HomeMy WebLinkAbout13-1130COMMONWEALTH OF PENNSYLVANIA
COURT OF COMMON PLEAS
Judicial District, County Of
Cumberland
NOTICE OF APPEAL
FROM
MAGISTERIAL DISTRICT JUDGE JUDGMENT
COMMON PLEAS No. `~ ~ ~ ~ 3~ C v . 1
NOTICE OF APPEAL
Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the Magisterial District
Judge on the date and in the case referenced below.
Daniel T. Thau
4902 Whitlock Drive
MDJ-09-3-04 ~ Honorable Elizabeth S. Beckley
Mechanicsburg
PA /'~ 17055
DATE OF JUDGMENT IN THE CASE OF (Ptaintrlr) iuerenoanrl
February 14, 2013 LH Brubaker Appliances, Inc. ~5 Daniel ~. Thera'
MJ-09304-CV-0000441-2012
This block will be signed ONLY when this notation is required under Na.
R.C.P.D.J. No. 10086.
This Notice of Appeal, when received by the Magisterial District Judge, will
operate as a SUPERSEDERS to the judgment for possession in this case.
appellant w~/Claimant (see Pa. R. C. P. D. J. No. 1001(6) in action
before a Magisterial District Judge, A COMPLAINT MUST BE FILED
within twenty
(20) days after filing the NOTICE of APPEAL.
Signature o/ Prothonotary or Deputy
PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE
(This section of form to be used ONLY when appellant was DEFENDANT (see Pa. R. C. P.D.J. No. 1001(7) in action before Magisterial District
Judge. IF NOT USED, detach from copy of notice of appeal to be served upon appellee.
PRAECIPE: To Prothonotary
Enter rule upon LH Brubaker Appliances, InC. appellees}, to file a complaint in this appeal
Name of appellees)
(Common Pleas No. ! 3 ' ~ t 3(J C y ~ ` )within twenty (20) days after service of rule or suffer entry of iudgm of ros.
Signature ppellanf or attorney or agent
RULE: To LH Brubaker Appliances, Inc. , appellees)
Name of appeliee(s)
(1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service
of this rule upon you by personal service or by certified or registered mail.
(2) if you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTE AGAI U.
(3} The date of service of this rule if service w f~h~.~ailing.
~}~'~
Date:~~20 ~3 ~ ~,.
~ `'> Signature of Prot onotary or Deputy
~®:e Na ~
J Y z~LV . ;. ~, ,
YOU MUST INCLUDE A COPY OF TH~'~~~1~~61~N~rRANSCRIPT FORM WITH THIS NOTIC OF APPEAL.
AOPC 312-05 ~~s11
/Z~ 2 Ss= 7/ S"~
COMMONWEALTH OF PENNSYLVANIA NO~1C@ O~.IUC~~f1'le'11tITfaI1SCf IPt CIVIC
COUNTY OF CUMBERLAND Case
Mag. Dist No: MDJ-09-3-04
MDJ Name: Honorable Paula P. Corneal
Address: 5275 East Trindle Road
Suite 110
Mechanicsburg, P.A 17050
Telephoner 717-697-2201
Dan Thau
4902 Whitlock Dr
Mechanicsburg, PA 17055
Disposition Summary
LH Brubaker Appliances, Inc.
~~ X30 3 ~ Tn.~t ~e !~°®
,Dan Thau
r~ ecd~, ll~
~~d~{j
Docket No: MJ-09304-CV-0000441-2012
Case Filed 12!712012
D"ociset No Plainti fen ant Disposition Disposition Date
MJ-09304-CV-0000441-2012 LH Brubaker Appliances, Inc. Dan Thau Judgment for Plaintiff 02/14/2013
Judgment Summary
Participant J•ointlSeveral Liability individual Liability ~~
Dan Thau $0.00 $12186.16 $12,186.16
LH Brubaker Appliances, Inc. $0.00. $0.00. $0,00
Judgment Detail {'Post Judgmenh
In the matter of LH Brubaker Appliances, Inc, vs" Dart Thau on 2/14/2013 the judgment was awarded as follows:
Judgment Cornpanent JointlSeveral Liability. Individual. Liabi[ity 'Deposit Applied punt
Civil Judgment $0'.00 $12,000.00 $12,000"00
Filing Fees $0.00 $143,00 $143.00.
Server Fees $0.00 $32.16 $32:16.
Costs $OAO $11.00 $11.00
Grand Total: $12,186.16
ANY PARTY HAS THE RIGHT TO APPEAL W[THIN 30 DAYS AFTER TH.E ENTRY. OF JUDGMENT BY. FILING A NOTICE OF APPEAL WITH
THE' PROTHONOTARYlCLERK. QF COURT OF`COMMON PLEAS, CIVFL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF
JUDGMENTITRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL..
EXCEPT AS OTHERWISE PROVIDED IN 'THE RULES OF CML PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES; iF THE JUDGMENT
HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT.OF COMMON PLEAS,' ALL FURTHER.PROCESS MUST COME FROM 'THE
.COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE 15SUED BY THE MAGISTERIAL DISTRICT JUDGE.
UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON "PLEAS, ANYONE INTERESTED tN THE.JUDGMENT MAY FILE A
REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES,
OR OTHERWISE COMPLIES WITH THE JUDGMENT. "
Dat ~~ agist al ri .dud ~
ce i tat this s a true and correct copy o the recur o t e prose ings conta mng the ju gment:
Date Magisterial District Judge
MDJS 315 Page'1 of 2 Printed 02/14/2013 3:15:47PM
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,PENNSYLVANIA
L.H.BRUBAKER APPLIANCES,INC., Z:..,
Plaintiff, Civil Term
Gr7 F Z r'1
V. No. 13-1130 r�-:a_-
a
DANIEL T. THAU,
0
Defendant.
COMPLAINT
Statement of Jurisdiction and Identification of Parties
1. Plaintiff L.H. Brubaker Appliances, Inc. ("L.H. Brubaker")is a Pennsylvania
corporation with a principal place of business at 340 Strasburg Pike, Lancaster, Pennsylvania
17602.
2. Upon information and belief, Defendant Daniel T. Thau, ("Thau") is an adult
individual who currently resides at 4902 Whitlock Drive, Mechanicsburg, Pennsylvania 17055.
3. Venue is proper in this county because the underlying transactions and
occurrences arose in this county.
4. L.H. Brubaker is an appliance retailer and wholesaler.
5. L.H. Brubaker has two retail showroom facilities located in Lancaster at 340
Strasburg Pike, as well as 896 Lowe Plaza Boulevard, and one retail showroom facility located at
5303 East Trindle Road, Mechanicsburg, Pennsylvania 17050 (the"Mechanicsburg showroom").
Statement of Operative Facts
1. The foregoing paragraphs are incorporated herein as if set forth in full.
2. On October 6, 2011, Thau entered the Mechanicsburg showroom to select
appliances to purchase from L.H. Brubaker, and to obtain a price quote reflecting his selections.
136463.1
The October 6, 2011 price quote is attached hereto, incorporated herein by reference and marked
as Exhibit"A."
3. On October 19, 2011, Thau again returned to the Mechanicsburg showroom to
make a final selection of appliances to purchase from L.H. Brubaker; he was provided with a
price quote identifying his selections for purchase. The October 19, 2011 price quote is attached
hereto, incorporated herein by reference and marked as Exhibit`B."
4. In addition, on October 19, 2011, Thau entered into a Sales Order with L.H.
Brubaker reflecting the appliances he had selected for purchase; in exchange for provision of the
appliances by L.H. Brubaker, Thau agreed to timely compensate L.H. Brubaker in the total
amount of$13,436.30(the"Sales Order"). The Sales Order is attached hereto, incorporated
herein by reference and marked as Exhibit"C."
5. Pursuant to the Sales Order, Thau was required to provide an initial payment in
the amount of$7,626.60.
6. In accordance with the Sales Order, on January 13, 2012, a portion of the
appliances were provided to Thau at the Mechanicsburg showroom. The items which were
provided are reflected in a January 13, 2012,picking ticket attached hereto, incorporated herein
by reference and marked as Exhibit"D."
7. On January 13, 2012, initial payment was provided to L.H. Brubaker in the
amount of$7,626.60 on behalf of Thau. A true and correct copy of the $7,626.60 payment is
attached hereto, incorporated herein by reference and marked as Exhibit`B."
8. On January 19, 2012, L.H. Brubaker completed its services by delivering the
remaining appliances to Thau at 4902 Whitlock Drive, Mechanicsburg,Pennsylvania 17055.
The items which were delivered are provided in the January 19, 2012,picking ticket, attached
hereto, incorporated herein by reference and marked as Exhibit'T."
-2-
136463.1
9. Pursuant to the sales order, upon delivery of the remaining appliances, Thau was
required to provide a second payment in the amount of$5,809.70.
10. On January 19, 2012, a second payment was provided to L.H. Brubaker in the
amount of$5,809.70 on behalf of Thau. A true and correct copy of the$5,809.70 payment is
attached hereto, incorporated herein by reference and marked as Exhibit"G."
11. On January 20, 2012, the initial payment of$7,626.60 was returned to L.H.
Brubaker due to "non-sufficient funds;"L.H. Brubaker was charged$12.00 for the returned
payment.
12. On January 26, 2012, the second payment of$5,809.70 was returned to L.H.
Brubaker due to "non-sufficient funds;"L.H. Brubaker was charged$12.00 for the returned
payment.
13. On January 31,2012, February 29, 2012,March 31, 2012, April 30, 2012 and
May 31, 2012, Thau was provided with Invoices reflecting the outstanding balance of
$13,436.30,plus accruing interest. A summarized Statement of Account is attached hereto,
incorporated herein by reference and marked as Exhibit"H."
14. Despite multiple demands, Thau has refused, and continues to refuse,to pay the
outstanding balance of$13,436.30,plus accrued interest, and bank fees, to L.H. Brubaker.
COUNT I—BREACH OF CONTRACT
15. The foregoing paragraphs are incorporated herein as if set forth in full.
16. Thau's failure to make payment,without excuse or justification, is a material
breach of the Sales Order.
17. Pursuant to Paragraph 4 of the Sales Order, Thau agreed to pay finance charges in
the amount of 1.5%per month(18%per annum) for all amounts not paid to L.H. Brubaker.
-3-
136463.1
18. As of December 31, 2012, interest in the amount of$2,416.97 has accrued on the
outstanding balance owed to L.H. Brubaker.
23. As a result of Thau's breach, L.H. Brubaker has sustained damages in the amount
of$15,864.97,plus court costs, attorney's fees,ongoing finance charges and accrued interest.
WHEREFORE,the Plaintiff L.H. Brubaker Appliances, Inc. respectfully requests
judgment in its favor and against the Defendant Daniel P. Thau in the amount of$15, 864.97,
plus accrued interest at the legal rate, costs, ongoing finance charges and such other relief as the
Court deems just and appropriate.
COUNT II—UNJUST ENRICHMENT
24. The foregoing paragraphs are incorporated herein as if set forth in full.
25. If Thau is permitted to retain the benefit of the services supplied by L.H. Brubaker
without making payment, Thau will be unjustly enriched in the amount of$13,436.30.
WHEREFORE,the Plaintiff L.H. Brubaker Appliances, Inc. respectfully requests
judgment in its favor and against the Defendant Daniel P. Thau in the amount of$13,436.30,
plus accrued interest at the legal rate, costs, ongoing finance charges and such other relief as the
Court deems just and appropriate.
Respectfully submitted,
KEGEL KELIN ALMY AND LORD LLP
Dated: •1 g •13 By:
9harl s F. B re
Attorne . . #41320
Katherine L. Shantz, Esquire
Attorney ID#202169
24 North Lime Street
Lancaster,PA 17602
(717) 392-1100
Counsel for Plaintiff,
L.H. Brubaker Appliances, Inc.
-4-
136463.1
VERIFICATION
I, Ed Continenza, General Manager for L.H. Brubaker Appliances, Inc., affirm and
verify that the facts set forth in the foregoing Complaint are true and correct to the best of my
knowledge, information and belief, and that I am authorized to sign this Verification.
This Verification is made subject to the penalties of 18 Pa. C.S. § 4904, relating to
unworn falsification to authorities.
Date: o? 3
Ed, Cont a
General Manager,
L.H. Brubaker Appliances, Inc.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Complaint
was served this �� day of IY&Wcl E., 2013, by first class mail, upon the
following person:
Daniel T. Thau
4902 Whitlock Drive
Mechanicsburg, PA 17055
By:
Kath a L. quire
-5-
136463.1
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Appliance Quotation �: 2/14/2013
from L.BrubaFker Thank you for the opportunity
oq�vtwie�;rat��alarooii;tttio+�trtp to provide you with all of
Megan Brennan your appliance needs.
E an Thau
7-2753
10 011
under Rich Hart
ddress: ddress
ontact: onlact
hone; 1phone 385-9958
aX* mall
4 r.;. ...• 4
of,'
�. Qe
Inemomr
master ace nantnes
Gooklop
star ess erma or burner 000 ,
Double Wall oven
stainless ermador convection upper 3,420.00 270
microwave
s a ess INIBES Thermador 2.1 c f microwave 1200 wafts
am ess ME727ES Thermador 27"trim kit(if needed) for mw
Dishwasher
Wa n ess DWHD630GCM Thermador 6 cycle-4 a r r ce 1170 free 120
as er&Dryer
Ite Samsun c front load was 620.00—
Re W Samsung T3 c f electric dryer 629.00'
w ite WF431AM Samsung .5_c7 front o ower to washer
white DV431AEW Samsung 7.4 ef electric er wl steam
white WE357AOW Samsun 15"pedestals if needed 199sach 398.00
GE Praffle
CO MOO
s ain ess PG SETS8 GE Profile burner gas coo -gridd 1.292.001 14
double wall oven
stainless roe convection upper 2,318.00
Microwave
stainless rofile c f mw was 10
ain ess S ro i e 7" rim if needed)
Dishwasher
s a nless SHE55R66UC Bosch 600 series 46 dba hidden controls 808.00
Hoods-Wall mount Chimney stvle
stainless XOS30S XO 36'curved front 600cfm 749.00 100
stain ess ZVO50SPSS e ono ram ' curve o ass ctm 0
und*rcounter bevIwIne unit
ass GG RM-BB-G Marvel wine&bev gets as cold as 35 degrees 0
bk/glass 6BARM-88-G Marvel wine&bev temp 39-64 degrees 1,499.00
e r erator counter depth
stain ess RFZ;237AARS Samsun 2 _eF_w_i_c_eWWater In door 1 2,320.00 LLLL2Q
eFamiq owned and operated 2/14/201
Da
•Serving the Tri-State Area
Valid For 30 y
Appliance Quotatlon H . 2/1412013
from L .BrubaiKer Thank you for the opportunity
i+pouai4tsalpalerroe,a ,itrtp to provider you with all of
Megan Brennan your appliance needs.
ame Dan Thau
ddress:
eme:
art: 497-2753
mall: ju .00M
1 OM W201 1
lanor: ullder Rich Haft
[Addmss! ddress
contact
: one 385-9958
malt
77777=7 Not oh :4r
1-nermaGor
Masrerplece handles
C0 2"o
s a nless harms or burner as i
Double wall oven
Istainless IME302ES Thermador convection upper ma a 3,420.00
microwave
s n ass arms r .1 c rtvcroweve sta n ess S erma or r or mw
OWW"Iter
Val @ss ermadar e- a r c@
Washer er SX00 '100
White WF2' c ont oa washer
e RIVER Samsung c I electric dryer U9.:00 100
cord Aryer cord ,
e WF431MM Sarnsung of ront d w r To—aw washer 107900 120
e arnsun A c ec rrc dryer WI steam 0
white WE357AOW Samsung 15" edestals If needed 199each 398.00
Go Monogram Wine Unit
$s ZDWR240PBS GE Monogram 24"wine unit 1,414.00 40
Dishwasher
Hoods-Wall mount Chimney at (e
stainless X08368 XO 36"curved front 600cfm 749.00 100
Refrigerafor counter UeW
sta n Samsung 23 ef w ice&Water In door
•Family owned and operated
•Serving the Tri-State Area
since 1932
*Our own f=actory-Trained
service department to stand
behind yaw pwchase
2/14/20130
Valid For 30 Days
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Statement
340 Strasburg Pike,Lancaster,PA 17602
' (717)299-2351 (800)546-6161
www.lhbrubakerapp8ances.com
APPLIANCE S 5303 E.Trindle Road,Mechanicsburg,PA 17050
&WATER SYSTEMS (717)796-0150 (800)284-3304
Statement Date: 03/11/2013
THAU DAN Customer Number: 4972753
4902 WHITLOCK DRIVE
MECHANICSBURG,PA 17055
Date Reference Description Charge Credit Balance
1/16/2012 RETI16-PP Ref:2704RETURN 7,626.60 0.00
1/23/2012 Paymcnt RcC 2706 RETUR 5,809.70 13,436.30
1/17/2012 0305371-IN 7,638.60
1/17/2012 Payment Ref:APY 7,626.60 12.00
In012o12 0305551-IN 5,821.70
1123/2012 Payment Ref:2706 S,809.70 12.00
1131/2012 JAN0040-FC Finance Charge 201.54 201.54
2/2912012 FEB0039-FC Finance Charge 201.90 201.90
3/3112012 MAR0039-FC Finance Charge 201.90 201.90
4/30/2012 APR0039-FC Finance Charge 201.90 201.90,
5/31/2012 MAY0047-FC Finance Charge 201.90 201.90
6130/2012 JUN0051-FC Finance Charge 201.90 201.90
7/31/2012 JUL0048-FC Finance Charge 201.90 201.90
8/31/2012 AU00040-17C Finance Charge 201.90 201.90
9/30/2012 SEP0045-FC Finance Charge 201.90 201.90
10/31/2012 OCT0059-FC Finance Charge 201.90 201.90
11/3012012 NOV0052-FC Finance Charge 201.90 201.90
12131/2012 DECO051-FC Finance Charge 184.13 184.13
Taal: 15,864.97
Current 20 Days 40 Days 60 Days 80 Days Balance Due
0.00 0.00 0.00 184.13 15,680.84 15,864.97
TERMS: A'o finance charges are made on accounis paid within l+venly(20)daj s of purchase. Accounts nol paid within hventy(20)days mill,on our billing dale,be
subject to 1112 percenifrnance charge each nionih which is 18 percent annual rate.lfany of our work is unsatisfactory,notify us at once(void gfler 30 days).
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
L.H. BRUBAKER APPLIANCES,INC.,
Plaintiff, Civil Term '
V. No. 13-1130
7�c-7 .. C
DANIEL T. THAU, - CO
Defendant. W
PLAINTIFF'S RESPONSE TO DEFENDANT'S
NEW MATTER
1 - 23 L.H. Brubaker Appliances, Inc. ("Plaintiff' or"L.H. Brubaker") incorporates the
allegations set forth in its Complaint as though set forth in full.
24. Denied. Paragraph 24 contains conclusions of law to which no response is
required. To the extent paragraph 24 contains factual averments, they are denied.
25. Denied. Paragraph 25(a)-(f) contains conclusions of law to which no response is
required. To the extent paragraph 25(a)-(f) contains factual averments, they are denied.
26. Denied. Plaintiff is without information to admit or deny the averments contained
in paragraph 26, and therefore they are denied. By way of further response, the existence of a
contract between Defendant and a third party, to which Plaintiff is not a party, is irrelevant as to
the within matter. Strict proof of the allegations contained in paragraph 26 is demanded at the
time of trial and/or arbitration.
27. Denied. Plaintiff is without information to admit or deny the averments contained
in paragraph 27, and therefore they are denied. By way of further response, the existence of a
contract between Defendant and a third party, to which Plaintiff is not a party, is irrelevant as to
137306.2
the within matter. Strict proof of the allegations contained in paragraph 27 is demanded at the
time of trial and/or arbitration.
28. Denied. Plaintiff is without information to admit or deny the averments contained
in paragraph 28, and therefore they are denied. By way of further response, the existence of a
contract between Defendant and a third party, to which Plaintiff is not a party, is irrelevant as to
the within matter. Strict proof of the allegations contained in paragraph 28 is demanded at the
time of trial and/or arbitration.
29. Denied. Plaintiff is without information to admit or deny the averments contained
in paragraph 29, and therefore they are denied. By way of further response, the existence of a
contract between Defendant and a third party, to which Plaintiff is not a party, is irrelevant as to
the within matter. Strict proof of the allegations contained in paragraph 29 is demanded at the
time of trial and/or arbitration.
30. Denied. Plaintiff is without information to admit or deny the averments contained
in paragraph 30, and therefore they are denied. By way of further response, the existence of a
contract between Defendant and a third party, to which Plaintiff is not a party, is irrelevant as to
the within matter. Strict proof of the allegations contained in paragraph 30 is demanded at the
time of trial and/or arbitration.
31. Denied. Megan Brennan was not informed by Defendant that he would not be
contracting with Plaintiff. Defendant merely commented on his business partnership with
Builder and his [Defendant's] desire to purchase appliances from Plaintiff. Moreover,
Defendant's contractual relationship with Plaintiff is evidenced by the price quotes dated
October 6, 2011 and October 19, 2011 (attached hereto at Exhibit"A" and`B") and the Sales
-2-
137306.2
Order(attached hereto at Exhibit"C")provided to the Defendant following his [Defendant's]
visit to the Mechanicsburg Showroom.
32. Admitted.
33. Admitted in part, denied in part. It is admitted that Defendant was present in
Plaintiff's Mechanicsburg showroom. The remaining averments in paragraph 33 are denied. To
the contrary, Ms. Brennan was not informed of any limitation upon Defendant regarding his
purchase of appliances. Ms. Brennan, at all times, understood Defendant to be responsible for
purchase of the appliances. The responsibility of Defendant as Buyer is further evidenced by the
Quote/Sales Order which names the Defendant as the"Buyer."
34. Denied. Paragraph 34 contains conclusions of law to which no response is
required. To the extent paragraph 34 contains factual averments, they are denied. By way of
further response, Defendant expressed to Ms. Brennan that he was responsible for payment.
Strict proof of the allegations contained in paragraph 34 is demanded at the time of trial and/or
arbitration.
35. Denied. Paragraph 35 contains conclusions of law to which no response is
required. To the extent paragraph 35 contains factual averments, they are denied. By way of
further response, the Sales Order attached hereto as Plaintiff's Exhibit"C"represents the terms
of the agreement between Plaintiff and Defendant and was provided to Defendant for his
acceptance and approval.
36. Denied as stated. Paragraph 36 contains conclusions of law to which no response
is required. To the extent paragraph 36 contains factual averments, they are denied. By way of
further response,notwithstanding Defendant's lack of signature, Defendant acknowledged the
terms of the Sales Order through email correspondence between the Plaintiff and Defendant.
-3-
137306.2
Moreover, the Sales Order reflects the contractual relationship between the Plaintiff and
Defendant.
37. Denied. Paragraph 37 contains conclusions of law to which no response is
required. Strict proof of the allegations contained in paragraph 37 is demanded at the time of
trial and/or arbitration. To the extent paragraph 37 contains factual averments, they are denied.
Any reduction in price associated with Defendant's purchase does not reflect an intent to contract
with Builder by Plaintiff, the Sales Order clearly illustrate that Defendant was the purchaser of
appliances from Plaintiff.
38. Denied. The assertions contained in paragraph 38 are inconsistent, misleading,
unsupported and incapable of confirmation. The hearing before the District Magistrate on
February 14, 2013 was not recorded or transcribed. Moreover, the appeal to the Court of
Common Pleas is de novo. Further, Ms. Brennan has not acknowledged that Builder was the
Buyer of appliances. To the contrary, Ms. Brennan understood and Defendant has repeatedly
demonstrated that he is the Buyer of the appliances. Strict proof of the allegations contained in
paragraph 38 is demanded at the time of trial and/or arbitration.
39. Denied. Plaintiff is without information to admit or deny the averments contained
in paragraph 39 and therefore they are denied. The hearing before the District Magistrate on
February 14, 2013 was not recorded or transcribed. Moreover, the appeal to the Court of
Common Pleas is de novo. Notwithstanding this denial, the document attached as Plaintiff's
Exhibit"C"was sent via email to Defendant on October 19, 2011. Strict proof of all allegations
in paragraph 39 is demanded at trial and/or arbitration.
40. Denied. Plaintiff is without information to admit or deny the averments contained
in paragraph 40, and therefore they are denied. By way of further response, Plaintiff's Exhibit
-4-
137306.2
"C"was sent via email to Defendant on October 19, 2011. Strict proof of the allegations
contained in paragraph 40 is demanded at the time of trial and/or arbitration.
41. Denied. Paragraph 41 contains conclusions of law to which no response is
required. To the extent paragraph 41 contains factual averments, they are denied. Strict proof of
the allegations contained in paragraph 41 is demanded at the time of trial and/or arbitration.
42. Denied. Strict proof of the allegations contained in paragraph 42 is demanded at
the time of trial and/or arbitration. By way of further response, the document attached as
Plaintiff's Exhibit"C" speaks for itself.
43. Denied. Rich Hart's name appears as Builder in Plaintiff's Exhibit"A" and`B"
to comply with supplier requirements between Plaintiff and Thermador. This notation does not
manifest any intention on the part of Plaintiff to contract with Rich Hart for purchase of the
appliances.
44. Admitted in part, denied in part. It is admitted that Defendant's signature does
not appear on Plaintiff's Exhibit"C." It is denied that Defendant did not acknowledge the Sales
Order. To the contrary, Defendant acknowledged the Sales Order by and through his actions
associated with their selection and purchase.
45. Admitted in part, denied in part. It is admitted that Plaintiff's Exhibit"A" and
"B"do not contain Defendant's signature. It is denied that Defendant did not acknowledge an
intent to contract with Plaintiff. To the contrary, Defendant acknowledged the Sales Order by
and through his actions associated with their selection and purchase.
46. Denied. Paragraph 46 contains conclusions of law to which no response is
required. To the extent paragraph 46 contains factual averments, they are denied. Moreover, the
provision of payment by an individual/entity other than Defendant, on behalf of Defendant, does
-5-
137306.2
not evidence a contract/agreement between Plaintiff and another individual. Plaintiff did not
contract with Builder. Strict proof of the allegations contained in paragraph 46 is demanded at
the time of trial and/or arbitration.
47. Denied. Plaintiff is without information to admit or deny the averments contained
in paragraph 47, and therefore they are denied. Strict proof of the allegations contained in
paragraph 47 is demanded at the time of trial and/or arbitration.
48. Denied. By way of further response, Megan Brennan did not contact Defendant
regarding payment. Plaintiff contacted Defendant regarding nonpayment of the outstanding
invoice/Sales Order.
49. Denied. By way of further response, Megan Brennan did not contact Defendant
regarding payment. Plaintiff contacted Defendant regarding nonpayment of the outstanding
invoice/Sales Order. . `
50. Denied. Plaintiff is without information to admit or deny the averments contained
in paragraph 50, and therefore they are denied. By way of further response, the existence of a
contract between Defendant and a third party, to which Plaintiff is not a party, is irrelevant as to
the within matter. Strict proof of the allegations contained in paragraph 50 is demanded at the
time of trial and/or arbitration.
51. Denied. Plaintiff is without information to admit or deny the averments contained
in paragraph 51, and therefore they are denied. Moreover, Ms. Brennan did not speak with
Defendant about Defendant's nonpayment of the invoice/Sales Order. By way of further
response, the existence of a contract between Defendant and a third party, to which Plaintiff is
not a party, is irrelevant as to the within matter. Strict proof of the allegations contained in
paragraph 51 is demanded at the time of trial and/or arbitration.
-6-
137306.2
52. Denied. Megan Brennan did not speak with Defendant regarding nonpayment.
By way of further response, Plaintiff contacted Defendant regarding nonpayment of the
outstanding invoice/Sales Order for appliances. Moreover, Defendant was not informed of a
resolution of the payment obligations.
53. Denied as stated. Plaintiff denies Defendant's recollection of the purported
demand for payment. Plaintiff initiated contact and sought remuneration from Defendant for the
outstanding balance of the invoice/Sales Order. Strict proof of the allegations contained in
paragraph 53 is demanded at the time of trial and/or arbitration.
54. Denied. Plaintiff is without information to admit or deny the averments regarding
Defendant's interactions and experiences with Builder contained in paragraph 54, and therefore
they are denied. Strict proof of the allegations contained in paragraph 54 is demanded at the time
of trial and/or arbitration.
55. Denied. Plaintiff is without information to admit or deny the averments regarding
Builder's obligations or work performed for the Township contained in paragraph 55, and
therefore they are denied. Strict proof of the allegations contained in paragraph 55 is demanded
at the time of trial and/or arbitration.
56. Denied. Plaintiff is without information to admit or deny the averments regarding
the bankruptcy matter identified in paragraph 56, and therefore they are denied. Strict proof of
the allegations contained in paragraph 56 is demanded at the time of trial and/or arbitration.
57. Denied as stated. Plaintiff was made aware of Builder's bankruptcy filing in
December 2012.
58. Denied. Plaintiff has not acknowledged or asserted at any time that Builder, Rich
Hart, is the party with whom it contracted for the Sales Order.
-7-
137306.2
WHEREFORE, Plaintiff L.H. Brubaker Appliances, Inc. respectfully requests judgment
in its favor and against Defendant Daniel P. Thau in the amount of$13,436.30,plus accrued
interest at the legal rate, costs, ongoing finance charges and such other relief as the Court deems
just and appropriate.
Respectfully submitted,
KEGEL KELIN ALMY AND LORD LLP
Dated: '3 Je2013 By:
ar es F. Blum tock, quire
Atto .
Katherine L. Shantz, Esquire
Attorney ID #202169
24 North Lime Street
Lancaster, PA 17602
(717) 392-1100
Counsel for Plaintiff,
L.H. Brubaker Appliances, Inc.
-8-
137306.2
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Response
b,
to Defendant's New Matter was served this�day of '�Q.��- 2013 y
first class mail, upon the following person:
Felix Thau, Esq.
1304 Laurel Point Circle
Harrisburg, PA 17110
By:
Kathen uire
-9-
137306.2
' Appliance Quotation 2/14/2013
from L. ru ba er Thonk you for the opportunity
agpliaiitps&tinik'i0tiduionIng to provide you with all of
Megan Brennan yourcrpplicince needs.
Name Dan Thau
Address:
Home:
Cell: 497-2753
Small: dthau@mcli)cb.com
DATE 10/6/2011
Desfgner. Builder Rich Hart
ddress: Address
Contact: Contact
Phone, phone 385.9958
Fax: Email
Email:
Colo ; odeE Br;1ii'd <:,Descrl° on :rice .warrant
errrra or
as er Iece an dies
Cookto
stemless SGSX365FS Thermador 36"5 burner gas cookto 1,710.00
30"Double wall oven
stainless ME302ES Thermador convection upper masterpiece handle 3,420.00 270
M 1 c rowave
stainless MBES Thermador 2.1 c f microwave 1200 watts 630.001 120
stainless MET27ES Thermador 27"trim kit if needed for mw 296.00
Dishwasher
stainless DWHD630GCIT Thermador 6 cycle-45DBa bldr price$ 1170 free 120
Washer&Dryer
White IWF210ANW Samsung 3.7 cf front load washer 629.00 100
White DV210AEW Samsun 7.3_c f electric dryer 629.00 100
white WF431ANW Samsung 4.5 of front load w1 power foam washer 1,079.00 120
white DV431AEW Samsung 7.4 cf a ectric r er wl steam 079.00 120
white WE357AOW Samsun 15"pedestals if needed 199each 398.00
GE Profile
Cooktop
stainless PGPO86SETSS GE Profile 36"5 burner gas cookto -griddle included E23 2.00 140
30"double wall oven
stainless PT956SRSS GE Profile convection upper 8.00 200
Microwave
stainless PEB2060SMSS GE Profile 2.0 c f mw 1200 watts 277.00 100
stainless JX2027SMSS GE Profile 27" Trim kit if needed 154.00
Dishwasher
stainless SHE55R55UC Bosch 500 series 46 dba hidden controls 808.00 120
Hoods-Wall mount Chimney style
stainless XOS36S XO 36"curved front 600cfm 749.00 100
stainless ZV8 0SPSS Ge Monogram 36" curved to w/glass 360 cfm 1,666.00 140
24" undercounter bev/wine unit
b!/ lass 6GARM-BB-G Marvel wine&bev gets as cold as 35 degrees 1,529.00 140
bk/glass 6BARM-88-G Marvel wine&bev temp 39-64 degrees 1,499.00
Refrigerator counter depth
stainless RFG237AARS Samsun 23 of w ice&Water in door 2,320.00 200
Family owned and operated 2/14/2013
•Serving the Tri-State Area
Valid For 30 Day
Appliance Quotation � 2/14/2013
from :� ` �� r Thank you for the opportunity
[ipjetiuiiic8�iiri(crcmidiriu trtn
to provide you with all of
Megan Brennan your appliance needs.
Name Dan That
Address;
Home:
cell; 497-2753
Email: dthau mcl cb.c0m
DATE 10/19/2011
Designer; IBuild er Rich Hart
Address: Address
Contact: Contact
Phone: phone 385-9958
Fax: Email
Email:
color.:;: ::Mode
;Dd§cti tion _ikarrant`'
erma or
Masterpiece handles
Cookto
stainless SGSX365FS Thermador 36"5 burner gas cookto 1,710.00 140
30"Double wall oven
stainless IME302ES Thermador convection upper masterpiece handle 3,420.00t 270
Microwave
stainless IMBES "Thermador ILI c f microwave 1200 watts 630.00 120
stainless IMET27ES Thermador 27"trim kit if needed or mw 296.00
Dishwasher
stainless 0WHD630GCM Thermador 6 c cle-45DBa btdr rice$ 1170 free 120
Washer&Dryer
White WF210A WW Samsung 3.7 of front load washer 629.00 100
White WHOVEW Samsung 7.3 c f electric d-ryer 629.00 00
cord Dryer cord 15.00
white WF431ANW Samsun 4.5 cf front load w/ ower foam/washer ,079.00 120
white DV431AEW Samsung 7.4 cf electric dryer wl steam 1,079.00 120
white WE367AOW Samsung 15"pedestals if needed 199each 399.00
Ge Monogram Wine Unit
ss ZDWR240PBS GE Monogram 24"wine unit 1,414.00 40
Dishwasher
Hoods-Wall mount Chimney style
stainless XOS36S XO 36"curved front 600cfm 749.00 100
Refrigerator counter depth
stainless RFG237AARS Samsung 123 cf w ice&Water in door 2,320.00 200
•Family owned and operated
*Serving the Tri-State Area
since 1932
*Our own Factory-Trained
service department to stand
behind your purchase
2/14/2013 CIA
Valid For 30 Days j
�i � �
\�
D � w � Ct`c.J t•✓
LH Brubaker
need asap „.. . appliances water cvndiio�ristq
Phone: 497-27S3 (WI) C) F) Phone: (H)' {C DAM— 10/19111
Customer.. Dan Thau Ship To: Sarno TIME:
4902 Whitlock Dr Fair Oaks SOLD BY: MEGAN
Mechanitsbur Pa 17055 SO;t
P.O.#: lCoNTAM.. APPROX qkti-=DELIVERY
1 SGSX365FS I p(? U a-7 Thermador 36"gas cooktop nat as ss 1,710.00
1 ME302ES L7 AJ Them. or 30"double wall overd masterpice hand Ss 3,420,00 f
t SCIM 5, R Extended warranty on Aralloven 269.95
lo3ta�l�
i MBES Therrnador microw,•ave SS . 630.00
1 MET27ES 27"Trim kit for mw ss 296.00
1 DWHD630GCM 1 U bU 11 Thermador emerald aeriesdishwasher masthandle SS Free
1 SCl/48 5 Yr extended warranty on dishwasher 119.95
1 XDS36S r D 3. 36"Hood 600cfm ss 749.00 ,-
1 RFG237AARS ' Samsugg french door counter depth refrigerator Ss 2,320.00
1 SCU48 5 YR extended warraryty on refri ecaWr 199.95
1 BSAWARRANTY 443835 10 yj compressor warranty 6955 We
1 ZOWR24DPBS V 7 GE Mono ram 24"undercourrterwine unit Ss/ lass 1,414.00
1 WF210ANW F, U ' f� Samsung 3.7 cf front load washer white 629.00
1 DV21DAEW "Qp��y Samsung 7.3.electric d er white 629.00
2 SC.U48 SYR extended warran on washer&drymr 119.95 239.90
Builder Rich Hart r �'
deliver deliver In crate 49.00
.tee.'- Pleas .0. ome. ( _, d itional, _ ,�Stailatlon, m p m n
❑ LP GAS ❑NAT GAS ❑ RH HINGE ❑LH HINGE ❑ ICEMAKER ❑ REBATE ❑ EX WARR Subtotal: 12,675.75
Customer acknowledge and agrees that s(he) has read and a tees to the terms and conditions printed on the reverse of this Sales Order. Sales Tax 760.55
SIGNATURE: Notes: - ` Total: 4 13,436.30
PRINT NAME DATE: Deposit
SIGNATURE: Other A/R:
PRINT NAME DATE: lrbf j;(cad" ` Balance Due: 13,436.30
EMAIL ADDRESS: PAYMENT'r
L.H.BRUBAKER APPLIANCES,INC.
SALES ORDER TERMS AND CONDITIONS
1. Payment and Collateral.Payment for Goods is due in fun;,hen Customer signs the Sales Order or at Pe discretion and prior approval of Company,upon delivery of the Goods to Customer,For spec,4ic
orders,a deposit Is required when Customer signs me Sales Order and the balance Is due in full before delivery of the Goods:a Customer.Nrthout limiting its rights,Company may keep any deposit and may refuse
to deliver Goods it net paid in full andlor may refuse to deliver other irsmllmens of Goods.To secure paymient of all amounts owed to Company,Customer grants to Company a purchase money security interest
In ne Goods.Customer authori_es Company to file financing statementls)describing the collateral.
2. Delivery.Local de)rwery.as determined by Company,of he GdoCS;will be ac:hou:charge to Customer.Company reserves"rigor:o make deliver;of the Goods in installments cr:o make partial de1'venes.if
Customer request delivery of the Goods in installments.Company reserves the right to change additional ree(s;for Deliveries of the Goods.Delivery dates stated by Company are estimates only and do no:represent
a set time for performance.7 me r:rY rot be ofessance unress the Company agrees in tvritjr,;o feat erFr~.
3. Cancellation of Order_An order may not be cancelled or reduced without the-ri ten approval of Company arid.in any even-,there shalt be a minjmum charge of Twenty oercem(2096)of the sates price for all
Goods specially ordered and so canceled or reduced by Cusomer.
a. Finance Charges and Costs. A finance charge equal:o one and one-half parcen:0.5%)per month.-which is annual rate of eighteen percent(1 636)before compounding,will accrue on all unpaid Orden;upon
delivery of the Goods'o Customer and be pay'atle by Customer to Company,except for Builders m whom Paragraph 12 apniies_Customer agrees'o pay to Company,in addition to any amounts due,any return
check
fees and the cost and expenses incurred cy Company in collecting such amount(s),including at:omeys'fees and tour,costs.
5. Installation.Goods shall be delivered in crazes unless ottlerxise agreed by Company.If Company installs the Goods.Customer agrees'a pay Compar:/s current rates fora normal installation..Normal
installation
means where the Goods can be installed Arhou:alteration or cutting of any kind.For all other installatipns.Customer'will be charged and Customer agrees:o pay:he Company's[hen current ra:as for ime,materials
and pans.Customer will be charged additional fee(s)if Company is required m make addronal trips to the ins:altation sire If the site was not property prepared for Company:o install the Goods or if Company,:vas no:
otherwise able'p install the Goods.
6. Damage.Any claim for property damage caused by:he Company must be sent via U.S.regular marl_postage prepaid,to Company 3t ha address)iced above to the a tention of the Vice-President wimm five(5)
days after delivery and'or ins:aliation of the Goods by Company or it is deemed waived.
7. Conformity.Customer agrees to promp y InsPeCC test and acceot or reject all Goods and,-'or services delvered or performed ty Company,but each such Good or se:rlce shall be conclusNely deemed:p be
accepted If riot rejected in writing;explaining the reasons in detail;ty Customer,hitnin thirty(30)days of delivery or performance.
8. WARRANTIES.THE'AARRANTIES ON ANY GOODS ARE LIMITED SOLELY TO ANY MANUFACTURER'S'ldARRANTY OR ANY EXTEND=D THIRD PARTY WARRANTY PJRCHASED BY CJSTOMER.
THE FOR=GOING SHALL BE THE:OCCLUSIVE REMEDY OF CUSTOMER AS TO ALL GOODS SOLD BY COMPANY.THE COMPANY,NOT BEING THE Mr\NUF.ACTJrR=R OF THE GOODS NOR THE
MANUFACTURER'S AGENT NOR THE AGENT OF THE THIRD PARTY OFFERING THE ECt'=LADED-i ARRo,NTY(=—\,-EN IF PJRCHASED THROJGH THE COMPANY)%MAKES NO EXPRESS OR IMPLIED
'1 ARRANTY OF ANY KIND 0.`HATSOEVER WITH THE RESPECT TO THE GOODS,INCLJOIN3 BUT NOT LIMITED TO:THE MERCHANTABILITY OF THE GOODS OR ITS FITNESS FOR ANY PARTICULAR
PJRPOS=;THE DES13N OR CONDITION OF THE GOODS,THE QUALITY OR CAPACITY OF THE GOODS;THE WORKMANSHIP IN THE GOODS:COMPLIANT OF THE GOODS WITH THE REQUIR-MENTS
OF ANY LA',:,,RULE.SPECIFICATION OR CONTRACT PERTAINING THERETO;PATENT INFRINGEMENT:OR LATENT DEFECTS.No agent.employee or reoresentanve of Company has any authority
to bind Company to any affirmation,representation or warranty concemir,g the Goods.except an officer of Company who agrees to he same in writing.
9. Limitation of Liability.IN NO EVENT SHALL COMPANY OR ANY OF ITS OFFICERS.DIRECTORS.EMPLOYEES.SHAREHOLDERS,OR R=PRES=NTATIVES.UNDER ANY CIRCUMSTANCES BE LIABLE
FOR ANY DIRECT.INDIRECT.INCIDENTAL,SPECIAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS OF ANY NATURE SJrrcRED OR INCURRED BY CUSTOMER OR ANYONE ELSE ARISING OLT
OF ANY BREACH BY COMPANY UNDER ANY ORD=R OR HEREJND ER.
10. Authority:Asslgnablilty_11 Customer Is an entity,:he Individual signing this order on behalf of Customer represents and warran s that is)he has the authorir>ro sign MIS Order on behalf of and bind Customer.
Customer shall not asslyn any Order or any Interes'or obllgatton owed by Customer wi=T.the prior*1r.en consent of:he Company.
11. Governing Law;Jurisdiction and Venue.This Order,purchase order.or ccn7act of sale entered into be.wsen Company and Customer shall be deemed to have been entered into a_re principal o`lice of
Company,in"A'ast Lampeter Township,Lancaster County_Pennsylvania and shall be governed ty the domestic internal laws of die Commornveahh of Pennsylvania(tut not the law of conflict of laws).Customer
acknowledges and consents to the exercise of jurisdiction by the federal and stare Courts In Ise Commonwealth of Pennsylvania, Customer furher agrees that venue for any[awsult brought by Company
against Customer shall Ile exclusively in the Court of Common Pleas of Lancaster County,Pennsylvania or in the feCeral District Court for the Eastern District of Pennsylvania.
12. Special Provisions for Builders.Contractors,and Other Regularly Established Accounts(collectively,Builders). If credit is extended by Company to Builders,all invoices to Builders are due and p3'yab!a
in full on or before thirty r30)days alter the date of invoics.Attar such date,a finance charge will accrue and be oa;able by Builders on any unpaid balance at the rare listed in Paragraph A.At the discreyor,of
Company.
all installments or partial deliveries of Goods shall be separately invoiced.Builders must and NRU cause any of Its employees,agents,or subcontmaors to promptly inspec'me Goods after removing the Goods from
the
crates or other packaging materials.Builders must immediately report any damaged Goods to Company.If the Goods are damaged,he Goods shall not be installed and Builders shall o ompily return the Goods to
Company in their original crates or other packaging materials.
13. Guarantee.The persons)who sign(s)this Sates Order hereby,jointly aria severalty,personally guarantees)and become(s)surety for.In his or her individual capacity,the promo:and full payment of all amounts
owed to Company pursuant to this Sales Order.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
L. H. BRUBAKER APPLIANCES, INC.,
Plaintiff, Civil Term ry
V. No. 13-1130
DANIEL T. THAU, `' '
c
Defendant.
CO
PRAECIPE TO DISCONTINUE
To the Prothonotary:
Pursuant to Pennsylvania Rule of Civil Procedure 229, please mark this matter filed at
the above-referenced docket number, discontinued with prejudice, with each side to bear their
own costs and attorney fees. A facsimile copy shall be as good as the original for purposes of
filing.
i
By: - By:
Charles F. Blu ., uire F91ix Thau, Esquire
Attorney I.D. # 41320 Attorney I.D. #21282
Katherine L. Shantz, Esquire 1304 Laurel Point Circle
Attorney I.D. #202169 Harrisburg, PA 17110
Kegel Kelin Almy & Lord LLP (717) 580-5962
24 North Lime Street Counsel for Defendant,
Lancaster, PA 17602 Daniel T. Thau
(717) 392-1100
Counsel for Plaintiff,
L.H. Brubaker Appliances, Inc.
Dated:fzZ�,2o 13 Dated: Aoof,<
139421.1