concrete and Paving Invoice 2009 63 _ December 5, 2009 $13,61100 McDermitt Concrete and Paving Finance Charge„FC 57 March 10 2010 $849.43 ;McDermitt Concrete and Paving Finance Charge FC 62 June 30, 2010 $1001.42 McDermitt Concrete and Paving 17.Curiously appended to Plaintiff's Amended Complaint and collectively marked as Exhibit "A" are the following invoices: Title Invoice Number: Invoice Date Amount Bill To Invoice 2009-62 December 5, 2009 $4,520.00 Mann Realty .. ... .._... Invoice 2009 63 Decembers 2009 $13,611.00 Mann Realt y Finance Charge FC 57„ March 10 2010 $849 43 Mann Realty Finance a r Cha FC 62 June 30 2010 _.g_._e. ..._._._ ._..., _._ ...�.__. .. _ ...1001.42_ Mann Realty 18.As shown above, Plaintiff has tampered with their own invoices in an attempt to show that they had an agreement with Defendant so as to support a theory that they had an agreement with Defendant. 19.Plaintiff's agreement, if any, was with McDermitt Concrete, Inc.. 20.Plaintiff has not articulated a reasonably cognizable cause of action for breach of contract as against Defendant herein. 21.Plaintiff in paragraph four of its Amended Complaint states that it had an oral contract with "Defendant's agent" however does not identify Defendant's agent. Levy v. Parkway Baking Co., 331 Pa. 360, 368 (1938). 22.Plaintiff has failed to plead the reasonable care that they exercised to ascertain the limits and scope of Defendant's alleged agent's authority sufficient to show a contract between Plaintiff and Defendant. 23.Therefore, without a valid and enforceable contract upon which Plaintiff can make its claim, its action must fail as legally insufficient pursuant to Pa. R.C.P. 1028(a)(4). WHEREFORE, for all the- reasons set forth above, Defendant, Mann Realty Associates, Inc., respectfully requests that this Honorable Court sustain its first preliminary objection and grant Defendant's Demurrer and dismiss Plaintiff's.Complaint for legal insufficiency pursuant to Pa. R.C.P. 1,028(a)(4). DEFENDANT'S SECOND PRELIMINARY OBJECTION LEGAL INSUFFICIENCE' Pa. R.C.P. 1028(a)(4) — Demurrer as to Count II (Quantum Meruit) 24.Paragraphs 1 through 23 are incorporated herein by reference and as though fully set forth below. 25.Plaintiff has alleged in paragraph four (4) of its Complaint that there exists or existed a contract between the parties hereto for goods and services. 26.The cause of action listed for Count II of Plaintiff's Complaint is quantum meruit. 27.Quantum meruit is an equitable remedy to provide restitution for unjust enrichment in the amount of the reasonable value of services. Black's Law Dictionary (8th ed. 2004). See also Commonwealth Dept. of Public Welfare v. UEC, Inc., 397 A.2d 779, 782 (Pa. 1979). 28.The law of Pennsylvania holds that unjust enrichment is a quasi-contractual doctrine based in equity. . See Wiernik v. P.H.H. U.S. Mortgage. Corp., 736 A.2d 616, 622 (Pa. Super. Ct. 1999), appeal denied, 561 Pa. 700, 751 A.2d 193 (2000). 29.Pennsylvania law further holds that "the doctrine of unjust enrichment is inapplicable when the relationship between the parties is founded upon a written agreement or an expressed contract ..." Wilson Area Sch. Dist. V. Skepton, 586 Pa. 513, 521, 895 A.2d 1250, 1254 (2006). 30.In the alternative, if Plaintiff's claim of unjust enrichment is permitted as a claim in the alternative to their breach of contact claim; the same must fail as Plaintiff did not adequately plead a direct contractual relation with Defendant or that Defendant misled Plaintiff. 31.By way of further objection, Plaintiff's agreement, if any, was with McDermitt Concrete, Inc. and not Defendant. 32.Defendant did not contract with Plaintiff. 33.Plaintiff has not pled that Defendant has been unjustly enriched. WHEREFORE, for all the reasons set forth above, Defendant, Mann Realty Associates, Inc., respectfully request that this Honorable Court sustain its second preliminary objection and grant Defendant's Demurrer and dismiss Plaintiff's Complaint for legal insufficiency pursuant to Pa. R.G.P. 1028(a)(4). Respectfully Submitted, Date: S- �3 By: C�✓ B an W. Shook, Esquire I.D. # 203250 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Attorney for Defendant VERIFICATION I, hereby verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. r Mann Realty Associates, Inc. Date: 114,"20)3 By: Robert M. Mumma, II Title: Vice President G & R WESTBROOK WELL IN THE COURT OF COMMON PLEAS DRILLING, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 12-3469 — CIVIL TERM V. CIVIL ACTION — LAW MANN REALTY ASSOCIATES, INC., Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Preliminary Objections to Plaintiff's Amended Complaint, were hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: Christopher E. Rice, Esquire 10 East High Street Carlisle, PA 17013 Attorney for Plaintiff Respectfully Submitted, Date: Brya .Shook, Esquire 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Attorney for Defendant Y FAFILES\Clients\12302 G&R Westbrook\12302.6 Mann Realty\12302.6.amend.complaint2.wpd "•C7 "''�.-«; mcu Christopher E. Rice, Esquire ry I.D. Number 90916 R. Christopher VanLandingham, Esquire _ , I.D. No. 307424 `'' 1 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES Ten East High Street. Carlisle, PA 17013 717-243-3341 Attorneys for Plaintiffs G& R WESTBROOK IN THE COURT OF COMMON PLEAS OF WELL DRILLING, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 2012 - 3469 CIVIL TERM MANN REALTY ASSOCIATES, INC., Defendant NOTICE 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 Plaintiffs. 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: Cumberland County Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone:(717) 249-3166 FAFILES\Clients\12302 G&R Westbrook\12302.6 Mann Realty\12302.6.amend.comp1aint2.wpd Christopher E. Rice, Esquire I.D. Number 90916 R. Christopher VanLandingham, Esquire I.D. No. 307424 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 717-243-3341 Attorneys for Plaintiffs G & R WESTBROOK IN THE COURT OF COMMON PLEAS OF WELL DRILLING, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 2012 - 3469 CIVIL TERM MANN REALTY ASSOCIATES, INC., Defendant SECOND AMENDED COMPLAINT AND NOW, comes the Plaintiff, G & R Westbrook Well Drilling, Inc., by and through its attorneys,MARTSON DEARDORFF WILLIAMS OTTO GILROY&FALLER,and hereby avers as follows: 1. Plaintiff, G & R Westbrook Well Drilling, Inc. ("Plaintiff'), is a Pennsylvania corporation with a registered address at 562 East Old York Road, Boiling Springs, Cumberland County, Pennsylvania. 2. Defendant, Mann Realty Associates, Inc. ("Defendant"), is a Pennsylvania Corporation with an address of 840 Market Street #164, Lemoyne, Cumberland County, Pennsylvania 17043. 3. Plaintiff is in the business of providing goods and services,mainly well drilling and related services, to certain businesses and individuals. 4. Plaintiff was contacted by Defendant's agent, George Estep, who requested that Plaintiff provide both goods and services, consisting primarily of well drilling and related services ("Services") to Defendant at 9509 Carlisle Pike, York Springs, Adams County, Pennsylvania(the "Property"). The Services provided by Plaintiff are more fully described in Plaintiff s invoices. A true and correct copy of Plaintiff s invoices are attached hereto as Exhibit"A" ("Services"). 5. Subsequently,Ryan Hovis,the president of Plaintiff,spoke to Robert Mumma,Il,the president and owner of Defendant, by telephone. Robert Mumma, I1, reiterated the request that Plaintiff provide the Services and discussed specifics of the work to be performed. 6. Plaintiff and Defendant made an oral agreement ("Agreement") for the work to be performed by Plaintiff. 7. Plaintiff provided the requested Services to Defendant pursuant to the Agreement for a total value of$19,981.85. 8. Defendant received and accepted the Services at the Property. 9. After the Services were completed by Plaintiff, Defendant's agent, George Estep, instructed Plaintiff to send the invoices to McDermitt Concrete ("McDermitt"). 10. McDermitt is owned by Caco Three, Inc. 11. Robert Mumma, 11, is the owner and president of Caco Three, Inc. 12. Upon information and belief, McDermitt was not involved in the subject work. 13. Plaintiff sent the invoices to McDermitt as instructed, but the invoices were never paid. 14. Plaintiff also sent the invoices to Defendant, but the invoices were never paid. 15. Despite repeated demands, no payments have been made by the Defendant for . o amounts due nor has Defendant disputed this debt. 16. Therefore,Defendant is liable to Plaintiff for the amounts owed plus interest at 1'/2% per month and costs. COUNT I -BREACH OF CONTRACT 17. Plaintiff hereby incorporates by reference the averments contained in paragraphs 1 through 16 as if fully set forth. 18. The Agreement was made between Plaintiff and Defendant. 19. Plaintiff completed performance under the Agreement by providing the Services to Defendant. 20. Defendant breached the Agreement by failing to pay for the Services. WHEREFORE, Plaintiff demands judgment against Defendant in the total amount of $19,981.85, plus interest at 1'/2%per month and costs of suit. COUNT II - QUANTUM MERUIT 21. Plaintiff hereby incorporates by reference the averments contained in paragraphs 1 through 20 as if fully set forth. 22. In the alternative, and should this Court find that no agreement exists, Defendant is liable to the Plaintiff and/or has been unjustly enriched in the amount of$19,981.85. 23. Defendant requested that Plaintiff provide the Services. 24. Plaintiff did provide the services for a total value of$19,981.85. 25. Defendant accepted and benefitted from the Services provided by Plaintiff. 26. It would be inequitable for Defendant to retain the benefit of those Services without payment for value. WHEREFORE, Plaintiff demands judgment against Defendant in the total amount of $19,981.85, plus costs of suit and interest. MARTSON LAW OFFIC o' By: 0C Christopher E. Rice, Esquire I.D. Number 90916 R. Christopher VanLandingham, Esquire I.D. Number 307424 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Date: S �zR�l3 Attorneys for Plaintiff EXHIBIT "A" G & R Westbrook Well Drilling, Inc. 562 E. Old York Road Boiling Springs, PA 17007 Phone# Invoice # 2009-63 (717)258-6403 Invoice Date 12/5/2009 l Well # Project Mann Realty Job# 840 Market Street#164 Job Date Lemoyne, PA 17043-1696 Terms: Net cash 10 days- 1 1/21'/o per month on unpaid balance after 30 days Drilling Reamed 6" Ironstone Well to 8" 525. 10.00 5,250.00 Production Well Casing 10" Heavy Wall 50 58.00 2,900.00 Casing 8" Heavy Wall 80': 27.00 2,160.00 Drive Shoe 10" 1 ` 310.25 310.25 Drive Shoe 8" 1 280.75 280.75 Well Cap 10" Locking Well Cap 1 85.00: 85.00 Grout 11 450.00 450.00 Straw 50 3.50 175.00 Labor Brush Hog Mowing 2.5 Days 2,000.00 2,000.00 Site: York Springs Mobile Home Park Approximately 100 Gallons Per Minute Total $13,611.00 Payments/Credits $0.00 Balance Due $13,611.00 G & R Westbrook Well Drilling, Inc. 562 E. Old York Road Boiling Springs, PA 17007 Phone# Invoice# 2009-62 (717)258-6403 Invoice Date 12/5/2009 Well # — -- Project Mann Realty Job # 840 Market Street#164 Lemoyne, PA 17043-1696 Job Date Terms: Net cash 10 days- 1 1/2% per month on unpaid balance after 30 days 7 C, Drilling 400 7.00 2,800.00 Casing Steel 6-1/4" Heavy Wall 60 22.50 1,350.00 Drive Shoe 1 80.00 80.00 Well Cap 6" Locking Well Cap 1 40.00 40.00 Grout Bentonite Grout Pump Around Casing 1 200.00 200.00 Stone 4 ton of stone to get into site 1 50.00 50.00 York Springs Mobile Home Park Approximate 30 Gallons Per Minute Total $4,520.00 Payments/Credits $0.00 Balance Due $4,520.00 G & R Westbrook Well Drilling, .Inc. Finance Charge 562 E. Old York Road Boiling Springs, PA 17007 Date Invoice# 3/10/2010 FC 57 Bill To Mann Realty 840 Market Street#164 Lemoyne,PA 17043-1696 Terms Description Amount Finance Charges on Overdue Balance 849.43 Invoice#2009-62 for 4,520.00 on 12/05/2009 Invoice#2009-63 for 13,611.00 on 12/05/2009 Total $849.43 Payments/Credits $0.00 Balance Due $849.43 G & R Westbrook Well Drilling, Inc. Finance Charge 562 E. Old York Road Boiling Springs, PA 17007 Date Invoice# 6/30/2010 FC 62 Bill To Mann Realty 840 Market Street#164 Lemoyne,PA 17043-1696 Terms Description Amount Finance Charges on Overdue Balance 1,001.42 Invoice 42009-62 for 4,520.00 on 12/05/2009 Invoice#2009-63 for 13,611.00 on 12/05/2009 Total $1,001.42 Payments/Credits $0.00 Balance Due $1:001.42 VERIFICATION The foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel,it is true and correct to the best of my knowledge,information,and belief.To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments,I may be subject to criminal penalties. G& R WESTBROOK WE DRILLING, INC. By: FAFII.ESUients\12302 G&R Westbrook\12302.6 Mann Realty\12302.6.complaint.wpd CERTIFICATE OF SERVICE I,Mary M. Price,an authorized agent for Martson Deardorff Williams Otto Gilroy&Faller, hereby certify that a copy of the foregoing Second Amended Complaint was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Bryan W. Shook, Esquire DETHLEFS-PYKOSH LAW GROUP, LLC 2132 Market Street Camp Hill, PA 17011 MARTSON LAW OFFICES By M. Price n High Street Carlisle, PA 17013 (717) 243-3341 Dated: 029 G & R WESTBROOK WELL IN THE COURT OF COMMON PLEAS OF DRILLING, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 12-3469—CIVIL TERM V. CIVIL ACTION — LAW MANN REALTY ASSOCIATES, INC., Defendant NOTICE TO PLEAD To: G & R Westbrook Well Drilling, Inc. c/o Christopher E. Rice, Esquire MARTSON DEARDORFF WILIAMS OTTO GILORY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, Pennsylvania 17013 You are hereby notified to plead to.the enclosed Preliminary Objections within twenty (20) days from the date of service hereof or a default judgment may be entered against you. Respectfully Submit Date: J.6%. r—y . , . Shook, Esquire I.D. #203250 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant -acj co 20134HOIJ69 IM 00 Bryan W. Shook, Esquire ID#203250 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone—(717)975-9446 Fax—(717)975-2309 BShook dplglaw.com Attorney for Defendant G & R WESTBROOK WELL IN THE COURT OF COMMON PLEAS OF DRILLING, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 12-3469 — CIVIL TERM V. CIVIL ACTION — LAW MANN REALTY ASSOCIATES, INC., Defendant PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW comes the Defendant, Mann Realty Associates, Inc. by and through its counsel the Dethlefs-Pykosh Law Group, LLC, by Bryan W. Shook, Esquire, who brings forth the within Preliminary Objections to Plaintiff's Second Amended Complaint and in support thereof avers the following: 1. On or about June 1, 2012, Plaintiff's commenced this action with the filing of a Complaint. 2. Service of the Complaint was effectuated upon Defendant on March 14, 2013. 3. Plaintiff's Complaint included two counts: a. Count I — Breach of Contract; and b. Count II — Quantum Meruit 4. On April 1, 2013, Defendant filed Preliminary Objections to Plaintiff's Complaint asserting three objections. a. First Objection - Pa. R.C.P. 1028(a)(2) Failure to state specifically whether the claimed agreement is oral or written; attach copy — Pa. R.C.P. 1019 b. Second Objection — Pa. R.C.P. 1028(a)(4) — Demurrer — Count I (Breach of Contract) c. Third Objection — Pa. R.C.P. 1028(a)(4) — Demurrer — Count II — (Quantum Meruit) 5. On April 22, 2013, Plaintiff filed an Amended Complaint. 6. Plaintiff's Amended Complaint included two counts: a. Count I — Breach of Contract; and b. Count II — Quantum Meruit 7. On May 10, 2013, Defendant filed Preliminary Objections to Plaintiff's Amended Complaint asserting two objections. a. First Objection — Pa. R.C.P. 1028(a)(4) — Demurrer — Count I (Breach of Contract) b. Second Objection Pa. R.C.P. 1028(a)(4) — Demurrer — Count II — (Quantum Meruit) .8. As Plaintiff's Second Amended Complaint fails to cure Defendant's objections Defendant repleads its objections herein. DEFENDANT'S FIRST PRELIMINARY OBJECTION Pa. R.C.P. 1028(a)(4) — Demurrer-- Count I (Breach of Contract) 9. Paragraphs 1 through 8 are incorporated herein by reference and as though fully set forth below. 10.Pa. R.C.P. 1028(a)(4) allows a party to preliminarily object to a pleading for legal insufficiency. 11.Plaintiff's Complaint is legally insufficient in establishing a cause of action for breach of contract. 12.To support a claim for breach of contract in Pennsylvania, a plaintiff must allege three elements: (1) the existence of a contract, including its essential terms, (2) a breach of duty imposed by the contract, and (3) resulting damages. Pittsburgh Connt. Co. v. Griffith, 834 A.2d 572, 580 (Pa. Super. Ct. 2003), citing CoreStates Bank,, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. Ct. 1999). See also Flynn v. La Salle Univ., 1998 U.S. Dist. LEXIS 14077 (E.D. Pa. 1998). 13.Plaintiff's breach of contract claim is wholly predicated on there being a valid enforceable contract between Plaintiff and Defendant however as pleaded in. Plaintiff's Second Amended Complaint, the contact, if any was between Plaintiff and McDermitt Concrete, Inc. 14.As pleaded, Count I — Breach of Contract does not show terms of an agreement which are sufficiently definite to so to survive Defendant's demurrer or ultimately be enforced. 15.Specifically, Plaintiff's agreement, if any, was with McDermitt Concrete, Inc. ("McDermitt"), a now bankrupt non-party company.' 16.Plaintiff seems to be attempting an end-run of McDermitt's bankruptcy filing in an attempt to collect an alleged debt without explaining to the court the legal basis or justification for doing so. 17.Appended to Plaintiff's original Complaint and collectively marked as Exhibit "A" are the following invoices: Title . Invoice Number Invoice Date Amount Bill To Invoice 2009-62 December 5, 2009 $4,520 00 McDermitt Concrete and Paving ....... Invoice 2009-63 December 5, 2009 $13,611.00 McDermitt Concrete and Paving Finance Charge yFC 57 March 10, 2010 $849.43 McDermitt Concrete and Paving Finance Charge FC 62 June 30, 2010 $1,00142 McDermitt Concrete and Paving .._. 18.Curiously appended to Plaintiff's Amended Complaint and now their Second Amended Complaint and collectively marked as Exhibit "A" are the following invoices: ....... ........ _ ...... _. Title Invoice Number Invoice Date Amount Bill To Invoice .2009-62 December 5, 2009 $4,520.00 Mann Realty ........ Invoice 2009-63 December 5 2009 $13 611.00 Mann Realty Finance Charge FC 57 mm mMarch 10, 2010_ _x$849 43 Mann Realty Finance Charge FC 62 June 30, 2010 $1001.42 Mann Realty ........ .. ., 19.As shown above, Plaintiff has tampered with their own invoices in an attempt to show that they had an agreement with Defendant so as to support a theory that they had an agreement with Defendant. 20.Plaintiff's agreement, if any, was with McDermitt Concrete, Inc. 'in Re: Caco Three, Inc. (fka McDermitt, Inc.; fka McDermitt Concrete; fka McDermitt Concrete, Inc.) Bankruptcy Petition#: 1:10-bk-03860-MDF; Filed May 7, 2010. 21.Plaintiff has not articulated a reasonably cognizable cause of action for breach of contract as against Defendant herein and accordingly a demurrer is proper. 22.Plaintiff in paragraph four of its Second Amended Complaint states it was "contacted by Defendant's agent, George Estep, who requested that Plaintiff provide both goods and services ... to Defendant ...." 23.This vague allegation is not sufficient to show a contact between G & R Westbrook Well Drilling, Inc. and Mann Realty Associates, Inc. 24.Plaintiff has failed to plead the reasonable care that they exercised to ascertain the limits and scope of Defendant's alleged agent's authority sufficient to show a contract between Plaintiff and Defendant. 25.Plaintiff by their own admission recognizes that Robert M. Mumma, II is the owner and president of Caco Three, Inc. which is the owner of the now bankrupt McDermitt Concrete, Inc. 26.Therefore, without a valid and enforceable contract upon which Plaintiff can make its claim, its action must fail as legally insufficient pursuant to Pa. R.C.P. 1028(a)(4). WHEREFORE, for all the reasons set forth above, Defendant, Mann Realty Associates, Inc., respectfully requests that this Honorable Court sustain its first preliminary objection and grant Defendant's: Demurrer and dismiss Plaintiff's Second Complaint for legal insufficiency pursuant to Pa. R.C.P. 1028(a)(4). DEFENDANT'S SECOND PRELIMINARY OBJECTION LEGAL INSUFFICIENCY Pa. R.C.P. 1028(x)(4) -- Demurrer as to Count 11 (Quantum Meruit) 27.Paragraphs 1 through 26 ai°e incorporated herein by reference and as though fully set forth below. 28.Plaintiff has alleged in Count I its Complaint that there exists or existed a contract between the parties hereto for goods and services. 29.The cause of action listed for Count II of Plaintiff's Complaint is quantum meruit. 30.Quantum meruit is an equitable remedy to provide restitution for unjust enrichment in the amount of the reasonable value of services. Black's Law Dictionary (8th ed. 2004). See also Commonwealth Dept. of Public Welfare v. UEC, Inc., 397 A.2d 779, 782 (Pa. 1979). 31.The law of Pennsylvania holds that unjust enrichment is a quasi-contractual doctrine based in equity. See Wiernik v. P.H.H. U.S. ,Mortgage. Corp., 736 A.2d 616, 622 (Pa. Super. Ct. 1999), appeal denied, 561 Pa. 700, 751 A.2d 193 (2000). 32.Pennsylvania law further holds that "the doctrine of unjust enrichment is inapplicable when the relationship between the parties is founded upon a written agreement or an expressed contract ..." Wilson Area Sch. Dist. V. Skepton, 586 Pa. 513, 521, 895 A.2d 1250, 1254 (2006). 33.In the alternative, if Plaintiff's claim of unjust enrichment is permitted as a claim in the alternative to their breach of contact claim; the same must fail as Plaintiff did not adequately plead a direct contractual relation with Defendant or that Defendant misled Plaintiff. 34.By way of further objection, Plaintiff's agreement, if any, was with McDermitt Concrete, Inc. and not Defendant. 35.Defendant did not contract with Plaintiff. 36.Plaintiff has not pled that Defendant has been unjustly enriched. WHEREFORE, for all the reasons set forth above, Defendant, Mann Realty Associates, Inc., respectfully request that this Honorable Court sustain its second preliminary objection and grant Defendant's Demurrer and dismiss Plaintiff's Second Amended Complaint for legal insufficiency pursuant to Pa. R.C.P. 1028(a)(4). Respectfully Submitte , Date: J a (�, a 013 By: BrKn W. Shook, Esquire I.D. # 203250 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Attorney for Defendant VERIFICATION PURSUANT TO PA, R.C.P. 1024(c) I VERIFY that the averments of fact contained in the foregoing Preliminary Objections are true and correct to the best of my knowledge, information, and belief, based upon information provided to me by Robert M. Mumma, 11, Vice President Mann Realty Associates, Inc., who is outside the jurisdiction and whose verification cannot be obtained within the time allowed for filing. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. Date: C rya Shook,,Esquire g I.D. #203250 G & R WESTBROOK WELL IN THE COURT OF COMMON PLEAS DRILLING, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 12-3469— CIVIL TERM V. CIVIL ACTION — LAW MANN REALTY ASSOCIATES, INC., Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Preliminary Objections to Plaintiffs Second Amended Complaint, were hereby served by depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: Christopher E. Rice, Esquire 10 East High Street Carlisle, PA 17013 Attorney for Plaintiff Respectfully Submitted, Date: L Bryan W. Shook, Esquire 2132 Market Street - Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Attorney for Defendant r- F11_�U'OP" 1 F:\FILES\Clients\12302 G&R Westbrook\12302.6 Mann Realty\12302.6.response.2.wpd . I { arty"'1 1113 JUN 25 All 10• �Q Christopher E. Rice, Esquire CUMBERLAND COUNTY I.D. Number 90916 PENNSYLVANIA R. Christopher VanLandingham, Esquire I.D. No. 307424 MARTSON DEARDORFF WILLIAMS OTTO GILROY& FALLER MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 717-243-3341 Attorneys for Plaintiffs G & R WESTBROOK IN THE COURT OF COMMON PLEAS OF WELL DRILLING, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 2012 - 3469 CIVIL TERM MANN REALTY ASSOCIATES, INC., Defendant PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S SECOND AMENDED COMPLAINT AND NOW, comes the Plaintiff, G& R Westbrook Well Drilling, Inc., by and through its attorneys,MARTSON LAW OFFICES,and hereby responds to Defendant's Preliminary Objections to Plaintiff's Second Amended Complaint as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. It is admitted that Defendant filed Preliminary Objections to Plaintiff's Complaint asserting the three stated objections. 5. Admitted. 6. Admitted. 7. It is admitted that Defendant filed Preliminary Objections to Plaintiffs Amended Complaint asserting the three stated objections. 8. Denied. The averments in this paragraph are conclusions of law and therefore, no response is required. To the extent a response is deemed required, said averments are denied. DEFENDANT'S FIRST PRELIMINARY OBJECTION Pa. R.C.P. 1028(a)(4) - DEMURRER- COUNT I (BREACH OF CONTRACT) 9. Paragraphs 1 through 8 above are incorporated herein as if fully set forth below. 10. Admitted. 11. Denied. The averments of this paragraph are conclusions of law and therefore no response is required. To the extent a response is deemed required, said averments are denied. 12. Denied. The averments in this paragraph are conclusions of law and therefore no response is required. To the extent a response is deemed required, said averments are denied. 13. Denied. To the contrary, Plaintiff has an oral agreement with Defendant. 14. Denied. The averments in this paragraph are conclusions of law and therefore no response is required. To the extent a response is deemed required, said averments are denied. 15. Denied. To the contrary, Plaintiff has an oral agreement with Defendant. 16. Denied. The averments of this paragraph are opinion and not facts and therefore,no response is required. To the extent a response is deemed required, said averments are denied. 17. Objection. The allegations and facts pled in an original Complaint are withdrawn upon the filing of an Amended Complaint and therefore, Plaintiff objects to this averment. Desai Dev. Group v. E. Lancaster Hospital, 62 Cumb. 120 (2013) citing Atherton v. Clearview Coal Co, 267 Pa. 425, 428, 110 A.298, 298 (1920). By way of further response, the averments in this paragraph are conclusions of law and therefore no response is required. 18. Objection. The allegations and facts pled in an original Complaint are withdrawn upon the filing of an Amended Complaint and theretofore,Plaintiff objects to this averment. Desai Dev. Group v. E. Lancaster Hospital, 62 Cumb. 120 (2013 citing Atherton v. Clearview Coal Co, 267 Pa. 425, 428, 110 A.298, 298 (1920). Byway of further response and without waiving said objection,counsel for Plaintiff simply attached the incorrect invoices to the original Complaint. Counsel for Plaintiff then remedied that mistake by attaching the correct invoices to the Amended Complaint. 19. Objection. The allegations and facts pled in an original Complaint are withdrawn upon the filing of an Amended Complaint and therefore, Plaintiff objects to this averment. Desai Dev. Group v. E. Lancaster Hospital, 62 Cumb. 120 (2013 citing Atherton v. Clearview Coal Co, 267 Pa. 425, 428, 110 A.298, 298 (1920). By way of further response, the averments in this paragraph are conclusions of law and therefore no response is required. 20. Denied. Plaintiff had an oral agreement with Defendant as stated in the Amended Complaint. 21. Denied. The averments in this paragraph are conclusions of law and therefore no response is required. To the extent a response is deemed required, said averments are denied. 22. Denied as the Second Amended Complaint speaks for itself. 23. Denied. The averments in this paragraph are conclusions of law and therefore no response is required. To the extent a response is deemed required, said averments are denied. 24. Denied. The averments in this paragraph are conclusions of law and therefore no response is required. To the extent a response is deemed required, said averments are denied. 25. Admitted. 26. Denied. The averments in this paragraph are conclusions of law and therefore no response is required. To the extent a response is deemed required, said averments are denied. WHEREFORE, Plaintiff respectfully requests this Honorable Court dismiss Defendant's Preliminary Objections to Plaintiff s Second Amended Complaint. DEFENDANT'S SECOND PRELIMINARY OBJECTION LEGAL INSUFFICIENCY - Pa. R.C.P. 1028(a)(4) - DEMURRER AS TO COUNT II (QUANTUM MERUIT) 27. Paragraphs 1 through 26 above are incorporated herein as if fully set forth below. 28. Denied as Count I to the Second Amended Complaint speaks for itself. 29. Denied as Count II of Plaintiff's Second Amended Complaint speaks for itself. 30. Denied. The averments in this paragraph are conclusions of law and therefore no response is required. To the extent a response is deemed required, said averments are denied. 31. Denied. The averments in this paragraph are conclusions of law and therefore no response is required. To the extent a response is deemed required, said averments are denied. 32. Denied. The averments in this paragraph are conclusions of law and therefore no response is required. To the extent a response is deemed required, said averments are denied. 33. Denied. The averments in this paragraph are conclusions of law and therefore no response is required. To the extent a response is deemed required, said averments are denied. 34. Denied. To the contrary, Plaintiff had an oral agreement with Defendant. 35. Denied. To the contrary, Plaintiff had an oral agreement with Defendant. 36. Denied. The averments in this paragraph are conclusions of law and therefore no response is required. To the extent a response is deemed required, said averments are denied. By way of further response,Paragraph 22 of the Second Amended Complaint states,"In the alternative, and should this Court find that no agreement exists, Defendant is liable to the Plaintiff and/or has been unjustly enriched in the amount of$19,981.85." Plaintiff further states in Paragraph 25 of the Second Amended Complaint that, "Defendant accepted and benefitted from the services provided by Plaintiff." Plaintiff further averred in Paragraph 26 of the Second Amended Complaint,"It would be inequitable for Defendant to retain the benefit of those services without payment for value." WHEREFORE, Plaintiff respectfully requests this Honorable Court dismiss Defendant's Preliminary Objections to Plaintiff's Second Amended Complaint. MARTSON LAW OFFICES C By: Christopher E. Rice, Esquire I.D. Number 90916 R. Christopher VanLandingham, Esquire I.D. Number 307424 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Date: - - 5��.3 Attorneys for Plaintiff CERTIFICATE OF SERVICE I,Mary M.Price,an authorized agent for Martson Deardorff Williams Otto Gilroy&Faller, hereby certify that a copy of the foregoing Response was served this date by depositing same in the Post Office at Carlisle, PA, first class mail,postage prepaid, addressed as follows: Bryan W. Shook, Esquire DETHLEFS-PYKOSH LAW GROUP, LLC 2132 Market Street Camp Hill, PA 17011 MARTSON LAW OFFICES B 7, Q Y Ma rice Ten Ed9t High Street Carlisle, PA 17013 (717) 243-3341 Dated: 0 �/.3 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter L& thtjnextT-� Argument Court.) -0 w "' ---------------TM �- CAPTION OF CASE —;,. (entire caption must be stated in full) --i CD G & R WESTBROOK WELL DRILLING, INC. C3 --ca CD vs. MANN REALTY ASSOCIATES, INC. No. 2012 - 3469 CIVIL Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections to Plaintiffs Second Amended Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: Christopher E. Rice, Esquire (Name and Address) 10 East High Street, Carlisle, PA 17013 (b) for defendants: Brian W. Shook, Esquire (Name and Address) 2132 Market Street, Camp Hill, PA 17011 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: August 9,2013 MARTSON LAW OFFICES Signa� C •� Print your name Christopher E. Rice, Esquire Date: July 10, 2013 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 party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR(not the Prothonotary) after the case is relisted. #21 G & R WESTBROOK WELL DRILLING, IN THE COURT OF COMMON PLEAS OF INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. MANN REALTY ASSOCIATES, INC., NO. 2012—3469 CIVIL TERM Defendant IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S SECOND AMENDED COMPLAINT BEFORE GUIDO, EBERT, PECK,JJ. ORDER OF COURT AND NOW,this 12LH day of AUGUST, Defendant's Preliminary Objections to Plaintiff's Second Amended Complaint are OVERRULED. Defendant is directed to file an Answer within twenty(20) days. By the,C-oOrrfI Edward E. Guido,J. ✓ CHRISTOPHER E. RICE, ESQUIRE DARRELL C. DETHLEFS, ESQUIRE COURT ADMINISTRATOR :sld --- M > y + CD ., C t ZT~ , f,,1"� G & R WESTBROOK WELL CUMBERLAND OF COMMON PLEAS OF LAND COUNTY, PENNSYLVANIA DRILLING, INC., Plaintiff No. 12-3469— CIVIL TERM V. CIVIL ACTION — LAW MANN REALTY ASSOCIATES, INC., Defendant ORDER AND NOW, this day of August, 2013, after consideration of the Parties Joint Motion it is hereby ORDERED that Defendant's Preliminary Objections will be submitted on the briefs and that the cause will be removed from the Argument Court list for Friday, August 9, 2013. BY./-THE J. W uo�q Vr(j y C/J cJ v� -0 t^f� Distribution Legend: Christopher E. Rice, Esquire �n VV. Shook, Esquire R. Christopher VanLandingham, Esquire 2132 Market Street 10 East High Street Carlisle, Pennsylvania 17013 Camp Hill, Pennsylvania 17011 Telephone: 717-243-3341 Telephone: 717-975-9446 Attorneys for Plaintiff Attorney for Defendant I*es 0A21 LL g �3��3 G & R WESTBROOK WELL IN THE COURT OF COMMON PLEAS OF DRILLING, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 12-3469— CIVIL TERM V. CIVIL ACTION — LAW MANN REALTY ASSOCIATES, INC., Defendant JOINT MOTION TO SUBMIT DEFENDANT'S PRELIMINARY OBJECTIONS ON BRIEFS AND NOW comes the Plaintiff, G & R Westbrook Well Drilling, Inc. by and through its counsel the MARTSON LAW OFFICES, by Christopher E. Rice, Esquire and R, Christopher VanLandingham, Esquire jointly with the Defendant, Mann Realty Associates, Inc., by and through its counsel the DETHLEFS-PYKOSH LAW GROUP, LLC, by Bryan W. Shook, Esquire, who jointly move this Court to consider Defendant's Preliminary Objections upon the briefs filed and excuse the parties and their counsel from the August 9, 2013 Argument Court and in support thereof state: 1. Currently pending before this Court and set as case #21 for the 10:00am Argument Court on Friday, August 9, 2013 are Defendant's preliminary objections. 2. The matter is fully briefed in accordance with the requirements and procedures set forth in C.C.R.P. 1028(c). 3. Counsel for both parties jointly agree to submit the matter on briefs and pray that this Court will consider their request albeit late pursuant to C.C.R.P. 1028(c)(9). WHEREFORE, counsel for both parties respectfully request that this Honorable Court consider Defendant's Preliminary Objections on the briefs submitted and remove this cause from the Argument Court schedule for Friday, August 9, 2011 Respectfully Submitted, MA cmc RTSO OF E Date: 7- [3 By:79;?77�� Christopher E. Rice, Esquire I.D. # 90916 R. Christopher VanLandingham, Esquire I.D. # 307424 Ten East High Street Carlisle, Pennsylvania 17011 Telephone: (717) 243-3341 Attorneys for Plaintiff Respectfully Submitted Date: By: AJ B an W. Shook, Esquire I.D. # 203250 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Attorney for Defendant G & R WESTBROOK WELL IN THE COURT OF COMMON PLEAS OF DRILLING, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 12-3469- CIVIL TERM V. C- CIVIL ACTION - LAW MANN REALTY _73 G ASSOCIATES, INC., Defendant NOTICE TO PLEAD c'D To: G & R Westbrook Well Drilling, Inc. c/o Christopher E. Rice, Esq. & R. Christopher VanLandingham, Esq. MARTSON DEARDORFF WILIAMS OTTO GILORY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, Pennsylvania 17013 You are hereby notified to plead to the enclosed New Matter within twenty (20) days from the date of service hereof or a default judgment may be entered against you. Respectfully Submitted, Date:—A Bryan-V\rShook, Esquire I.D. # 203250 2132 Market Street Camp Hill, Pennsylvania 17011 Attorney for Defendant Bryan W. Shook, Esquire ID#203250 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone—(717)975-9446 Fax—(717)975-2309 BShook dplglaw.com Attorney for Defendant G & R WESTBROOK WELL IN THE COURT OF COMMON PLEAS OF DRILLING, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 12-3469 — CIVIL TERM V. CIVIL ACTION — LAW MANN REALTY ASSOCIATES, INC., Defendant ANSWER AND NEW MATTER AND NOW comes the Defendant, Mann Realty Associates, Inc. by and through its counsel the Dethlefs-Pykosh Law Group, LLC; by Bryan W. Shook, Esquire, who responds to Plaintiff's Second Amended Complaint and brings forth New Matter and in support thereof avers the following: 1. Admitted upon information and belief. 2. Admitted in Part, Denied in Part. It is admitted that Defendant, Mann Realty Associates, Inc. is a Pennsylvania Corporation. It is specifically denied however that its address is 840 Market Street #164, Lemoyne, Cumberland County, Pennsylvania 17043. 3. Admitted upon information and belief. 4. Denied. It is specifically denied that George Estep was an agent of Defendant or that Defendant contracted with Plaintiff. George Estep was an employee of Kimbob, Inc. who may have been doing some site work on the property for McDermiit in an effort to put a road in to get Plaintiff's rig to the wells, but Defendant is unsure of that. In any event, Caco Three, Inc. fka McDermitt, Inc.; fka McDermitt Concrete; fka McDermitt Concrete, Inc. aka McDermitt Concrete and Paving ("McDermitt") was the developer of the trailer park located at the subject premises and was responsible for the wells and having the wells retested. McDermitt contracted with a third party regarding the wells who, upon information and belief, contacted Plaintiff. Mann Realty Associates, Inc., was not involved with the retention of G & R Westbrook's services for this well drilling and/or testing. G & R Westbrook was retained for this well drilling by McDermitt or the third party hired by McDermitt. 5. Denied. Defendant is, after reasonable investigation, unable to form a belief as to the veracity of the factual allegations contained within this averment. In any event, Plaintiff and Defendant had no contractual relationship with respect to the subject of Plaintiff's Second Amended Complaint. 6. Denied. The averments of paragraph six of Plaintiff's Second Amended Complaint contain conclusions of law to which no response is required. To the extent that a response is deemed judicially required, it is specifically denied that Plaintiff and Defendant had an oral agreement for the work to be performed. By way of further response, any such agreement was with McDermitt. 7. Denied. The averments of paragraph seven of Plaintiff's Second Amended Complaint contain conclusions of law to which no response is required. To the extent that a response is deemed judicially required, it is specifically denied that Plaintiff provided requested services to Defendant pursuant to the Agreement for a total value of $19,981.85. Defendant and Plaintiff did not have an agreement. Defendant did not request any services from Plaintiff. Further, Plaintiff's invoices, attached to Plaintiff's Second Amended Complaint, clearly indicate that fees and interest are included in the demanded $19,981.85. 8. Denied. The averments of paragraph eight of Plaintiff's Second Amended Complaint contain conclusions of law to which no response is required. To the extent that a response is deemed judicially required, it is specifically denied that Plaintiff provided requested services to Defendant pursuant to the Agreement and further Defendant and Plaintiff did not have an agreement. Defendant did not request any services from Plaintiff. 9. Denied. Defendant is, after reasonable investigation, unable to form a belief as to the veracity of the factual allegations contained within this averment. By way of further response, Defendant avers that Plaintiff sent the invoices to McDermitt because it was McDermitt's project and McDermitt was the proper party to invoice. 10.Admitted. 11.Admitted. 12.Denied. It is specifically denied that McDermitt was not involved with the subject work. Moreover, it was McDermiit's project at which Plaintiff provided the services that they allege they performed in their Complaint. 13.Denied. Defendant is, after reasonable investigation, unable to form a belief as to the veracity of the factual allegations contained within this averment. By way of further response, Defendant avers that McDermitt is now a bankrupt company. 14.Admitted in Part, Denied in Part. Defendant is, after reasonable investigation, unable to form a belief as to the veracity of the factual allegations contained within this averment. It is admitted however that Defendant has not paid the demanded sum. By way of further response, the Appended to Plaintiff's original Complaint and collectively marked as Exhibit "A" are the following invoices: Title Invoice Number Invoice Date Amount Bill To __ Invoice 2009 62 December 5, 2009 $4,520 00 McDermitt Concrete and Paving Invoice 2009 63 December 5, 2009 $13,61100 ;McDermitt Concrete and Paving ; Finance Charge„FC 57 March 10, 2010 $849.43 'McDermitt Concrete and Paving ... ..... . Finance Charge i FC 62 June 30, 2010 $1001.42 McDermitt Concrete and Paving Curiously appended to Plaintiff's Amended Complaint and now their Second Amended Complaint and collectively marked as Exhibit "A" are the following invoices: 1 In Re: Caco Three, Inc. (fka McDermitt, Inc.; fka McDermitt Concrete; fka McDermitt Concrete, Inc.) Bankruptcy Petition#: 1:10-bk-03860-MDF; Filed May 7, 2010. ....: ...M Title Invoice Number. Invoice Date Amount Bill To ? _ ..... . _ . �.. _.._..- ._.._ .. ;.__ _ Invoice 2009-62 December 5, 2009 Mann Realty Invoice 2009 63 December 5, 2009 $13,61100 ' Mann Realty _ m _...._ _ _.._.,._.__ .__.: �..__ Finance Charge I FC 57 March 10, 2010 $849.43 Realty Finance Charge FC 62 June 30, 2010 _$1,00142 Mann Realty r As shown above, Plaintiff has tampered with their own invoices in an attempt to show that they had an agreement with Defendant so as to support a theory that they had an agreement with Defendant. 15.Admitted in part, Denied in part. It is admitted that Defendant has not paid the demanded sum. It is specifically denied that Defendant has not disputed the debt. Defendant has been actively defending this lawsuit since being served. 16.Denied. The averments of paragraph sixteen of Plaintiff's Second Amended Complaint contain conclusions of law to which no response is required. To the extent that a response is deemed judicially required, it is specifically denied that Defendant is liable to Plaintiff for the demanded sum plus interest at 1 12%. Plaintiff and Defendant did not have an agreement. COUNT I -- BREACH OF CONTRACT 17.Paragraph seventeen is a paragraph of incorporation to which no response is required. 18.Denied. The averments of paragraph eighteen of Plaintiff's Second Amended Complaint contain conclusions of law to which no response is required. To the extent that a response is deemed judicially required, it is specifically denied that an agreement was made between Plaintiff and Defendant. As outlined above, any such agreement was between Plaintiff and McDermitt. 19.Denied. The averments of paragraph nineteen of Plaintiff's Second Amended Complaint contain conclusions of law to which no response is required. To the extent that a response is deemed judicially required, it is specifically denied that an agreement was made between Plaintiff and Defendant. As outlined above, any such agreement was between Plaintiff and McDermitt. 20.Denied. The averments of paragraph twenty of Plaintiff's Second Amended Complaint contain conclusions of law to which no response is required. To the extent that a response is deemed judicially required, it is specifically denied that an agreement was made between Plaintiff and Defendant. As outlined above, any such agreement was between Plaintiff and McDermitt. COUNT II — QUANTUM MERUIT 21.Paragraph twenty one is a paragraph of incorporation to which no response is required. 22.Denied. The averments of paragraph twenty two of Plaintiff's Second Amended Complaint contain conclusions of law to which no response is required. To the extent that a response is deemed judicially required, it is specifically denied that Defendant is liable to Plaintiff and/or has been unjustly enriched in, the amount of $19,981.£5. By way of further response, Plaintiff did not adequately plead a direct contractual relation with Defendant or that Defendant misled Plaintiff. , Plaintiff's agreement, if any, was with McDermitt and not Defendant. Defendant did not contract with Plaintiff. Plaintiff has not pled that Defendant has been unjustly enriched. 23.Denied. It is specifically denied that Defendant requested services from Plaintiff. Plaintiff's agreement, if any, was with McDermitt and not Defendant. Defendant did not contract with Plaintiff. 24.Denied. The averments of paragraph twenty four of Plaintiff's Second Amended Complaint contain conclusions of law to which no response is required. To the extent that a response is deemed judicially required, it is specifically denied that Plaintiff provided services to Defendant or that the services that Plaintiff provided were worth $19,981.85. Further, Plaintiff's invoices, attached to Plaintiff's Second Amended Complaint, clearly indicate that fees and interest are included in the demanded $19,981.85. 25.Denied. The averments of paragraph twenty five of Plaintiff's Second Amended Complaint contain conclusions of law to which no response is required. To the extent that a response is deemed judicially required, it is specifically denied that Plaintiff provided services to Defendant. Plaintiff's agreement, if any, was with McDermitt and not Defendant. Defendant did not contract with Plaintiff. 26.Denied. The averments of paragraph twenty six of Plaintiff's Second Amended Complaint contain conclusions of law to which no response is required. To the extent that a response is deemed judicially required, it is specifically denied that Defendant is liable to Plaintiff and/or has been unjustly enriched in the amount of $19,981.85. By way of further response, Plaintiff did not adequately plead a direct contractual relation with Defendant or that Defendant misled Plaintiff. Plaintiff's agreement, if any, was with McDermitt and not Defendant. Defendant did not contract with Plaintiff. Plaintiff has not pled that Defendant has been unjustly enriched. WHEREFORE, Defendant respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff with costs. NEW MATTER 27.Defendant incorporates and makes part hereof the preceding paragraphs as if fully set forth herein. 28.Plaintiff's action is or may be barred by doctrine of laches. 29.Plaintiff's action is or may be barred by the doctrine of res judicata. 30.Plaintiff's action is or may be barred by the doctrine of estoppel. 31.Plaintiff's action is or may be barred by the doctrine of waiver. 32.Plaintiff's action is or may be barred by the doctrine of accord and satisfaction. 33.Plaintiff's action is or may be barred by the bankruptcy filing of Caco Three, Inc. (McDermitt) on May 7, 2010. 34.Plaintiffs action is or may be barred by discharge in bankruptcy. 35.Plaintiff's action is or may be barred, at least in part by failure of consideration. 36.Plaintiff's agreement, if any, was with McDermitt and not Defendant. 37.Defendant did not contract with Plaintiff. 38.Plaintiff has sued the wrong party. 39.McDermitt is the party who should have been the Defendant in this matter, but cannot be;the Defendant by reason of its bankruptcy filing. 40.Plaintiff's action is or may be barred or limited by the applicable statute of frauds. 41.Plaintiff's action is or may be barred by illegality. 42.Plaintiff's action is or may be l a.,red by tlass 6,-)C�.Vine of unclean hands. 43.Instantly, George Estep had no authority to contract on behalf of Mann Realty Associates, Inc. 44.McDermitt was the developer of the trailer park. 45.McDermitt, as the developer was responsible for the wells and development on the subject property. WHEREFORE, Defendant respectfully requests that judgment be entered against Plaintiff and in favor of Defendant, in this matter, plus costs Respectfully Submitted, Date: us o�0/3 By:__ �.v. Bryan 2K. Shook, Esquire I.D. # 203250 Dethlefs-Pykosh Law Group, LLC 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Facsimile: (717) 975-2309 E-Mail: BShookCD-dplglaw.com t,he"veiq MM tit's statemefts ffao'a Ira tt"oiN4 Mmaxnettt sre Cm&t =reel to ths best t3f my W wledg+a„ IdommUon PjW belief, f tderstarm.l thd false state is hvz6n aro made subject to tM penWWS of 18 Pfl, C.S. SM4 retaWg to urw*OM falsaiication to aul t ties. or I�'',� �'''� .�' 'fir•`'� � �a�t�et'sxla't��a+:,e4si�1@$.yi`�, G & R WESTBROOK WELL IN THE COURT OF COMMON PLEAS DRILLING, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 12-3469– CIVIL TERM V. CIVIL ACTION – LAW MANN REALTY ASSOCIATES, INC., Defendant CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Answer with New Matter and Notice to Plead, were hereby served by,depositing the same within the custody of the United States Postal Service, First Class, postage prepaid, addressed as follows: G & R Westbrook Well Drilling, Inc. c/o Christopher E. Rice, Esq. &,R. Christopher VanLandingham, Esq. MARTSONDEARDORFF WILIAMS OTTO GILORY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, Pennsylvania 17013 Attorney for Plaintiff Respectfully Submitt Date: Bryan VV'-—Shook, ffsquire — 2132 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 975-9446 Attorney for Defendant `C') F:\FILES\ClientsU2302 G&R Westbrook\12302.6 Mann Rea1ty\12302.6.response.nm.wpd r n-.t.., Christopher E. Rice, Esquire mot' � 0 I.D. Number 90916 %° R. Christopher VanLandingham, Esquire z I.D. No. 307424 x C-- N Qc.. MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES co �4 Ten East High Street Carlisle, PA 17013 717-243-3341 Attorneys for Plaintiffs G& R WESTBROOK IN THE COURT OF COMMON PLEAS OF WELL DRILLING, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 2012 - 3469 CIVIL TERM MANN REALTY ASSOCIATES, INC., Defendant PLAINTIFF'S RESPONSE TO DEFENDANT'S NEW MATTER AND NOW, comes the Plaintiff, G & R Westbrook Well Drilling, Inc., by and through its attorneys,MARTSON LAW OFFICES,and hereby responds to Defendant's New Matter as follows: 27. Plaintiff incorporates its Second Amended Complaint as if fully set forth below. 28-36. Denied as conclusions of law. 37. Denied. To the contrary,Defendant did contract with Plaintiff as more fully described in the Second Amended Complaint. 38. Denied. To the contrary, Defendant is the proper party as explained in the Second Amended Complaint. 39. Denied. To the contrary,Defendant contracted with Plaintiff to have the work done as described in the Second Amended Complaint. 40-42. Denied as a conclusion of law. 43. Denied. To the contrary,George Estep was an agent of Mann Realty Associates,Inc. 44. Denied. Plaintiff is without sufficient information or knowledge to form a belief as to the truth of this averment and the same is therefore denied. 45. Denied. Plaintiff was informed that the work it was performing was for Mann Realty Associates, Inc. WHEREFORE,Plaintiff respectfully requests this Court enter judgment in its favor against Defendant. MARTSON LAW OFFICES By: (�VA S Christopher E. Rice, Esquire I.D. Number 90916 R. Christopher VanLandingham, Esquire I.D. Number 307424 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Date: ' Attorneys for Plaintiff VERIFICATION I, Ryan Hovis, President of G&R Westbrook Well Drilling, Inc., verify that the statements contained in the herein Response to New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. G&R WESTBROOK WELL DRILLING, INC. By: Date: ?-- 2J- 20/!, CERTIFICATE OF SERVICE I,Mary M. Price,an authorized agent for Martson Deardorff Williams Otto Gilroy&Faller, hereby certify that a copy of the foregoing Response to New Matter was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Bryan W. Shook, Esquire DETHLEFS-PYKOSH LAW GROUP, LLC 2132 Market Street Camp Hill, PA 17011 MARTSON LAW OFFICES By: Ma Price Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: • I IL OFFICE s. 'sr Ot F:\FILES\ClientsU2302 G&R Westbrook U2302.6 Man d Realty\12302.6.pra2.wpd THE PRO IHO r N t A;i 7013 OCT -2 PH Christopher E. Rice, Esquire 3 3 I.D. Number 90916 CUMBERLAND COUNTY R. Christopher VanLandingham, Esquire PENNSYLVANIA I.D. No. 307424 MARTSON DEARDORFF WILLIAMS OTTO GILROY& FALLER MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 717-243-3341 Attorneys for Plaintiffs G & R WESTBROOK : IN THE COURT OF COMMON PLEAS OF WELL DRILLING, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff • v. : NO. 2012 - 3469 CIVIL TERM MANN REALTY ASSOCIATES, INC., : Defendant PRAECIPE TO DISCONTINUE To the Prothonotary of Cumberland County: Please mark the above-captioned matter settled and discontinued. MARTSON LAW OFFICES By:Christopher E.E. Rice, Esquire I.D. Number 90916 R. Christopher VanLandingham, Esquire I.D. Number 307424 Ten East High Street Carlisle, PA 17013-3093 (717) 243-3341 Date: /Q/o21/3 Attorneys for Plaintiff CERTIFICATE OF SERVICE I,Mary M.Price,an authorized agent for Martson Deardorff Williams Otto Gilroy&Faller, hereby certify that a copy of the foregoing Response to New Matter was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Bryan W. Shook, Esquire DETHLEFS-PYKOSH LAW GROUP, LLC 2132 Market Street Camp Hill, PA 17011 MARTSON LAW OFFICES CAA& M. Price Ten ast High Street Carlisle, PA 17013 (717) 243-3341 Dated: !D /