HomeMy WebLinkAbout13-0884 SHAWN GUTSHALL and : IN THE COURT OF COMMON PLEAS OF
MICHELLE GUTSHALL : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. CIVIL ACTION- LAW
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2013-884 CIVIL TERM v3 w -+
ELI M. TROYER, xr"> -n
Defendant JURY TRIAL DEMANDED c(n� rev ,Um
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PRAECIPE TO ENTER APPEARANCE
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To The Prothonotary:
Please enter my appearance on behalf of the Plaintiffs, Shawn Gutshall and Michelle
Gutshall, in the above captioned case.
Respectfully Submitted,
IRWIN & McKNIGHT,P.C.
Douglas G. filler,Esquire
Supreme Court I.D. No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717)249-2353
Date: March 20, 2013
CERTIFICATE OF SERVICE
I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy
of the foregoing document upon the persons indicated below by first class United States mail,
postage paid in Carlisle, Pennsylvania 17013, on the date set forth below:
ELI M. TROYER
P.O. BOX 125
THOMPSONTOWN, PA 17094
Date: March 20, 2013 IRWIN & McKNIGHT, P.C.
Douglas G Miller,Esquire
Supreme Court I.D.No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353
1
SHAWN M. GUTSHALL and : IN THE COURT OF COMMON PLEAS OF
MICHELLE R. GUTSHALL, husband : CUMBERLAND COUNTY, PENNSYLVANIA
and wife,
Plaintiffs, No. 2013—0884, CIVIL TERM
V.
CIVIL ACTION- LAW
ELI M. TROYER
Defendant. JURY TRIAL DEMANDED
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, order 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 money claimed in the complaint or for any other claim or relief
requested by the plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
r �
Cumberland County Bar Association
32 South Bedford Street r"Co ° f
Carlisle, PA 17013 1 :x
(717) 249-3166c ' � °�
800-990-9108 CD --a
3>C-; _..
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Americans with Disabilities --s �—
r
Act of 1990
The Court of Common Pleas of Cumberland County is required by law to comply with the
Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable
accommodations available to disabled individuals having business before the court, please contact our
office. All arrangements must be made at least 72 hours prior to any hearing or business before the court.
You must attend the scheduled conference or hearing.
SHAWN M. GUTSHALL and : IN THE COURT OF COMMON PLEAS OF
MICHELLE R. GUTSHALL, husband : CUMBERLAND COUNTY, PENNSYLVANIA
and wife,
Plaintiffs, No. 2013—0884, CIVIL TERM
V.
CIVIL ACTION -LAW
ELI M. TROYER
Defendant. JURY TRIAL DEMANDED
COMPLAINT
AND NOW, this 5th day of December, 2013, come the Plaintiffs, SHAWN M.
GUTSHALL and MICHELLE R. GUTSHALL, husband and wife, by and through their
attorneys, Irwin & McKnight, P.C., and make the following Complaint against the Defendant,
ELI M. TROYER, averring as follows:
1. Plaintiffs are Shawn M. Gutshall and Michelle R. Gutshall, husband and wife,
adult individuals principally residing at 503A Middle Road, Newville, Cumberland County,
Pennsylvania 17241.
2. The Plaintiffs' residential property at 503 A Middle Road consists of
approximately 48.71 acres of land, of which at least 40 acres is woodland.
3. Defendant is Eli M. Troyer, an adult individual who upon information and belief
resides at 180 Nickle Drive, Mifflintown, Pennsylvania 17059.
4. At times relevant hereto, Defendant Troyer held himself out to be in the business
of logging and timbering.
5. In 2011, Defendant sent a postcard to the Plaintiffs advertising his expertise in
logging and timbering.
6. In and around December 2011, Defendant and Plaintiff Shawn M. Gutshall
walked the property located at 503 A Middle Road, Newville, in order to assess the nature and
value of timber on the Plaintiffs' land.
7. Plaintiffs told Defendant that they wanted a "select cut" that would allow for new
timber growth on the property.
8. After examining the timber growing on the Plaintiffs' land, Defendant Troyer told
the Plaintiffs that while it was difficult to provide an estimate, the Plaintiffs would "definitely"
receive at least Fifteen Thousand Dollars ($15,000.00) in proceeds from logging their property.
9. Defendant Troyer returned to the property on more than one (1) occasion in
December 2011 in order to mark trees, bring in equipment, and plan to timber the property.
10. On one (1) of those subsequent visits to the Plaintiffs' property, Defendant
brought an unknown male individual to evaluate the timber, and based upon that evaluation
Defendant promised Plaintiff Shawn Gutshall that Plaintiffs would receive at least Sixteen
Thousand Dollars ($16,000.00) in proceeds from logging the property.
11. Based upon the promises and representations of Defendant, in January 2012 the
parties signed a Timber Sale Contract prepared by Defendant. A true and correct copy of the
signed Timber Sale Contract is attached hereto and incorporated herein as Exhibit"A."
12. As noted on Exhibit "A," the Defendant was to cut "all marked trees and any
other trees seller deems suitable to cut."
2
13. The Timber Sale Contract attached as Exhibit "A" also states that Plaintiffs were
to be paid a down payment of$1,500.00 before any logs are hauled, that title to the trees is to
remain with Plaintiffs until payment made by Defendant in accordance with the contract, that
logging and hauling was to be performed weekly, and that Plaintiffs would be paid weekly.
14. Defendant began logging the Plaintiffs' property in January 2012, the same day
that the parties signed the contract attached as Exhibit"A."
15. Defendant did not, however, immediately begin providing the Plaintiffs with
statements or weekly payments as set forth in the Timber Sale Contract.
16. In February 2012 and March 2012, Defendant did make several payments to
Plaintiffs totaling approximately $8,072.01.
17. However, by the end of March 2012 and beginning of April 2012, Defendant
frequently did not come to the Plaintiffs' property to cut trees.
18. Plaintiffs also began attempting to contact Defendant to respond to why the
payments were so low and why Defendant was not providing Plaintiffs with copies of the mill
receipts as proof of the value of the trees removed by Defendant.
19. Plaintiffs were aware that trucks continued to leave their property with logs, but
Defendant was not present and was not responding to Plaintiffs' repeated requests for an
accounting by Defendant.
20. Despite numerous requests by Plaintiffs, Defendant has not provided his mill
receipts to Plaintiffs and has not provided an accounting of the logs removed or payments made
to the Plaintiffs.
3
COUNT
BREACH OF CONTRACT
21. The averments of fact alleged in paragraphs one (1) through twenty (20) are made
a part hereof and incorporated herein by reference.
22. Defendant Eli M. Troyer represented to Plaintiffs, as an inducement to enter into
the contract attached as Exhibit "A," that the value of the timber on their land would result in
Plaintiffs receiving at least Sixteen Thousand Dollars ($16,000.00).
23. Despite numerous promises to the contrary, Defendant failed to pay to Plaintiffs
the sum of Sixteen Thousand Dollars ($16,000.00) which he had represented and promised to
pay to Plaintiffs in exchange for the right to log and timber their property.
24. Despite numerous requests, Defendant has failed to provide to Plaintiffs the mill
receipts showing the amount and value of the timber obtained by Defendant by logging the
Plaintiffs' property.
25. Defendant breached the contract with Plaintiffs by not properly accounting to
Plaintiffs the amount and value of the timber removed from their property, failing to pay
Plaintiffs on a weekly basis pursuant to the written contract, and failing to pay Plaintiffs the
amount of at least Sixteen Thousand Dollars ($16,000.00).
26. Despite repeated attempts and requests made by Plaintiffs, Defendant has failed
and refused to properly account to Plaintiffs the amount and value of the timber removed from
their property.
27. Despite repeated demands, Defendant has refused and continues to refuse to pay
to Plaintiffs the proceeds owed to them as part of the contract.
4
WHEREFORE, Plaintiffs respectfully request that this Court award damages against the
Defendant in an amount of at least Seven Thousand Nine Hundred Twenty-Seven and 99/100
Dollars, together with attorney fees, costs and interest as permitted by law and such other and
further relief as this Court shall deem fair,just, and proper.
COUNT II
UNJUST ENRICHMENT
28. The averments of fact alleged in items one (1) through twenty-seven (27) are
made a part hereof and incorporated herein by reference.
29. Plaintiffs have conferred benefits on Defendant by permitting him to log and
remove timber from their property.
30. Upon information and belief, Defendant has received payment from mills and/or
other individuals for the timber removed from the Plaintiffs' property.
31. Defendant has not provided a proper accounting of the amount and value of the
timber removed from the Plaintiffs' property and has not performed satisfactory services to
justify the value of the benefits and payments which he received.
32. In the alternative to having breached the contract attached as Exhibit"A," it is and
continues to be inequitable for Defendant to retain the proceeds from the sale of the Plaintiffs'
timber without having paid to them the sum of at least Sixteen Thousand Dollars ($16,000.00).
WHEREFORE, Plaintiffs respectfully request that this Court award damages against the
Defendant in an amount of at least Seven Thousand Nine Hundred Twenty-Seven and 99/100
5
Dollars, together with attorney fees, costs and interest as permitted by law and such other and
further relief as this Court shall deem fair,just, and proper.
COUNT III
VIOLATION OF THE PENNSYLVANIA UNFAIR TRADE
PRACTICES AND CONSUMER PROTECTION LAW
33. The averments of fact alleged in items one (1) through thirty-two (32) are made a
part hereof and incorporated herein by reference.
34. In agreeing to the contract with Defendant, Plaintiffs relied upon the assurances
by Defendant that he would provide a weekly payment to them based upon the amount of timber
removed from their property.
35. Plaintiffs further relied upon representations by Defendant and his agents and
employees that the quality and amount of the timber on Plaintiffs land would result in payment to
Plaintiffs of at least Sixteen Thousand Dollars ($16,000.00) from the sale of that timber.
36. Defendant and his agents and employees further assured Plaintiffs that the work
would be done to their satisfaction and that Defendant Troyer was skilled in the business of
logging and timbering.
37. Plaintiffs relied upon the promises, assertions, and representations of Defendant
and his agents and employees as inducement to agree to allow Defendant to perform the work of
logging their property.
6
38. The misrepresentations by Defendant's agents and employees are in direct
violation of §§ 201-2(4)(v), 201-2(4)(vii), 201-2(4)(ix), and 201-2(4)(xxi) of the Pennsylvania
Unfair Trade Practices and Consumer Protection Law(hereinafter the "UTPCPL").
39. Section 201-2(4)(v) of the UTPCPL defines unfair or deceptive acts or practices
to include: "Representing that goods or services have sponsorship, approval, characteristics,
ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship,
approval, status, affiliation or connection that he does not have."
40. Section 201-2(4)(vii) of the UTPCPL defines unfair or deceptive acts or practices
to include: "Representing that goods or services are of a particular standard, quality or grade, or
that goods are of a particular style or model, if they are of another."
41. Section 201-2(4)(ix) of the UTPCPL defines unfair or deceptive acts or practices
to include: "Advertising goods or services with intent not to sell them as advertised."
42. Section 201-2(4)(xxi) of the UTPCPL defines unfair or deceptive acts or practices
to include: "Engaging in any other fraudulent or deceptive conduct which creates a likelihood of
confusion or misunderstanding."
43. As outlined in more detail above, Defendant violated the provisions of the
UTPCPL by representing that his logging expertise, type of timber located on Plaintiffs'
property, and methods of accounting for the timber removed and milled would result in the
minimum amount of the proceeds to be paid to Plaintiffs.
44. Upon information and belief, Defendant made such fraudulent representations in
order to induce Plaintiffs into signing the contract prepared by Defendant, even though the
contract did not include the minimum value represented on more than one (1) occasion by
Defendant.
7
45. Under § 201-9.2(a) of the Pennsylvania Unfair Trade Practices and Consumer
Protection Law, "[t]he court may, in its discretion, award up to three times the actual damages
sustained [...]."
46. Furthermore, the court "may provide such additional relief as it deems just and
proper." § 201-9.2(a).
47. Also under § 201-9.2(a), "[t]he court may award to the plaintiff, in addition to
other relief provided in this section, costs and reasonable attorney fees."
WHEREFORE, Plaintiffs respectfully request that this Court award damages against the
Defendant in an amount of at least Seven Thousand Nine Hundred Twenty-Seven and 99/100
Dollars, together with treble damages and attorneys fees against the Defendant, and such other
and further relief as this Court shall deem fair,just, and proper.
Respectfully Submitted,
IRWIN & McKNIGHT,P.C.
4
By: 4�h'AAA4
Douglas Gylfller, Esquire
Supreme Court ID No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Dated: December 5, 2013 Attorney for Plaintiffs
8
VERIFICATION
The foregoing document is based upon information which has been gathered by our
counsel and ourselves in the preparation of this action. We have read the statements made in this
document and they are true and correct to the best of our knowledge, information and belief. We
understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section
4904, relating to unsworn falsification to authorities.
fioc-.'u� 11 4fi��-
SHAWN M. GUTMALV-
1�
MICHELLE R. GUTSHALL
Date: 12/5/13
EXHIBIT "A"
TIMBER SALE CONTRACT
I/We, ll' -'r(Q IP� _r ofilp- AL-c l e- De. A11 1i' 4hWA 1
hereinafter called the purchaser,agree to purchase from
of hereinafter called the seller,the designated trees described
below.
1. Description of sale area:The woodland is located at S/-)3 ,j&,ddlf- r o8d, of t e W U;1/7e,
in county of e 4 m ber 1314d
Pennsylvannia, andlontains uD acres, more or less.
II. Trees designated for cutting: all Xl1 d r he d t f e e-S' and -74 K-
4 r e-e S -el l ey ;4 e f A 5 '4,3 bi e .-rte C C -f-
The title to these trees shall remain with the seller until it has been paid for by the
purchaser as hereinafter provided.
III. Conditions of sale:
A. The purchaser agrees:
1. To pay the seller 56 f&Q d D la e Yl p 2 U i'rt. eil f k n h e a s i'a -b P¢D r P -c7n k 1
>"e Liu le d- a!l _Tato /Dy S +n be Scaled and f, ded NCH.
�r uc C gj �o Jed 4 c+eJ 94d ar?,'d tea ee k t�
for the above mentioned trees,
2. To waive all claims to the above mentioned trees unless they are cut and removed on or before
3. To protect from unnecessary injury,young growth and other trees not designated for cutting.
4. To repair damages to ditches,fences,bridges,roads,trails or other improvements caused by logging damage beyond
ordinary wear and tear. Haul roads and skid trails must be returned in a manner that will help prevent erosion.
5. To remove refuse from servicing and repair of equipment from sellers property.
1
la. To prptect,indemnify,and save harmless the seller from any and all liability for personal injuries,death,and/or
property damage suffered or incurred by any person in connection with the purchaser's performance of this contract.
7. To remove logging slash from streams,access roads,trails,firebreaks,and property lines.
8. To carry personal liability and property damage insurance.These policies are to remain in effect at all times until
the completion of all work.
9. To provide and abide by a written erosion and sedimentation control plan as required by state and local laws
and regulations.
The seller agrees
1. To gaurantee title to the forest products covered by this contract.
2. To grant freedom of entry and right-of-way to the purchaser and his employees on and across the area covered
by this contract and also other privileges usually extended to purchasers of stumpage which are not specifically
covered, provided they do not conflict with specific provisions of this contract,
SIGNED THIS DAY OF 20
PURCHASER f-bf WITNESS
AV
SELLER(S), WITNESS
SELLERS WITNESS
2
CERTIFICATE OF SERVICE
I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy
of the foregoing document upon the persons indicated below by first class United States mail,
postage paid in Carlisle, Pennsylvania 17013, on the date set forth below:
ELI M. TROYER
180 NICKLE DRIVE
MIFFLINTOWN, PA 17059
Date: December 5, 2013 IRWIN & McKNIGHT, P.C.
Douglas . Miller, Esquire
Supreme Court I.D. No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353
SHAWN M. GUTSHALL and
MICHELLE R. GUTSHALL, husband
and wife,
v.
ELI M. TROYER
Plaintiffs,
Defendant.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: No. 2013 — 0884, CIVIL TERM
: CIVIL ACTION - LAW
: JURY TRIAL DEMANDED
AFFIDAVIT OF SERVICE
COMMONWEALTH OF PENNSYLVANIA:
: SS.
COUNTY OF CUMBERLAND
CZ)
I, Douglas G. Miller, being duly sworn according to law, deposes and says that I am a
competent adult over 18 years of age; that I served a certified copy of the Complaint upon the
Defendant, Eli M. Troyer, by regular United States mail on or about December 19, 2013 at his
address of 270 Flint Road, Mifflintown, Pennsylvania.
Date: February 28, 2014
Respectfully submitted,
IRWIN & McKNIGHT, P.C.
By: dellik,14
Douglas G. il er, squire
Supreme Court I.D. No 83776
60 West Pomfret Street
Carlisle, PA 17013
717-249-2353
Attorney for Plaintiffs
f
SHAWN M. GUTSHALL and : IN THE COURT OF COMMON PLEAS OF
MICHELLE R. GUTSHALL, husband : CUMBERLAND COUNTY,PENNSYLVANIA
and wife,
Plaintiffs, : No. 2013—0884, CIVIL TERM
v.
: CIVIL ACTION- LAW
P1
ELI M. TROYER •
Defendant. : JURY TRIAL DEMANDED �x -r.
I--
PRAECIPE TO ENTER DEFAULT JUDGMENT :'
TO THE PROTHONOTARY:
Please enter judgment by default in favor of the Plaintiffs, Shawn M. Gutshall and Michelle
R. Gutshall, and against the Defendant, Eli M. Troyer. Defendant was served with a copy of the
Complaint on or about December 19,2013.
Attached as Exhibit"A"is a copy of Plaintiffs' written Notice pursuant to Rule 237.1 of the
intention to file a praecipe for entry of default judgment, which I certify was mailed by regular mail
to the Defendant at his current address on February 7, 2014,which date is at least ten(10)days prior
to the filing of this Praecipe.
Please assess damages in the amount of$7,927.99, being the amount requested in the filed
Complaint in this matter, together with any applicable costs, filing fees, delay damages, accruing
interest, and any later awarded attorney fees and/or damages awarded pursuant to the relief
requested under the Pennsylvania Unfair Trade Practices and Consumer Protection Act.
Respectively submitted,
IRWIN & McKNIGHT, P.C.
By: JJj�.
Douglas G Miller,Esquire
Supreme Court I.D.No 83776
60 West Pomfret Street
Carlisle, PA 17013
717-249-2353 *4‘'� ���
Date: February 21, 2014 Attorney for Plaintiffs
07 Cr. /./
' `3O1 '7
A e l22/r/°,
- t
SHAWN M. GUTSHALL and : IN THE COURT OF COMMON PLEAS OF
MICHELLE R. GUTSHALL,husband : CUMBERLAND COUNTY,PENNSYLVANIA
and wife,
Plaintiffs, : No. 2013—0884,CIVIL TERM
v.
: CIVIL ACTION-LAW
ELI M. TROYER
Defendant. : JURY TRIAL DEMANDED
To Defendant: ELI M. TROYER
270 Flint Road
Mifflintown,Pennsylvania 17059 fake
etiyiirp,i,
Date of Notice: February 7,2014
IMPORTANT NOTICE
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A
WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN
WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE
CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS
FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST
YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER
IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT
ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET
LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle,Pennsylvania 17013
(717)249-3166
(800)990-9108
Americans with Disabilities Act of 1990
The Court of Common Pleas of Cumberland County is required by law to comply with the
Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable
}
accommodations available to disabled individuals having business before the court, please contact our
office. All arrangements must be made at least 72 hours prior to any hearing or business before the court.
You must attend the scheduled conference or hearing.
IRWIN& McKNIGHT, P.C.
By: "Aikb
Dou_�s G/ iller, Esquire
Supreme suit I.D.No. 83776
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717)249-2353
Attorney for Plaintiffs
CERTIFICATE OF SERVICE
I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy
of the foregoing document upon the persons indicated below by first class United States mail,
postage paid in Carlisle, Pennsylvania 17013, on the date set forth below:
ELI M. TROYER
270 FLINT ROAD
MIFFLINTOWN, PA 17059
Date: February 24, 2014 IRWIN & McKNIGHT, P.C.
Doug as G. iller, Esquire
Supreme Court I.D. No. 83776
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
(717) 249-2353