Loading...
HomeMy WebLinkAbout13-3449 Supreme Co ennsylvania COU, Of�CO�1Y11n0 9 leas For Prothonotary Use Only: x !�r Docket No: / Cumberland'` County l3 The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Commencement of Action: S 0 Complaint © Writ of Summons ® Petition ® Transfer from Another Jurisdiction 0 Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: T Donald Ulzheimer Qui Chau I Are money damages requested? ® Yes ® No Dollar Amount Requested: within arbitration limits { O (check one) ❑❑ outside arbitration limits N Is this a Class Action Suit? ® Yes 0 No . Is this an MW Appeal? ® Yes. O No A Name of Plaintiff/Appellant's Attorney: Susan K. Pickford, Esq ® Check here if you have no attorney (are a Self- Represented [Pro Se] Litigant) Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that k you consider most important. TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS © Intentional D❑ Buyer Plaintiff Administrative Agencies ® Malicious Prosecution ® Debt Collection: Credit Card ® Board of Assessment ® Motor Vehicle ® Debt Collection: Other 0 Board of Elections ® Nuisance ® Dept. of Transportation ® Premises Liability n Statutory Appeal: Other .S M Product Liability (does not include Ej mass tort): ® Employment Dispute: ® Slander/Libel/ Defamation Discrimination - C Other: ® Employment Dispute: Other © Zoning Board T' ® Other: I O Other: o MASS TORT breach of contract ® Asbestos unjust enrichment N © Tobacco ® Toxic Tort - DES 0 Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS iO Toxic Waste tj Other: ❑ Ejectment 0 Common Law /Statutory Arbitration B © Eminent Domain/Condemnation 0 Declaratory Judgment ® Ground Rent fol Mandamus ® Landlord/Tenant Dispute ❑❑ Non - Domestic Relations ® Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY © Mortgage Foreclosure: Commercial ® Quo'Warranto ® Dental ® Partition E3 Replevin ❑❑ Legal © Quiet Title Other: ® Medical Other: f [0 Other Professional: Updated 1/1/2011 Or r pER3 ,4Na u�, , /A Donald � Donald Ulzheimer, an individual and DBA Premier Remodeling IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA Qui Chau, an individual and DBA 361 Designs, Inc NO 3 ' / ` l c), 20 Defendant Civil Term 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 y� 1 71-249-3166 7 8 T ioa - 7 �yi 75 PICKFORD LAW OFFICE Susan K. Pickford, Esq. 3400 Trindle Road Camp Hill, PA 17011 717- 695 -3294 Attorney for Plaintiff DONALD ULZHEIMER, : IN THE COURT OF COMMON PLEAS an individual and doing business as :CUMBERLAND COUNTY, PENNSYLVANIA PREMIER REMODELING Plaintiff vs :ACTION IN LAW AND EQUITY QUI CHAU, : NO. [ ` an individual and doing business as 3 3 7 `✓ ) 361 Designs, Inc. Defendant COMPLAINT BREACH OF CONTRACT UNJUST ENRICHMENT NOW COMES, Donald Ulzheimer, Plaintiff, by and through his attorney, Susan K Pickford, Esq. and files this Complaint and sets forth the following in support thereof: 1. Plaintiff is an individual residing in Cumberland County and doing business as Premier Remodeling also in Cumberland County, Pennsylvania. 2. Defendant is an individual and who, at all times relevant to this complaint, was doing business as 361 Designs, Inc. and residing and operating in Cumberland County, Pennsylvania. Defendant's business engaged in web design services. 3. On or about November 18, 2011, Plaintiff and Defendant entered into a written contract for services which is attached hereto as Exhibit A and incorporated herein by reference. 4. Under the terns of the contract, Defendant was to provide web design and maintenance for Plaintiff's business as specifically outlined in Schedule A affixed to Exhibit A, a value of $12,055.00. / 361 Designs, Inc. 212 Web Solutions Development Services Agreement ' This 212Web Solutions Development Services Agreement, is executed this day of 18th November 2011 between Donald Ulzheimer of Premier Remodeling hereby called (^C|ieot"),and 361 Designs, Inc.. hereby osi\ed (^361 Designs"). 361 Designs has been contracted by the Client to render 212 Web Solution Development Services, including services with respect to hoating, planning and customizing o professional designed template for the Client's company vvebsiba. SECTION |: VVEBS|TE DEVELOPMENT SERV ' 1 1 On the terms and conditions set forth in this Agreement, 361 Designs will carry out the duties enumerated in Schedule A and jointly decided onin meetings and conference calls during the term ot this Agreement, and 361 bes\gns hnnebyaccepts such engagement- 361 Designs agrees to use its optimum eRort, at level congruous with others having comparable education, work experience, and mastery in the software industry, in carrying out the duties and responsibilities required under this Agreement. 12 361 Desians is not restricted from undertaking any other engagements during the term of this Agreement. 301 Designs is not restricted to servicing competitors or non-competitors in the name industry unless a Non-Compote Buyout Agreement has been signed. 1.3 381 Designs rnay, solely at 361 Designs' expenne, use any employees or subcontractors as it deems necessary to perform the services required of 361 Designs by this Agreement, granted the quality of the any subcontracted service is acceptable tothe Client. 381 Designs agrees 'that all subcontractors will maintain infu|\ all ofthetermsofthioAgnaarnenL 1A361Des �t� main �r���r[�dur�on��� Agreement, ' �bqchother�heC|ientstaffrnoy be designated for involvement in discussions on design and content. ` . SECTION 2 TERMS OF AGREEMENT 21 The t�/ ofMliyAgr�en�an U |v�b�foraba�ervaiueofmemioeshx ""nn/� $ 12 , 055 . 0 �� ' 22 After `' expiration ' of the terms nf Section 2]. services will be provided ona monthly bi|kableprogrannor the Client exercises the BUYOUT RIGHTS C)F THE WEBS|TE per Section 91 or unti|,361 Designs receives written notice of termination of services from the Client. ' 2.3 Template vvebshe design and hosting will not be charged during the setup phase, as defined in Schedule A� 800ting fees are the full nesponoibility of the Client after one (1) year ofoonhact execution. ` '. ' ~' 2.4 Setup fe&s�are $Ui}0 for this project. 2 The act6al services will be comprised of specified work tasks as defined in Schedule A and jointly decided on in meetings and conference ua||e and will be performed at times satisfactory .to both parties. SECTION 3: COMPENSATION 3.1 This is o barter agreement. Thensforo, there are minimal fees involved and thefui| amount ofthe project must be met byClient- Client is obligated to fully satisfy 361 Designs for the services rendered and if the barter is not fulfilled. bythe Client by any noaane, the difference in value of bartered services in Section 2 1 and services rendered are due by cash payment, This Agreement is based on the following conditions: \ l EX /416 IT A a. One (1 ) Template website design with a maximum of two (2) rounds of minor changes. See Schedule A. b- import existing content provided b the customer but limited to a maxirrium'of 15 pages & 15 pictures. c. Hosting fees is Ciienft s responsibility, to be billed per Simplified Quote (see attachment). Any additional services rendered above and beyond the aforementioned conditions will be charged per the Fee Schedule. 3.2. Client agrees to provide 361 Designs the following: a. All services as quoted by Premier Remodeling per Schedule B. �. Any excess credits will be applied towards any miscellaneous projects as quoted by Premier Remodeling. 3.3. Payment of fees. in order for 361 Designs to provide superior customer support, payments must be Trade promptly. Delinquent bills may be assessed a $15 charge if payment is not received within 10 days of the due date. If an amount remains delinquent 30 days after its due date, an additional 1.5% penalty or $5 fee, x(uhichever is greater. will be added for each month of delinquency. 3 -4 Breach of contract is defined when any bartered services ri i not provided, web pages from v ewi Client n paying the full price of Section 2.1. 361 Designs reserves right to the internet until final payment is made. In case collection proves necessary, the client agrees to pay all fees inn rred by that process. This also applies to 361 Designs' services. if 361 Designs does not provide the services as agreed in this contract. Client reserves the right to pursue collection on the difference of services used. 3.5 361 Designs is entitled to the following remuneration for expenses. Travel expense to the Client's location of business for developmental and consultation purposes will be charged at the rate of $0.50 /mile_ Training costs other than specified in Schedule A will be charged the hourly rate of $65.00 per hour. SECTION 4: TIME OF DEVELOPMENT 4-1 361 Designs and the Client must wor a toge with the necessary co ntent for the Sei-v ices in a timely manner. The Client will provide tl 361 Des'! gns k;,;ortinng %lebsite Stage of the 212 Web Solution Development Services in electronic forma (te will be Ftrr, or .doc format on floppy, e -mail or ftp retrievable, and all photographs and other graphics provided in .gif, .jpeg or . rill be provided inns t his contract or as manner by the oth erwise ent as e or each agreed upon. Additional „on p stage of the 212 VVeb Solution Development Services as described. in Section 8. 4.2 Any delays by the Client to provide the AoQneda�e� 361 Design reserves tDevelopment htt termenate this nd resulting in il?e expiration of the Etna, compl r e resulting t and retain all fees paid or require payment from the Client for services rendered per the Fee Schedule_ SECTION 5: DEFINITION OF WEBSITE MATERIALS 5.1 For this Agreement, llVebsite Materials eto im defined ment the 2 2 Web Solution Development Services, the visible to a web browser and the softy p content of the website, and all programming and scripting source code h These andsjsp f�m�atsv will be in electronic format including; but not limited to:.htmi, .txt. -gif, .jpeg, -p p, - 2 4 • PP S�G T iON 6_ CONFIDENTIALITY OF "IE13SITE MATERIALS 3v 1 eJiPs affirms that ali Alebsite I`;i}aterials, and other data provided by the Client to 361 Designs Shat be held is 'the strictest of confidence by 361 Designs. The Client agrees to do likewise in regards to rel site material, co? tracts, and other data Provided to the Client by 361 Designs. SEC 'T 10N 7. INTELLECTUAL PROPERTY 7 Client represents to 361 and unconditionaily guarantees teat any elements of text, graphics, photos, des gY =s, tradernarks, or other artwork furnished to 361 for inclusion; in the project are owned by Client, or that Clier;t has permission from the rightful owner to use each of these elements, and will hold harmless, pr ctec , and defend 361 and its subcontractors from any claim or suit arising from the use of such elemems furnished by Client. 1.2 0-lien' acknovdedges that the Services including all applicab rights to patents.. copyrights, trademarks and trade secrets inherent therein and appurtenant thereto, are the sole and exclusive pr•3pe +iv of 361 Third Party Software vendors who have licensed such rights to 361. Client agrees and =ck ovvledges that it ?s riot purchasing title to the Codes, including epee and closed source coxes third party softw -- or code deve,?oped by 361 { "Programs "). Client is only being granted a =icen'ase to use the �ramn, z in, accordance with the provisions of this Agreement. Ghent agrees that all rights, title and {merest in the Services and Programs shah be deemed to vest and remain vested in 361, including, but of lFrn ed to, pal, eats. copbrigiits. trade secrets and other mtellectuai property rights. 7.� heE -eb'v grants to Client a revs- exclusive, non- transferabie, perpetual license to use the ?roGra r?s, grit`, '.l ?e ;m�taTioi�s set forth bif t zi;d part' so`tware providers. Client Ynay not use the Programs for any 0 activity. 7A 361 exolicitly affirms that all copyrightable material created under this Agreement including, but not ''sifite fig. the code iimplementing the user interface, the graphic images used on the project that are not pTovided by Client. and all custom scripts and programming, shall be deemed to be owned by 361. 7. 3 �` etGins the iytell °dual rights to display graphics and web design elements and/or works in their portioiio and web designs. 7.6 361 Designs retains the right to display its logo or name on the completed website for credit on development of the vvebsite by having 361 Designs' logo, name and /or a link to 361 Designs' website sta i g " /Design, and !,`L•"eb Hosting by 361 Designs" or "Rokivered by 361 Designs" appear in small tv at the bottom of each webpaae. 7.7 Whereas the value of this Agreement per Section 2. 1, is fulfilled by both Client and 361 Designs, Client resumes fuli copyright ownership of the website. SECTION 3: SCHEDULE AND DELIVERY OF WEl3SITE MATERIALS 8.'I 36 3 D--signs \ ^,ill submit these materials to the Client by the date listed below for completion of each s`a„ of 'he 212 Aleb Soiution Development Services, or as othenr ise and rnutuaily agreed upon. g implementation Date Completion Date -e. —n prate Design �� Decision December 2. 2611 December g, 2611 - er, +i3 +ate Cusl:omizatioi December i 2, 2011 December 30, 20 t 1 .�orki;Gg t/ebsite January 3. 201' 2 January 20, 20 "s2 T esting a. d Deplo yment vanuary 23, 20'12 January 31 20 /2 3 SECT0,N BUYOUT RIGHT SOFVVE8SiTE& RELATED MATERALS Q � TteCiierthann1"Fle option -to buyout Uhewebsita design for $1 IX}. T his amount ks due upon signing tho�&ebsi�e (}"Tunerntip Reiemse Fonn The C1|entxiU have fuU ovvnenship rights to only the template �mebs-fediaoign TheCUent understands that this template design fs notumique and that it may exist eilsewbere on|ine oroff!ine- 0 '2 No otherprogrorms. scripts, or materials belonging to 361 Designs mentioned here m/i|; be construed apbemg per`� of' the buyout thereof 5ECT|CJtNI0: C(lND1T!C)NS.REPRESENTAT{ONS.ANDV 101 THE SERV|CES ARE PROV\QEQ ''AS iS" WITHOUT ANY VVARRANTY OF ANY KIND ��ATS(}EVER. EXPRESS OR \&�pUED, iNCLUD|W{ iK8PL|ED VVARRANTIES OF @E�H/\ CNTA6|L|TY. FITNESS FOR A PARTICULAR PURPOSE. N{)N'<MFF<I0GEK0ENTORTiTLE, 361 i2 NOT L{ABLEFOR: ( ANY LOSS�)F USE LOSS OFDATA, INTERRUPTION (}F BUSINESS, (}� (21 ANY SPEC�AL. |WC�[�ENTAL �ON�E{JUENT}AL. OR PUN!T�VE DAMAGE S DF AN�R��[](|�CLU���G.L(�STPROF}TS CDHTRACT.T�}RT((NCLUD|N5NEBL|�ENCE). STRICT L|AB|LITYOR OTHERWISE, EVEN iF3G1 ADV�SED 9P THE PDSS/8{LiTY OF THESE DX 361'S LiABIL\TYVViLL NOT EO -FIE �\41(3UMIT0 - U8T0&;ER PA|DT(]361 [}URiN(3THE 14AONTH PER/(]D BEFORE THE ARDSE CfJGTO88EFlACKNOVVLEDGES THAT THESE LIMITATIONS ARE ANESSENTIAL ELEioENTOF THIS AGREEMENT AND ABSENT SUCH L|MITATiONS3S1YVDULD NOT ENTER INTO THiSAGREEWYENT SEC-T[ON SCOPE 0FAGREENiENT 11 � T i-,i,s Aareemen", is mean, by the parties to be a final rendition of their agreernent. and it constitutes av� e~iire und*rstandimg bsanoen 'he parties as to the subject ofthis Agreennent, ne8apdiess of any staterne�tS: orogreenlents previously made. Amendments to this Agreement may be made only in a m/r/t�en docunnentsicned by both parties SECT (-ON 12�TERMNATIOW 12 1 Th�s Agreement may be terminated by either party within five <5) business deym by written notice to �i terminated b ei�herA��y befona itaoriginmUy intendad theoffhor par yonce aigned � for expinahon� �he (��ion� has�h��u�yto renmuner�na o� u�^ � ` ean//c*spendenedbafVrethodate of such termination i3- G()VERN|NG LAVV Th<sagne*nnynt becomes efective only vvhen signed by361 Designs. Regardless of the place of s �� n i� Q cf\hisagreornentth�dienta�rne��hatforpu/posesofvenue.th iscontrsctm/asenteredin � uin » � iU b litigated orbi�nated �n Dauphin County. Coun�y �ennsy{vani� an�anyd(spu�*vv e or K� Pe��|van}a �h|sf\greemen�isrnade.in�nrpreied`andgovernedunde,the|avvsof1h�Connnnonvvee cfpe»rS)(�Vanio the pn- Agreement have caused ithobedu|yexenutodnn the day and year �wri�en hn/ox/. Date - 6' '.Designs, inc. Authorized Signature Date 4 ' ` Sc'hmduleA 1 �-oagree�|ar,�ndu�es th�C(�ntvv�h4ien�pate � i - nc- The (�iier���U choose only on n e�es��fcrcornpiedono{thepnojeot. 3B1 Designs xvU| provide 2 r ofnn|nc,chong*mtothe `eebhernp|oto asvm*Uaminnp|ernent the following funotionaUde& a, oobrsoherne b Chu�g�n�nav�gatlont-ex±finhs c Add`;ic, C-!ienys |�go(prc�ided b ��|ien�in di9ite|fonnet) c� AddinoCfienICs /�,ne (pr ovidedbyClient) � NeovoietterSign UP M-nn � (�onten lanagernent 5ystermbo update vmabni0o � Pro:ectn Phoh}GaUet � Brand Reputation -Manogennont(up to6hours) i peg�ona;f -SE j 8ne(i1yearofAdvonoePianhueUngfnzn`dab*ofoontnaotexeoudoo($24-05/rnonth) � Contact Us orRequest Quote form ' � On Directory rs Deoiunone postcard nnsUerfor lead nr referral, genenationPurposes n [>ne eeroohsorptmntoEZK8ai!. maximum of5O0 sends per nnon�h(�15/nnonih) o One (1) "Our Per nnnsthofrneeUng time tootn*tegirmunrnorketinQ p A\sn<atirn*snoving negative posts about Premier RernmjeUng-not guaranteed. bobe removed & JepoordsooServioe Pro vid�ra�dpos��r(re�uningf��of��9/nnth.45rninute|�borUrniU A per the Fee Schedule 2 Thisa g ,7e e , nent/nol'udee i rnpodingthaClienysexiatingoon&*ntk>thenewvvebsito This u6Ubelimited to�he number off pagonesspecifiedinGenti V\k on9��/c>� orkasspec|h ~ �d���[n�texnn� d7houxs Any e��ihun�|xVor�v � vU!�bi/(edpert�eFoeScbedu}e. ' ` Schedule B . Don Ulzheimer .149 S. York Rd, Dillsburg, RA 17019 Qui Cbau Bathroom Proposal Ma -seer Bath 1. Remove tub and rear wall 2, Remove plumbing and change to new wall 3. Change plumbing from underneath 4, Install tub in between exterior and interior wall 5, install cement board on walls where the is to be installed 6. Install the as chosen 7. Install Pew vinyl floor * Replace toilet 9. Replace vanity 10- Paint 1'1_ Replace light For the suss of three thousand seven hundred ($3,700) I st floor Bath I. Remove tub 2, Install new tub 3. Install cement board where the is to be installed 4, Install the as chosen 5. Install new vinyl floor 6. Replace toilet 7. Reinstall vanity F oP the sum of three thousand two hundred dollars ($3,2001 C'r CALDWELL&KEARNS,P.C. 3631 North Front Street Peter M. Good,Esquire Harrisburg,PA 17110 pgood @cklegal.net (717)232-7661 Attorney for Defendants DONALD ULZHEIMER, an individual IN THE COURT OF COMMON PLEAS and d/b/a PREMIER REMODELING CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. : NO. 13-3449 `=� _ rn QUI CHAU, an individual and d/b/a cn r— _ rn 361 DESIGNS, INC. CIVIL TERM rte' ,. 1 Defendant :C;: C,) � cz ry }~ r,r PRAECIPE FOR ENTRY OF APPEARANCE Kindly enter my appearance on behalf of the Defendants, Qui Chau and 361 Designs, Inc., in the above referenced matter. Respectfully Submitted, CALDWELL & KEARNS, P.0 Date: _71 b11 j By: A!!�z Peter M. G od, Esquire ID #64316 3 63 1 North Front Street Harrisburg, PA 17110 (717) 232-7661 Attorney for Defendants CERTIFICATE OF SERVICE I hereby certify that on this 12th day of July, 2013 a true and correct copy of the foregoing document was served upon counsel as addressed below by depositing the same in the U.S. Mail, first class, postage prepaid: Susan K. Pickford, Esquire Pickford Law Office 3400 Trindle Road Camp Hill, PA 17011 CALD LL & KEARNS, P.C. By: Peter M. Good, Es uire ID #64316 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 Attorney for Defendants 1 DONALD ULZHEIMER, : IN THE COURT OF COMMON PLEAS An individual and doing business :CUMBERLAND COUNTY,PENNSYLVANIA as PREMIER REMODELING, Plaintiff vs :ACTION IN LAW AND EQUITY �l QUI CHAD, an individual U-1-i;= and : NO. 13-3449 ' - c: 361 DESIGNS, INC. Defendants > CD _.. PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT PURSUANT TO Pa.ILC.P. 1033 Plaintiff,Donald Ulzheimer,pursuant to Pa.R.C.P. 1033 ,moves for leave of Court to file an Amended Complaint and in support thereof states: 1. Plaintiff filed the present action on June 17, 2013 as captioned above. 2. Defendant's counsel entered his appearance on or about July 12, 2013. 3. Plaintiff wishes to amend the Complaint as to the naming of the current parties. 4. No scheduling order has been entered in this case, no party has moved for summary judgment, and the case is not set for trial. 5. Plaintiff seeks to file an amended complaint in the form attached to this motion. 6. Defendant does not object to the amendment. 7. Defendant is not prejudiced by the proposed amendment. Plaintiff has not previously amended the complaint and the amendment is not futile. Accordingly,the motion for leave to amend should be granted. WHEREFORE,Plaintiff respectfully requests that this Court enter an order granting Plaintiff's Motion to File Amended Complaint. Res4?Es , pr-t�f� V � usan K. Pickf , . ID#43093 PICKFORD LAW OFFICE 3400 Trindle Road Camp Hill,PA 17011 717-695-3294 PICKFORD LAW OFFICE Susan K.Pickford,Esq. 3400 Trindle Road Camp Hill,PA 17011 717-695-3294 Attorney for Plaintiff DONALD ULZHERVIER, : IN THE COURT OF COMMON PLEAS An individual and doing business :CUMBERLAND COUNTY,PENNSYLVANIA as PREMIER REMODELING, Plaintiff vs :ACTION IN LAW AND EQUITY QUI CHAD, an individual and : NO. 13-3449 361 DESIGNS, INC. Defendants COMPLAINT BREACH OF CONTRACT UNJUST ENRICHMENT NOW COMES,Donald Ulzheimer,Plaintiff,by and through his attorney, Susan K Pickford, Esq. and files this Complaint and sets forth the following in support thereof 1. Plaintiff is an individual residing in Cumberland County and sole proprietor of Premier Remodeling also in Cumberland County, Pennsylvania. 2. Defendant Chau is an individual residing at 3020 Columbia Avenue, Camp Hill, Cumberland County, Pennsylvania. 3. Defendant, 361 Designs, Inc., is a corporation located in Cumberland County, and organized in Pennsylvania, a business engaged in web design services. 4. On or about November 18, 2011,Plaintiffs and Defendant entered into a written-contract for services which is attached hereto as Exhibit A and incorporated herein by reference. 5. Under the terms of the contract,Defendants were to provide web design and maintenance for Plaintiff s business as specifically outlined- in.Schedule A.aff xed to Exhibit A, a value of$12,055.00. 6. Under the terms of the contract,Plaintiff was to provide construction services including remodeling of a master bath and first floor bath in Defendant Chau's home located at 3020 Columbia Avenue, Camp Hill, Cumberland County,Pennsylvania, as outlined on Schedule B of Exhibit A. In addition,Plaintiff was to perform hourly construction services at a rate of$60.00/hour to bring his services to $12,005.00. FIRST CAUSE OF ACTION BREACH OF CONTRACT 7. Plaintiff incorporates paragraphs 1 through 6 above by reference as if fully set forth herein. 8. Plaintiff performed his obligations under the contract in full with diligence and quality workmanship. 9. Plaintiff completed all items on Schedule B and performed an additional 79.5 hours of work per Defendant Chau's request at$60/hr for a total due of$4,770.00 in addition to the contract price. 10. Under the contract Defendants were to complete the webpage by January 31, 2012 and have it published, hosted and promoted. 11. At the date of the filing of this complaint,Defendants have failed and refused to perform the services outlined in Schedule A of Exhibit A to wit: he failed to perform services listed as e, f,h,i, k, 1, m, n, o,and p of Schedule A of the contract. 12. Plaintiff has attempted to contact Defendants on numerous occasions. Defendants have failed to respond. 13. On February 1, 2013,Plaintiff retained counsel who attempted to resolve the matter with Defendant Chau. 14. Plaintiff alleges that Defendants have wrongfully breached the terms of the contract by failing to perform the work he promised. WHEREFORE,Plaintiff request damages as follows: a. For general damages in an amount exceeding the minimal jurisdictional amount of the court. b. For the contract price of$12055.00. c. For the additional work performed per Defendant's request, $4,770.00. d. For any and all damages resulting from lost profits as a result of failure to produce the website. e. For attorney's fees in the sum to be determined by invoice at the time of hearing. f. For cost of suit incurred herein. g. For interest at the legal rate in the foregoing sums the date of judgment until paid in full. h. For such other and further relief, at law or in equity,to which plaintiff may be justly entitled. SECOND CAUSE OF ACTION UNJUST ENRICHMENT 15. Plaintiff incorporates paragraphs 1 through 14 above by reference as if fully set forth herein. 16. Plaintiff provided Defendant Chau with 2 fully remodeled bathrooms including replacement of tubs,vanities and toilets, re-plumbing and removing a wall and all other items listed in Schedule B of Exhibit A. 17. This service was provided in Defendant Chau's home where he participated in and permitted the renovation to take place and enjoys the benefit of Plaintiff's labor. Plaintiff expected performance of the terms of the contract, to wit: building, maintaining and promoting a website for his business, a$12,055 value, in compensation. 18. Plaintiff performed a service with a value of at least$6,900.00 for the bathrooms and $4,770.00 for addition work referenced in Paragraph 8 above. It would be unjust and frustrate public policy to allow Defendant Chau to enjoy the services provided by Plaintiff without paying for same. 19. Plaintiff alleges that Defendant Chau is unjustly enriched by receiving services from Plaintiff without compensating him for same. WHEREFORE,Plaintiff request damages as follows: a. For general damages in an amount exceeding the minimal jurisdictional amount of the court. b. For the price of benefit received in the amount of$11670.00. c. For attorney's fees in the sum to be determined by production of invoices at the time of hearing. d. For cost of suit incurred herein. e. For interest at the legal rate in the foregoing sums the date of judgment until paid in full. f. For such other and further relief, at law or in equity,to which plaintiff may be justly entitled. Respectfully submitted, PICKFO AW OFFIC By: usan K. Pic d,Es . ID#43093 3400 Trindle Road Camp Hill,PA 17011 (717)695-3294 (p) (717)695-3592 (f) Attorney for Plaintiff DONALD ULZHElMER, : IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY,PENNSYLVANIA Plaintiff vs :ACTION IN LAW AND EQUITY QUI CHAD, an individual and : NO. 361 DESIGNS, INC. Defendants CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Motion for Leave to Amend Complaint in the above captioned case was served upon the person, at the location and in the manner indicated below. Peter M. Good,Esq. Caldwell&Kearns 3631 North Front Street Harrisburg,PA 17110 r Date: usan K. Pic o d,Es DONALD ULZHEIMER, : IN THE COURT OF COMMON PLEAS An individual and doing business :CUMBERLAND COUNTY,PENNSYLVANIA as PREMIER REMODELING, Plaintiff vs :ACTION IN LAW AND EQUITY QUI CHAD, an individual and and : NO. 13-3449 361 DESIGNS, INC. Defendants ORDER AND NOW this aOay of 2013, having considered the Plaintiff's Motion for Leave to Amend Complaint,the Motion is hereby GRANTED. BY THE COURT J. Distribution: "v ara ft 331, rT-21? G-,) `tiers ✓ Susan K. Pickford, Esq. �� 3400 Trindle Road '- Camp Hill, PA 17011 < r Peter M. Good,Esq. 3631 North Front Street -. Harrisburg,PA 17110 e" •� rn .�l s �/�3 0 PICKFORD LAW OFFICE Susan K. Pickford, Esq. 3400 Trindle Road Camp Hill, PA 17011 717-695-3294 Attorney for Plaintiff DONALD ULZHEIMER, an individual and doing business as PREMIER REMODELING Plaintiff vs QUI CHAU, an individual and d/b/a 361 Designs, Inc. and 361 Designs, Inc. Defendants PROl H0P 3 I' ,,. 1 r JUN 13 AM 10: 17 CUMBERLAND COUNTY PENNSYLVANIA : IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA :ACTION IN LAW AND EQUITY :: NO.13-3449 AMENDED COMPLAINT BREACH OF CONTRACT UNJUST ENRICHMENT NOW COMES, Donald Ulzheimer, Plaintiff, by and through his attorney, Susan K Pickford, Esq. and files this Complaint and sets forth the following in support thereof: 1. Plaintiff is an individual residing in Cumberland County and doing business as Premier Remodeling also in Cumberland County, Pennsylvania. 2. Defendant Chau is an individual residing in Cumberland County and who, at all times relevant to this complaint, was doing business as 361 Designs, Inc. operating in Cumberland County, Pennsylvania. 3. Defendant 361 Designs, Inc. is a closely held corporation doing business in Cumberland County, Pennsylvania. 4. On or about November 18, 2011, Plaintiff and Defendants entered into a written contract for services which is attached hereto as Exhibit A and incorporated herein by reference. The contract was signed for Defendant 361 Design, Inc. by Defendant Chau as agent for the corporation. 5. Under the terms of the contract, Defendants were to provide web design and maintenance for Plaintiff's business as specifically outlined in Schedule A affixed to Exhibit A, a value of $12,055.00. 6., Under the terms of the contract, Plaintiff was to provide construction services including remodeling of a master bath and first floor bath in Defendant Chau's home located at 3020 Columbia Avenue, Camp Hill, Cumberland County, Pennsylvania, as outlined on Schedule B of Exhibit A. In addition, Plaintiff was to perform hourly construction services at a rate of $60.00/hour to bring his services to $12,005.00. FIRST CAUSE OF ACTION BREACH OF CONTRACT 7. Plaintiff incorporates paragraphs 1 through5 above by reference as if fully set forth herein. 8. Plaintiff performed his obligations under the contract in full with diligence and quality workmanship. 9. Plaintiff completed all items on Schedule B and performed an additional 79.5 hours of work per Defendant Chau's request at $60/hr for a total due of $4,770.00 in addition to the contract price. 10. Under the contract Defendants were to complete the webpage by January 31, 2012 and have it published, hosted and promoted. 11. At the date of the filing of this complaint, Defendants have failed and refused to perform the services outlined in Schedule A of Exhibit A to wit: he failed to perform services listed as e, f, h, i, k, 1, m, n, o, and p of Schedule A of the contract. expected performance of the terms of the contract, to wit: building, maintaining and promoting a website for his business, a $12,055 value, in compensation. 17. Plaintiff performed a service with a value of at least $6,900.00 for the bathrooms and $4,770.00 for addition work referenced in Paragraph 8 above. It would be unjust and frustrate public policy to allow Defendant Chau to enjoy the services provided by Plaintiff without paying for same. 18. Plaintiff alleges that Defendant Chau is unjustly enriched by receiving services from Plaintiff without compensating him for same. WHEREFORE, Plaintiff request damages as follows: a. For general damages in an amount exceeding the minimal jurisdictional amount of the court. b. For the price of benefit received in the amount of $11670.00. c. For attomey's fees in the sum to be determined by production of invoices at the time of hearing. d. For cost of suit incurred herein. e. For interest at the legal rate in the foregoing sums the date of judgment until paid in full. f. For such other and further relief, at law or in equity, to which plaintiff may be justly entitled. Respectfully submitted, PICKFO • LAW OFFIC By: san K. Pick rrd, E/ ID # 43093 3400 Trindle Road Camp Hill, PA 17011 (717)695-3294 (p) (717)695-3592 (f) Attorney for Plaintiff The contract was signed for Defendant 361 Design, Inc. by Defendant Chau as agent for the corporation. 5. Under the terms of the contract, Defendants were to provide web design and maintenance for Plaintiff's business as specifically outlined in Schedule A affixed to Exhibit A, a value of $12,055.00. 6., Under the terms of the contract, Plaintiff was to provide construction services including remodeling of a master bath and first floor bath in Defendant Chau's home located at 3020 Columbia Avenue, .Camp Hill, Cumberland County, Pennsylvania, as outlined on Schedule B of Exhibit A. In addition, Plaintiff was to perform hourly construction services at a rate of $60.00/hour to bring his services to $12,005.00. FIRST CAUSE OF ACTION BREACH OF CONTRACT 7. Plaintiff incorporates paragraphs 1 through5 above by reference as if fully set forth herein. 8. Plaintiff performed his obligations under the contract in full with diligence and quality workmanship. 9. Plaintiff completed all items on Schedule B and performed an additional 79.5 hours of work per Defendant Chau's request at $60/hr for a total due of $4,770.00 in addition to the contract price. { 10. Under the contract Defendants were to complete the webpage by January 31, 2012 and have it published, hosted and promoted. 11. At the date of the filing of this complaint, Defendants have failed and refused to perform the services outlined in Schedule A of Exhibit A to wit: he failed to perform services listed as e, f, h, i, k, 1, m, n, o, and p of Schedule A of the contract. VERIFICATION I, Donald Ulzheimer, hereby state that I have read the foregoing Amended Complaint and the statements set forth therein are true and correct to the best of my knowledge, information and belief. Further I understand that this Verification is made subject to the penalties of 18 Pa.C.S. §4904, which relates to unsworn falsification to authorities. Date: May 21, 2014 DONALD ULZHEIMER DONALD ULZHEIMER, an individual and doing business as PREMIER REMODELING Plaintiff VS QUI CHAU, an individual and d/b/a 361 Designs, Inc. and 361 Designs, Inc. Defendants : IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA :ACTION IN LAW AND EQUITY : NO.13-3449 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Complaint in the above captioned case was served upon the person, at the location and in the manner indicated below. Peter M. Good, Esq 3631 North Front Street Harrisburg, PA 17110 (first class mail) Date 1D# 430 3400 Trindle Road Camp Hill, PA 17011 (717)695-3294 (p) (717)695-3592 (1) Attorney for Plaintiff ford, Esq. Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (phone) (717) 232-2766 (fax) pgood@cklegal.net jmercy@cklegal.net Attorneys for Defendants Peter M. Good, Esq. I.D. No. 64316 Jessica E. Mercy, Esq. I.D. No. 206405 DONALD ULZHEIMER, an individual and d/b/a PREMIER REMODELING, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 13-3449 QUI CHAU, an individual, and 361 DESIGNS, INC., JURY TRIAL DEMANDED Defendants. NOTICE TO PLEAD C) r Cf rte—= < C7 C;) TO: Susan K. Pickford, Esquire >;27: Pickford Law Office -< zz) 3400 Trindle Road Camp Hill, PA 17011 Attorney for Plaintiff Donald Uhheimer You are hereby advised to file a written response to the enclosed Defendants' Preliminary Objections to Plaintiff's Amended Complaint within twenty (20) days from service hereof, or judgment may be entered against you. C- c�- r— Dated: July 2, 2014 CALDWELL & KEARNS, P.C. (.1 By: 6 Peter M. Good, Esquire — I.D. No. 64316 Jessica E. Mercy, Esquire — I.D. No. 206405 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 pgood@cklegal.net jmercy@cklegal.net Attorneys for Defendants f Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (phone) (717) 232-2766 (fax) pgood@cklegal.net jmercy@cklegal.net Attorneys for Defendants Peter M. Good, Esq. I.D. No. 64316 Jessica E. Mercy, Esq. I.D. No. 206405 DONALD ULZHEIMER, an individual and d/b/a PREMIER REMODELING, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 13-3449 QUI CHAU, an individual, and 361 DESIGNS, INC., JURY TRIAL DEMANDED Defendants. DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT AND NOW COMES, Defendants Qui Chau and 361 Designs, Inc. (hereinafter collectively referred to as "Defendants"), by and through their attorneys, Caldwell & Kearns, P.C., to file the within Preliminary Objections to Plaintiff's Amended Complaint and in support thereof aver as follows: 1. On or about June 17, 2013, Plaintiff Donald Ulzheimer (hereinafter "Plaintiff') initiated this action by filing a Complaint against Defendant Qui Chau (hereinafter "Defendant Chau") individually and doing business as 361 Designs, Inc., setting forth causes of action for breach of contract and unjust enrichment. 2. Thereafter, Plaintiff filed a Motion for Leave to File Amended Complaint Pursuant to Pa. R.C.P. 1033, seeking to amend the action to also include claims against Defendant 361 Designs, Inc. (hereinafter "Defendant 361"). 3. On or about August 20, 2013, the Court granted Plaintiffs Motion for Leave to File Amended Complaint Pursuant to Pa. R.C.P. 1033. 4. Subsequently, on or about June 18, 2014, Plaintiff filed an Amended Complaint against Defendant Chau and Defendant 361, setting forth causes of action breach of contract and unjust enrichment. I. First Preliminary Objection — All Causes of Action — Failure of a Pleading to Conform to Rule of Court 5. Defendants hereby incorporate Paragraphs 1 through 4 of these Preliminary Objections as if fully set forth herein. 6. Pennsylvania Rule of Civil Procedure 1018.1 provides that every complaint filed by a plaintiff must begin with a notice to defend. 7. Plaintiffs Amended Complaint does not begin with a notice to defend. 8. As a result, Plaintiffs Amended Complaint should be dismissed because it fails to conform to Pennsylvania Rule of Civil Procedure 1018.1. WHEREFORE. Defendants Qui Chau and 361 Designs, Inc. respectfully request that this' Honorable Court sustain their Preliminary Objections and dismiss Plaintiff Donald Ulzheimer's Amended Complaint with prejudice. II. Second Preliminary Objection — First Cause of Action — Breach of Contract — Failure of a Pleading to Conform to Rule of Court 9. Defendants hereby incorporate Paragraphs 1 through 8 of these Preliminary Objections as if fully set forth herein. 10. In the First Cause of Action of Plaintiffs Amended Complaint, Plaintiff asserts a cause of action against Defendants for breach of contract. 11. Plaintiff alleges that Plaintiff and Defendants entered into a written contract for services. 12. Pennsylvania Rule of Civil Procedure 1019(i) provides that when any claim is based upon a writing, a copy of the writing must be attached to the pleading. 2 13. Although Plaintiffs Amended Complaint indicates that a copy of a written contract between Plaintiff and Defendants is attached to Plaintiffs Amended Complaint as Exhibit "A," no such written contract is in fact attached to Plaintiffs Amended Complaint. 14. As a result, the First Cause of Action of Plaintiffs Amended Complaint should be dismissed because it fails to conform to Pennsylvania Rule of Civil Procedure 1019(i). WHEREFORE. Defendants Qui Chau and 361 Designs, Inc. respectfully request that this Honorable Court sustain their Preliminary Objections and dismiss the First Cause of Action of Plaintiff Donald Ulzheimer's Amended Complaint with prejudice. III. Third Preliminary Objection — First Cause of Action — Breach of Contract — Legal Insufficiency/Failure to State a Cause of Action (Demurrer) 15. Defendants hereby incorporate Paragraphs 1 through 14 of these Preliminary Objections as if fully set forth herein. 16. In the First Cause of Action of Plaintiffs Amended Complaint, Plaintiff asserts a cause of action against Defendants for breach of contract. 17. Plaintiff alleges that Plaintiff and Defendant entered into a written contract for services. 18. However, the contract that was attached to Plaintiffs Complaint, but not Plaintiffs Amended Complaint, was made and entered into between Plaintiff and Defendant 361; Defendant Chau was not a party to the contract, but rather signed the contract in his capacity as an authorized representative of Defendant 361. 19. Therefore, the First Cause of Action of Plaintiffs Amended Complaint should be dismissed as to Defendant Chau because it is legally insufficient as to Defendant Chau and fails to state a cause of action against Defendant Chau for breach of contract. WHEREFORE. Defendants Qui Chau and 361 Designs, Inc. respectfully request that this. Honorable Court sustain their Preliminary Objections and dismiss the First Cause of Action of 3 Plaintiff Donald Ulzheimer's Amended Complaint with respect to Defendant Qui Chau with prejudice. IV. Fourth Preliminary Objection — Second Cause of Action — Unjust Enrichment — Legal Insufficiency/Failure to State a Cause of Action (Demurrer) 20. Defendants hereby incorporate Paragraphs 1 through 19 of these Preliminary Objections as if fully set forth herein. 21. In the Second Cause of Action of Plaintiff's Amended Complaint, Plaintiff asserts a cause of action against Defendant Chau for unjust enrichment. 22. Plaintiff alleges that he provided Defendant Chau with certain services at his home, that Plaintiff expected to be compensated for such services in the form of performance under the terms of the contract, that Defendant Chau has not paid for such services and that it would be unjust for Defendant Chau to retain the benefit of such services with compensating Plaintiff for such services. 23. The alleged services provided by Plaintiff would have been provided by Plaintiff in accordance with the terms and conditions of the written contract between Plaintiff and Defendant 361 that was attached to Plaintiff's Complaint, but not Plaintiff's Amended Complaint; Defendant Chau was not a party to the contract, but rather signed the contract in his capacity as an authorized representative of Defendant 361. 24. For this reason, any cause of action for unjust enrichment can only be maintained against Defendant 361. 25. Therefore, the Second Cause of Action of Plaintiff's Amended Complaint should be dismissed as to Defendant Chau because it is legally insufficient as to Defendant Chau and fails to state a cause of action against Defendant Chau for unjust enrichment. WHEREFORE. Defendants Qui Chau and 361 Designs, Inc. respectfully request that this Honorable Court sustain their Preliminary Objections and dismiss the Second Cause of Action of 4 Plaintiff Donald Ulzheimer's Amended Complaint with respect to Defendant Qui Chau with prejudice. V. Fifth Preliminary Objection — Plaintiff's Claims for Attorneys' Fees — Legal Insufficiency/Failure to State a Cause of Action (Demurrer) 26. Defendants hereby incorporate Paragraphs 1 through 25 of these Preliminary Objections as if fully set forth herein. 27. "The parties to litigation are responsible for their own [attorneys] fees unless otherwise provided by statutory authority, agreement of the parties, or some other recognized exception." Hart v. O'Malley, 781 A.2d 1211, 1216 (Pa. Super. Ct. 2001). 28. In the ad damnum clauses of Plaintiff's Second Amended Complaint, Plaintiff alleges that he is entitled to an award of attorneys' fees. 29. However, Plaintiff has failed to allege any facts that support a claim for attorneys' fees based upon statutory authority, an agreement of the parties or any other recognized exception. 30. More specifically, Plaintiff has cited no statutory authority or contract between Plaintiff and Defendants that permit the recovery of attorneys' fees in this case. 31. As a result, Plaintiff's claims for attorneys' fees are legally insufficient and should be dismissed because they fail to state a cause of action against Defendants. WHEREFORE. Defendants Qui Chau and 361 Designs, Inc. respectfully request that this. Honorable Court sustain their Preliminary Objections and dismiss Plaintiff Donald Ulzheimer's Complaint with respect to Defendant 361 Designs, Inc. with prejudice. 5 Dated: July 2, 2014 By: 6 Respectfully Submitted, CALDWELL & KEARNS, P.C. Peter M. Good, 1 squire — I.D. No. 64316 Jessica E. Mercy, Esquire — I.D. No. 206405 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 pgood@cklegal.net jmercy@cklegal.net Attorneys for Defendants DONALD ULZHEIMER, an individual and d/b/a PREMIER REMODELING, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 13-3449 QUI CHAU, an individual, and 361 DESIGNS, INC., JURY TRIAL DEMANDED Defendants. CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the foregoing Defendants' Preliminary Objections to Plaintiffs' Amended Complaint on the following by depositing a true and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: Dated: July 2, 2014 Susan K. Pickford, Esquire Pickford Law Office 3400 Trindle Road Camp Hill, PA 17011 CALDWELL & KEARNS, P.C. By: v/ Peter M. Guod, Esquire — I.D. No. 64316 Jessica E. Mercy, Esquire — I.D. No. 206405 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 pgood@cklegal.net jmercy@cklegal.net Attorneys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Donald Ulzheimer, an individual and DBA Premier Remodeling Plaintiff . ACTION IN LAW AND EQUITY vs ▪ NO. 13-3449 Qui Chau, an individual and 361 Designs, Inc. Defendant cn` T NOTICE TO DEFEND r C t YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUECED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 PICKFORD LAW OFFICE Susan K. Pickford, Esq. 3400 Trindle Road Camp Hill, PA 17011 717-695-3294 Attorney for Plaintiff DONALD ULZHEIMER, an individual and doing business as PREMIER REMODELING Plaintiff : IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA vs :ACTION IN LAW AND EQUITY QUI CHAU, an individual and d/b/a 361 Designs, Inc. and 361 Designs, Inc. Defendants :: NO.13-3449 AMENDED COMPLAINT BREACH OF CONTRACT UNJUST ENRICHMENT NOW COMES, Donald Ulzheimer, Plaintiff, by and through his attorney, Susan K Pickford, Esq. and files this Complaint and sets forth the following in support thereof: 1. Plaintiff is an individual residing in Cumberland County and doing business as Premier Remodeling also in Cumberland County, Pennsylvania. 2. Defendant Chau is an individual residing in Cumberland County and who, at all times relevant to this complaint, was doing business as 361 Designs, Inc. operating in Cumberland County, Pennsylvania. 3. Defendant 361 Designs, Inc. at all times relevant to this action, was a closely held corporation doing business in Cumberland County, Pennsylvania. At all times relevant to this action, Defendant Chau was the sole shareholder and owner of 361 Designs. 4. On or about November 18, 2011, Plaintiff and Defendant 361 Designs entered into a written contract for services which is attached hereto as Exhibit A and incorporated herein by reference. The contract was signed for Defendant 361 Design, Inc. by Defendant Chau as agent for the corporation. 5. Under the terms of the contract, Defendants were to provide web design and maintenance for Plaintiff's business as specifically outlined in Schedule A affixed to Exhibit A, a value of $12,055.00. 6. Under the terms of the contract, Plaintiff was to provide construction services including remodeling of a master bath and first floor bath in Defendant Chau' s personal home located at 3020 Columbia Avenue, Camp Hill, Cumberland County, Pennsylvania, as outlined on Schedule B of Exhibit A. In addition, Plaintiff was to perform hourly construction services at a rate of $60.00/hour to bring his services to $12,005.00. 7. Plaintiff believes and therefore avers that by contracting through Defendant 361 Designs for services resulting in personal benefit to Defendant Chau, Defendant Chau has mingled his personal interests with the corporation's interests and thereby pierced the corporate veil. FIRST CAUSE OF ACTION BREACH OF CONTRACT AS AGAINST DEFENDANT 361 DESIGNS, INC. 8. Plaintiff incorporates paragraphs 1 through5 above by reference as if fully set forth herein. 9. Plaintiff performed his obligations under the contract in full, at Defendant Chau' s personal home, with diligence and quality workmanship. 10. Plaintiff completed all items on Schedule B and performed an additional 79.5 hours of work per Defendant Chau's request at $60/hr for a total due of $4,770.00 in addition to the contract price. 11. Under the contract Defendant 361 Designs, Inc. through its only employee, Defendant Chau, was to complete the webpage by January 31, 2012 and have it published, hosted and promoted. 12. At the date of the filing of this complaint, Defendant 361 Designs has failed and refused to perform the services outlined in Schedule A of Exhibit A to wit: he failed to perform services listed as e, f, h, i, k, 1, m, n, o, and p of Schedule A of the contract. 13. Plaintiff has attempted to contact Defendant 361 Design through its agent, Defendant Chau, on numerous occasions. Defendant Chau has failed to respond. 14. Plaintiff alleges that Defendant 361 Designs has wrongfully breached the terms of the contract by failing to perform the work contracted for. WHEREFORE, Plaintiff request damages as follows: a. For general damages in an amount exceeding the minimal jurisdictional amount of the court. b. For the contract price of $12055.00. c. For the additional work performed per Defendant Chau's request, $4,770.00. d. For any and all damages resulting from lost profits as a result of failure to produce the website. e. For cost of suit incurred herein. f. For interest at the legal rate in the foregoing sums the date of judgment until paid in full. g. For such other and further relief, at law or in equity, to which plaintiff may be justly entitled. SECOND CAUSE OF ACTION BREACH OF CONTRACT AS AGAINST DEFENDANT QUI CHAU 15. Plaintiff incorporates paragraphs 1 through 13 above by reference as if fully set forth herein. 16. Plaintiff performed his obligations under the contract in full, at Defendant Chau's personal home, with diligence and quality workmanship. 17. Plaintiff completed all items on Schedule B and performed an additional 79.5 hours of work per Defendant Chau's request at $60/hr for a total due of $4,770.00 in addition to the contract price. 18. Under the contract Defendant Chau as agent for Defendant 361 Designs, was to complete the webpage by January 31, 2012 and have it published, hosted and promoted. 19. At the date of the filing of this complaint, Defendant Chau has failed and refused to perform the services outlined in Schedule A of Exhibit A to wit: he failed to perform services listed as e, f, h, i, k, 1, m, n, o, and p of Schedule A of the contract. 20. Plaintiff has attempted to contact Defendant Chau. Defendant Chau has failed to respond. 21. Plaintiff alleges that Defendant Chau has wrongfully breached the terms of the contract by failing to perform the work contracted for. WHEREFORE, Plaintiff request damages as follows: a. For general damages in an amount exceeding the minimal jurisdictional amount of the court. b. For the contract price of $12055.00. c. For the additional work performed per Defendant Chau's request, $4,770.00. d. For any and all damages resulting from lost profits as a result of failure to produce the website. e. For cost of suit incurred herein. f. For interest at the legal rate in the foregoing sums the date of judgment until paid in full. g. For such other and further relief, at law or in equity, to which plaintiff may be justly entitled. THIRD CAUSE OF ACTION • UNJUST ENRICHMENT AS AGAINST DEFENDANT QUI CHAU 22. Plaintiff incorporates paragraphs 1 through 21 above by reference as if fully set forth herein. 23. Plaintiff provided Defendant Chau with 2 fully remodeled bathrooms including replacement of tubs, vanities and toilets, re -plumbing and removing a wall and all other items listed in Schedule B of Exhibit A. 24. This service was provided in Defendant Chau's home where he participated in and permitted the renovation to take place and enjoys the benefit of Plaintiff's labor. Plaintiff expected performance of the terms of the contract, to wit: building, maintaining and promoting a website for his business, a $12,055 value, in compensation. 25. Plaintiff performed a service with a value of at least $6,900.00 for the bathrooms and $4,770.00 for addition work referenced in Paragraph 8 above. It would be unjust and frustrate public policy to allow Defendant Chau to enjoy the services provided by Plaintiff without paying for same. 26. Plaintiff alleges that Defendant Chau is unjustly enriched by receiving services from Plaintiff without compensating him for same. WHEREFORE, Plaintiff request damages as follows: a. For general damages in an amount exceeding the minimal jurisdictional amount of the court. b. For the price of benefit received in the amount of $11670.00. c. For cost of suit incurred herein. d. For interest at the legal rate in the foregoing sums the date of judgment until paid in full. e. For such other and further relief, at law or in equity, to which plaintiff may be justly entitled. 77/ Respectfully submitted, PICKFORD ./AW OFFIC .�!✓._iii. �.��' san K. Pickf. ', Esq ID # 43093 3400 Trindle Road Camp Hill, PA 17011 (717)695-3294 (p) (717)695-3592 (f) Attorney for Plaintiff By: VERIFICATION I, Donald Ulzheimer, hereby state that I have read the foregoing Amended Complaint and the statements set forth therein are true and correct to the best of my knowledge, information and belief. Further I understand that this Verification is made subject to the penalties of 18 Pa.C.S. §4904, which relates to unsworn falsification to authorities. 5/ 1,1 itt )(ma/ C WlitoNt4 Date: May 21, 2014 DONALD ULZHEIMER 361 Desig §s nc. 212 Web Solutions Development Services Agreement This 212 Web Solutions Development Services Agreement, is executed this day of 18th November 2011 between Donald Ulzheimer of Premier Remodeling hereby called ("Client'), and 361 Designs, Inc., hereby called ("361 Designs"). 361 Designs has been contracted by the Client to render 212 Web Solution Development Services, including services with respect to hosting, planning and customizing a professional designed template for the Client's company website. SECTION I: WEBSITE DEVELOPMENT SERVICES 1.1 On the terms and conditions set forth in this Agreement, 361 Designs will carry out the duties enumerated in Schedule A, and jointly decided on in meetings and conference calls during the term of this Agreement. and 361 Designs hereby accepts such engagement. 361 Designs agrees to use its optimum effort, at a level congruous with others having comparable education, work experience, and mastery in the software industry, in carrying out the duties and responsibilities required under this Aoreement. 1.2 361 Designs is not restricted from undertaking any other engagements during the term of this Agreement. 361 Designs is not restricted to servicing competitors or non -competitors in the same industry nnless a Non -Compete Buyout Agreement has been signed. 1.3 361 Designs may, solely at 361 Designs' expense, use any employees or subcontractors as it deems necessary to perform the services required of 361 Designs by this Agreement, granted the quality of the any subcontracted service is acceptable to the Client. 361 Designs agrees that all subcontractors will maintain in full all of the terms of this Agreement. IA 351 Designs will interact with Donald Ulzheimer as the main contact for the duration of this Agreement, although other the Client staff may be designated for involvement in discussions on design and content. SECTION 2: TERMS OF AGREEMENT 2.1 The terms of this Agreement will be for a barter value of services for $12.055.00. 2.2 After expiration of the terms of Section 2.1. services will be provided on a monthly billable program or the Ciient exercises the BUYOUT RIGHTS OF THE WEBSITE per Section 9.1 or until•361 Designs receives written notice of termination of services from the Client. 2.3 Template website design and hosting will not be charged during the setup phase, as defined in Schedule A. Hosting fees are the full responsibility of the Client after one (1) year of contract execution. 2.4 Setup fees are $0.00 for this project. 2.5 The actual services will be comprised of specified work tasks as defined in Schedule A and jointly decided on in meetings and conference calls, and will be performed at times satisfactory to both parties. SEC •N 3: COMPENSATION 3.1 This is a barter agreement. Therefore, there are minimal fees involved and the full amount of the project must be met by Client. Client is obligated to fully satisfy 361 Designs for the services rendered and if the barter is not fulfilled by the Client by any means, the difference in value of bartered services in Section 2.1 and services rendered are due by cash payment_ This Agreement is based on the following conditions: /1 rx1-116/ a. One (1) Template website design with a maximum of two (2) rounds of minor changes. See Schedule A. b. Import existing content provided by the customer but limited to a maximum of 15 pages & 15 pictures. c. Hosting fees is Client's responsibility, to be billed per Simplified Quote (see attachment). Any additional services rendered above and beyond the aforementioned conditions will be charged per the Fee Schedule. 3.2. Client agrees to provide 361 Designs the following: a. Ali services as quoted by Premier Remodeling per Schedule B. b. Any excess credits will be applied towards any miscellaneous projects as quoted by Premier Remodeling. 3.3. Payment of fees. in order for 361 Designs to provide superior customer support, payments must be made promptly. Delinquent bills may be assessed a $15 charge if payment is not received within 10 days of the due date. If an amount remains delinquent 30 days after its due date, an additional 1.5% penalty or $5 fee, whichever is greater, will be added for each month of delinquency. 3.4 Breach of contract is defined when any bartered services is not provided, which will result in the Client paying the full price of Section 2.1. 361 Designs reserves the right to remove web pages from viewing on the Internet until final payment is made. In case collection proves necessary, the client agrees to pay all fees incurred by that process. This also applies to 361 Designs' services. If 361 Designs does not provide the services as agreed in this contract. Client reserves the right to pursue collection on the difference of services used. 3.5 361 Designs is entitled to the following remuneration for expenses. Travel expense to the Client's location of business for developmental and consultation purposes will be charged at the rate of $0.50/mile. Training costs other than specified in Schedule A will be charged the hourly rate of $65.00 per hour. SECTION 4: TIME OF DEVELOPMENT 4.1 361 Designs and the Client must work together to complete the 212 Web Solution Development Services in a timely manner. The Client will provide 361 Designs with the necessary content for the Working Website Stage of the 212 Web Solution Development Services in electronic format (text in .txt, trni, or .doc format on floppy, e-mail or ftp retrievable, and alt photographs and other graphics will be ,crovided in .gif, ,jpeg or .png format) upon the signing of this contract or as otherwise and mutually agreed upon. Additional content will be provided in a timely manner by the Client as needed prior to each stage of the 212 Web Solution Development Services as described. in Section 8. 4.2 Any delays by the Client to provide the content for the 212 Web Solution Development Services and resulting in the expiration of the final completion date, 361 Designs reserves the right to terminate this contract and retain all fees paid or require payment from the Client for services rendered per the Fee Schedule. SECTION 5: DEFINITION OF WEBSITE MATERIALS 5.1 For this Agreement, Website Materials are defined as the text. images, audio and other material visible to a web browser and the software to implement the 212 Web Solution Development Services, the content of the website. and all programming and scripting source code. These Website Materials wilt be in electronic format including, but not limited to: .html, .bd. .gif, „peg, .php, .asp, and .jsp formats. 2 SF.-CT;ON 5: CONFIDENTIALITY OF WEBSITE MATERIALS eet 35 :Designs affirrns that all Website Materials, and other data provided.by the Client to 361 Designs be held in the strictest of confidence by 361 Designs. The Client agrees to do likewise in regards to ''este material, contracts. and other data provided to the Client by 361 Designs. SECTION 7: INTELLECTUAL PROPERTY Client represents to 361 and unconditionally guarantees that any elements of text, graphics, photos, desiges, trademarks. or other artwork furnished to 361 for inclusion in the project are owned by Client, or that Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect. and defend 361 and its subcontractors from any claim or suit arising from the use of such elements furnished by Client. 72 Client acknowledges that the Services including all applicable rights to patents. copyrights, trademarks and trade secrets inherent therein and appurtenant thereto, are the sole and exclusive property of 361 or Third Party Software vendors who have licensed such rights to 361. Client agrees and acknowledges that it is not purchasing title to the Codes. including open and closed source codes, third party software or code developed by 361 ('Programs"). Client is only being granted a license to use the Programs in accordance with the provisions of this Agreement. Client agrees that all rights, title and interest in the Services and Programs shall be deemed to vest and remain vested in 361, including, but not iirnited to, patents. copyrights, trade secrets and other intellectual property rights. 7.3 35.1 hereby grants to Ciient a non-exclusive, non -transferable. perpetual license to use the Programs, with the limitatioes set forth by third party software providers. Client may not use the Programs for any ege activity. 7.4 351 explicitly affirms that all copyrightable material created under this Agreement including, but not iimite.d to, the code implementing the user interface, the graphic images used on the project that are not rerovided by Client, and all custom scripts and programming, shall be deemed to be owned by 361. 7.5 361 retains the intellectual rights to display graphics and web design- elements and/or works in their portfolio and web designs. 7.5 361 Designs retains the right to display its logo or name on the completed website for credit on development of the website by having 361 Designs' logo, name and/or a link to 361 Designs' website stating 'Website Design and Web Hosting by 361 Designs" or "Powered by 361 Designsappear in small type at the bottomf each webpege. 7.7 Whereas the value of this Agreement. per Section 2.1, is fulfilled by both Client and 361 Designs, Client resumes full copyright ownership of the website. SECTION 3: SCHEDULE AND DELIVERY OF WESSITE MATERIALS 8.1 361 Designs will submit these materials to the Client by the date listed below for completion of each stage of t:le 212 Web Solution Development Services, or as otherwise and mutually agreed upon. sstatete Te..mplate Design Decision Template Customization 'Arorking Website Testing and Deployment Implementation Date December 2. 2011 December 12, 2011 January 3. 20112 January 23, 2012 Completion Date December 9, 2011 December 30. 2011 January 20, 2012 January 31, 2012 SECTO?, BUYOUT RIGHTS OF WEBSITE & RELATED MATERIALS The Oilent has the option to. buyout the website design for $1.00. This amount is due upon signing the *.Aretsite ov,riership Reiease Form. The Client will have full ownership rights to only the template website design. The Client understands that this template design is not unique and that it may exist elsewhere online or offline. N:c other programs. scripts, or materials belonging to 361 Designs mentioned here will be construed as )en2.part of the buyout thereof. SE_C.:TIONI IC: CONDITIONS. REPRESENTATIONS, AND WARRANTIES 10.1 THE SERVICES ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND vvi-kATSOEVER: EXPRESS OR IMPLIED. INCLUDING IMPLIED WARRANTIES OF MER.CHANTARILITY. FITNESS FOR A PARTICULAR PUR.POSE, NON-1NFRINGEMENT OR TITLE. 36'; IS NOT L;ABLE FOR: (1) ANY LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR (2) ANY INDIRECT. SPECIAL, INCIDENTAL, C.',ONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KlND (WCLUDING. LOST PROFITS) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CO \iTR.ACT. TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF 361 AS BEEI's ADVISED OF THE POSSIBILITY OF THESE DAMAGES, 361'S LIABILITY WILL NOT z407_1---..nr THE AMOUNT CUSTOMER PAID TO 361 .DURING THE 1 -MONTH PERIOD BEFORE THE ACTCN AROSE. CUSTOMER ACKNOWLEDGES THAT THESE LIMITATIONS ARE AN ESSENTIAL FLE-T OF THiS AGREEMENT AND ABSENT SUCH LIMITATIONS 361 WOULD NOT ENTER INTO TS AGREEMENT. SECTION 11: SCOPE OF AGREEMENT •: This Agreement is meant by the parties to be a final rendition of their agreement, and it constitutes ai: entire :inde7stanOing between the parties as to the subject of this Agreement. regardless of any statements: or agreements previously made. Amendments to this Agreement may be made only in a written document signed by both parties. S=CTION 12: TERMINATION 12.1 Agreement may be terminated by either party within five (5) business days by written notice to the other party once signed. !f this Agreement is terminated by either party before its originally intended expiration. the Client has the duty to remunerate 361 Designs at the rate established in Section 2.1. for senfIces rendered before the date of such termination. SFOTv'Al 13: GOVFRN1NG LAW 1:3.1 This agreement becomes effective only when signed by 361 Designs. Regardless of the place of sigrjng of this sgeernent the client agrees that for purposes of venue, this contract was entered into in Dei7 -,7-c-un'cy', Pennsylvania. and any dispute will be libgated or arbitrated in Dauphin County. 7--'ensyivania. This Acre.eme.nt is made, interpreted, and governed under the laws of the Commonwealth o t.%1SS' ereo. the paties t this Agreement have caused it to be duly executed on te day and year befev:-, 35 Designs, c. Authorized Signature Cent Authorized Signature 4 late Date Schedule A 1. he egree-mer.F. irc:udes. •bresentino the Client with 4 template designs. The Client will choose only d,re Jesign Fr compieticn of the project. 361 Designs will provide 2 rounds of minor chances to the -Ye-tsjte temoiate des:gn as we as implement the following functionalities: ratrq color scheme :a. Che.7-10iF.C. rro'Vteti0n ;71s CPPnt"=.1,-.Ngo (provided by Client in digital format) Ack2.nt-,. Client's o {Provided by C:ient) e. Newsletter Si .72:1 tip form Content Maneciement System to update website Poets ctc C-aliery Module e.outation Manacement (up to 6 hours) Ronai SEO services ($6.800/year) O ) ver cf Advance Plan hosting from date of contract execution ($24.95/month) `.;ontact 'js 07Ra-quest Quote form Cine r -aro Orine Business Directory Listing services (,$.575./year) • Ees or,s {1) postcard mailer for lead or referral generation purposes n_ One (.,1) year subscription to EZMail, maximum of 500 sends per montl, (.$15/month) c. One (I:. !.;,-..sur per month z meetng time to strategize on marketing removinc negati,ve posts about Premier Remodeling - not guaranteedto be removed & (i'penris on servics pro,&ier and poster (recoiling fee of $99innth. 45 minute iabor Ary additional wor;c will be billed per the Fee Schedule. 2. 1-s ao7eement includes -importing the Client's existing content to the new website. This will be limited +.0 e ni..77"pe' of oeges as specied in Section 3.1(0). Work as specified will not exceed 7 hours. Any be. bi:!ed Der the Fee Sched.ule. Schedule B Don Ulzheimer 1495. York Rd. Nkburg, PA 17019 C.4tii Chau Bathroom Proposal ::tPr Lan 1. Remove tub and rear wall 2. Remove plumbing and change to new wall 3. Change plumbing from underneath 4. install tub in between exterior and interior wall 5. Install cement board on walls where the is to be installed., 6.Install tile as chosen 7. lnstall new vim I floor - 8. Ppiace toilet 9. Replace vanity 11. Replace light :-- • r the sum of three thousand seven hundred 27,--,0,1•••• t fi r Bath 1. Rernov tub 2. nstall new tub 3.lnctall cement board where tile is to be installed • 4. Install tile as chosen 5.Install new vinyl floor 5_ Replace toilet 7. !,.enstail vanity - P surof three thousand two hundred dollars ($3,200) • 6 DONALD ULZHEIMER, an individual and doing business as PREMIER REMODELING Plaintiff VS QUI CHAU, an individual and d/b/a 361 Designs, Inc. and 361 Designs, Inc. Defendants : IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA :ACTION IN LAW AND EQUITY : NO.13-3449 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Complaint in the above captioned case was served upon the person, at the location and in the manner indicated below. Peter M. Good, Esq 3631 North Front Street Harrisburg, PA 17110 (first class mail) usan K. Pickf ID # 43093 3400 Trindle Road Camp Hill, PA 17011 (717)695-3294 (p) (717)695-3592 (f) Attorney for Plaintiff DONALD ULZHEIMER, an individual and doing business as PREMIER REMODELING Plaintiff IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA vs :ACTION IN LAW AND EQUITY QUI CHAU, an individual and d/b/a 361 Designs, Inc. and 361 Designs, Inc. Defendants TO: Qui Chau, Defendant NO.13-3449 IMPORTANT NOTICE DA'Z'E OF NOTICE: October 5, 2014 r CD n —i. r\1 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSE$ 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 PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY LAWYER REFERRAL SERVICES 32 South Bedford Street Carlisle, PA 17013 Telephone: 717-249-3166 san K. Pickfo : , Esq 3400 Trindle Road Camp Hill, PA 17011 (717)695-3294 43093 CERTIFICA'I E OF SERICE I hereby certify that I have served a copy of the foregoing Plaintiff's Notice of Intent to Dismiss on the persons and in the manner indicated below: Peter M. Good, Esquire 3631 North Front Street Harrisburg, PA 17110 (First Class Mail) Dated: October 5, 2014 san K. Pickford; ID# 43093 3400 Trindle Road Camp Hill, PA 17011 (717)695-3294 (o) (717)777-1210 (c) attorneypickford(?agmai 1. corn Attorney for Plaintiff Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (phone) (717) 232-2766 (fax) pgood@cklegal.net jmercy@cklegal.net Attorneys for Defendants OF HI= 'illiTHOi'lLITARY Hill Lk, t -8Pi I: 50 cUml3 FRI /MO COUNTY PEW-,'SY VANIA Peter M. Good, Esq. ID. No. 64316 Jessica E. Mercy, Esq. I.D. No. 206405 DONALD ULZHEIMER, an individual and d/b/a PREMIER REMODELING, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 13-3449 QUI CHAU, an individual, and 361 DESIGNS, INC., JURY TRIAL DEMANDED Defendants. NOTICE TO PLEAD TO: Susan K. Pickford, Esquire Pickford Law Office 3400 Trindle Road Camp Hill, PA 17011 Attorney for Plaintiff Donald U kheimer You are hereby advised to file a written response to the enclosed Defendants' Answer with New Matter and Counterclaim to Plaintiff's Amended Complaint within twenty (20) days from service hereof, or judgment may be entered against you. Dated: October 7 , 2014 By: Peter M. Good, Esquire — I.D. No. 64316 Jessica E. Mercy, Esquire — I.D. No. 206405 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 pgood@cklegal.net jmercy@cklegal.net Attorngsfor Defendants Caldwell & Kearns, P.C. 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (phone) (717) 232-2766 (fax) pgood@cklegal.net jmercy@cklegal.net Attorneys for Defendants Peter M. Good, Esq. ID. No. 64316 Jessica E. Mercy, Esq. ID. No. 206405 DONALD ULZHEIMER, an individual and d/b/a PREMIER REMODELING, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 13-3449 QUI CHAU, an individual, and 361 DESIGNS, INC., JURY TRIAL DEMANDED Defendants. DEFENDANTS' ANSWER WITH NEW MATTER AND COUNTERCLAIM TO PLAINTIFF'S AMENDED COMPLAINT AND NOW COMES, Defendants Qui Chau and 361 Designs, Inc. (hereinafter collectively referred to as "Defendants"), by and through their attorneys, Caldwell & Kearns, P.C., to file the following Answer with New Matter and Counterclaim to Plaintiff Donald Ulzheimer's (hereinafter "Plaintiff") Complaint, by averring as follows: 1. Admitted upon information and belief. 2. Admitted in part and denied in part. It is admitted that Defendant Qui Chau (hereinafter "Defendant Chau") is an adult individual. It is also admitted that at the time that this action was initiated Defendant Chau was residing in Cumberland County. However, as of the filing of this Answer with New Matter and Counterclaim, Defendant Chau is residing in Austin, Texas. By way of further answer, it is specifically denied that Defendant Chau was at any time doing business as Defendant 361 Designs, Inc. (hereinafter "Defendant 361"). Defendant 361 is a corporation that is separate and distinct from Defendant Chau, its sole shareholder. 3. Admitted. 4. Admitted in part and denied in part. The written contract dated November 18, 2011 between Defendant 361 and Plaintiff (hereinafter the "Contract") that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff's summaries, conclusions or characterizations made regarding that writing are specifically denied. By way of further answer, it is admitted that the Contract attached to Plaintiff's Amended Complaint as Exhibit "A" is a true and correct copy of the Contract entered into between Plaintiff and Defendant 361. 5. Denied. The Contract that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiffs summaries, conclusions or characterizations made regarding that writing are specifically denied. By way of further denial, the averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. In addition, Defendant Chau was not a party to the Contract and, therefore, was not required by the Contract to perform web design and maintenance services for Plaintiff's business. 6. Denied. The Contract that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiffs summaries, conclusions or characterizations made regarding that writing are specifically denied. 7. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. By way of further denial, it is specifically denied that Defendant Chau has mingled his personal interests with Defendant 361's interests. Defendant 361 is a corporation that is separate and distinct from Defendant Chau, its sole shareholder. 2 FIRST CAUSE OF ACTION BREACH OF CONTRACT AS AGAINST DEFENDANT 361 DESIGNS, INC. 8. This is an incorporation paragraph to which no response is required. 9. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. By way of further denial, it is specifically denied that Plaintiff performed his obligations under the Contract with diligence and quality workmanship. Rather, the only work performed by Plaintiff at Defendant Chau's personal residence was 29.5 hours of demolition and minor plumbing work on the master bathroom. Plaintiff did not complete the work on the master bathroom, Plaintiff did not complete first floor bathroom as contracted and Plaintiff did not perform the additional 86 hours of work at the rate of $60.00 per hour required to bring the value of his services to $12,055.00. In addition, the work performed by Plaintiff at Defendant Chau's personal residence was substandard and performed in an unworkmanlike manner. As a result, Defendant Chau was forced to hire a new contractor to complete the work that Plaintiff was required to perform under the Contract and to correct the defective work performed by Plaintiff. 10. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. By way of further denial, it is specifically denied that Plaintiff completed all items on Schedule B of the Contract and performed an additional 79.5 hours of work at Defendant Chau's request. To the contrary, Plaintiff did not complete the work on the master bathroom as required by Schedule B of the Contract, Plaintiff did not complete first floor bathroom as contracted as required by Schedule B of the Contract and Plaintiff did not perform any additional hours of work at the rate of $60.00 per hour as 3 required by the Contract to bring the value of his services to $12,055.00. In total, Plaintiff performed 29.5 hours of work at Defendant Chau's personal residence. The total value of the work performed by Plaintiff at Defendant Chau's residence, without taking into consideration the substandard and unworkmanlike nature of the work, was $1,770.00. 11. Denied. The Contract that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiff's summaries, conclusions or characterizations made regarding that writing are specifically denied. By way of further denial, Defendant Chau was not the only employee of Defendant 361 and Defendant Chau did not perform the website design, development and maintenance services for Defendant 361. Defendant 361 had a total of two employees and also utili7ed the services of approximately three to six subcontractors to perform its website design, development and maintenance services. 12. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. By way of further denial, Defendant 361 completed Plaintiff's website, performed all of the services on Schedule A of the Contract except for the regional SEO services and the design of one postcard mailer for lead or referral generation purposes and provided Plaintiff with approximately eighteen hours of additional content writing at a value of $85.00 per hour for a total value of $1,530.00. However, Plaintiff failed to respond to Defendant 361's request for information on SEO, mailing and marketing necessary to complete the remaining services on Schedule A of the Contract as set forth above and, therefore, the project could not be completed. 13. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded 4 at trial. By way of further denial, it is specifically denied that Plaintiff has attempted to contact Defendant 361 through Defendant Chau and that Defendant Chau has failed to respond. To the contrary, Defendant 361 attempted to contact Plaintiff on numerous occasions to obtain the information on SEO, mailing and marketing necessary to complete the remaining services on Schedule A of the Contract as set forth above and Plaintiff has failed and refused to respond to Defendant 361. 14. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. WHEREFORE, Defendants Qui Chau and 361 Designs, Inc. respectfully request that this Honorable Court dismiss Plaintiff Donald Ulzheimer's Complaint and enter judgment in their favor and against Plaintiff Donald Ulzheimer, together with any costs associated therewith. SECOND CAUSE OF ACTION BREACH OF CONTRACT AS AGAINST DEFENDANT QUI CHAU 15. This is an incorporation paragraph to which no response is required. 16. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. By way of further denial, it is specifically denied that Plaintiff performed his obligations under the Contract with diligence and quality workmanship. Rather, the only work performed by Plaintiff at Defendant Chau's personal residence was 29.5 hours of demolition and minor plumbing work on the master bathroom. Plaintiff did not complete the work on the master bathroom, Plaintiff did not complete first floor bathroom as contracted and Plaintiff did not perform the additional 86 hours of work at the rate of $60.00 per hour required to bring the value of his services to $12,055.00. In 5 addition, the work performed by Plaintiff at Defendant Chau's personal residence was substandard and performed in an unworkmanlike manner. As a result, Defendant Chau was forced to hire a new contractor to complete the work that Plaintiff was required to perform under the Contract and to correct the defective work performed by Plaintiff. 17. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. By way of further denial, it is specifically denied that Plaintiff completed all items on Schedule B of the Contract and performed an additional 79.5 hours of work at Defendant Chau's request. To the contrary, Plaintiff did not complete the work on the master bathroom as required by Schedule B of the Contract, Plaintiff did not complete first floor bathroom as contracted as required by Schedule B of the Contract and Plaintiff did not perform any additional hours of work at the rate of $60.00 per hour as required by the Contract to bring the value of his services to $12,055.00. In total, Plaintiff performed 29.5 hours of work at Defendant Chau's personal residence. The total value of the work performed by Plaintiff at Defendant Chau's residence, without taking into consideration the substandard and unworkrnanlike nature of the work, was $1,770.00. 18. Denied. The Contract that Plaintiff references is a writing which speaks for itself, and therefore, Plaintiffs summaries, conclusions or characterizations made regarding that writing are specifically denied. By way of further denial, Defendant Chau was not to perform and did not perform the website design, development and maintenance services for Defendant 361. Defendant 361 had a total of two employees and also utilized the services of approximately three to six subcontractors to perform its website design, development and maintenance services. 19. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a 6 response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. By way of further denial, Defendant Chau was not contractually or otherwise obligated to perform the services outlined on Schedule A of the Contract. In addition, Defendant 361 completed Plaintiffs website, performed all of the services on Schedule A of the Contract except for the regional SEO services and the design of one postcard mailer for lead or referral generation purposes and provided Plaintiff with approximately eighteen hours of additional content writing at a value of $85.00 per hour for a total value of $1,530.00. However, Plaintiff failed to respond to Defendant 361's request for information on SEO, mailing and marketing necessary to complete the remaining services on Schedule A of the Contract as set forth above and, therefore, the project could not be completed. 20. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. By way of further denial, it is specifically denied that Plaintiff has attempted to contact Defendant Chau and that Defendant Chau has failed to respond. Plaintiff has made no attempts to contact Defendant Chau and Defendant 361 attempted to contact Plaintiff on numerous occasions to obtain the information on SEO, mailing and marketing necessary to complete the remaining services on Schedule A of the Contract as set forth above and Plaintiff has failed and refused to respond to Defendant 361. 21. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. WHEREFORE, Defendants Qui Chau and 361 Designs, Inc. respectfully request that this Honorable Court dismiss Plaintiff Donald Ulzheimer's Complaint and enter judgment in their favor 7 and against Plaintiff Donald Ulzheimer, together with any costs associated therewith. THIRD CAUSE OF ACTION UNJUST ENRICHMENT AS AGAINST DEFENDANT QUI CHAU 22. This is an incorporation paragraph to which no response is required. 23. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. By way of further denial, it is specifically denied that Plaintiff provided Defendant Chau with two fully remodeled bathrooms including the replacement of tubs, vanities and toilets, re -plumbing, the removal of a wall and all of the other items identified on Schedule A of the Contract. Rather, the only work performed by Plaintiff at Defendant Chau's personal residence was 29.5 hours of demolition and minor plumbing work on the master bathroom. Plaintiff did not complete the work on the master bathroom, Plaintiff did not complete first floor bathroom as contracted and Plaintiff did not perform the additional 86 hours of work at the rate of $60.00 per hour required to bring the value of his services to $12,055.00. In addition, the work performed by Plaintiff at Defendant Chau's personal residence was substandard and performed in an unworkmanlike manner. As a result, Defendant Chau was forced to hire a new contractor to complete the work that Plaintiff was required to perform under the Contract and to correct the defective work performed by Plaintiff. 24. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. 25. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a 8 response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. By way of further denial, Plaintiff only performed 29.5 hours of work at Defendant Chau's personal residence, which has a total value of $1,770.00. In addition, the work performed by Plaintiff at Defendant Chau's personal residence was substandard and performed in an unworkmanlike manner, thereby decreasing the value of such work. 26. Denied. The averments of this paragraph contain conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments are specifically denied, with strict proof thereof demanded at trial. WHEREFORE, Defendants Qui Chau and 361 Designs, Inc. respectfully request that this Honorable Court dismiss Plaintiff Donald Ulzheimer's Complaint and enter judgment in their favor and against Plaintiff Donald Ulzheimer, together with any costs associated therewith. NEW MATTER 27. Defendants hereby incorporate by reference Paragraphs 1 through 26 of this Answer with New Matter and Counterclaim as if fully set forth herein. 28. Plaintiff's Amended Complaint fails to state a claim against Defendant 361 for breach of contract for which relief can be granted. 29. Plaintiff's Amended Complaint fails to of contract for which relief can be granted. 30. Plaintiff's Amended Complaint fails to enrichment for which relief can be granted. 31. Plaintiff's Amended Complaint fails to state a claim for the piercing of Defendant 361's corporate veil. Defendant Chau has not mingled his personal interests with Defendant 361's interests. Defendant 361 is a corporation that is separate and distinct from Defendant Chau, its sole shareholder. state a claim against Defendant Chau for breach state a claim against Defendant Chau for unjust 9 32. Plaintiffs claims are barred by the provisions of the Contract. 33. Plaintiffs claim for damages in the form of lost profits as set forth in the ad damnum clauses of the First Cause of Action and the Second Cause of Action of his Amended Complaint are barred by Section 10 of the Contract. 34. Plaintiffs claims may be barred, in whole or in part, by the doctrines of waiver and estoppal. 35. Plaintiffs claims may be barred, in whole or in part, by the doctrine of laches. 36. Plaintiffs claims may be barred, in whole or in part, by failure of consideration. 37. Plaintiffs claims may be barred, in whole or in part, by his failure to mitigate damages. 38. Plaintiffs claims may be barred, in whole or in part, by impossibility of performance. 39. Plaintiff and Defendant 361 entered into a written contract, the Contract, whereby Defendant 361 agreed to provide certain website design, development and maintenance services as set forth on Schedule A of the Contract with a total value of $12,055.00 and Plaintiff agreed to perform certain construction services at Defendant Chau's personal residence, which included remodeling the master bathroom at a value of $3,700.00, remodeling the first floor bathroom at a value of $3,200.00 and performing 86 hours of additional work at the rate of $60.00, all of which has a total value of $12,055.00. A true and correct copy of the Contract is attached to Plaintiffs Amended Complaint as Exhibit "A." 40. In accordance with the terms and conditions of the Contract, Defendant 361 completed Plaintiffs website, performed all of the services on Schedule A of the Contract except for the regional SE0 services and the design of one postcard mailer for lead or referral generation purposes and provided Plaintiff with approximately eighteen hours of additional content writing at a value of $85.00 per hour for a total value of $1,530.00. 41. Defendant was unable to complete the regional SE0 services and the design of one 10 postcard mailer for lead or referral generation purposes because Plaintiff failed to respond to Defendant 361's request for information on SEO, mailing and marketing necessary to complete such work and, therefore, the project could not be completed. 42. Defendant 361 attempted to contact Plaintiff on numerous occasions to obtain the information on SEO, mailing and marketing necessary to complete the remaining services on Schedule A of the Contract as set forth above and Plaintiff has failed and refused to respond to Defendant 361. 43. The only work performed by Plaintiff at Defendant Chau's personal residence was 29.5 hours of demolition and minor plumbing work on the master bathroom. 44. Plaintiff did not complete the work on the master bathroom as required by Schedule B of the Contract, Plaintiff did not complete first floor bathroom as contracted as required by Schedule B of the Contract and Plaintiff did not perform the additional 86 hours of work at the rate of $60.00 per hour required to bring the value of his services to $12,055.00. 45. In addition, the work performed by Plaintiff at Defendant Chau's personal residence was substandard and performed in an unworkmanlike manner. 46. As a result, Defendant Chau was forced to hire a new contractor to complete the work that Plaintiff was required to perform under the Contract and to correct the defective work performed by Plaintiff. 47. Section 3.1 of the Contract provides that Plaintiff "is obligated to satisfy [Defendant 361] for the services rendered and if the barter is not fulfilled by [Plaintiff] by any means, the difference in value of bartered services in Section 2.1 and services rendered are due by cash payment." 48. The total value of the work performed by Plaintiff at Defendant Chau's residence, without taking into consideration the substandard and unworkmanlike nature of the work, was $1,770.00. 49. The total value of the services provided to Plaintiff by Defendant 361 was $6,875.00. 11 50. The difference in the services rendered to Plaintiff by Defendant 361 and the bartered services provided by Plaintiff at Defendant Chau's personal residence is $2,465.00. 51. The total amount expended by Defendant Chau to correct the defective work performed by Plaintiff was $1,995.00. 52. Section 3.4 of the Contract provides that in the event collection proceedings are necessary, Plaintiff is required to pay all costs incurred by Defendant 361 in the collection process. WHEREFORE, Defendants Qui Chau and 361 Designs, Inc. respectfully request that this Honorable Court dismiss Plaintiff Donald Ulzheimer's Complaint and enter judgment in their favor and against Plaintiff Donald Ulzheimer, together with any costs associated therewith. COUNTERCLAIM Breach of Contract Defendant 361 Designs, Inc. v. Plainti Donald Ultiheimer 53. Defendants hereby incorporate by reference Paragraphs 1 through 52 of this Answer with New Matter and Counterclaim as if fully set forth herein. 54. Plaintiff and Defendant 361 entered into the Contract, whereby Defendant 361 agreed to provide certain website design, development and maintenance services as set forth on Schedule A of the Contract with a total value of $12,055.00 and Plaintiff agreed to perform certain construction services at Defendant Chau's personal residence, which included remodeling the master bathroom at a value of $3,700.00, remodeling the first floor bathroom at a value of $3,200.00 and performing 86 hours of additional work at the rate of $60.00, all of which has a total value of $12,055.00. 55. Plaintiff breached the Contract by: (1) only performing 29.5 hours of demolition and minor plumbing work on the master bathroom at Defendant Chau's personal residence; (2) not completing the work on the master bathroom as required by Schedule B of the Contract, Plaintiff did not complete first floor bathroom as required by Schedule B of the Contract and not performing the additional 86 hours of work at the rate of $60.00 per hour required to bring the value of his services to 12 $12,055.00; and (3) performing the work at Defendant Chau's personal residence in a substandard and unworkmanlike manner. 56. As a direct and proximate result of Plaintiff's breaches of the Contract, Defendant 361 suffered damages in the approximate amount of $4,460.00, plus attorneys' fees, costs and other incidental and consequential damages. WHEREFORE, Defendant 361 Designs and Defendant Chau respectfully request that this Honorable Court enter judgment in their favor and against Plaintiff Donald Ulzheimer in an amount less than $50,000.00, together with attorneys' fees, interest, the costs of this action and any such other relief that this Honorable Court deems reasonable and just. Respectfully Submitted, CALDWELL & KEARNS, P.C. Dated: October 7 , 2014 By: 13 Peter M. Good, Esquire — I.D. No. 64316 Jessica E. Mercy, Esquire — I.D. No. 206405 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 pgood@cklegal.net jmercy@cklegal.net Attorneys for Defendants VERIFICATI©N I, Qui Chau, individually and on behalf of 361 Designs, Inc., verify that the statements contained in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements therein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Date: 10100 LI Qui Chau, individually and on behalf of 361 Designs, Inc. DONALD ULZHEIMER, an individual and d/b/a PREMIER REMODELING, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 13-3449 QUI CHAU, an individual, and 361 DESIGNS, INC., JURY TRIAL DEMANDED Defendants. CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the foregoing Defendants' Answer with New Matter and Counterclaim to Plaintiffs' Amended Complaint on the following by depositing a true and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: Dated: October 1 , 2014 Susan K. Pickford, Esquire Pickford Law Office 3400 Trindle Road Camp Hill, PA 17011 CALDWELL & S, P.C. By: Peter M. Good, Esquire — I.D. No. 64316 Jessica E. Mercy, Esquire — I.D. No. 206405 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 pgood@cklegal.net jmercy@cklegal.net Attorneys for Defendants 6 DONALD ULZHEIMER, an individual and doing business as PREMIER REMODELING Plaintiff vs QUI CHAU, an individual and d/b/a 361 Designs, Inc. and 361 Designs, Inc. Defendants : IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA c, �' c :ACTION IN LAW AND EQUITY -r- -t, z.rn -4 :: NO.13-3449 PLAINTIFF'S ANSWER TO DEFENDANT CHAU AND DEFENDANT 361 DEISGN'S NEW MATTER AND COUNTERCLAIM AND NOW COMES, Plaintiff, by and through his attorney, Susan K. Pickford, Esq. and files the following Answer to New Matter and Counterclaim referencing Defendant's numbered paragraphs: NEW MATTER 27. Paragraph does not state an allegation of fact therefore no response required. 28. Denied. Defendant 361, in the person of Defendant Chau entered into a contract with Plaintiff. Plaintiff performed per the contract. Defendant 361, in the person of Defendant Chau breached the contract by failing to perform under schedule A thereof. Plaintiff set forth in his complaint the required elements of the cause of action for breach of contract. 29. Denied. Defendant states a conclusion for which no response is required. To the extent that a response is required, the averment is specifically denied. By way of further answer, Defendant Chau signed the contract with Plaintiff, gained personal benefit from the terms of the contract, is the sole shareholder of the defendant company 361 Design. Defendant Chau seeks to hide behind a corporate veil. Defendant Chau's actions pierced the corporate veil leaving Defendant Chau liable under the contract. A contract was entered into between Defendant Chau and Plaintiff. Defendant Chau failed to perform under the terms of the contract. The elements of breach of contract have been properly set forth in the complaint. 30. Denied. Defendant states a conclusion for which no response is required. To the extent that a response is required, the averment is specifically denied. By way of further answer, Defendant Chau received valuable home renovations at his personal residence in exchange for the web services that were to be performed by his company. The web services were not provided. The renovations were performed. Therefore, Defendant Chau received a benefit for which he provided no compensation. The elements of unjust enrichment have been properly set forth in the complaint. 31. Denied. Defendant states a conclusion for which no response is required. To the extent that a response is required, the averment is specifically denied. By way of further answer, piercing the corporate veil is not a cause of action but rather a factual determination of personal liability for corporate action. Specific factual allegations were properly plead in the Complaint. Defendant contracted for his company to provide a service in return for renovations to his personal home. Defendant is the sole shareholder of the company. The company is the alter ego of the Defendant. 32. Denied. Defendant states a conclusion for which no response is required. Defendant states a conclusion for which no response is required. To the extent that a response is required, the averment is specifically denied. 33. Denied. The party who has breached the contract may be liable for any damages reasonably flowing from the failure to perform the terms of the contract. 34. Denied. The averment states a conclusion of law to which no responsive pleading is required. To the extent that a response is deemed required, the averment is specifically denied, with strict proof thereof demanded at trial. 35. Denied. The averment states a conclusion of law to which no responsive pleading is required. To the extent that a response is deemed required, the averment is specifically denied, with strict proof thereof demanded at trial. 36. Denied. The averment states a conclusion of law to which no responsive pleading is required. To the extent that a response is deemed required, the averment is specifically denied, with strict proof thereof demanded at trial 37. Denied. The averment states a conclusion of law to which no responsive pleading is required. To the extent that a response is deemed required, the averment is specifically denied, with strict proof thereof demanded at trial. 38. Denied. The averment states a conclusion of law to which no responsive pleading is required. To the extent that a response is deemed required, the averment is specifically denied, with strict proof thereof demanded at trial. 39. Denied. The Contract referenced in this averment is a writing which speaks for itself, and therefore, Defendant's summaries, conclusions or characterizations made regarding that writing are specifically denied. 40. Denied. While Defendant's averment admits to breach of contract for failure to fully perform the required actions under Schedule A of the contract, Plaintiff denies that Defendant produced and published a working website per the contract terms. 41. Denied. To the contrary, Defendant Chau asked for referral letters to incorporate into these items and Plaintiff provided them. Plaintiff denies that he failed to provide necessary information and strict proof thereof is demanded at trial. 42. Denied. Plaintiff provided the information requested. Plaintiff denies that he failed to provide necessary information and strict proof thereof is demanded at trial. 43. Denied, Plaintiff performed work per the contract as well as several verbally requested upgrades demanded by Defendant Chau including but not limited to placing three different tubs at Defendant Chau's request and placing a ceramic floor where the contract called for vinyl per Defendant Chau's request. 44. Denied. Plaintiff performed the work required by the contract in addition to extras and add-ons personally requested by Defendant Chau. Plaintiff did in fact perform the additional hours required by the contract, many of which were performed in providing the upgrades and changes required by Defendant Chau. 45. Denied. The averment states a conclusion without specific factual basis to which no responsive pleading is required. To the extent that a response is deemed required, the averment is specifically denied, with strict proof thereof demanded at trial. By way of further answer, Plaintiffs work was of high quality and performance. Defendant Chau failed to claim poor workmanship until Plaintiff filed this suit. 46. Denied. Plaintiff is without sufficient information to respond to this allegation as any such information would be in the sole possession of Defendant Chau, therefore the allegation is specifically denied and strict proof is demanded at trial. 47. Denied, the Contract that Defendant references is a writing which speaks for itself and therefore, Defendant's summaries, conclusions or interpretations made regarding that writing are specifically denied. 48. Denied. Plaintiff performed his obligation under the contract in a professional manner and therefore the value of the work is the value of the contract, $12,055.00. 49. Denied. The averment appears to admit breach of the contract by Defendant 361 if the value of services rendered to Plaintiff is averred as being $6,875.00 when the contract price is $12,055.00. However, Plaintiff specifically denies that the value received by him totaled $6,875.00 inasmuch as he received no workable website and, therefore strict proof is demanded at trial. 50. Denied. The averment states a conclusion based upon opinion and therefore requires no response. In the event a response is required, Plaintiff specifically denies the allegation and strict proof is demanded at trial. 51. Denied. Plaintiff is without knowledge of facts averred by Defendant as said facts are in the sole possession and knowledge of Defendant. Plaintiff specifically denies the allegation and strict proof is demanded at trial. 52. Denied, the Contract that Defendant references is a writing which speaks for itself and therefore, Defendant's summaries, conclusions or interpretations made regarding that writing are specifically denied. By way of further answer, this is not a 'collection' action brought by Defendant. WHEREFORE, Plaintiff respectfully requests this Honorable Court dismiss Defendants' New Matter. COUNTERCLAIM Breach of Contract Defendant 361 Designs, Inc. v PlaintiffDonald Ulzheimer 53. Plaintiff hereby incorporates by reference Paragraphs 27 through 52 of this Answer to New Matter and Counterclaim as if fully set forth herein. 54. Denied. The Contract that Defendant references is a writing which speaks for itself and therefore, Defendant's summaries, conclusions or interpretations made regarding that writing are specifically denied and strict proof thereof is demanded at trial. 55. Denied. Plaintiff performed under the terms of the contract as outlined in Schedule B including two fully remodeled bathrooms as well as a number of upgrades and changes verbally demanded by Defendant Chau. Plaintiff performed the required additional hours of labor which included, but were not limited to, changing out the bathtub three times per Defendant Chau's direction, installing tile in place of the vinyl called for in the contract. 56. Denied. The averments states a conclusion without factual basis to which no responsive pleading is required. To the extent that a response is deemed required, the averment is specifically denied, with strict proof thereof demanded at trial. VERIFICATION I, Donald Ulzheimer, hereby state that I have read the foregoing Plaintiffs Answer to Defendant's Counterclaim and the statements set forth therein are true and correct to the best of my knowledge, information and belief. Further I understand that this Verification is made subject to the penalties of 18 Pa.C.S. §4904, which relates to unsworn falsification to authorities. Date: l 0/ 24-- lY )6*840(Z C rue -s4;4.1 DONALD ULZHEIMER DONALD ULZHEIMER, an individual and doing business as PREMIER REMODELING Plaintiff vs QUI CHAU, an individual and d/b/a 361 Designs, Inc. and 361 Designs, Inc. Defendants : IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA :ACTION IN LAW AND EQUITY : NO.13-3449 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Answer to New Matter and Counterclaim in the above captioned case was served upon the person, at the location and in the manner indicated below. Peter M. Good, Esq 3631 North Front Street Harrisburg, PA 17110 (first class mail) Date 7/99/q usan K. Pi ID # 43093 3400 Trindle Road Camp Hill, PA 17011 (717)695-3294 (p) (717)695-3592 (f) Attorney for Plaintiff