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Home My WebLink About12-3917 Owens Barcavage & McInroy, LLC By: Bart W. Holmes, Esquire PA ID No.: 85071 2595 Interstate Drive Harrisburg, PA 17110 717-909-2500 717-909-2504 (fax) 22'.I; F f ! , '1\0 COUNT',` N??"` LVAN1A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Christopher D. Prince a] CI U l l 2691 Baltimore Pike NO.: a - Hanover, PA 17331 V. Melinda Fester and Douglas Fester, h/w 311 Allen Street Carlisle, PA 17013 CIVIL ACTION - LAW COMPLAINT NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILLING 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 JUDGEMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PEOPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 D Qpa? %1b3o Ckjj ?COS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Christopher D. Prince 2691 Baltimore Pike NO.: Hanover, PA 17331 V. CIVIL ACTION - LAW Melinda Fesler and Douglas Fesler, h/w 311 Allen Street Carlisle, PA 17013 COMPLAINT AND NOW comes Plaintiff Christopher D. Prince, by and through his attorneys Owens Barcavage & McInroy, LLC and Bart W. Holmes, Esquire, and avers as follows: 1. Plaintiff Christopher D. Prince (hereafter "Prince") is an adult individual who lives at 2691 Baltimore Pike, Hanover, PA 17331. 2. Defendants Melinda and Douglas Fesler are adult individuals (hereafter the "Fesler's"), who at all times relevant hereto were husband and wife, and are believe to reside at 311 Allen Street, Carlisle, PA 17013. 3. The Contract at issue in this case, and the work performed by Prince pursuant to which, was for home improvements to the Fesler residence, at 311 Allen Street, Carlisle, PA 17013. 4. At all times relevant hereto, Prince was sole owner and sole proprietor of Clear Choice USA York, Harrisburg, Baltimore, 2665A Baltimore Pike, Hanover, PA 17331. 5. On or about 10/1/2008, Prince and the Fesler's entered into a Contract (hereafter the "Contract"), for the installment of windows in the Fesler's home at 311 Allen Street, Carlisle, PA 17013. 6. The Contract is attached hereto as Exhibit "A," and its terms are incorporated herein by reference as if set forth at length. 7. The Contract provides for installation of windows the Fesler's selected, for their residence, in return for payment to Prince of $8948.16. 8. Prince personally purchased the windows selected by the Feslers, and hired and paid subcontractors to install the windows. 9. Pursuant to the Contract, on or about 1/13/2009, the window installation was completed or substantially completed at the Fesler home, making payment due. 10. Inspite of demand for same, the Fesler's have not paid Prince for the windows or their installation in the Fesler home. COUNT I - BREACH OF CONTRACT 11. The allegations in the foregoing paragraphs are incorporated herein by reference as if set forth at length. 12. The Fesler's entered into a written contract with Prince for the purchase and installation into their home of the windows as set forth in the Contract. 13. Prince performed pursuant to the Contract in that he purchased the requested windows and had them installed, at his sole expense. 14. The Fesler's promised Prince $8948.16 for the windows and installation. 15. The Fesler's have refused to pay Prince for the windows and installation. WHEREFORE, Christopher D. Prince demands judgment against Melinda and Douglas Fesler, husband and wife, individually or jointly and severally, in an amount of $8948.16, plus interest from the time of completion of the window installation, costs of suit, and other relief this Honorable Court deems just and proper. COUNT II - UNJUST ENRICHMENT 16. The allegations in the foregoing paragraphs are incorporated herein by reference as if set forth at length. 17. In the alternative, the Fesler's are liable to Prince under the theory of unjust enrichment, in that: a. Benefits, the new windows and their installation, were conferred on the Fesler's by Prince; b. The Fesler's accepted these benefits from Prince; c. The Fesler's acceptance and retention of the windows and their installation was under such circumstances that it would be inequitable for them to retain the benefit without payment of value; d. The Fesler's have not paid for the windows or their installation. WHEREFORE, Christopher D. Prince demands judgment against Melinda and Douglas Fesler, husband and wife, individually or jointly and severally, in an amount of $8948.16, plus interest from the time of completion of the window installation, costs of suit, and other relief this Honorable Court deems just and proper. Respectfully Submitted, Date: June 20, 2012 Owe Barcavage & McInroy, LLC Bart W. Holmes, Esqui PA ID No.: 85071 2595 Interstate Drive Harrisburg, PA 17110 717-909-2500 717-909-2504 (fax) EXHIBIT °°A" JOST e3 Q? >a a? ? R Y? Y $$B R jr Er { t ? I y r P !g NN N .41 on 'S o n- o; of a g m0 M !R 11? Er 3°? 3 o a -;mm-o 3 r? p V in a En a X> cm g= ?oC r X rn 3 ? 3 0 ?R ° G? a3 rr N C61 Fn C) in -11 Z z :3 C) 2. 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Mi1? 0% 14 ?I O Vt O ?j "9 'n II 11 II II it it II II II ?Illl?t?l 9 i 9 D VERIFICATION I, Christopher D. Prince, certify under penalty of 18 Pa.C.S. § 4904, related to Unsworn Falsification to Authorities, that the averments of fact, or denials of fact, in the foregoing are true and correct based upon my personal knowledge, or information and belief. Date: &/-/Zlo;-?-&& Christopher D. Prince, Plaintiff SHERIFF'S OFFICE OF CUMBERLAND COUNTY r Ronny R Anderson r', cam- a?? Sheriff o-- „r Jody S Smith Chief Deputy c Richard W Stewart = Solicitor j . F rr.n > Christopher Prince Case Nu mbe vs. 2012-3 917 Melinda Fesler (et al.) SHERIFF'S RETURN OF SERVICE 07/09/2012 08:55 PM - Ronald Hoover Deputy Sheriff, who being duly sworn according to law, states that on July , 2012 at 2055 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Melinda Fesler, by making known unto herself personally, at 311 Allen Street, Carlis e, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to her personally the said true and correct copy of the same. RONALD HOOVER, DEPUTY 07/09/2012 08:55 PM - Ronald Hoover Deputy Sheriff, who being duly sworn according to law, states that on July , 2012 at 2055 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Douglas Fesler, by making known unto himself personally, at 311 Allen Street, Carli le, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to him personally the said true and correct copy of the same. RONALD HOOVER, DEPUTY SHERIFF COST: $50.45 July 12, 2012 SO ANSWERS, 4Z RONW R ANDERSON, SHERIFF CHRISTOPHER D. PRINCE Plaintiff V. : MELINDA FESLER and DOUGLAS FESLER Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2012-3917 CIVIL TERM CIVIL ACTION-LAW NOTICE TO PLEAD To: Bart W. Holmes, Esquire Owens Barcavage & McInroy, LLC 2595 Interstate Drive Harrisburg, Pennsylvania 17110 M t {T1 YOU ARE HEREBY DIRECTED TO PLEAD TO THE ATTA PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS OF SERVICE THE] OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. F, 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 CHRISTOPHER D. PRINCE Plaintiff V. MELINDA FESLER and DOUGLAS FESLER Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2012-3917 CIVIL TERM CIVIL ACTION-LAW PRELIMINARY OBJECTIONS OF DEFENDANTS NOW, come Defendants, Melinda Fesler and Douglas Fesler by and through their attorne: BARIC SCHERER LLC, and file the within Preliminary Objections and, in support thereof, set forth the following: 1. Plaintiff identifies "Prince" as sole owner and sole proprietor of "Clear Choice York, Harrisburg, Baltimore" at paragraph 4 of his complaint. 2. Department of State records show no fictitious name filing for Clear Choice USA York, Harrisburg, Baltimore. 3. Plaintiff identifies the alleged "Contract" as that which is presented as Exhibit "A of Plaintiff's complaint. 4. The alleged contract does not contain a signature of Christopher D. Prince, nor whi is to be paid under the alleged agreement. 5. Clear Choice USA is identified on the alleged "Contract," Exhibit "A" of Plaintiff complaint. 1. FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT UNDER Pa.R.C.P. 1028(a)(2) "7 6. Defendants incorporate paragraphs one (1) through five (5) as though set forth at length. 7. The material facts upon which a cause of action is based must be pled in a under Pa.R.C.P. 1019(a). 8. Plaintiff avers that he is the sole owner and sole proprietor of Clear Choice USA, York, Harrisburg, Baltimore. 9. The alleged contract does not contain a signature of Christopher D. Prince, nor is to be paid under the alleged agreement. 10. The alleged contract lists Clear Choice USA. 11. It is unclear whether or not Christopher D. Prince was operating as an agent of Choice USA. 12. Plaintiff has failed to identify the relationship between Clear Choice USA, Clear Choice USA York, Harrisburg, Baltimore and himself. 13. Plaintiff has failed to state the material facts upon which his cause of action is in violation of Pa.R.C.P. 1019(a). 14. When any claim is based upon a writing, Pa.R.C.P. 1019(i) requires the pleader to attach a copy of the writing or the material part thereof. 15. Plaintiff has failed to include material parts of the alleged contract. 16. The alleged contract provided by Plaintiff as Exhibit "A" to his complaint does not specifically identify who is to be paid. 17. Attached hereto as Exhibit "A" and incorporated herein by reference is a true and correct copy of a Certificate of Completion signed and executed solely by Plaintiff, directing payment to Clear Choice USA of 2030 Powers Ferry Road, Atlanta, GA 30339. Clear Choice U York, Harrisburg, Baltimore is not identified as the Home Improvement Business on the C 18. Plaintiff has failed to attach the material portions of the alleged agreement to his complaint in violation of Pa.R.C.P. 1019(i). 19. The alleged Contract provides, in relevant part, as follows: Binding Arbitration Agreement- Any disputes arising in any manner relating to this agreement that cannot be resolved by negotiation between the parties shall be subject to mandatory, exclusive and binding arbitration and the Arbitration Rules of the American Arbitration Association or any other mediation or Arbitration Association in existence at the time the dispute arises. Neither party may take any other action by way of request for injunctive relief or otherwise. The order of the arbitrator(s) may be entered into any court of competent jurisdiction. The purchaser and dealer agree to abide by the ruling of the Arbitration Association in Lieu of filing a lawsuit. A true and correct copy of the alleged contract is attached hereto as Exhibit "B" and incorporated herein by reference. 20. Any claims involving Defendant must include and be based upon, at least in part, entire Agreement between the parties. 21. The Plaintiff s filing of a complaint is in violation of the alleged contractual agreement which required Plaintiff to seek arbitration of this dispute. WHEREFORE, Defendants request that their objections be sustained and the Plaintiff s complaint be dismissed. II. INSUFFICIENT SPECIFICITY UNDER Pa.R.C.P. 1028(a)(3) 22. Defendants incorporate by reference paragraphs one (1) through twenty-one (21) though set forth at length herein. 23. Pa. R.C.P. 1019(a) requires the material facts upon which a cause of action is based be set forth in a concise and summary form. 24. Plaintiff avers that he is the sole owner and sole proprietor of Clear Choice USA, York, Harrisburg, Baltimore. 25. The alleged contract does not contain a signature of Christopher D. Prince, nor who is to be paid under the alleged agreement. 26. The alleged contract lists Clear Choice USA. 27. It is unclear whether or not Christopher D. Prince was operating as an agent of Choice USA. 28. Plaintiff has failed to identify the relationship between Clear Choice USA, Clear Choice USA York, Harrisburg, Baltimore and himself. 29. Plaintiff has failed to state the material facts upon which his cause of action is in violation of Pa.R.C.P. 1019(a). 30. When any claim is based upon a writing, Pa.R.C.P. 1019(i) requires the pleader to attach a copy of the writing or the material part thereof. 31. Plaintiff has failed to include material parts of the alleged contract. 32. The alleged contract provided by Plaintiff as Exhibit "A" to his complaint does specifically identify who is to be paid. 33. Attached hereto as Exhibit "A" and incorporated herein by reference is a true and correct copy of a Certificate of Completion signed and executed solely by Plaintiff, directing payment to Clear Choice USA of 2030 Powers Ferry Road, Atlanta, GA 30339. Clear Choice York, Harrisburg, Baltimore is not identified as the Home Improvement Business on the WHEREFORE, Defendants request that their objections be sustained and the Plaintiff's complaint be dismissed. III. AGREEMENT FOR ALTERNATIVE DISPUTE RESOLUTION UNDER Pa.R.C.P. 1028(a)(6) 34. Defendants incorporate by reference paragraphs one (1) through thirty-three (33) though set forth at length herein. 35. The Plaintiff's filing of a complaint is in violation of the alleged contractual agreement which required Plaintiff to seek arbitration of this dispute. 36. The alleged Contract provides, in relevant part, as follows: Binding Arbitration Agreement- Any disputes arising in any manner relating to this agreement that cannot be resolved by negotiation between the parties shall be subject to mandatory, exclusive and binding arbitration and the Arbitration Rules of the American Arbitration Association or any other mediation or Arbitration Association in existence at the time the dispute arises. Neither party may take any other action by way of request for injunctive relief or otherwise. The order of the arbitrator(s) may be entered into any court of competent jurisdiction. The purchaser and dealer agree to abide by the ruling of the Arbitration Association in Lieu of filing a lawsuit. A true and correct copy of the alleged contract is attached hereto as Exhibit "B" and incorporated herein by reference. 37. Any claims involving Defendant must include and be based upon, at least in part, entire Agreement between the parties. WHEREFORE, Defendants request that the objection be sustained and the complaint of Plaintiff's be dismissed. IV. NONJOINDER OF A NECESSARY PARTY UNDER Pa.R.C.P. 1028(a)(5) 38. Defendant incorporates by reference paragraphs one (1) through thirty-seven (37) though set forth at length herein. 39. Plaintiff avers that he is the sole owner and sole proprietor of Clear Choice USA, York, Harrisburg, Baltimore. 40. The alleged contract does not contain a signature of Christopher D. Prince, nor is to be paid under the alleged agreement. 41. The alleged contract also lists Clear Choice USA. 42. It is unclear whether or not Christopher D. Prince was operating as an agent of Choice USA. 43. Plaintiff has failed to identify the relationship between C1earChoice USA, Clear Choice USA York, Harrisburg, Baltimore and himself. 44. The alleged contract provided by Plaintiff as Exhibit "A" to his complaint does specifically identify who is to be paid. 45. Attached hereto as Exhibit "A" and incorporated herein by reference is a of Completion signed and executed solely by Plaintiff, directing payment to Clear Choice USA 2030 Powers Ferry Road, Atlanta, GA 30339. Clear Choice USA York, Harrisburg, Baltimore is not identified as the Home Improvement Business on the Certificate. 46. If Clear Choice USA is a party to the alleged Contract, Plaintiff has failed to join necessary party. V. LACK OF CAPACITY TO SUE UNDER Pa.R.C.P. 1028(a)(5) 47. Defendant incorporates by reference paragraphs one (1) through forty-six (46) as though set forth at length herein. 48. Plaintiff avers that he is the sole owner and sole proprietor of Clear Choice USA, York, Harrisburg, Baltimore. 49. The Department of State records show no fictitious name filing for Clear Choice USA York, Harrisburg, Baltimore. 50. The alleged contract does not contain a signature of Christopher D. Prince, nor is to be paid under the alleged agreement. 51. The alleged contract lists Clear Choice USA. 52. It is unclear whether or not Christopher D. Prince was operating as an agent of C Choice USA. 53. Plaintiff has failed to identify the relationship between C1earChoice USA, Clear Choice USA York, Harrisburg, Baltimore and himself. 54. The alleged contract provided by Plaintiff as Exhibit "A" to his complaint does specifically identify who is to be paid. 55. Attached hereto as Exhibit "A" and incorporated herein by reference is a Certifi of Completion signed and executed solely by Plaintiff, directing payment to Clear Choice USA o 2030 Powers Ferry Road, Atlanta, GA 30339. Clear Choice USA York, Harrisburg, Baltimore not identified as the Home Improvement Business on the Certificate. 56. If Christopher D. Prince was acting as agent for Clear Choice USA, the named Plaintiff is not the proper party under the alleged contract and lacks the capacity to sue. 57. If Christopher D. Prince was operating under the fictitious name of Clear Choice USA York, Harrisburg, Baltimore, he lacks the capacity to sue for failure to register a fictitious name as required by the Fictitious Names Act 54 Pa.C.S.A. §301, et seq. WHEREFORE, Defendants request their objections be sustained and Plaintiff's be dismissed. Date: Respectfully submitted, BARIC SCHERER LLC Trici D. Naylor, Es ire I.D. 3760 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 VERIFICATION The statements in the foregoing Preliminary Objections are based upon information has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they 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 falsifications to authorities. DATE: Melind esler DATE: Douglas Fes er CERTIFICATE OF SERVICE I hereby certify that on July , 2012, I, Tricia D. Naylor, Esquire of Baric Scherer did serve a copy of the Preliminary Objections Of Defendants, by first class U.S. mail, postage prepaid, to the parties listed below, as follows: Bart W. Holmes, Esquire Owens Barcavage & McInroy, LLC 2595 Interstate Drive Harrisburg, Pennsylvania 17110 ici? D. Naylor, 4w Melia Fast 311 Allen St Carlisle, PA 17013 certify that: (1} Agyr materials rcgL irgd to cmplete the impmVemwa hne, bogn fistWWW and installed by the lit ImProvwuent Busiam; amd (2) 'fie improvements wom complated to my satisfsaWn and in ae¢or+drntme with my Agrmement with Hasp IlttmVement Buono- d_ 01/15/2009 11:53 7175244681 8/15/2006 11:19:52 AEI CLEAR CHOICE YORK PAGE 01/02 CapitaaOue b0$-424-d4vu t'age 01 /ld^125 Q 7-7Y'1S /S III- T ? E SIGN AND CAE TBZS CER?IFICATE TO T8E II45DaltOVEMENT HIIS IESS WHEN 1011E IMPHOYEMF,NT PROJECT HAS HEEN CoheLST'ED, Nano &cwtmer. Address- City, SUU and Zip Code: Name of Home Improvement Busimss: Clear Choice USA `? 2030 Pourers F Road City. State and Zip Code. Ati:nta, GA 3033 cutiiy that: (1) Any materials roquimd to complete the ittrprovema is have b*m fiv8i&4 and in"ed by the Home T npmvanleatt Busiueaa; (2) T the he iminvemeanU wets comp GW to the some EbCustaner's satiation in acxaKdance with the ASreasnet a 1#'DY10m? 8w with tha Curmar, ? (3) The this Ce[t' teate of Campletiou after complatien of the improvements, a 4w0u1r3* (810NATURE OF BUSDvEsS OWNER OR AMIDRYZED REPRESENTATIVE) THE HDME IUPM MNmff 8isam" SHOULD I10i1 TM am UM CERTIACA7t TO C,AtITAL ONE HOME MPRMEf Orr PWANCE AT. I we 4m. lqLL- GOD?1' 7"!f- 5 Exhibit "A" CIk5-?- O F ? .s 3 k T Y k 5 t s; f< a S: IL c, 4 i? 4.. . 7 Y Y:. { r.. 1 ?3i Ilk t 7 i t7 ? Y kz< m 6 Owens Barcavage & McInroy, LLC By: Bart W. Holmes, Esquire PA ID No.: 85071 2595 Interstate Drive Harrisburg, PA 17110 717-909-2500 717-909-2504 (fax) i'` ~,`~~ f'~~;~JTH~P~J gars +, ?~`2~~.g !1- l~f~li~~0 ~v~'`iE`3~+?~li~1J `~~U91t `fir ~.~~~~SYLV~,;~iA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Christopher D. Prince 2691 Baltimore Pike Hanover, PA 17331 NO.: 2012-3917 v. Melinda Fesler and Douglas Fesler, h/w 311 Allen Street Carlisle, PA 17013 CIVIL ACTION -LAW FIRST AMENDED COMPLAINT NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITH TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILLING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO TH CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO D( SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGEMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PEOPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND WHERE YO CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Christopher D. Prince 2691 Baltimore Pike Hanover, PA 17331 NU.: 2012-3917 v. Melinda Fesler and Douglas Fesler, lv'w 311 Allen Street Carlisle, PA 17013 CIVIL ACTION -LAW FIRST AMENDED COMPLAINT AND NOW comes Plaintiff Christopher D. Prince, by and through his attorneys Barcavage & McInroy, LLC and Bart W. Holmes, Esquire, and avers as follows: 1. Plaintiff Christopher D. Prince (hereafter "Prince") is an adult individual who lives at 2691 Baltimore Pike, Hanover, PA 17331. 2. Defendants Melinda and Douglas Fesler are adult individuals (hereafter the "Fesler's") who at all times relevant hereto were husband and wife, and are believe to reside at 31 l Allen Street, Carlisle, PA 17013. 3. The contract at issue in this case, and the work performed by Prince pursuant to which, was for home improvements to the Fesler residence, at 311 Allen Street, Carlisle, PA 17013. 4. At all times relevant hereto, Prince was sole owner and sole proprietor of a business pursuant to a license from Clear Choice USA York, Harrisburg, Baltimore, 2665A Baltimore Pike, Hanover, PA 1.7331. 5. At no time was Prince acting as an agent or employee of Clear Choice USA, York, Harrisburg, Baltimore, 2665A Baltimore Pike, Hanover, PA 17331. Instead, Prince wa~ owner of a license only. 6. On or about 10/1/2008, Prince and the Fesler's entered into oral and written for the installment of windows in the Fesler's home at 311 Allen Street, Carlisle, PA 17013. 7. Portions of the written contract are attached hereto as Exhibit "A," and the terms of which are incorporated herein by reference as if set forth at length. 8. Other aspects of the agreement were oral in nature and therefore are not set forth within the terms of the attached Exhibit "A." 9. The contract between Prince and the Fesler's provides for installation of windows the Fesler's selected, for their residence, in return for payment to Prince of $8948.16. l 0. Prince personally purchased the windows selected by the Feslers, and hired and paid subcontractors to install the windows. 1 1. Pursuant to the contract, on or about 1/13/2009, the window installation was c or substantially completed at the Fesler home, making payment due. 12. Inspite of demand for same, the Fesler's have nat paid Prince for the windows or their installation in the Fesler home. 13. The written portion of the contract provides for arbitration of disputes between the that cannot be resolved through negotiation. The Fesler's are in breach of the entire agreement through their complete refusal to pay Prince for the materials he provided work he performed, and therefore this aspect of the agreement is unenforceable. 14. In the alternative, this matter should be stayed until such time as the matter is arbitrategl, with this Honorable Court retaining jurisdiction to ensure compliance with the terms off' the arbitration agreement, if enforceable, and any appeals that may be proper COUNT I -BREACH OF CONTRACT 15. The allegations in the foregoing paragraphs are incorporated herein by reference as if forth at length. 16. The Fesler's entered into a written and oral contract with Prince for the purchase and installation into their home of the windows set forth in the written portion of the l 7. Prince performed pursuant to the written and oral contract in that he purchased the requested windows and had them installed, at his sole expense. 18. The Fesler's promised Prince $8948.16 for the windows and installation. 19. The Fesler's have refused to pay Prince for the windows and installation. WHEREFORE, Christopher D. Prince demands judgment against Melinda and Feder, husband and wife, individually or jointly and severally, in an amount of $8948.16, plus interest from the time of completion of the window installation, costs of suit, and other relief Honorable Court deems just and proper. COUNT II -UNJUST ENRICHMENT 20. The allegations in the foregoing paragraphs are incorporated herein by reference as if forth at length. 21. In the alternative, the Fesler's are liable to Prince under the theory of unjust in that: a. Benefits, the new windows and their installation, were conferred on the Fesler's by Prince; b. The Fesler's accepted these benefits from Prince; c. The Fesler's acceptance and retention of the windows and their installation wad under such circumstances that it would be inequitable for them to retain the benefit without payment of value; d. The Fesler's have not paid for the windows or their installation. WHEREFORE, Christopher D. Prince demands judgment against Melinda and Feller, husband and wife, individually or jointly and severally, in an amount of $8948.16, p interest from the time of completion of the window installation, costs of suit, and other relief Honorable Court deems just and proper. Respectfully Submitted, Date: August 13, 2012 Ow~ Barcavage & McInroy, LLC i n,~ Bart W. 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VERIFICATION I, Bart W. Holmes, Esquire, counsel for Plaintiff Christopher D. Prince, certify under penalty ojf 18 Pa.C.S. § 4904, related to Unsworn Falsification to Authorities, that the averments of fact in the foregoing First Amended Complaint are true and correct upon information provided to me by my c my personal investigation, to the best of my knowledge, information or belief, and that my client's verification shall be substituted for mine. or Date: ~ ~ ~ ~ ~~~ (si CERTIFICATE OF SERVICE I, Bart W. Holmes, Esquire, certify under penalty of 18 Pa.C.S. § 4904, related to Unsworn Falsification to Authorities, that a true and correct copy of the foregoing First Amended Complaint, was served by United States Mail, pre-paid, as follows: Tricia D. Naylor, Esquire 19 West South Street Carlisle, PA 17013 (' Date: August 13, 2012 ~ . - --~' Bart W. Holmes, Esqu e CHRISTOPHER D. PRINCE Plaintiff v. MELINDA FESLER and DOUGLAS FESLER Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0.2012-3917 CNIL ACTION-LAW CNIL TERM ~ C ~_ ,v3 ~..~, cn ~ -~ ca ~ r ~ ~~ a ao Az --a -.: -- cr+ NOTICE TO PLEAD To: Bart W. Holmes, Esquire Owens Barcavage & McInroy, LLC 2595 Interstate Drive Harrisburg, Pennsylvania 17110 YOU ARE HEREBY DIRECTED TO PLEAD TO THE ATT PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS OF SERVICE OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. Tricia D. Nay r, Esq ' I.D. 83760 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 --t x•-,fi r~i,,;- ~:r.~ --~c, ~~ CHRISTOPHER D. PRINCE Plaintiff v. MELINDA FESLER and DOUGLAS FESLER Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0.2012-3917 CIVIL TERM CIVIL ACTION-LAW PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFF'S FIRST AMENDED COMPLAINT NOW, come Defendants, Melinda Fester and Douglas Fester by and through their attorneys, BARIC SCHERER LLC, and file the within Preliminary Objections and, in support thereof, set forth the following: I. FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT UNDER Pa.R.C.P.1028(a)(2) 1. The material facts upon which a cause of action is based must be pled in a under Pa.R.C.P. 1019(a). 2. Plaintiff avers that he entered into "oral agreements" with Defendants in paragraph of his complaint. 3. Plaintiff avers that "[o]ther aspects of the agreement were oral in nature ... " in paragraph 8, of his complaint. 4. Plaintiff fails to aver the "other aspects" of the agreement or any terms or conditions of the "oral agreements." 5. Plaintiff fails to state the material fact upon which the cause of action is based in violation of Pa.R.C.P. 1019(a). WHEREFORE, Defendants request that their objections be sustained and the Plaintiff's complaint be dismissed. II. INSUFFICIENT SPECIFICITY UNDER Pa.R.C.P.1028(a)(3) 6. Defendants incorporate by reference paragraphs one (1) through five (5) as though set forth at length herein. 7. The material facts upon which a cause of action is based must be pled in a complaim under Pa.R.C.P. 1019(a). 8. Plaintiff avers that he entered into "oral agreements" with Defendants in paragraph f of his complaint. 9. Plaintiff avers that "[o]ther aspects of the agreement were oral in nature ... " in paragraph 8, of his complaint. 10. Plaintiff fails to aver the "other aspects" of the agreement or any terms or conditions of the "oral agreements." 11. Plaintiff s complaint lacks insufficient specificity. WHEREFORE, Defendants request that their objections be sustained and the Plaintiff s complaint be dismissed. III. AGREEMENT FOR ALTERNATIVE DISPUTE RESOLUTION UNDER Pa.R.C.P. 1028(a)(6) 12. Defendants incorporate by reference paragraphs one (1) through eleven (11) as though set forth at length herein. 13. The Plaintiff s filing of a complaint is in violation of the alleged contractual agreement which required Plaintiff to seek arbitration of this dispute. 14. The alleged Contract provides, in relevant part, as follows: Binding Arbitration Agreement- Any disputes arising in any manner relating to this agreement that cannot be resolved by negotiation between the parties shall be subject to mandatory, exclusive and binding arbitration and the Arbitration Rules of the American Arbitration Association or any other mediation or Arbitration Association in existence at the time the dispute arises. Neither party may take any other action by way of request for injunctive relief or otherwise. The order of the arbitrator(s) may be entered into any court of competent jurisdiction. The purchaser and dealer agree to abide by the ruling of the Arbitration Association in Lieu of filing a lawsuit. A true and correct copy of the alleged contract is attached hereto as Exhibit "A" and incorporated herein by reference. 15. Any claims involving Defendant must include and be based upon, at least in part, entire Agreement between the parties. WHEREFORE, Defendants request that their objections be sustained and the complaint of Plaintiff s be dismissed. IV. NONJOINDER OF A NECESSARY PARTY UNDER Pa.R.C.P. 1028(a)(5) 16. Defendants incorporate by reference paragraphs one (1) through fifteen (15) as though set forth at length herein. 17. The alleged contract provided by Plaintiff as Exhibit "A" and attached hereto as Exhibit "A" and incorporated herein by reference, does not contain the name or signature of Christopher D. Prince. 18. The alleged contract does not contain a provision that Christopher Prince is to be paid. 19. The alleged contract lists only Clear Choice USA and Clear Choice USA York, Harrisburg, Baltimore. 20. Plaintiff avers that he is the licensee of Clear Choice USA, York, Harrisburg, Baltimore. 21. Plaintiff has failed to include his license agreement with Clear Choice USA York, Harrisburg, Baltimore or a writing authorizing payment to be made to Plaintiff. 22. Attached hereto as Exhibit "B" and incorporated herein by reference is a Certificate of Completion signed and executed solely by Plaintiff, directing payment to Clear Choice USA of 2030 Powers Ferry Road, Atlanta, GA 30339. Neither Clear Choice USA York, Harrisburg, Baltimore nor Christopher Prince is identified as the Home Improvement Business on the Certificate. 23. Attached hereto as Exhibit "C" and incorporated herein by reference is Clear Choice USA Instructions for Capital One Financing Program showing that Capital One was to pay Clear Choice USA and Clear Choice USA was to pay licensee after the cost of the windows were deducted. 24. Attached hereto as Exhibit "D" and incorporated herein by reference is the Capital One Financing Authorization Form showing that Capital One was to pay Clear Choice USA of Atlanta, Georgia. 25. Attached hereto as Exhibit "E" and incorporated herein by reference is Capital One letter confirming that the full loan proceeds were sent to the contractor. 26. If Clear Choice USA was a party to the alleged contract, provided the windows and was paid under the contract, Plaintiff has failed to join Clear Choice USA as a necessary party. WHEREFORE, Defendants request that their objections be sustained and the complaint of Plaintiff s be dismissed. V. LACK OF CAPACITY TO SUE UNDER Pa.R.C.P. 1028(a)(5) 27. Defendant incorporates by reference paragraphs one (1) through twenty-six (26) as though set forth at length herein. 28. The alleged contract provided by Plaintiff as Exhibit "A" and attached hereto as Exhibit "A" and incorporated herein by reference, does not contain the name or signature of Christopher D. Prince. 29. Plaintiff avers that he is the sole owner and sole proprietor of a business pursuant to a license from Clear Choice USA, York, Harrisburg, Baltimore. 30. Plaintiff has failed to include his license agreement with Clear Choice USA York, Harrisburg, Baltimore or a writing authorizing payment to be made to Plaintiff. 31. As shown in Exhibits A, B, C, and D, Clear Choice USA was the party to be paid, was to covered the cost of the windows to be installed and was to pay the licensee. 32. It is unclear whether or not Christopher D. Prince has the capacity to sue under the alleged contract. WHEREFORE, Defendants request that their objections be sustained and Plaintiff's complaint be dismissed. Respectfully submitted, C SCHERER LLC Date: d Tri a D. Naylor, squire I.D. 3760 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 4j ~ ~ __ -_ ~,,.. . ~~ !' ~._ . ~ I I C ~A ~I+ Y 1{ `h My ~ ~ i ,1 ~E,i t' ~{ ~` ,~-'~ Y9r~ U, ' ~. ~' _.~ ^~ ~ ~ ~ T ~ ~ 1 ~~ ~ ~ ~ ' J ~ ~~ $• ~~ r ~ t ~ ~' 'S ~ '~ ~ ' 4. ,14 ,~ e4~+ ~ ~ ~~ wF ]f '~`~ r~ S ~ , t. ~~ ~ 4 "~~ ,~ 111 ~ ~, ~~ ~ ~ by ~~ ~1 ~g r ~ *. ~ X _ '3` ..i. d b... a ~, ?yS~ ~~ ~ '~ ~ ~ 4 T ~. .( h Y ~ ~ L ~~ ~ r ~' ~ ' ~ _f. ` ~ & y~ t ~ f f a '~~ ~~ ~ }' ~~ ~~ ~ry ~~ ~'. ~~ ~ ~ ~~ ~ r~ - SM . ~. ~ ~r t ~' ~ J w [ f - ~ a C{ i k t ~".r' ~ '~ t' ~~~ ~ ;~ 7 , 4. ~+ai ~ ~ n, { ~ { .~'1 ~. L 1 t pA n . .., . . , s ~ -'~ ~~ ~> ._ -- -- - 01/15/2009 11:53 7175244681 CLEAR CHOICE YORK PAGE 0 /02 9tLSt2006 it : it;:52 .At! CsaitalOAe boil-4Z4-efavu i-a,~e o ~v~l~ d ~ T~'iS ~s ~y ~ti'n til,~ ~~ ~ ,/ rr~r~a~ of co,~ae~rr~x I~ ~M ~ arv$ Tffis clg,>~Tn~rr$ ~co T>~ l~>ROV>rat~,t+rlr eves w>~a~x ~ >~al~ n~r>~ovsa~rrr r~ao~T ass l~ssx cc~lKrr.~~-. ~' Name u~Csstta~mac: Molis~ds Foelar u Addneas~ 31I Alba St ~wh Cie,, ~ sad Zip codes carlisk, ~A i~ois ~.,~?~ ~ ~~i~c ~'~~_ , oe~ nom: (1) Aqy mataridi toquirad to oomplats i!N irapcoveca~ l14va been fttttais6+od sad imotsl~td by the Hasse ItaptgYe~aot ; sad (Z} 'TLo improi+oms~ots w8liad to my aa~fsotioa and in acco~aoa with my Apt+seme~ with the ~$~ ` SIt"iNA Op CUSTOMER DA ~ °~ Nama of Home Improvgneat Busiq~: Clwr gwios USA Addtbsa: Z~iQ Poway petty Road City. Stara sad Zip Cods: Atlsapi. (,iA 30:139 (!) Aay ~tataials :equitod to c~omnplete tles img,+ovs~matta have bsap fl~b.d sad imfadled by the Homo (Z} Tkro inn~c+ovemeato wa+e coaiploeed to the t~utaa~r't satitd~tian in eoaer~saoe t-ith the A~taat o tbv Horns Impt+e~vosnmt ~us3nsq with the C~u~Oipo~ar; and (3) Toe Ciutomer this Caitlficate of Campletioq aR.r ~aapdseion of t~» iatp~+ovements. (SIGNATURE OF BU$INES$ OWNER OR AUTHtiRrZ.EO REP>xfiSENTATIVE) YiIE N011i IAR~tbOt~lT Otpti ilEitE,t3 i~Ax't~ OOIMN.f1'~D t7~fi1~CA7tx TO C~ITAt Qi~E HOME t#I~oaleiiNY' ~INAttCti ~r. t,arl.8tad~ig. ~ i,~~ WR/~i~/C~ ~~- ~,01~~1' rte- ~~~ Exhibit "B" :., CCUSA INSTRUCTIONS FOR CAPITAL ONE FINANCING PROGRAM ~~ Determine total project cost with ~V customer with sufficient margin Customer calls Capital one at #~eir toll free number 1-866- 715-8845 ~r Customer references Clear Choice (~_ USA to aet programs available (id # 197974) '~} Capital One takes credit application over the phone and gives a go/no go within 8-10 minutes I Once loan approval is given, customer signs the Clear I Choice PA 'Capital One faxes loan documents to Clear Choice corporate I office I Clear Choice corporate office faxes loan documents to I licensee I Licensee has customer sign loan authorization form and either keeps form on file or faxes to Capital One Licensee submits order to corporate and references that it is Capital One job on the PA using the "C1" notation at end of PO number Clear Choice corporate office will delay ACH payment from licensee until job is complete I Licensee receives & installs I windows I Upon install, customer provides I executed certificate of completion to the licensee Licensee faxes certificate of completion to Capital One ~~~~~ ~~ ~ 1 1~. ~rt~ v~~ ~~~ ~~ ~~~o~ ~ ~C~~ ~p~l`L ~~~ Capital One. CCUSA Corporate then credits the disbursement amount minus licensee cost of windows/product includin any fees into licensee bank \ \~/, r ' ~ ~ ~ v~ >zt c i~ r~~ .~ 011.15/2009 11:53 7175244681 CLEAR CHOICE YORK PA(~ i ..~, ~, --~~~ ...:~,... rri vAp1LA1lJIIt3 ~g@-424-6400 Pale 2 Canttartor ID: ]975; 4 Amount Si8.iY1U.Q(1 L)ef~rrad ttfteTCat Period: l2 monthsr ~tatetttents Term: S4 nnont}~; :late: ]9.99`i •• ~. Capital Gne Home Improvement Finance Financing Autharizatior- Foam _ _ i ~ yriwr~ i~~~w~r~~~~rr~~~n iw~rrr~~ ^rir~ i ~arkrwwla~ige that iC have retxir~~ ntrti~;~e rc;ar~lir~!, aM ha~~r brru ~prorad fur an ar-xwnr fa>aac•~ of t~,~) with C'apiral Ot~ ?~'.A. i.~pon set:eipt :.f a camplet~1 and si~nocl C:enificare cif t.':~ny~letic~n. 1 aurhorix the amawot 6it~xed u£ : ti ! t~ paid to t?l~~ Q,nt~ [,'SA or Atlanj~; uA. ? agr~ u~ rrl!a}~tk:nt tr~z7t of &~ r~x~mhs vcitb itacrrst drferr~ fi1;c tkte fiat ~ morYhb. I ac:ktwa~lo~~,t shat this i~an ag;-s,;eneat ~~iti a~pir~ i# Capital 4na Hu:nz ln~roverr~nt I~intltx~c~ ciu~-s rtc~t r,.•cri,~~ a cY>ti~lcteri anti signnnd t'.crtif'iuttc of c:'asttpkxiu4 by U+/!:i12ft09. Sv ~titnlxtit and daUag this ..t~atraCE ] acknawie~e ~ . That 1 have rP~~lvr~l and rrtalnrd a r.~~l+y of t:er Yci~~a~y ihac]urarc. That [lout re~Ylved, rrad and krpt a e'~~~+V of i+.tge Y and 2 0# aaty Pramissary Note and DI9~:lo3are. L i ~t~e to ce].+ay ttte amount flttatn~v~l undCr the terms of my Prornissury 'Nate. z To<tav"y Gatti: ,L13~ 3~ ~~ ....._ $ibn hen?: ~ _~e!']; -_ _. feli•tticla !'e~ler I~tur~ reiurni~g al~~ e»re that vpy, h,~ce sig an<t d hi ~~ ~til,s_.~~in~ tir ~: t c! inf~~p~~lian witix dalav tl~e prig n,E vour load ~ 1L *AS.IDL~478559* ..:.. -.. .. ... ........... ~ .... ~.. .. .:. UtTecia~.. t: ~e only .. J Exhibit "D" c~ .~ } _ - - ~~~ ~ ~ \~~ ~~ f`~~~ ~ - ~~ N ~ ~~ ~`' %b ~~ ~~`~ ~ ~~~ ~~ U\ ~ , ~~ I~~~ ~~ ~'` ~ ~ 1 Home Improvement Fnan e ~~ #00015218466 Melinda Fesler 311 Allen St Carlisle PA 17013-3102 Iud16o111nuufluNndlnullpnnddndlnd111uJ .~~ ~~,,'' 1 ,, ~~ -~ ,~ . ~ . L~ Dear Melinda, ~'~ ~ ~ Q ® me Im rovement Finances"' Welcome to Capital One Ho p We've received your signed loan document and the Certificate of Completion for your Capital One Home Improvement Finance loan and have sent the full loan proceeds to your contractor. In approximately three weeks, you'll receive your first monthly statement from Capital One, N.A. • If you have any questions, don't hesitate to call us 1-866-715-8845 _ -,_._~ We're glad we were able to help you get the job done you wanted. All of us at Capial One Home Improvement Finance look forwazd to providing you with exemplary service. Sincerely, Customer Service Department _ ...__ -. Capital One Home Improvement Finance F~chibit "E" . ,. _. ®2008 Capital One®. All rights reserved. Capital One is a federally registered service mark. VERIFICATION The statements in the foregoing Preliminary Objections are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they are tnae 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.5. § 4904 relating to unsworn falsifications to authorities. .----, ~_.~ DATE: g ~ Z DATE: ~ ~ Z- CERTIFICATE OF SERVICE I hereby certify that on August ~, 2012, I, Tricia D. Naylor, Esquire of Baric Scherer LLC, did serve a copy of the Preliminary Objections Of Defendants to Plaintiff s First Amended Complaint, by first class U.S. mail, postage prepaid, to the parties listed below, as follows: Bart W. Holmes, Esquire Owens Barcavage & McInroy, LLC 2595 Interstate Drive Harrisburg, Pennsylvania 17110 CHRISTOPHER D. PRINCE Plaintiff V. MELINDA FESLER and DOUGLAS FESLER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2012-3917 CIVIL ACTION-LAW CIVIL TERM Defendants NOTICE TO PLEAD To: Bart W. Holmes, Esquire Owens Barcavage & McInroy, LLC 2595 Interstate Drive Harrisburg, Pennsylvania 17110 - cam _ C. You are hereby notified that you have twenty (20) days in which to plead to the enclosed Answer and New Matter of Melinda A. Fesler and Douglas Fesler or a Default Judgment may be entered against you. LLC Date: b 1 10 (10- Tricia Ip. Naylor, Esquir I.D. # 83760 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 CHRISTOPHER D. PRINCE V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff MELINDA FESLER and DOUGLAS FESLER Defendants NO. 2012-3917 CIVIL TERM CIVIL ACTION-LAW ANSWER WITH NEW MATTER NOW, come Defendants, Melinda Fesler and Douglas Fesler ("Feslers") by and through their attorneys, BARIC SCHERER LLC, and file the within Answer and New Matter and, in support thereof, set forth the following: 1. After reasonable investigation, the Feslers are without knowledge or information sufficient to form a belief as to the truth of these averments and they are, therefore, denied. 2. Admitted. 3. Denied in part and admitted in part. By way of further answer, it is admitted that the Agreement in this case was for improvements to be made to the Feslers' residence at 311 Allen Street, Carlisle, PA 17013 and that the Feslers own said property. It is specifically denied that Prince performed the work pursuant to the Agreement at issue in this case. 4. After reasonable investigation, Feslers are without knowledge or information sufficient to form a belief as to the truth of these averments and they are, therefore, denied. Strict proof thereof is hereby demanded. 5. After reasonable investigation, Feslers are without knowledge or information sufficient to form a belief as to the truth of these averments and they are, therefore, denied. Strict proof thereof is hereby demanded. 6. Denied in part and admitted in part. By way of further answer, it is admitted that Melinda Fesler alone entered into an Agreement for the installation of new windows for 311 Allen Street, Carlisle, PA 17013. It is specifically denied that she entered into that Agreement with Christopher Prince. 7. Denied. By way of further answer, Clear Choice USA agreed to install the windows selected by Melinda Fesler. Denied. By way of further answer, Melinda Fesler agreed to pay Clear Choice USA $8948.16 for the windows and installation of windows selected by Melinda Fesler. 9. Denied. By way of further answer, only a portion of the Agreement between Melinda Fesler and Clear Choice USA was memorialized in a written agreement attached hereto as Exhibit "A" and incorporated herein by reference. 10. Denied. By way of further answer, the Agreement identified as Exhibit A was signed by Mrs. Fesler alone and not as agent for Mr. Fesler. 11. A portion of this averment is a conclusion of law for which no response is required. To the extent a response is required, it is denied. All other averments in this paragraph are denied. 12. After reasonable investigation, Feslers are without knowledge or information sufficient to form a belief as to the truth of these averments and they are, therefore, denied. Strict proof thereof is hereby demanded. 13. Denied. By way of further answer, the new window installation at the Fesler Residence was not complete or substantially complete and therefore no payment was due. 14. Admitted in part, denied in part. It is admitted that Feslers' did not pay Prince directly. By way of further answer, Prince was not to be paid by the Feslers. It is specifically denied that demand for payment was ever made by Prince. 15. Admitted. 16. Denied. By way of further answer, Feslers are challenging the terms and enforceability of the Agreement by Prince. 17. Denied. By way of further answer, the Agreement did not require negotiation with or payment to be made to Prince. 18. The averment of this paragraph states a conclusion of law to which no response is required. To the extent a response is required, it is denied. 19. The averment of this paragraph states a conclusion of law to which no response is required. To the extent a response is required, it is denied. 20. The averment of this paragraph states a conclusion of law to which no response is required. To the extent a response is required, it is denied. COUNT I - BREACH OF CONTRACT 21. Feslers hereby incorporate their responses at paragraphs one (1) through twenty (20) as if set forth at length. 22. Denied. By way of further answer, Melinda Fesler entered into an Agreement with Clear Choice USA for the purchase and installation of windows. A portion of the Agreement is set forth in Exhibit "A." 23. Denied. By way of further answer, Melinda Fesler did not enter into an Agreement with Prince for herself or as agent for Douglas Fesler. 24. Denied. By way of further answer, neither Melinda Fesler nor Douglas Fesler entered into an Agreement with Prince nor did they receive a benefit from Prince. The remainder of the paragraph is a conclusion of law for which no response is required. To the extent a response is required it is denied. 25. After reasonable investigation, Feslers are without knowledge or information sufficient to form a belief as to the truth of these averments and they are, therefore, denied. Strict proof thereof is hereby demanded. 26. Denied. By way of further answer, Feslers made no promises to Prince. 27. Denied. By way of further answer, no demand for payment has ever been made to Feslers. 28. Denied. By way of further answer, Feslers were never asked to negotiate with Prince. The remainder of this paragraph is a conclusion of law for which no response is required. To the extent a response is required it is denied. WHEREFORE, Defendants, Feslers, request that this Honorable Court (a) grant judgment in their favor and dismiss Plaintiff's Complaint with prejudice; (b) award counsel fees and costs to Defendants; and (c) grant such other relief that is deemed just and appropriate. Alternatively, Defendants request a set off be granted against Plaintiff's claim. COUNT II - UNJUST ENRICHMENT 29. Feslers hereby incorporate their responses at paragraphs one (1) through twenty-eight (28) as if set forth at length. 30. The averment of this paragraph states a conclusion of law to which no response is required. To the extent a response is required it is denied. a. After reasonable investigation, Feslers are without knowledge or information sufficient to form a belief as to the truth of these averments and they are, therefore, denied. Strict proof thereof is demanded. b. Denied. By way of further answer, it is believed and therefore averred that no benefits were accepted from Prince. C. The averments of this paragraph state a conclusion of law to which no response is required. To the extent a response is required it is denied. d. Admitted. By way of further answer, Felsers were not obligated to pay Prince for the windows or their installation. e. After reasonable investigation, Feslers are without knowledge or information sufficient to form a belief as to the truth of these averments and they are, therefore, denied. 31. It is unclear what this averment is referring to and is therefore denied. WHEREFORE, Defendants, Feslers, request that this Honorable Court (a) grant judgment in their favor and dismiss Plaintiff's Complaint with prejudice; (b) award counsel fees and costs to Defendants; and (c) grant such other relief that is deemed just and appropriate. Alternatively, Defendants request a set off be granted against Plaintiff's claim. NEW MATTER 32. Defendants incorporate by reference paragraphs one (1) through thirty-one (31) as though set forth at length herein. 33. The Agreement attached hereto as Exhibit "A" ("Agreement") and incorporated herein by reference, does not contain the name or signature of Christopher D. Prince ("Prince"). 34. The Agreement does not contain a provision that Prince is to be paid. 35. The Agreement lists only Clear Choice USA and Clear Choice USA York, Harrisburg, Baltimore. 36. Pennsylvania Department of State records show no domestic corporate, foreign corporate or fictitious name filings for Clear Choice USA or Clear Choice USA York, Harrisburg, Baltimore. 37. It is believed and therefore averred that Prince lacks the capacity to sue under the names of Clear Choice USA or Clear Choice USA York, Harrisburg, Baltimore for failure to file with the Department of State. 38. Prince provided Melinda Fesler with all Capital One Financing Forms and Information in order for her to finance the purchase and installation of Clear Choice windows. Attached hereto as Exhibit "B" and incorporated herein by reference are the Clear Choice USA Instructions for Capital One Financing Program showing that Capital One was to pay Clear Choice USA Corporate and Clear Choice USA Corporate was to pay licensee after the cost of the windows was deducted. 39. Attached hereto as Exhibit "C" and incorporated herein by reference is the Capital One Financing Authorization Form showing that Capital One was to pay Clear Choice USA of Atlanta, Georgia. 40. Attached hereto as Exhibit "D" and incorporated herein by reference is a Certificate of Completion ("Certificate of Completion") signed and executed solely by Plaintiff, directing payment to Clear Choice USA of 2030 Powers Ferry Road, Atlanta, GA 30339. 41. Neither Clear Choice USA York, Harrisburg, Baltimore or Christopher Prince is identified as the Home Improvement Business on the Certificate of Completion. 42. Melinda Fesler advised Prince and Clear Choice USA that she was not satisfied with some of the windows, nor their installation. 43. Melinda Fesler was directed by Clear Choice USA not to execute the Certificate of Completion. 44. Melinda Fesler did not sign her name to the Certificate of Completion, nor authorize payment to anyone. 45. Melinda Fesler's signature was forged on the Certificate of Completion and was faxed from Prince's fax machine number to Capital One. 46. It is believed and therefore averred that Christopher Prince forged Melinda Fesler's name on the Certificate of Completion in order for Capital One to pay Clear Choice USA. 47. Melinda Fesler filed a complaint with the police and Prince was charged with Theft By Deception and Forgery relating to Mrs. Felser's forged signature on the Certificate of Completion. 48. Melinda Fesler also filed an identity fraud statement with Capital One for the forgery of the Certificate of Completion. The Capital One Identity Fraud Form is attached hereto as Exhibit "E" and incorporated herein by reference. 49. Attached hereto as Exhibit "F" and incorporated herein by reference is a Capital One letter confirming that the full loan proceeds were sent to the contractor. 50. Melinda Fesler made three payments to Capital One in the amounts of $193.14 each on February 14, 2009, March 12, 2009 and April 15, 2009. 51. Although Clear Choice USA was to be paid under the Agreement and was paid by Capital One, Plaintiff has failed to join Clear Choice USA or Capital One as necessary parties. 52. The Feslers are not proper parties to this action. 53. Plaintiff has no right of recovery in this action against Melinda Fesler or Douglas Fester, whether jointly or severally. 54. Plaintiff is estopped by his conduct and actions from recovery in this matter. 55. Plaintiff has no right of recovery due to the equitable principle of unclean hands. 56. Plaintiff is not the real party in interest. 57. Plaintiff cannot meet his burden of proof that there was a contract between the Feslers and himself. 58. Plaintiff lacks the capacity to sue under the Agreement. 59. Plaintiff fails to state claims upon which relief may be granted. 60. Melinda Fester did not sign the Certificate of Completion because the work was not performed in a workmanlike manner. 61. The installation of the windows was of poor quality and workmanship. 62. Two of the windows that were installed at the Feslers' residence were incorrect and lower in price than those that were listed on the Agreement. Neither window was replaced. 63. One of the windows installed at the Feslers' residence was defective and never replaced. 64. A window screen that was installed at the Feslers' residence was damaged and never repaired or replaced. 65. Melinda Fester notified Clear Choice USA and Prince of the poor workmanship and erroneous and defective windows. 66. The Feslers' tub was damaged during the installation of the bathroom window. 67. Melinda Fesler notified Prince and Clear Choice USA of the damage and Clear Choice USA of Atlanta, Georgia alone paid for the repair. 68. Defendants are released from any obligation, if any, to Plaintiff as a consequence of Plaintiff's failure to perform the work and failure to perform the work rendered in a workmanlike manner. 69. Defendants are entitled to a set off for the costs to complete, repair and/or correct the windows and their installation. 70. Defendants are entitled to a set off for the difference in price between the windows that were installed and the windows that were identified in the Agreement. 71. Defendants are entitled to a set off for the payments that they have previously made to Capital One. WHEREFORE, Defendants, Feslers, request that this Honorable Court (a) grant judgment in their favor and dismiss Plaintiff's Complaint with prejudice; (b) award counsel fees and costs to Defendants; and (c) grant such other relief that is deemed just and appropriate. Alternatively, Defendants request a set off be granted against Plaintiff's claim. Date: I 1 1 `?- Respectfully submitted, BARICI SCHERER LLC TricialD. Naylor, Esq ire I.D. 83760 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 VERIFICATION The statements in the foregoing Answer and New Matter are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they 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 falsifications to authorities. DATE: Z ?- Meli a Fesler c DATE: v Z Douglas Fesler CERTIFICATE OF SERVICE I hereby certify that on October 11 , 2012, I, Tricia D. Naylor, Esquire of Baric Scherer LLC, did serve a copy of the Answer and New Matter, by first class U.S. mail, postage prepaid, to the parties listed below, as follows: Bart W. Holmes, Esquire Owens Barcavage & McInroy, LLC 2595 Interstate Drive Harrisburg, Pennsylvania 17110 J lz?l -I q -7?--* Exhibit "A" Ic , Al 1 r y? rSA] ,;. ? J ? ? lit t ?yJ? $ F £ 2. A J J- A =g? to F ? ? ?,$ c y ? ;• v. ? ? ? +? }? >r Vii" . ? ;a ?` ? ,.'".?'s? ?Sr ?,? ?' ? '^ ' +, ? ? ?'' e s ? ? ? ? F ?' ? ? ?•.: ???4, ? ?JJ • '»# If y xYk I .' ^_. ? Y first . ;' ??km-'? 'a,4- c?+'<jg-, ''fir ??Pr,,?» a..m, ,»r_., .,.w r ,.., . ?, .. ,?..?•??r . .. } CCUSA INSTRUCTIONS FOR CAPITAL ONE FINANCING PROGRAM l F Determine total project cost with 1 f?,V customer with sufficient margin ,^V `?? F omer calls Capital one at their toll free number 1-866- 715-8845 USA to get programs available (id # 19797 Capital One takes credit application over the phone and gives a go/no go within 8-10 minutes I Once loan approval is given, customer signs the Clear I Choice PA Capital One faxes loan documents to Clear Choice corporate office Clear Choice corporate office faxes loan documents to I licensee I Licensee has customer sign loan authorization form and either keeps form on file or faxes to Capital One Licensee submits order to corporate and references that it is Capital One job on the PA using the "C1" notation at end of PO number I Clear Choice corporate office will delay ACH payment from I licensee until job is complete I Licensee receives & installs I windows I Upon install, customer provides I executed certificate of completion to the licensee One completion to CCUSA Corporate receives notice of disbursement from Capital One. CCUSA Corporate then credits the disbursement amount minus licensee cost of windows/product including any fees into licensee bank AAI'--? ? ? aq o , 3 i 01/15/2009 11:53 7175244681 CLEAR CHOICE YORK PAGE 02/02 ?- - -1#V.r v •:?,,,,i rrt L'+?p1LAlU11C bOa-424-6400 Page 2 App f17:'iTi?9 Contractor M: 19374 Amount: SS.7QO,00 Deferred tteter+lSt Period: 12 months;' statements term: 84 Months '.'fate: 19.990•;. c- Capital One Home Improvement Finance Financing Authorization Form i n?rrr?i? rrrr.ri?r?rr_?r..`? s r rrir? I -wknoK6ge that I have received nrrCi a re;urcWy, and have i'tu Vproved &)r an amunt fumwed of with Capital One N.A. I.'pon receipt of a complttet and sipcxl Certificate of (,:3rt4)k-tk?n, 1 authorrm Ehe ainreuat 6aiarrced of Sl.7_(X!Qt ti paid to SJ=E QMI?L.'S,?,a_ of gallants. Girk. ! agre~ tv , rrpairt?r??nt tarn of 8? nx?rttf:5 vaith inrcrrSK deferracl fart the fuYt ?' months. I ach-..%:W- that this loan kgreawnt Kill expire if Capita! One Hoax- inrovetrwnt Finance dov.s not recelvc a C4*lcled and i ned Cortificate t,f ("on4)1t-tiau by 033/14A-2009. f u?_ _SUMLRE Ann 2LVM Trus Contract l acKnomn2 a . That t have reurive d and retained a Copy of t4r k'c vAq t kAjusure. That I have mvelved, read and kept a copy of jwge I and 2 of my eromimry !Vote and Diseloitrre. t Agree to repay the amount financed under th,# teems of my Pw!! issory• Nate. l"c.ctAdy Uare: /3?fl?1 0 ....._. Sign hue?: o_ Q?. . xelittcta Feller lk-lure retu ft gj M ems arc that you t 1419W aW dAt t this p- Missittl; ?)r altered :nfurmalion wllle laav the pry shag of your loan *AS.IDL4478559* . 91"044C"W ()Ply Exhibit "C" y ._ 01/15/2009 11:53 7175244681 CLEAR CHDICE YORK PAGE 01/02 9/15/2006 11;19:52 AM CavitalOnas b0th-424-A4VU rMe to Aa?t Yom; 447>i?9 90MCAM OF COME= SMX AND GWZ THIS CZRTMCATE TO 713Z 308a II4f MV1 RCM INUMNESS WHEN TIM SOl01 nit ROVI M M PROJECT HAS Bff1M.N COMPL&TED, Nam$ ofCwtomer. Melinda Feeler V Addrau- 311 Allen 5t City, Stile aald Zip CO&: CatWe, PA 17013 0-4 r-' oertifp mat: (1) Any mAeriaah required to complete ft i>Y pMvaumonts We bean fistnished ad iamdalled by the Home Improvemed Bwiaosa; and (2) The bwmvemauss were oompleud to my sstisPaod a and in =otdanw with nary Agreement with the Name of Home Improvement Busigess_ Clear Choice USA Address; 2430 Powers Ferry Road City. Ststa and Zip Code; Atlanta, GA 30339 Pettify that; (1) Any matariais required to complete tW improvements have boa fivwA ed and hotalled by the Home kapraveme at Busiuasa; (2) The kgnvemanb were cmpldad to the Customer's sdidadien in u xwdwm with the Agumed? of dw Some Improvement 8usi um with the CuR m«; and (3) The Customer sued this Cartfficate of Con*etioa after Complaadea dtiu improvements. (SIGNATURE OF BUSINESS OWNER OR AUTHORIMD REPRESENTAIM) YFiE MME IMPWV MRNT BMOM iHOULD FAX 7M tjO1 P EM Cif MWATr TO CAMAL ONE M WE MtellwteAw FK MCt4 AT: l•sasal iZA17a. Exhibit "D" Capital PO Box 30273 Salt Lake City, UT 84130-0273 December 9, 2009 Melinda Fesler I ! MTS MA D? 0,1i 311 Allen Street L l4 nl -Rc r4ce E 5'v5? iu n Carlisle, PA 17013 Account: 0055000193704 9 Balance: $ 8120.58 y ? 15(ZO-0 9 t7l Melinda My name is Lisa, I have been assigned to your case and I will personally work with you throughout the entire process. Thank you for working with us to investigate the above-referenced account, which was opened in your name. If someone applies for and receives a Capital One Installment Loan in your name without your knowledge, it is not only a huge inconvenience but it is also a very serious issue. We are working diligently to take care of this issue as quickly as possible and to ensure that you have no liability for any fraudulent balance. While everything is still fresh in your mind, please take a few minutes to complete the enclosed Identity Fraud Information Form. We cannot process your fraud claim until you return it to us. Please fax the completed Identity Fraud Information Form to 804-934-2915 within 3 business days from receipt of this letter. Or drop the form in the mail to the following address: Capital One, N.A. PO Box 30273 Salt Lake City, UT 84130-0273 The Identity Fraud Information Form is a formal written statement verifying your fraud claim. It's not only important that you sign it, but you must also either: a) Send us a clear copy of two forms of identification. (Social Security card and your state driver's license or government-issued photo ID) with the signed forms. Or b) Have the form notarized. (If you choose to have it notarized, you must sign the form in the presence of a notary public.) If you have any questions, you may contact me via phone 804-968-3635. Thanks again for your patience and assistance as we work together to resolve this matter. Sincerely, Lisa K. 1 ta/l?- Custo er Fraud Protection 02009 Capital One N.A. Capital One is a federally registered service mark. All rights reserved. Exhibit "E" Identity Fraud Information Form For Account- 00550001193704 December 9, 2009 Instructions: (Please read through these steps carefully) i . Please fill out this form completely. 2. Make sure you have signed all three sections where indicated below. 3. Either have this form notarized OR send in a clear copy of your government-issued photo ID AND a copy of your Social Security card. 4. Fax to attn: or mail this form to us within three business days from receipt of this letter. (Faxing the form is preferred.) A. My correct information is: (please print clearly) My full legal name is: First: Middle: Last: 4 Other names I have used: _Street: Apt: 11 u L L CN? 5 i City: State: Zip Code: } ?It i- P A Social Security Number: Date of Birth: n: , Cell Phone: Day Phone: 1 7 2j S ZV one: nature: B. For the record, regarding Capital One account : (Check all that apply.) o I did not apply for or request this account. o I did not receive a Capital One Installment Loan with the account number listed above. I did not receive any money, merchandise or services in association with this account. This includes any money, merchandise or services I may have received from a third party. < r U 1?C t SS:.'i; i-l; Ei) 4 U--'AT < • I have not authorized or directed any individual to seek credit in my name. Print your name: J;?Ltr?l A E E'S LE?C T %?m not accepting responsibility for payment on this account. (A ; -I-?t I 5 TI -LIZ- nature: Date// F z, J, P Identity Fraud Information Form (Continued) C. Suspect Information Do you have any knowledge of the person(s) who may have applied for and used the account fraudulently? o No a Yes, I have reason to believe that the following individual(s) applied f= aP4 used the Capital One account indicated above. Please fill out the information below to the best of your knowledge. If you have reason to believe that additional parties are responsible, please attach the same information for those individuals to this document on additional pages. L F- L rte= i c = t` ?t r' i? ? r c ?`i OICA i Suspect's Address: (? J i ?` N L+L?G ? -? Are you willing to prosecute: { No Yes s i2 Police Report Filed a Nof> Yes ase# L ?CC i L 1? v ( ?` J ! r V'+ C 1 -7 D. Signed Statement By signing below I certify that to the best of my knowledge and belief, all of the information on and attached to this Identity Fraud Information Form is true, correct, complete, and made in good faith. 1 also understand that this Identity Fraud information Form may be provided to federal, state, and local law enforcement agencies for such action within their jurisdiction as they deem appropriate. Please include or attach any additional information you think would be beneficial to our investigation. C.OMMONMfE?TH ? P1?ISYLVANIA NOTAFAAL SEAL WE IIL FISHER, NOTARYPUBLIC CMUU WROUGH, CUMBER AND 00MY MY COMMISSION EXPM NOVEMBER 26, 2012 'C2009 Capital One N.A. Capital One is a federally registered service mark. All rights reserved. Commission Expiration: '?i'?t'' )J .-)rC1.? (Notary information required only if a clear copy of your Social Security card AND your state driver's license or government-issued photo ID is not sent with this form.) l? ?v ?1w -??5 \I?hl /? ? ca?, m7p? Home improvement Finance ?? Wv Q? #0001521846# Melinda Fesler 311 Allen St Carlisle PA 17013-3102 hell!udllu?wtl?u?ln+lh?ul?l(?t+u?dndludUlm Dear Melinda, Welcome to Capital One® Home Improvement FinancesM I 1 ' ? ?? ?, boa LJ We've received your signed loan document and the Certificate of Completion for your Capital One Home Improvement Finance loan and have sent the full loan proceeds to your contractor. In approximately three weeks, you'll receive your first monthly statement from Capital One, N.A. If you have any questions, don't hesitate to call us t 1-866-715-8845 We're glad we were able to help you get the job done you wanted. All of us at Capial One Home Improvement Finance look forward to providing you with exemplary service. Sincerely, Customer Service Department Capital One Home Improvement Finance 02008 Capital One®. All rights reserved. Capital One is a federally registered service mark. ?. Exhibit "F" .. Owens Barcavage & McInroy, LLC By: Bart W. Holmes, Esquire PA ID No.: 85071 2595 Interstate Drive Harrisburg, PA 17110 717-909-2500 717-909-2504 (fax) v~'i'~~1 ('i,'' n '.~ ' -~ ! ~ ~ p .... ~ /t .~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Christopher D. Prince, t/a/d/b/a Clear Choice USA 2691 Baltimore Pike Hanover, PA 17331 N0.:2012-3917 v. Melinda Fesler and Douglas Fesler, h/w 311 Allen Street Carlisle, PA 17013 CIVIL ACTION -LAW PLAINTIFF CHRISTOPHER D. PRINCE'S REPLY TO DEFENDANTS NEW MATTER AND NOW COMES Plaintiff Christopher D. Prince, by and through his attorneys Owens Barcavage & McInroy, LLC, and Bart W. Holmes, Esquire, and brings the within Reply to Defendants' New Matter: 33. Admitted in part and denied in part. It is admitted that the Agreement set forth as Exhibit "A" to Defendant's New Matter does not contain the signature of Christopher Prince (hereafter "Prince." It is denied that the Agreement does not contain the name of Prince. On the contrary, in the top right corner of the Agreement the name "Chris" is set forth as the "Sales Rep." It is therefore averred that Prince's name is included on the Agreement. 34. Denied as stated. The Agreement set forth as Exhibit "A" provides that "Final Payment Must be Paid Upon Installation." Moreover, the Agreement includes the signature of Melinda Fesler under "Customer Signature," on 10/1/08, and includes the amount to be paid of $8948.16. Moreover, the Agreement signed by Melinda Fesler sets forth that "Customer agrees to the payment terms and conditions of this contract." 35. Denied. The Agreement set forth as Exhibit "A" contains the name "Chris" as the "Sales Rep.," which refers to Prince. Moreover, Clear Choice USA York ,Harrisburg, Baltimore was a DBA under which either Prince and or a Limited Liability Company known as CCUSA York, PA LLC, (hereafter "CCUSA York") Pa. ID. No. 3671265, 2691 Baltimore Pike, Hanover, PA 17331 did business. It is admitted that the Agreement signed by Melinda Fesler is a Clear Choice USA form and lists Clear Choice USA, since it is believed, and therefore averred, that either Prince and or CCUSA York were licensee's of Clear Choice USA and were authorized to do business under the Clear Choice USA York, Harrisburg, Baltimore name. 36. Admitted. By way of further response, the lack of a fictitious name filing did not prevent either Prince and or CCUSA York from entering into an enforceable contract with the Feslers nor does it prevent either Prince or CCUSA York from having standing to bring suit to enforce the Agreement set forth as Exhibit "A" to the Fesler's Answer with New Matter. 37. The allegations in the paragraph constitute conclusions of law to which no responsive pleadings are required, and therefore are denied. By way of further response, the Fesler's entered into the Agreement with either Prince or CCUSA York. 38. Admitted, if relevant. By way of further response, this document represents a financing arrangement chosen by the Fesler's which in no way negatives the Fesler's obligation to Prince or CCUSA York under the Agreement. 39. Admitted, if relevant. By way of further response, this document represents a financing arrangement chosen by the Fesler's which in no way negatives the Fesler's obligation to Prince or CCUSA York. 40. Admitted in part and denied in part. It is admitted that Exhibit "D" to Defendant's Answer with New Matter is a Certificate of Completion signed by Prince, directing payment to Clear Choice USA of 2030 Powers Ferry Road, Atlanta, GA 30339, which was part of the financing arrangement chosen by the Fesler's. It is denied that Prince solely signed this document. On the contrary, Melinda Fesler signed this document. 41. Admitted in part and denied in part. It is admitted that Clear Choice USA York, Harrisburg, Baltimore is not identified as the Home Improvement Business on the Certificate of Completion. It is denied that Prince is not indentified on the Certificate of Completion. On the contrary, the Certificate of Completion includes the following language: "I, Chris Prince (handwritten), certify that: (1) Any materials required to complete the improvements have been furnished and installed by the Home Improvement Business; (2) The improvements were completed to the customer's satisfaction in accordance with the Agreement of the Home Improvement Business with the Customer; and (3) The Customer signed this Certificate of Completion after completion of the improvements. ,(signature of Prince) 1/14/09 (handwritten). (Signature of Business Owner or Authorized Representative)" 42. Denied as stated. This averment does not set forth the date(s) upon which Melinda Fesler advised Prince that she was not satisfied some of the windows, or their installation, and therefore Prince and or CCUSA York is unable to accurately respond to this averment. As to whether Melinda Fesler advised Clear Choice USA that she was not satisfied with some of the windows or their installation, after reasonable investigation neither Prince nor CCUSA York are able to form a belief as to the truth of this averment, and therefore deny same. By way of further response, Prince and or CCUSA York took steps to address any believed deficiencies with the windows and their installation, as addressed by the Fesler's to Prince personally, and as evidenced by Melinda Fesler signing the Certificate of Completion for the job. 43. After reasonable investigation, neither Prince nor CCUSA York are able to form a belief as to the truth of this averment, and therefore deny same. 44. Denied. Melinda Fesler signed the Certificate of Completion and by doing so authorized payment. 45. Denied. See response to Paragraph No. 44, above. By way of further response, it is admitted that Prince faxed the Certificate of Completion to Capital One after it had been executed by Melinda Fesler. 46. Denied. By way of further response, Melinda Fesler signed the Certificate of Completion in the presence of Prince. It is admitted that Prince faxed the Certificate of Completion in order to receive payment due for the work he or CCUSA York performed pursuant to the Agreement, pursuant to the financing arrangement chosen by the Fesler's, as payment was due and owing. 47. Admitted. By way of further response, Prince was charged by State Trooper Joseph Manning, but it is believed that Trooper Manning circumvented the prosecutorial process by taking his Police Criminal Complaint and Affidavit of Probable Cause to a magistrate over the marked disapproval of the attorney for the Commonwealth (see Exhibit "A" to Prince's Reply to New Matter, wherein the attorney for the Commonwealth marked "Disapproved"). By way of further response, Senior District Attorney Daniel J. Sodus, Esquire, requested, and received approval, to Nolle Prosequi all of the charges (see Exhibit "B" of Prince's Reply to New Matter). By way of further response, it is denied that Melinda Fesler's signature was forged on the Certificate of Completion. 48. The document identified as Exhibit "E" of Defendant's Answer with New Matter appears to be a confirmation letter signed by "Lisa K." and addressed to Melinda Fesler. It further shows and account balance of $8120.58. After reasonable investigation Prince or CCUSA York are unable to form a belief as to the authenticity of said document, or what representations may have been made by Melinda Fesler to have received this document, and therefore these allegations are denied. As to the Identity Fraud Information Form, also attached to Exhibit "E," under B., Melinda Fesler states "* Service issues are pending & unresolved to date," and therefore there is no allegation of identity theft, assuming this document is authentic. Moreover, on this same form Melinda Fesler states that "I am not accepting responsibility for payment on this account," then adds in handwriting, "At This Time." Moreover, these forms appear to be signed by Melinda Fesler, using the same signature with which she signed the Certificate of Completion, and include an affidavit or equivalent statement certifying their truth, at D. Signed Statement, and are notarized. After reasonable investigation, neither Prince nor CCUSA York, have information sufficient to form a belief as to the authenticity of any of the documents set forth in Exhibit "E" to Defendant's Answer with New Matter, and therefore deny same in their entirety. 49. After reasonable investigation, neither Prince nor CCUSA York have information sufficient to form a belief as to the authenticity or circumstances surrounding Defendant's Exhibit "F," and therefore deny same. By way of further response, neither Prince nor CCUSA York have ever received payment of any kind from the Fesler's or any other entity for the work performed pursuant to the Agreement. 50. After reasonable investigation, neither Prince nor CCUSA York have sufficient information to form a belief as to the truth of the averments set forth in Paragraph No. 50, and therefore deny same, if relevant. 51. It is admitted that Plaintiff has not joined Clear Choice USA or Capital One. As to the remainder of the averments in Paragraph No. 51, these constitute conclusions of law to which no responsive pleading is required, and therefore are denied. 52. The allegations in Paragraph No. 52 are conclusions of law to which no responsive pleading is required, and therefore are denied. 53. The allegations in Paragraph No. 53 are conclusions of law to which no responsive pleading is required, and therefore are denied. 54. The allegations in Paragraph No. 54 are conclusions of law to which no responsive pleading is required, and therefore are denied. 55. The allegations in Paragraph No. 55 are conclusions of law to which no responsive pleading is required, and therefore are denied. 56. The allegations in Paragraph No. 56 are conclusions of law to which no responsive pleading is required, and therefore are denied. 57. The allegations in Paragraph No. 57 are conclusions of law to which no responsive pleading is required, and therefore are denied. 58. The allegations in Paragraph No. 58 are conclusions of law to which no responsive pleading is required, and therefore are denied. 59. The allegations in Paragraph No. 59 are conclusions of law to which no responsive pleading is required, and therefore are denied. 60. It is denied that Melinda Fesler did not sign the Certificate of Completion and it is denied that Prince's and or CCUSA York's work was not performed in a workmanlike manner. 61. Denied that the installation of the windows was of poor quality or workmanship. 62. It is denied that two of the windows that were installed in the Fesler residence were incorrect and lower in price that those listed on the Agreement. By way of further response, Prince and or CCUSA York corrected any and all deficiencies brought to their attention by the Feslers, as appropriate. 63. It is denied that one of the windows installed at the Fesler's residence was defective and or that any such defect, if it existed, was not corrected by Prince and or CCUSA York. 64. It is denied that a window screen installed at the Fesler's residence was damaged and or that any such defect, if it existed, was not corrected by Prince and or CCUSA York. 65. After reasonable investigation, neither Prince nor CCUSA York have information sufficient to form a belief as to the truth of these averments, and therefore deny same, if relevant. 66. It is denied that the Fesler's tub was damaged during the installation of the bathroom window. On the contrary, the Fesler's had remodeled their own bathroom and any damage to the tub was a result of their conduct, or the conduct of their workmen, and not of Prince or CCUSA York. 67. It is admitted that the Fesler's notified Prince of their belief that there was damage to the tub. It is denied that Prince or CCUSA York did the damage, as set forth above in Paragraph No. 66. As regards any notification to Clear Choice USA of Atlanta, Georgia, or whether this entity paid for said repairs, after reasonable investigation neither Prince nor CCUSA York have knowledge sufficient to form a belief as to the truth of these averments, and therefore deny same. 68. The allegations in Paragraph No. 68 constitute conclusions of law to which no responsive pleadings are required, and are therefore denied. 69. The allegations in Paragraph No. 69 constitute conclusions of law to which no responsive pleadings are required, and are therefore denied. 70. The allegations in Paragraph No. 70 constitute conclusions of law to which no responsive pleadings are required, and are therefore denied. 71. The allegations in Paragraph No. 71 constitute conclusions of law to which no responsive pleadings are required, and are therefore denied. WHEREFORE, Christopher D. Prince demands judgment against Melinda and Douglas Fesler, husband and wife, individually or jointly and severally, in an amount of $8948.16, plus interest from the time of completion of the window installation, costs of suit, and other relief this Honorable Court deems just and proper. In the alternative, it is demanded that this Honorable Court order the Fesler's, one or both, to submit to arbitration pursuant to the Contract memorializing the Agreement. Respectfully Submitted, Date: November 21, 2012 Owens Barcavage & McInroy, LLC Bart W. Holmes, quire PA ID No.: 85071 2595 Interstate Drive Harrisburg, PA 17110 717-909-2500 717-909-2504 (fax) (remainder of page intentionally left blank) ~;Os"+~MCSN1rVEALTH OF PENNSYLVANIA ~ ^~ COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND `~''_ ` .~ .s vs. ;Magisterial District Number: 09-3-03 3DEFENDANT: (NAME and ADDRESS): MDJ Name: Hon. DAY ~ CHRISTOPHER D. PRINCE Address: 229 MILL ST. PO BOX 167 f ~ MT. HOLLY SPRINGS ~irst Name Middle Name Last Name Gen. ~ PA 17065 ! ? 2691 BALTIMORE PIKE Telephone: (717)486-7672 HANOVER, PA 17331 ;, ~ 717)965-1215 NCIC EXTRADITION CODE TYPE 1-Felony Full 4-Felony No Ext. B-Misdemeanor Limited E-Misdemeanor Pending ^ 2-Felony Ltd. ^ 5-Felony Pend. ^ C-Misdemeanor Surrounding States Distance: ^ 3-Felony Surrounding States ^ A-Misdemeanor Fuil ^ D-Misdemeanor No Extradition DEFENDANT IDENTIFICATION INFORMATION Race Ethnicity Docket Number Date Filed OTNlLiveScan Number Complainttlncident Number white Hispanic / / H02-1823149 ^Asian Non-Hispanic ~ DOB 09/28/64 POB ^Black ^Unknown Native American Add'i DOB SSN 212-72-5560 Add'I SSN ^U k nown n Gender ®Male First Name: Middle Name: Last Name: Gen. ^ Female AKA SID: HAIR COLOR ^GRY (Gray) ^RED (Red / Aubn.) EYE COLOR ^H/~ (1-lam() Request Lab Services? BLK (Black) ^ONG (Orange) ^BLN (Blonde! Strawberry) BLK (Black) ^MAR (Maroon) ^YES ®NO BLU (Blue) ^PLE (Purple) ^WHI (White) ~BLU (Blue) ^PNK (Pink) BRO (Brown) /Bald) ^pNK k) ^xXX (Unk Pi BRO Brown) ( ^MUL (Multicolored) ^GRN (Green) . ( n ^SDY (Sandy) GRN (Green) ^XXX (Unknown) GRY (Gray) Driver License State PA License Numbsr 22227174 Expires: 09/29/10 WEIGHT (Ibs.) DNA ^YES ®NO DNA Location FBI Number MNU Number Ft HEIGHT In. Fingerprint Classification 5 ( 11 DEFENDANT VEH ICLE INFORMATION Plate # State Hazmat Registration Sticker (MM/YY) Comm'I Veh. Ind. School Veh. th. NCIC Veh. Code ^ ^ ^ VIN Year Make Model Style Color Office of the Attomey for the commonwealth proves pyulsapprovea oecause: (7he ettorray yor the Conenaiweeeh meY the ~ oompieeK, errant wernra a ar Dolh be appo`etl by the atterneY M Me Conarpnaaa/h p'ii er ro tAhp. PeR.CrimP.5g7.J ZName of Attomey for Commonwealth - Pease PdM or Type) , na ure p tom y of ommornroa a e I, TPR. JOSEPH MANNING 00649745/1 13 ame o wn - ease nn or ype Meats ID Number 8 Badge e9 ;, ~ -. of the Pennsylvania t t Police. Tf00D H. Carlisle ' (13en epa-rlmsTa p~7~e~wy ep2ae a o'E~carSu~maonT- 'iPOgce Agency ORI Number) s do hereby state: (check appropriate box) d 1. ® I accuse the above named defendant who lives at the address set forth above ^ I accuse the defendant whose name is unknown to me but who is described as _ ! ^ I accuse the defendant whose name and popular designation or nickname is unknown to me and whom I have therefore designated as John Doe or Jane Doe. 311 ALLEN ST.. SOUTH MIDDLETON~;, t: ~~,~r with violating the penal laws of the Commonwealth of Pennsylvania at: 213 TOWNSHIP 5 '_ (Subdivision Code) (Place-PoliGral Subdivision) % ~'~ \ in CUMBERLAND County c°buMy °o°°) 21 on or about 01109/09-/01-13/091200-1530 HRS. ~ -~' ;.:,.1 AOPC 412A-Rev. 12!07 Page 1 of _ POLICE CRIMINAL COMPLAINT Docket Number Date Filed OTN/LiveScan Number Complaint/Incident Number / / H02-1823149 First: Middle: Last: Defendant Name CHRISTOPHER D. PRINCE 2. I ask that a warrant of arrest or a summons be issued and that the defendant be required to answer the charges I have made. 3. I verify that the facts set forth in the complaint are true and correct to the best of my knowledge or information and belief. This verification is made subject to the penalties of Section 4904 of the Crimes Code (18 Pa.C.S.§4904) relating to unsworn falsification to authorities. 4. This complaint is comprised of the preceding Page, as well as the attached pages that follow, numbered _ through _, specifying offenses and Participants, if any. The acts committed by the accused, as listed and hereafter, were against the peace and dignity of the Commonwealth of Pennsylvania and were contrary to the Act(s) of the Assembly, or in violations of the statutes cited. (Before a warrant of arrest can be issued, an affidavit of probable cause must be completed, sworn to before the issuing authority, and attached.) e ureo u AND NOW, on this date, I certify that the complaint has been properly completed and verified. An affidavit of probable cause must be completed before a warrant can be issued. (Mepisterial District Courl Numoer) SEAL Pasuuq AutnorHy) ('' -.,. rr. t:;a ,... ! «~ ". ru+- ! ~~ ~~~~ ( ~~,~ ,, ;; ~- AOPC 412A -Rev. 12/07 Page _ of - ~~ COMMONWEALTH OF PENNSYLVANIA CUMBERLAND OU OMMP NNSYLVANIA ~~ CP-21-CR-2719-2009 CRIMINAL v CHARGE: 1) THEFT BY DECEPTION 2) FORGERY jS CHRISTOPHER D. PRINCE AFFIANT: TPR. JOSEPH P. MANNING NOLLE PROS The Petition of Daniel J. Sodus, Esquire, Senior Assistant District Attorney for the affiant in the above case, respectfully represents that he does not desire to further prosecute the above case, and therefore prays Your Honorable Court to grant leave to the District Attorney to enter a Nolte Prosequi in the above case. The Petitioner requests that the Nolte Prosequi be entered for the following reason: Although the evidence certainly suggests that a forgery occurred, at this time the Commonwealth's evidence is not sufficient to prove beyond a reasonable doubt who committed this crime. Costs will be paid by the County. ~_~.~ And he will ever pray, etc i; .,/,:; ,, ~. ,., ~, -~ /' ' - _ ~` ~,:' ~_ ~; _ . fir` ~` _- c for the Affiant '/ _ ,~ - . _:~ _ cn _ cn And now, to wit: ~ _ Z , 2010 permission is hereby granted to the District Attorney to grater a-Nolte Proseq i in the above case. By the Gourt, '_ ! % l J. And now, to wit: Mu,~t~ ~~ , 201~a Nolte Prosequi is hereby entered in the above case. District Attorney i!~ ~ ATTORNEY VERIFICATION I, Bart W. Holmes, Esquire, attorney for Plaintiff Christopher Prince, do hereby certify under penalty of unsworn falsification to governing authorities, that the averments of fact or denial of fact in the foregoing are based upon information provided to me by my client, and are based upon his personal knowledge, information or belief, and that I am verifying this document in my capacity as my client's attorney because my client was unavailable to review the foregoing within the time required for its filing and service, and that my client's verification shall be substituted for mine as soon as he is available to review the foregoing. Date: 11 /21 /2012 Bart W. Holm s, sq ire CERTIFICATE OF SERVICE I, Bart W. Holmes, Esquire, certify under penalty of 18 Pa.C.S. § 4904, related to Unsworn Falsification to Authorities, that a true and correct copy of the foregoing, was served by United States Mail, pre-paid, as follows: Tricia D. Naylor, Esquire 19 West South Street Carlisle, PA 17013 Date: November 21, 2012 Bart W. Holmes, Esquir ~