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HomeMy WebLinkAbout13-4891 Supreme Co.. — ennsylvania a . Cour ofe�Commo° -Pleas For Prothonotary Use Only; Ct il Caver�S eet ' r Docket No: r/l County The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service ofpleadings or other papers as required by 1mv or rules of court. Comwtneement of Action: .1 Complaint D Writ of Summons Petition E � Transfer from Another Jurisdiction � Declaration of Taking C Lead Plain iff's Name: Lea efendant's Name: c a Dollar Amount Requested: within arbitration t A16 l I Are money dama requested. Yes El No j O �/ (check one) Doutside arbitration N Is this a Class Action Suit? 0 Yes � No Is this an MDJAppeal? [I Yes - i io 1�. Name of Plaintiff /Appellant's Attorney: X. 49 D Check Isere if you have no attorney (are a Self - Represented [Pro Sel 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 you consider most important. TORT (do not include flklass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS El Intentional F1 Buyer Plaintiff Administrative Agencies 0 Malicious Prosecution D D ebt Collection: Credit Card © Board of Assessment D Motor Vehicle � eb Collectig�: ther D Board of Elections D Nuisance d / & D Dept. of Transportation D Premises Liability jf� D Statutory Appeal: Other S D Product Liability (does not include E mass tort) Q Employment Dispute: Y D Slander/Libel/ Defamation Discrimination C D Other: 11 Employment Dispute: Oter 1] Zoning Board T D Other: I D Other: O MASS TORT 1-1 Asbestos N D Tobacco r Toxic Tort - DES D Toxic Tort - Implant REAL PROPERTY Fl Toxic Waste MISCELLANEOUS Q Other: D Ejectment D Common Law /Statutory Arbitration B Q Eminent Domain /Condemnation D Declaratory Judgment Q Ground Rent D Mandamus D Landlord /Tenant Dispute D Non - Domestic Relations Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY D Mortgage Foreclosure: Commercial D Quo Warranto D Dental D Partition © Replevin 0 Legal © Quiet Title D Other: D Medical D Other: Other Professional: Updated 1/1/2011 JAMES ANDERSON, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA -, c C _ CIVIL ACTION — LAW V V. NO. 13 - r C— =� c_-, PREMIER SIDING AND ROOFING OF PA, L.L.C., -�cW,� Defendant NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this amended complaint and notice are served by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the 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 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 YOU LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED RATE OR NO FEES. CUMBERLAND COUNTY BAR ASSOCIATION 34 S. Bedford Street Carlisle, PA 17013 X03 Telephone No. (717) 249 -3166 ✓ c%�1G7 JAMES ANDERSON, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. No. .13 -'VOI CIVIL PREMIER SIDING AND ROOFING OF PA. LLC, CIVIL ACTION — LAW Defendant COMPLAINT Parties 1. Plaintiff is James Anderson (hereinafter, "Anderson "), an adult individual residing at 1616 Lowell Lane, New Cumberland, Cumberland County, Pennsylvania 17070. 2. Defendant is Premier Siding and Roofing of PA, LLC (hereinafter, "Premier "), a limited liability company organized under the laws of the Commonwealth of Pennsylvania, with an address at 152 South Hanover Street, Carlisle, Cumberland County, Pennsylvania 17013. Factual Background 3. Premier is a limited liability company involved in the business of exterior remodeling following wind and hail damage, serving residential customers subject to applicable insurance coverages. 4. On or about February 28, 2012, Anderson was hired as an independent contractor by Premier (see, copy of Independent Subcontractor Agreement appended to this Complaint) (hereinafter, "Agreement ") for the purpose of performing, inter aJ inspection of the home; /////////��� ohn �err PC meeting with the homeowner; assessing wind and hail damage; meeting with insurance agent v 5020 Ritter Road State 104 and inspecting roof; measuring the house; and ordering actual materials. MCCharliCSburg. PA 17055 Pliorie: 717.766.4008 FAx: 717.766.4066 5. Pursuant to said Independent Subcontractor Agreement, Anderson was to receive compensation in accordance with paragraph 7 of the Agreement, to wit• forty (40 %) percent of the overall profit for each job after the last check for the particular job is collected and the funds cleared the bank. 6. On or about October 19, 2012, Anderson was terminated from his independent subcontractor position. Based upon information and belief, Plaintiff Anderson is of the belief that it is the custom and practice of Premier to pay proper compensation for the small jobs and to breach its duty on the larger jobs, terminating those subcontractors to whom it owes significant commission income. Such custom and practice amounts to deceptive practices and fraud. 7. Defendant Premier has caused various material misrepresentations to be made to Anderson, or engaged in deceptive practices, including, but not limited to the following: a) Following Anderson's termination on October 19, 2012, Plaintiff Anderson communicated by e-mail with Dave Myers, Premier's servant and agent. On February 6, 2013, Myers wrote to Plaintiff Anderson, stating, inter al_a "... [t]here are a few jobs that I guess will never close. Either way all that can be collected has been collected.... I'm working on getting you all paid off and it's [sic] one of my top priorities right now. Your last check will be for all that is owed. I should be able to get that to you in a week or so." (emphasis added) (see, copy of e-mail transmission appended to Complaint). In fact, Premier did not pay Anderson for all that he was owed. b) Servants and agents of Premier have told subcontractors that to keep the homeowner happy, the subcontractor will need to forego commission payments, as Premier will permit the homeowner to keep the final payments from the insurance company. In fact, Premier has sued the homeowners for their final payments and not paid the subcontractor commissions due under terms of the Agreement. This Was the case with homeowner Mary Heimbuck. c) Premier has adopted a custom and practice whereby it arbitrarily pays twenty -five (25%) percent or thirty (30 %) per cent of the job's profit — instead of the Y v olin �err PC contractually- mandated forty (40 %) — stating that the subcontractor did not retrieve 5020 Ritt er Road the final check, when there is no contractual obligation for the sub - contractor to Suite 104 pick up such check. Mechanicsburg, PA 17055 Riom: 717.766.4008 FAx: 717.766.4066 d) Premier has utilized a custom and practice whereby it hoards all relevant documents (i.e., job closeout worksheets) needed by a subcontractor in order to determine the amount of commission contractually owed. Consequently, the subcontractor is not aware of the precise amount owed. 8. As of the date of the filing of this Complaint, Plaintiff Anderson is owed on the following jobs: Name Contract Amount Job Status a) Solomon Weinberg $25,784.21 closed by Anderson on 10/04/12 b) Paul Kitzer $29,101.87 closed by Anderson on 10/15/12 c) Erin Evans $9,514.26 closed by Anderson on 09/21/12 d) Bruce Clash $28,062.01 closed 10/31/12 e) Ron Eyler $26,319.68 closed 10/31/12 f) Shireman unknown closed g) Mahood unknown closed h) Sargeant unknown closed i) Tiffany Olmstead unknown closed 9. Based upon information available to Plaintiff Anderson he is owed at least $33,780.91 exclusive of interest at the legal rate. 10. In addition to the foregoing, Plaintiff Anderson was paid on the following jobs at the commission rate of thirty (30 %) percent, rather than the contractually mandated forty (40 %) percent: a) Ron Worhach — paid 12/09/12 b) Richard Cucinotta — paid 12/09/12 /////////��� c) Ken Smith — paid 12/09/12 ohn Kerr aw PC 0 5020 Ritter Road Suite 104 d) Jed Moore — paid 12/09/12 Mechanicsburg, PA 17055 P11oNF: 717.766.4008 Fwc: 717.766.4066 e) Donnalynn Evans — paid 01/14/13 f) Jean Kline — paid 01/14/13 g) Judy Brough — paid — 02/01/13 COUNT I — BREACH OF CONTRACT 11. The factual allegations set forth at paragraphs 1 -10 are incorporated by reference, as if fully set forth in their entirety. 12. Defendant Premier is liable in damages for breach of the Independent Subcontractor Agreement because it has failed to remit the compensation due Plaintiff Anderson under paragraph 7(A) of said Agreement. 13. As set forth at paragraphs 8 -10 of the Complaint, Defendant Premier owes Plaintiff Anderson at least the sum of $33,780.91, exclusive of interest at the legal rate. 14. In order to more completely quantify such damages, Plaintiff Anderson requires the job close -out worksheets for the nine jobs identified at paragraph 8 a) -i) ). These are in the exclusive possession of Defendant Premier. As stated at paragraph 7d), it has been Premier's custom and practice to deprive Plaintiff Anderson of such information. WHEREFORE, Plaintiff Anderson requests that judgment be entered in favor of himself and against Premier in the amount of at least $33,780.91, plus taxable costs; interest at the legal rate; and attorneys' fees. COUNT II — QUANTUM MERUIT (UNJUST ENRICHMENT) 15. The factual allegations set forth at paragraphs 1=10 are incorporated by reference, as if fully set forth in their entirety. 16. Plaintiff Anderson's work, in performing the duties more particularly identified at paragraph 4 of the Complaint above, resulted in a benefit to Defendant Premier, for which Y l r ohn J<err .4aw. PC 5020 Miter Road Plaintiff Anderson has not been properly compensated. Suite 104 McChanlcsbtug, PA 17055 PKoNE: 717.766.4008 17. In order to avoid being unjustly enriched, Plaintiff Anderson requests that Defendant Fm: 717.766.4066 Premier be required to pay over at least the sum of $33,780.91. WHEREFORE, Plaintiff Anderson requests that judgment be entered in favor of himself and against Defendant Premier in the amount of least $33,780.91, plus taxable costs; interest at the legal rate; and attorneys' fees. COUNT III — COMMON LAW FRAUD 18. The factual allegations set forth at paragraphs 1 -10 of the Complaint are incorporated by reference, as if fully set forth in their entirety. 19. Defendant Premier, through its servants and agents, caused various material misrepresentations to be made to Plaintiff Anderson. 20. Defendant Premier intended that these material misrepresentations would induce Plaintiff Anderson to act to his detriment. 21. In fact; Plaintiff Anderson did rely on such misrepresentations to his detriment and suffered financial harm as a result. WHEREFORE, Plaintiff Anderson requests that judgment be entered in favor of himself and against Defendant Premier in the amount of at least $33,780.91, plus taxable costs; interest at the legal rate; and attorneys' fees. Respectfully submitted, John . Kerr, Esquire Attorney I.D. #26414 o PC John Kerr Law P.C. err a��, 5020 Ritter Road 5020 Ritter Road - Mechans burg, PA 17055 Suite 104 Riow: 717.766.4006 M FAx: 717.766.4066 g, PA 17055 (717) 766 -4008 Dated: August 15, 2013 VERIFICATION The undersigned, James Anderson, hereby states that he is the Plaintiff in the foregoing civil action and, as such, is authorized to execute this Verification, and that any factual statement contained in the preceding Complaint is true and correct to the best of his knowledge, information and belief. He understands that false statements are subject to the penalties prescribed at 18 Pa.C.S. §4904. relating to unsworn falsification made to authorities. James Anderson PREMIER 152 South Hanover Street Carlisle, PA 97013 INDEPENDENT SUBCONTRACTOR AGREEMENT THIS INDEPENDENT SUBCONTRACTOR AGREEMENT (the "Agreement ") is made and entered into as of 201 (the "Effective Date ") by and between Premier Siding & Roofing of PA, LLC (the "Company") and (hereafter referred to as "Independent Subcontractor "). RECITALS WHEREAS, the Company is in the business of exterior remodeling; WHEREAS, the Independent Subcontractor has experience in the areas of sales, exterior remodeling and/or marketing and desires to perform such work for the Company on an independent subcontractor basis; WHERAS_ the Independent Subcontractor is not bound by any agreement, oral or written, that restricts its ability to associate with the Company; WHEREAS, the parties have agreed to associate themselves, for their mutual benefit and convenience, pursuant to which the Company shall retain the Independent Subcontractor to perform sales, exterior remodeling and/or marketing services, according to the terms of this Agreement NOW, THEREFORE, in consideration of the mutual promises and undertakings set forth below, the parties covenant and agree as follows: 1.1 ENGAGEMENT. The Company agrees to engage Independent Subcontractor during the Term specified in Paragraph 2 hereof and Independent Subcontractor agrees to accept such engagement, upon the terms and conditions hereinafter set forth. Company hereby retains Independent Subcontractor to provide and undertake the duties and responsibilities as more fully described below in Paragraph 3. TERM. Subject to the terms and conditions of this Agreement, Independent Subcontractor's engagement by the Company may be terminated by the Company at any time. 3 Z DUTIES AND RESPONSIBILITES. The parties intend that in the performance of Independent Subcontractor's duties specified hereunder, Independent Subcontractor shall be acting as an independent subcontractor for the Company. Independent Subcontractor shall exercise its sole discretion for the manner and method required to perform the work in accordance with the Company's policies and procedures that include, but are not limited to: any Local, State, and Government agencies that govern Independent Subcontractor's duties, as such may be amended and restated from time to time. Subject to the terms herein the parties agree that the following provisions govern the performance of Independent Subcontractor's services hereunder but are not limited to: (A) Working with customers; (B) Working with insurance companies; CO l and I.S.C( 1 acknowledge receipt of a copy of this page OP70 pages 1 We've got you covered ... literally! PREMIER 152 South Hanover Street Carlisle, PA 17013 (C) Working with insurance representatives; (D) Working with independent insurance adjusters; (E) Working with other independent contractors and /or subcontractors; (F) Submitting all contracts documents and transactions to the Company within 48 hours: (G) Independent Subcontractor shall devote its best efforts, talents, abilities, skills, and experience to the performance of its obligations under this Agreement; (H) Independent Subcontractor shall maintain a separate set of books and records for Independent Subcontractor's income, expenses, and all customer information and (1) Perform its duties in accordance with the Company's policies and procedures, and in compliance with ALL federal, state, and local laws, rules, and regulations applicable to the Company or the Company's services. INDEPENDENT SUBCONTRACTOR TO MA CERTAIN FILINGS. _. Independent Subcontractor is responsible for, and shall make all required filings, payments and deposits with the Internal Revenue Service for income tax withholding and Social Security and obtain such business licenses as may be required for Independent Subcontractor's activities at its sole and absolute expense. The Company has not, is not, and shall not be obligated to make, and it is the sole responsibility of Independent Subcontractor to make, all periodic filings and payments required to be made in connection with any withholding taxes, FICA taxes, federal unemployment taxes, and any other international, federal, state or local taxes, payments or filings required to be paid, made or maintained in connection with all payments made to Independent Subcontractor by the Company. It is understood that the Company will not withhold any amounts for payment of taxes from the Compensation of the Independent Subcontractor hereunder. The Company has not, will not, and shall not be obligated to provide Workers' Compensation or medical insurance for Independent Subcontractor. The Company has not, will. and shall not be obligated to provide any minimum compensation, vacation pay, sick leave, or any other fringe benefit to Independent Subcontractor. Any and all sums subject to deduction's, if any, required to be withheld and /or paid under any applicable federal, state, or municipal tax regulations shall be Independent Subcontractor's sole responsibility and Independent Subcontractor shall indemnify and hold Company harmless from any and all damages, claims and expenses arising out of or resulting from any claims asserted by any taxing authority as a result of or in connection with said payments. S.) RELATIONSHIP OF PARTIES. Nothing contained herein or in any document executed in connection herewith, shall be construed to create an employer - employee partnership or joint venture relationship between the Company and the Independent Subcontractor and neither party shall have the authority to contract for or to bind the other. Independent Subcontractor is an independent contractor and not an employee of the Company or any of its subsidiaries or affiliates. The consideration set forth in Paragraph 7 shall be the sole consideration due Independent Subcontractor for the services rendered hereunder. Independent Subcontractor will not represent to be or hold himself/herself out as an employee of the Company. BACKGROUND CHECK. Independent Subcontractor expressly permits Company to perform a background check on it once every six months. Independent Co ( l and I.S.C( ) acknowledge receipt of a copy of this page OF70- Pages I '� 2 We've hot you covered ... liternllvf _ PREMIER 152 South Hanover Street Carlisle, PA 17013 Subcontractor agrees to report to Company, within 30 days any criminal conviction or being found guilty of, or entering into a plea of nolo contendere, or guilty to, regardless of adjudication. CO MPENSATIO N_ In consideration for the services rendered by Independent Subcontractor hereunder, the Company shall pay Independent Subcontractor in accordance with the schedule of payment as specified in this Paragraph. The Compensation shall be the sole compensation for the services rendered as part of this Agreement unless otherwise previously agreed to in writing by both Parties. (A) Independent Subcontractor will be paid forty percent (40 %) of the overall profit for each job that is completed. For example: (These prices change from job to job and are just used as an illustration.) Commission Example: $15,000.00 = Total contract price - $250.00 = Coupon - $4.500.00 = Cost of all Materials - $4,200.00 = Cost of all Labor - $1,500.00 = Ten percent (10 %) for Overhead (pays for the following, but not limited to all office supplies, phones, flyers, signs, magnets, contracts authorization forms, shirts, advertising, rent, utilities, insurance, workers compensation, etc.) $4,550.00 = Total job profit *0.40 = Times commission percentage (40 %) $1,820.00 = Independent Subcontractor commission (B) Independent Subcontractor will be compensated after the last check of a particular job is collected and funds have cleared with the Company's financial institution. For example, if the total contract price is $15,000.00, Independent Subcontractor must collect the entire $15,000.00 before compensation can be received. (C) Draws are any money given to an Independent Subcontractor before a job is closed. which will be deducted out of the next payment to Independent Contractor. Draws are given at the discretion of Company. COMMITMENT TO NOT CAUSE DAMAGE. Company does not condone any fraudulent business practice . In dealing with damage or insurance recovery work, all Independent Subcontractors must not ever make false statements to insurance companies, or anyone else. A homeowner must be the only one to ever file an insurance claim. In no way may an Independent Subcontractor, or anyone else, be allowed to claim it is a representative (only a licensed lawyer can do this) or acting as a public adjuster (which must also be licensed by the state) on behalf of the homeowner. If the homeowner requests an inspection of a roof, you may, but by no means does that mean you are ever justified in causing any damage to the homeowner's property. The Company has a zero tolerance policy regarding damage to property and any such actions by the Independent Subcontractor will cause the Company to immediately terminate this Agreement. When the insurance adjuster is there to help look for anything that might be wrong with the roof, you may express an opinion, but only the insurance adjuster will Co ( l and I.S.C( ) acknowledge recolpt of a copY of this P& go OF10 panes 3 We've got you covered ... literally! - - � c � PREMIER 152 South Hanover Street Carlisle, PA 17013 make the official decision on what is damage and what is not. You may have your own opinion about things and can express them, but remember they are just your opinions. The Company does not condone any kind of misrepresentation. If a homeowner asks you to submit or fax contracts to insurance companies, they must accurately reflect what was actually done, what was charged, and what was actually paid. If a customer, other contractor, GC, etc. ever asks you to do anything misleading or unethical to an insurance company you should always report it immediately to the Pennsylvania Department of Labor and Industry at t ✓ 1,,rd 1J. Sltai `Le. 0ci . 'Us, and to the Company's area supervisor . By signing this Agreement, Independent Subcontractor understands and agrees that it and its employees must always act as in a respectable and ethical manner. CO MMITM E NT TO WORKPLACE SAFETY. The Independent Subcontractor must comply with all Occupational Safety and Health Administration ( "OSHA ") rules and regulations, which can be found at , along with all applicable state and municipal laws, regulations and rules. Company is committed to workplace safety and DOES NOT condone any unsafe business practices. Company only contracts with Independent Subcontractors that follow and comply with all OSHA standards, and other applicable laws. It is also agreed and understood that Independent Subcontractor will control and supervise its employees and workers on each job site. In addition, Independent Subcontractor agrees as follows: 1. Independent Subcontractor has reviewed and is familiar with all OSHA standards, rules, regulations and guidelines; 2. Independent Subcontractor has visited the :. , . c . web site; 3. Independent Subcontractor has developed and implemented a safety plan; 4. Independent Subcontractor provides all required safety equipment to its employees and will ensure that each of its employees properly utilizes all safety equipment; and 5. Independent Subcontractor will, at all times, comply with all OSHA standards while working on any and all Company job sites. 6. Independent Subcontractor will visit the following link regarding training and certification By signing this Agreement, Independent Subcontractor agrees that it has read. understands, and agrees to comply with this Agreement and Independent Subcontractor is acknowledging responsibility for all individuals under Independent Subcontractor's employ, and that Company carries no responsibility for Independent Subcontractor's employees. 10. LEAD BASED PAINT. Independent Subcontractor must comply with all of the EPA Lead Based Paint rules and regulations, which can be found at :.:... ;,; a.`o .;`;ea,I! along with all applicable state and municipal laws, regulations and rules. Company is committed to workplace safety and DOES NOT condone any unsafe business practices- Company only contracts with parties that follow, and comply with all EPA Lead Based Paint standards, and other applicable laws. It is also agreed and understood that Independent Subcontractor will control and supervise its employees and workers on each job site. CO ( l and 1.3.C( ) acknowledge receipt of a copy of this PASO OF10 pa900 4 We've got you covered... literally! PREMIER 152 South Hanover Street Carlisle, PA 17013 In addition, Independent Subcontractor agrees as follows: 1. Independent Subcontractor has reviewed and is familiar with all EPA requirements for lead based paint abatement for known hazards, inspection and risk assessment including the rules, regulations and guidelines on lead abatement, cleanup, risk assessment, and remodeling and renovations. 2. Independent Subcontractor has visited the web site; 3. Independent Subcontractor has developed and implemented a safety plan; 4. Independent Subcontractor provides all required safety precautions to its employees and will ensure that each of its employees take the proper precautionary steps; and 5. Independent Subcontractor will, at all times, comply with all EPA lead- safety rules and lead -safe work practices while working on any and all Company job sites. 11.) EXPENSES. Company shall not be responsible for the payment of any expenses of the Independent Subcontractor. 12.) NOTIFICATION OF INJURY OR DAMAGE. Independent Subcontractor shall promptly notify Company of any injury, illness, death, loss, or damage to persons, animals, or property which is in any way related to the work perfonned under this Agreement, even if such occurrence was not caused or contributed to by Independent Subcontractor or its employees. Independent Subcontractor agrees that the Company is not liable for any accidents or mishaps that occur while Independent Subcontractor is engaged in working under this Agreement as Company will not direct, supervise or control the activities of the Independent Subcontractor. 13.) LIMITATION ON AUTHORITY. Independent Subcontractor shall not have any authority to make contracts in the name of the Company or binding on Company or to pledge Company credit or to extend credit in Company's name or to represent that Independent Subcontractor has authority to bind Company to any other obligation of any nature or to ever except payment from a customer or insurance company in any other name but Company's. 14.) STANDARD OF PERFORMANCE. Unless otherwise agreed to by the Company in advance in writing, Independent Subcontractor shall not assign or delegate its duties and obligations to perform the services under this Agreement. Independent Subcontractor shall perform the services with the standard of care, skill competence and diligence normally provided by professionals in the performance of similar services. 15.) INSURANCE AND INDEMNIFICATION. (A) The Independent Subcontractor shall provide and maintain adequate Workers' Compensation insurance coverage and commercial general liability and automobile liability insurance coverage covering it and Company, and any of their respective employees and agents (the "Additional Insured's ") and the general public at a combined minimum limit of no less than $50,000.00 per occurrence. (B) Independent Subcontractor shall indemnify, hold harmless and defend, Company, its affiliates, directors, officers and agents (collectively the "Indemnities ") against and from: (i) any and all claims, losses and costs including attorney's fees arising out of or resulting from or in connection with the performance or nonperformance of the work under this Agreement that is alleged to be directly or indirectly caused in whole or in part, by any act, omission, default or negligence of Independent Subcontractor; (ii) the failure of Independent CO ( ) and 1.3-CJ ) acknowlsdos recslPt of s COPY Of this Paga OF10 paps: 5 We've got you covel•ed...literally! PREMIER 152 South Hanover Street Carlisle, PA 17013 Subcontractor to comply with any provision of this Agreement; (iii) any violation of law or regulation by Independent Subcontractor; and! or (iv) fraud, misrepresentation, willful misconduct or gross negligence on the part of Independent Subcontractor. Independent Subcontractor acknowledges that it is not covered raider Company's Workers' Compensation or medical insurance policy or any other employment benefit plan of the Company, and Independent Subcontractor must maintain its own Workers' Compensation or medical insurance policy at its own expense to cover any injuries or illnesses while performing the specified duties under this Agreement. (C) V Company has the right to terminate this Agreement at any time, without notice. (D) In addition to the indemnification Independent Subcontractor provides the Company pursuant to this Paragraph, Independent Subcontractor agrees to completely indemnify and hold the Company harmless from and against any costs, fees, expenses, liabilities or penalties associated with any withholding taxes, FICA taxes, federal unemployment taxes, and any other federal, state or local taxes, payments or filings required to be paid, made or maintained in connection with any payments made to Independent Subcontractor by the Company. 16.)_ OWNERSHIP OF CONFIDENTIAL INFORMA Independent Subcontractor acknowledges and agrees that it has and will acquire and make use of certain Confidential Information (defined below) of Company. To protect the Confidential Information, Independent Subcontractor shall at all times, both during and following the Term of this Agreement hold in confidence and shall not disclose, use or otherwise exploit for Independent Subcontractor's own benefit, or the benefit of any other person or entity, the Confidential Information, except in connection with the performance of this Agreement. 17.,E CONFIDENTIAL INFORMATION DEFINED. For purposes of this Agreement, "Confidential Information" means confidential information and trade secrets of Company or any of its affiliates or clients, marketing programs, plans and strategies, manuals, computer- related materials developed or used by Company or any of its affiliates or clients, formulae, processes, designs, techniques and other data and Information, all of which are treated by Company or any of its affiliates or clients as confidential and proprietary and which are not generally known to the public. Confidential Information includes any of the foregoing that is acquired by Company. Notwithstanding the foregoing, Confidential Information shall not include: (A) information that was known to Independent Subcontractor as evidenced by Independent Subcontractor's written records dated as of the date hereof other than through Independent Subcontractor's association with Company, but only if such source did not disclose such information in violation of a duty of nondisclosure or confidence owed directly or indirectly to Company; (B) information that is a matter of public knowledge through no fault of Independent Subcontractor; and (C) information that is approved for release by Company. 18.) NON - COMPETITION AND NON - SOLICITATION. (A) Independent Subcontractor agrees that during Agreement and for a period of two (2) years after the termination of this Agreement (the "Restricted Period "), for any reason, Independent Subcontractor will not, either directly or indirectly, alone or in concert with others, in any way solicit or entice any associate, consultant, or employee of Company to leave Company to work for any person or entity in competition with Company or any of its affiliates. Also, Independent Subcontractor agrees that during this Agreement and the Restricted Period, GO i l and I.E.C( 1 acknowledge receipt of a copy of this page OF10 papas 6 We've got you covered... literally! PREMIER 152 South Hanover Street Carlisle, PA 17013 Independent Subcontractor will not, either directly or indirectly, either alone or in concert with others, in any way solicit, entice in any way divert any of the Company's clients or customers to do business with any person or entity in competition with Company or any of its affiliates. Independent Subcontractor agrees that during this Agreement it will not plan or otherwise take preliminary steps, either alone, or in concert with others, to set up or engage in any business enterprise that would be in direct or indirect competition with Company or any of its affiliates. (B) Independent Subcontractor also agrees that during this Agreement and the Restricted Period, it will not for any reason accept any employment or engage in any activities that is directly or indirectly competitive with Company or any of its affiliates. (C) Disclosure of information. Independent Subcontractor acknowledges that the list of the Company's customers is a valuable, special and unique asset of the Company's business. Independent Subcontractor, either alone or in concert with others, shall not, during, or after the term of this agreement, and for an additional two (2) years after the Term expires or termination of this Agreement, disclose the list of the Company's customers or any part thereof to any person, firm, corporation, association or other entity for any reason or purpose whatsoever. (D) Independent Subcontractor expressly agrees that the restriction to not compete with the Company are reasonable and are no greater than that absolutely necessary to protect Company's interests and business; and the covenant not to compete is supported by adequate consideration. Company has a legitimate business interest to protect. All customer leads and business) generated by Independent Subcontractors under this Agreement, remains sole property of Company. Company has all legal rights to any and all work, leads, jobs, etc. generated by Independent Subcontractor. (E) Company is permitted to file suit against Independent Subcontractors for injunction and money damages, without the necessity of posting a bond in the event Independent Subcontractor breaches its obligations under this Paragraph 18. (F) Company is permitted to file suit against the Independent Subcontractor suspected of violating this Paragraph 18. Typical procedure is as follows. Company may ask the Court for an immediate injunction, known as a temporary restraining order, as well as a preliminary and permanent injunction. The restraining order and injunction are court orders. If Independent Subcontractor violates the court order, the Independent Subcontractor can be found in contempt of court and forced to pay contempt penalty and even risk incarceration, if the violation is ongoing. Company will seek to recover money damages and lost profits. Company will point to this facially valid Agreement and reasonable restrictions. (G) Company may also pursue a lawsuit of "tortious interference' with the non- competition agreement between Independent Subcontractor and any entity with which it affiliates. 19) OWNERSHIP OF WORK. Independent Subcontractor agrees that all data. - customer, leads, and contacts derived or generated by Independent Subcontractor in connection with or as a result of the performance of the services by Independent Subcontractor (collectively, "Work Product ") under this Agreement shall be considered works made for hire and shall be owned by Company. Independent Subcontractor shall hold all Work Product in trust for Company. �n a �..w t_fe_r_! i .�l.....��.a... ......... ..� _ _. ...._ ^� "' - - - - - — _. PREMIER 132 South Hanover Street Carlisle, PA 17013 20. E) NFORCEABILITY. Upon Termination of this Agreement, Company will give Independent Subcontractor Consideration for all open jobs, upon completion of all open jobs if Independent Subcontractor complies with the following terms and conditions: (A) Independent Subcontractor returns all Company's Work Product and Confidential Information within forty-eight (48) hours of the termination of this Agreement (including, but not limited to: contracts, leads, company files, note books, customer information, authorization forms, company shirts, yard signs, magnets, sales tools, and any other tangible or intangible items that contain Company's Confidential Information) Without making photocopies, or scanning the documents. (B) At Company's option, Independent Subcontractor will transfer to Company or certify in writing that it has removed or deleted any of the Company's Confidential Information, Work Product, or other property, which may reside with Independent Subcontractor. (C) Independent Subcontractor agrees to forfeit Consideration for final jobs upon termination of this Agreement if Independent - Subcontractor is being terminated for acting alone or in concert with others for any unethical reasons including, but not limited to: insurance fraud, stealing, damaging property, dishonesty, not complying with the terms of the "Workplace Safety'' portion of this Agreement, and/or breaching the terms of this Agreement.. (D) Independent Subcontractor agrees that the sole remedy for termination is outlined in the Terms of this Agreement and that Independent Subcontractor cannot/will not bring suit against the Company, its affiliates or representatives, for consequential or incidental damages, attorney's fees or costs. Company hereby disclaims liability for any and all such consequential or incidental damages, attorney's fees, or costs, which are expressly waived by Independent Subcontractor. (E) The Independent Subcontractor waives all requirements or rights with regard to notice, demand, presentment, or protest. Independent Subcontractor hereby appoints any attorney of any court of record to appear for the Independent Subcontractor and to confess judgment against Independent Subcontractor in any court of competent jurisdiction in favor of Company for all amounts due. (F) This Agreement is a continuing agreement and shall remain in full force and effect and binding upon the heirs, , successors, assigns and all associates of the parties. (G) Independent Subcontractor agrees that immediately upon termination of this Agreement to cease and desist from any and all types of communication with Company's customers, potential customers, suppliers, and all those affiliated wzth Company. (H) This Agreement contains a confession of judgment provision, which constitutes a waiver of important rights you may have as an Independent Subcontractor and allows Company to obtain judgment against you without further notice. You herby acknowledge that you have knowingly, voluntarily, and intelligently waived your rights to a notice and hearing prior to the entry of judgment, after consulting with counsel. 211 ENTIRE AGREEMENT; WAIVERS. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and any prior agreements or understanding, oral or written, shall be of no further force and effect. No supplement, modification or amendment of this Agreement shall be binding, unless executed in writing by all parties. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a CO l and I.3.C( 1 acknowledge receipt of a copy of this pays OFIO pages 8 We've Qot you covered... literally! PREMIER 152 South Hanover Street Carlisle, PA 17013 continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver_ 2 2.) ASSIG NT. This Agreement is for the services of Independent Subcontract N or only, and may not be assigned by Independent Subcontractor. This Agreement is binding on and is for the benefits of the parties hereto and their respective successors, heirs, executors, administrators and other legal representatives. Neither this Agreement nor any right or obligation hereunder may be sold, transferred, assigned, pledged or hypothecated by either party hereto without the prior written consent of the other party; provided, the Company may assign its rights and obligations under the Agreement without written consent. 23) SEVERABILITY. All provisions contained herein are severable and in the event that any one of them shall be held to be to any extent invalid or otherwise unenforceable by any court of competent jurisdiction such provision shall be construed as if it were written so as to effectuate to the greatest possible extent the parties' expressed intent; and in every case the remainder of this Agreement shall not be affected thereby and shall remain valid and enforceable, as if such affected provision were not contained herein. 24.) NOTICES. All notices, requests, demands, and other communications provided for hereunder shall be in writing and shall be deemed to have been duly given if (i) delivered in person; (ii) given by facsimile; (iii) sent by Certified Mail or any other nationally recognized delivery service, charges paid by the sender, or (iv) upon the earlier of receipt or five (5) business days after being sent by registered or certified mail, return receipt requested, with proper postage prepaid, as follows: To Company at: Premier Siding & Roofing of PA, LLC. 152 South Hanover Street Carlisle, PA 17013 (717) 609 -1971 To I depende t Subcontractor at: (Any party may change the address to which notices are to be sent by giving notice of such change of address to other party in the manner herein provided for giving notice.) 25.) NO CON Independent Subcontractor represents and warrants that he is not subject to any agreement, instrument, order, judgment, or decree of any kind, or any other restrictive agreement of any character which would prevent it from entering into this Agreement CO ( l and 1.3 -C( 1 acknowledge receipt of a copy of this page OF90 pages 9 PREMIER 132 South Hanover Street Carlisle, PA 17015 or which would be breached by Independent Subcontractor upon the perfonnance of its duties pursuant to this Agreement or any other agreements in connection herewith. 26. MISCELLANEOUS. The headings contained in this Agreement are for reference purposes only, and shall not affect the meaning or interpretation of this Agreement. As used in this Agreement, any gender includes a reference to all other genders and the singular includes a reference to the plural and vice versa. In Witness Whereof the parties hereto have executed this Agreement the day and year set below. f Z G — In a endent Subcontrac or ignature) Date: Ny\fs Ilc�u�C/ Independent Subcontractor (Print Name) 12e�r^: UeZ a _ag I �" Premier Siding & Roo ing of PA, LLC Date: S vorn to and subscribed before me this ( 16 day of 4r, 2012 by and Premier Siding &Roofing of PA, LLC plly known to n -j� n — me, or who have produced driver licenses as identification. STATE OF �C"6 Ck COUNTY OF My co m' si we it , i� Notary Public Signature (SEAL) /- Printed Name: laW-W 2 Serial Number: u� d CAMMONWE&T J OF pe #6n A ,► . Peb, \�Q' to, a,ii�na coiincy 1 Q (S � VANIA py�OCFAlION OF NpTARIkS acknowisdye rscsipt of a copy of this pay• OF10 Pages 10 CO I I aod t.S.C( —1 � We've got you covered... literally. To: DAVE MYERS Page 1 of 4 2011 -03-28 16:50:22 (GMT) 13303197409 From: PREMIER SIDING & ROOFING. Form W=9 Request for Taxpayer Give Form to the requester. Do not (Rev. January 2011) Identification Number and Certification send to the IRS. Department of the Treasury trrtemai Revenue Se rAce Name (a ZVW M on your ome retu ) Business name /disregarded entity name.' ditiererrt from above kV Check appropriate box for de:ral tax classification (required): tndividualtsole proprietor ❑ C Corporation E3 Corporation ❑ Partnership E] Trust/estate ac ❑ Exempt payee ❑ Limited liability company. Enter the tax dessification (C-C corporation. S-S corporation, P =partnership) ► _ .... , ........ ...... . ....... 0 H d ❑ Other (see instructions) ► V Requester's name and address (optional Address (number, street, and apt. or suite no.) a C state, and IP code U . I X70 List account number(s) here (optional • Taxpayer Identification Number (TIN) Enter your TIN in the appropriate box. The TIN provided must match the name given on the "Name" line Social security number to avoid backup withholding. For individuals, this is your social security number (SSN). However, for a _ , resident alien, sole proprietor, or disregarded entity, see (he Part I instructions on page 3. For other S entities, it is your employer identification number (EIN). If you do not have a number, see How to get a 77N on page 3. rartployer Ident)atatlon number Note. If the account is in more than one name, see the chart on page 4 for guidelines on whose number to enter. _ Certification Under penalties of perjury, I certify that: 1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and 2. 1 am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup wihholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and s 3. 1 am a U.S. citizen or other U.S. person (defined below). s Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply- For mortgage interest paid, acquisition or abandonment of secured property. cancellation of debt. contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not requited to sign the certification, but you must provide your correct TIN. See the instructions on page 4. FHiere Signature of Date ► 2— 2c! l U.S. person ► ral Instruction w Note. If a•requester gives you a form other than Form W -9 to request your TIN, yotyQust use the requester's form if it is substantially similar references ar e to the I ernal Revenue Code unless otherwise to this Form W noted. Definition of a U.S. person. For federal tax purposes, you are Purpose of Form considered a U.S. person if you are: A person who is related to file an information return vrith the IRS muss • An individual who is a U.S. citizen or U.S. resident alien, obtain your correct taxpayer identification number (TIN to report, for • A partnership, corporation, company, or association created or example, income paid to you, real estate transactions, mortgage interest organized in the United States or under the laws of the United States, you paid, acquisition or abandonment of secured property, cancellation - An estate (other than a foreign estate), or Of debt, or contributions you made to an IRA. - A domestic trust (as defined in Regulations section 301.7701 -7). Use Form W -9 only if you are a U-S. person (including a resident Special rules for partnerships. Partnerships that conduct a trade or alien), to provide your correct TIN to the person requesting it (the business in the United States are generally required to pay a withholding requester] and, when applicable, to: tax on any foreign partners' share of income from such business. 1. Certify that the TIN you are giving is correct (or you are waiting for a Further, in certain cases where a Form W -9 has not been received, a number to be issued), partnership is required to presume that a partner is a foreign person, 2. Certify that you ere not subject to backup withholding, or and ne y the withholding P conducting tax. at if you are a U.S. ss in the United is a 3. Claim exemption from backup withholding you are a U.S. exempt States, provide Form W -S to the partnership to establish your U.S. payee. If applicable, you are a a lso certifying that as U.S. person, your status and avoid withholding on your share of partnership income. allocable share of any partnership income from a U.S. trade or business is not subject to the withholding tax on foreign partners' share of effectively connected income. Cat No. 10231X Form W -9 (Rev. 1-2011) John Kerr From: Holly Anderson [hhbanderson @gmail.com] Sent: Wednesday, August 14, 2013 12:02 PM To: John Kerr Subject: Fwd: Fw: Here is another email trail that may be helpful. ---- - - - - -- Forwarded message ---- - - - - -- From: "Jim Anderson" < jimandersonpsrAyahoo.com > Date: Aug 14, 2013 11:51 AM Subject: Fw: To: " hhbandersonngmail.com " < hhbandersonngmail.com > - - - -- Forwarded Message - - - -- From: Dave < davidmyerspsr ,yahoo.com To: Jim Anderson < jimandersonpsr _yahoo.com Sent: Tuesday, February 19, 2013 1:38 PM Subject: Re: Litigation. Glad your surgery went well. Check actually went out in todays snail mail. D Sent from my Verizon Wireless B1ackBerry From: Jim Anderson < jimandersonpsr 9 yahoo.com > Date: Tue, 19 Feb 2013 10:19:37 -0800 (PST) To: davidmyerspsr a, yahoo. com < davidmyerspsr(c�r�,yahoo.com > ReplyTo: Jim Anderson < iimandersonpsr ,yahoo.com Subject: Re: Ok thanks. Jobs that will never close? How is that possible? Thanks surgery went well and thumb is no longer locking up on me. From: Dave < davidmyerspsr @ yahoo.com > To: Jim Anderson < iimandersonpsr(a)-yahoo.com > Sent: Wednesday, February 6, 2013 12:04 PM Subject: Re: Hey Jim There are a few jobs that I guess will never close. Either way all that can be collected has been collected. I just got back to Carlisle a couple of days ago and just got finished setting up the home office and getting things back up and running. I'm working on getting you all paid off and its one of my top priorities right now. Your last check will be for all that is owed. I should be able to get that to you in a week or so. Good luck with your surgery and let me know if you have any more questions. Thanks Dave 1 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson r Sheriff iE:. PGA!Ntl ''ti ' Jody S Smith N 13 SEP 1 1 AM #O: 'i B Chief Deputy ,"`M r kkeM3x,+, Richard W Stewart ;.w CUMBERLAND COUNTY Solicitor OFF" -OFTPESVERIrr PENNSYLVANIA James Anderson Case Number vs. 2013-4891 Premier Siding & Roofing of PA, LLC SHERIFF'S RETURN OF SERVICE 09/05/2013 11:50 AM - Deputy Shawn Harrison, being duly sworn according to 4sberave sted Complaint & Notice by handing a true copy to a person representing themsel owner, who accepted as"Adult Person in Charge"for Premier Siding &Roofinuth Hanover Street, Carlisle Borough, Carlisle, PA 17013. 7 DEPUTY SHERIFF COST: $48.80 SO ANSWERS, September 06, 2013 RbNW R ANDERSON, SHERIFF (c)CountySuite Sheriff,Teleosoft,Inc. LAW OFFICES OF PETER J. RUSSO,P.C. BY: Peter J. Russo, Esquire PA Supreme Court ID: 72897 rri ° 5006 E. Trindle Road, Suite 203 73 -�4 Mechanicsburg,PA 17050 .s ` c Telephone: (717) 591-1755 ti Facsimile: (717) 591-1756 Email: prusso('dpjrlaw.com IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA JAMES ANDERSON Plaintiff : No. 13-4891 v. • PREMIER SIDING AND ROOFING OF PA, LLC : CIVIL ACTION-LAW Defendant NOTICE TO PLEAD TO: James Anderson, do John Kerr, Esq. 5020 Ritter Road, Suite 104 Mechanicsburg,PA 17055 You are hereby notified to file a written a written response to the enclosed Defendant's Answer, New Matter and Counterclaims within twenty (20) days from service hereof or a judgment may be entered against you. vAiik The— air(ices o ete . Russo, P.C. Date: Monday, October 07, 2013 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JAMES ANDERSON • Plaintiff : No. 13-4891 v. PREMIER SIDING AND ROOFING OF PA, LLC : CIVIL ACTION-LAW Defendant ANSWER, NEW MATTER and COUNTERCLAIMS TO PLAINTIFF'S COMPLAINT AND NOW COMES, the Defendant, Premier Siding and Roofing of PA, LLC, by and through its attorneys, The Law Offices of Peter J. Russo, P.C. and avers the following: 1. Admitted. 2. Admitted. 3. Admitted in part and denied in part. It is denied that residential customers are served subject to applicable insurance coverage. The remainder of the averments are admitted. 4. Denied. The parties are subject to an independent contractor agreement. The terms of the agreement speak for themselves, therefore any interpretational gloss placed thereon by Plaintiff is denied. 5. Denied. The terms of the agreement speak for themselves, therefore any interpretational gloss placed thereon by Plaintiff is denied. 6. Denied. The averments of paragraph 6 are violative of the Rules of Civil Procedure. By way of further response, the averments contained in paragraph 6 are conclusion of law to which no response is required. Finally, the averments in paragraph 6 refer to the independent contractor agreement which is a written agreement which speak for itself, therefore any interpretational gloss placed thereon by Plaintiff is denied. 7. a) — d) Denied. The averments of paragraph 7 a) — d) are violative of the Rules of Civil Procedure. By way of further response, the averments contained in paragraph 7 a) — d) are conclusion of law to which no response is required. 8. Admitted in part and denied in part. It is admitted that Plaintiff worked on the jobs listed in paragraph 8. The "Contract Amount" listed in the complaint are denied as are the "Job Status" listed in the complaint. 9. Denied. The averments contained in paragraph 9 are conclusion of law without any substantiation whatsoever. Strict proof is demanded at the time of trial. 10. Denied. The averments of paragraph 10 are conclusion of law to which no response is required. Finally, the averments in paragraph 10 refer to the independent contractor agreement which is a written agreement which speak for itself, therefore any interpretational gloss placed thereon by Plaintiff is denied. New Matter and Counterclaims of Defendant 11. Defendant incorporates its answers as set forth in paragraphs 1 — 10 as though the same were set forth herein in their entirety. 12. The parties entered into a written agreement which has been attached to Plaintiff's complaint as Exhibit A. 13. The terms of the written agreement which has been attached to Plaintiff's complaint as Exhibit A controls the transaction. 14. Plaintiff worked on the HEIMBUCH Project. 15. The Defendant lost money on the HEIMBUCH Project. 16. Defendant lost money on the HEIMBUCH Project as a result of Plaintiff's inability to follow policies and to do his job in a professional manner. 17. The Heimbuch's have sued Defendant due to the nature and quality of the work Plaintiff's work on the HEIMBUCH Project. 18. The aforementioned suit by the Heimbuchs is docketed with the Court of Common Pleas of Cumberland County at 13-1511 Civil. 19. As a result of the foregoing, the Plaintiff is not entitled to any compensation for the HEIMBUCH project. 20. Plaintiff worked on the KING Project. 21. The Defendant lost money on the KING Project. 22. Defendant lost money on the KING Project as a result of Plaintiff's inability to follow policies and to do his job in a professional manner. 23. As a result of the foregoing, the Plaintiff is not entitled to any compensation for the KING project. 24. Plaintiff worked on the BORDNARO Project. 25. The Defendant lost money on the BORDNARO Project. 26. Defendant lost money on the BORDNARO Project as a result of Plaintiff's inability to follow policies and to do his job in a professional manner. 27. As a result of the foregoing, the Plaintiff is not entitled to any compensation for the BORDNARO project. 28. Plaintiff worked on the WALKER Project. 29. The Defendant lost money on the WALKER Project. • 30. Defendant lost money on the WALKER Project as a result of Plaintiff's inability to follow policies and to do his job in a professional manner. 31. As a result of the foregoing, the Plaintiff is not entitled to any compensation for the WALKER project. 32. Plaintiff worked on the MANI Project. 33. The Defendant believes it broke even on the MANI Project. 34. Defendant lost money on the MANI Project as a result of Plaintiff's inability to follow policies and to do his job in a professional manner. 35. As a result of the foregoing, the Plaintiff is not entitled to any compensation for the MANI project. 36. Plaintiff worked on the FEESE Project. 37. The Defendant has not realized a profit on the FEESE Project as the homeowner has refused to pay the balance due to Defendant. 38. Feese has refused to pay the balance due to Defendant because of the nature and quality of work performed by Plaintiff 39. Plaintiff worked on the SPRANGLER Project. 40. The Defendant lost money on the SPRANGLER Project. 41. Defendant lost money on the SPRANGLER Project as a result of Plaintiff's inability to follow policies and to do his job in a professional manner. 42. As a result of the foregoing, the Plaintiff is not entitled to any compensation for the SPRANGLER project. 43. Plaintiff worked on the YOUNG Project. 44. The Defendant lost money on the YOUNG Project. 45. Defendant lost money on the YOUNG Project as a result of Plaintiff's failure to advise Defendant of his inability to collect the funds due to the Defendant. 46. As a result of the foregoing, the Plaintiff is not entitled to any compensation for the YOUNG project. 47. Compensation to the Plaintiff was controlled by the terms of the Independent Contractor Agreement. 48. The 40% commission was only payable for taking a job from contract signing to final collection and closeout. 49. Plaintiff was not entitled to a commission on the SHIREMAN project as Scott Kerstetter did all of the work on this job, except Plaintiff ran the adjuster meeting and signed the contract with the SHIREMANS. 50. Plaintiff was not entitled to a commission on the MAHOOD project as Scott Kerstetter signed the contract with the MAHOODS. 51. Plaintiff was not entitled to a commission on the SARGEANT project as Dustin Ginder signed the contract with the SARGEANTS. 52. Plaintiff was not entitled to a commission on the OLMSTEAD project as Tom Hornbaker signed the contract with the OLMSTEADS. 53. Defendant was required to pay other employees for the collection of the final payments, completing any punch out items for the homeowner and the submission of insurance paperwork necessary to have the final payment issued to Defendant on the WORHACH project. 54. Defendant was required to pay other employees for the collection of the final payments, completing any punch out items for the homeowner and the submission of insurance paperwork necessary to have the final payment issued to Defendant on the CUCINOTTA project. 55. Defendant was required to pay other employees for the collection of the final payments, completing any punch out items for the homeowner and the submission of insurance paperwork necessary to have the final payment issued to Defendant on the SMITH project. 56. Defendant was required to pay other employees for the collection of the final payments, completing any punch out items for the homeowner and the submission of insurance paperwork necessary to have the final payment issued to Defendant on the MOORE project. 57. Defendant was required to pay other employees for the collection of the final payments, completing any punch out items for the homeowner and the submission of insurance paperwork necessary to have the final payment issued to Defendant on the MOORE project. 58. Defendant was required to pay other employees for the collection of the final payments, completing any punch out items for the homeowner and the submission of insurance paperwork necessary to have the final payment issued to Defendant on the BROUGH project. 59. Defendant had to credit the EVANS' as a result of the following conduct by Plaintiff: a. Plaintiff promised the project to be completed within one week; b. The project began on 8/7/12; and c. The project was not finished until 12/2/12. 60. Defendant compensated Plaintiff$43,329.02 between January of 2012 and December of 2012. 61. Defendant tendered a check to Plaintiff in the amount of$842.76 which constituted payment for EVANS. 62. Defendant tendered a check to Plaintiff in the amount of$14,250.11 which constituted payment for: a. WEINBERG in the amount of$4,402.58; b. KITZER in the amount of$3,289.92; c. CLASH in the amount of$2,122.18; and d. EYLER in the amount of$4,435.43. BREACH OF CONTRACT 63. Defendant incorporates its answers and averments as set forth in paragraphs 1 — 62 as though the same were set forth herein in their entirety. 64. The parties were subject to the aforementioned written agreement between the parties. 65. The written agreement between the parties provides for the terms and conditions upon which the relationship will be governed. 66. Paragraph 14 of the written agreement between the parties provides "Independent Contractor shall perform the services with the standard of care, skill, competence and diligence normally provided by professionals in the performance of similar services." 67. As detailed in paragraphs 15 — 59 herein, Plaintiff breached his obligations under the written agreement between the parties. 68. As a direct and proximate result of Plaintiff's failure to perform the services with the standard of care, skill, competence and diligence normally provided by professionals in the performance of similar services, Defendant has been financially harmed. 69. The exact extent of the damage incurred by Defendant is ongoing as litigation has been commenced to address Plaintiff's failures. WHEREFORE, Defendant respectfully request that this Court enter an Order entering judgment in its favor, and against Plaintiff in an amount to be proven at trial, together with its reasonable attorneys' fees, costs, expenses, and such other and further relief as this Court may deem just and proper. THE LAW OFFICES OF PETER J. RUSSO, P.C. Attorneys for Defendant Peter J. Russo, Esqu e ID # 72897 5006 E. Trindle Road, Suite 203 Mechanicsburg, PA 17050 PH: (717) 591-1755 FX: (717) 591-1756 Date: 1(:)11 11 3 VERIFICATION I, Melanie Myers, hereby verify that I am an adult individual; that I am Ckso Cse_C of Premier Siding and Roofmg of PA, LLC and that I am authorized to make this statement on its behalf that I have read the foregoing document, and that the facts set forth in the foregoing document are true to the best of my knowledge,or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Melanie Myers Premier Siding and Roofing of PA,LLC Date: ‘43 ,Zoc5 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JAMES ANDERSON Plaintiff : No. 13-4891 v. PREMIER SIDING AND ROOFING OF PA, LLC : CIVIL ACTION-LAW Defendant CERTIFICATE OF SERVICE I, Ashley R. Malcolm, Paralegal, hereby certify that I am on this day serving a copy of the Entry of Appearance upon the person(s) and in the manner indicated below as follows: USPS Regular Mail John Kerr, Esq. 5020 Ritter Road • Suite 104 Mechanicsburg, PA 17055 Date: f0—7 -1 ditiMPA l I• j • SIP Ashley R. M. colm, Paralegal dIF C LAW OFFICES OF PETER J. RUSSO,P.C. 28 nu BY: Peter J. Russo, Esquire 2 7 PA Supreme Court ID: 72897 C t BLAND COUNT 5006 East Trindle Road, Suite 203 PENNSYLVANIA Mechanicsburg, PA 17050 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Email: prusso(&,pjrlaw.com IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JAMES ANDERSON, • Plaintiff • : No. 13-4891 v. PREMIER SIDING AND ROOFING OF PA, L.L.C., : CIVIL ACTION-LAW Defendant PRAECIPE TO AMEND TO THE PROTHONOTARY: Kindly amend the Answer, New Matter and Counterclaims to Plaintiff's Complaint filed on October 8, 2013 by adding the attached original Verification signed by Defendant. R- e - submitted, Date: \A L1�� LAW OFFIC OF ' ER J. RUSSO, P.C. Peter J. Russo, Esquire ID # 72897 5006 E. Trindle Road, Suite 203 Mechanicsburg, PA 17050 VERIFICATION I, Melanie Myers, hereby verify that I am an adult individual; that I am >� Cks,Ce( of Premier Siding and Roofing of PA, LLC and that I am authorized to make this statement on its behalf that I have read the foregoing document, and that the facts set forth in the foregoing document are true to the best of my knowledge, or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unworn falsification to authorities. Melanie Myers Myers Premier Siding and Roofing of PA, LLC Date: `b -S - cDpc5 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JAMES ANDERSON, Plaintiff : No. 13-4891 v. PREMIER SIDING AND ROOFING OF PA, L.L.C., : CIVIL ACTION-LAW Defendant CERTIFICATE OF SERVICE I, Ashley R. Malcolm, Paralegal, hereby certify that I am on this day serving a copy of the Entry of Appearance upon the person(s) and in the manner indicated below as follows: USPS Regular Mail John Kerr, Esquire 5020 Ritter Road Suite 104 Mechanicsburg, PA 17055 Date: \\—1 — 1'� C C t Oc& Ashley R. Malco m, Paralegal 0 I ` HE PRQTH�JI D j a. LAW OFFICES OF PETER J. RUSSO,P.C. �� �O� BY: Peter J. Russo, Esquire 4 .t 27 PA Supreme Court ID: 72897 C2 � '1,AIW 5006 East Trindle Road, Suite 203 P N $YLVANIA Mechanicsburg, PA 17050 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Email: prusso@pjrlaw.com IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JAMES ANDERSON, Plaintiff : No. 13-4891 v. PREMIER SIDING AND ROOFING OF PA, L.L.C., : CIVIL ACTION-LAW Defendant NOTICE TO PLEAD TO: James Anderson, c/o John Kerr, Esq. 5020 Ritter Road, Suite 104 Mechanicsburg, PA 17055 DATE OF NOTICE: November 1, 2013 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNCLESS YOU ACT WITHIN TEN 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. 1 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 Bar Association 32 South Bedford Street Carlisle,PA 17013 1-800-990-9108 717-249-3166 Res. Submit -4 _ Law Offices of Peter J. Russo, P.C. 5006 East Trindle Road, Suite 203 Mechanicsburg, PA 17050 Peter J. Russo, Esquire PA Supreme Court ID: 72897 Attorney for Plaintiff Date: \\ t (3 2 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JAMES ANDERSON, Plaintiff : No. 13-4891 v. PREMIER SIDING AND ROOFING OF PA,L.L.C., : CIVIL ACTION-LAW Defendant CERTIFICATE OF SERVICE I, Ashley R. Malcolm, hereby certify that on this day I caused to be served via US Mail, Postage prepaid, a true and correct copy of the foregoing upon the following individual: John Kerr,Esq. 5020 Ritter Road, Suite 104 Mechanicsburg, PA 17055 Respectfully submitted, LAW OFFICES OF PETER J. RUSSO, P.C. _,4" • • cuth Ashley R. Male i lm, Paralegal Date: (\-\ -3 3 G JAMES ANDERSON, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA C) ,.._, V. : No. 13-4891 CIVIL 'v Z w ---r zm coo i1' PREMIER SIDING AND ROOFING OF PA. LLC, : CIVIL ACTION—LAW 1-- Defendant — '1 r N J>C co G::i t.._ ---t :t PLAINTIFF'S ANSWER TO NEW MATTER AND COUNTERCLAIMS 7,' AND NOW,comes Plaintiff James Anderson, by his counsel,John M. Kerr, Esquire and John Kerr Law, P.C., and files the within Answer To New Matter and Counterclaims, the nature of which is as follows: 11. Plaintiff James Anderson (hereinafter, "Anderson") incorporates by reference, as if fully set forth in their entirety, all factual averments contained in his Complaint. 12. ADMITTED. 13. DENIED.The averment contained at paragraph 13 of Defendant's New Matter represents a conclusion of law to which no response is necessary under the Pennsylvania Rules of Civil Procedure. 14. DENIED.The Heimbuch Project is not one of the accounts raised by Plaintiff's Complaint. 15. DENIED. Plaintiff Anderson lacks sufficient information to form a belief as to the truth of the averment contained at paragraph 15 of Defendant's New Matter and, yr,N,r,i Pc accordingly,denies the same. Strict proof, if relevant, is demanded at time of trial. 5020 Ritter Road Suite 104 Mechanicsburg,PA 1 7055 16. DENIED. PHONE: 717.766.4008 FAx: 717.766.4066 17. DENIED. Plaintiff Anderson lacks sufficient information to form a belief as to the truth of the averment contained at paragraph 17 of Defendant's New Matter and, accordingly,denies the same. Strict proof, if relevant, is demanded at time of trial. 18. DENIED. Plaintiff Anderson lacks sufficient information to form a belief as to the truth of the averment contained at paragraph 18 of Defendant's New Matter and, accordingly, denies the same. 19. No answer required—Plaintiff is not seeking any compensation for this project. 20. DENIED.The King account is not one of the claims raised by Plaintiff's Complaint. 21. DENIED. Plaintiff Anderson lacks sufficient information to form a belief as to the truth of the averment contained at paragraph 21 of Defendant's New Matter and, accordingly, denies the same. Strict proof, if relevant, is demanded at time of trial. 22. DENIED. 23. No answer required—Plaintiff is not seeking any compensation for this project. 24. DENIED.The Bordnaro account is not one of the claims raised by Plaintiff's Complaint. 25. DENIED. Plaintiff Anderson lacks sufficient information to form a belief as to the truth of the averment contained at paragraph 25 of Defendant's New Matter and, accordingly,denies the same.Strict proof, if relevant, is demanded at time of trial. 26. DENIED. �D 27. No answer required—Plaintiff is not seeking any compensation for this project. 2""" y ""PC 28. DENIED.The Walker account is not one of the claims raised by Plaintiff's 5020 Ritter Road Suite 104 Mechanicsburg,PA 17055 PrioNE: 717.766.4008 Complaint. FAx: 717.766.4066 29. DENIED. Plaintiff Anderson lacks sufficient information to form a belief as to the truth of the averment contained at paragraph 29 of Defendant's New Matter and, accordingly, denies the same.Strict proof, if relevant, is demanded at time of trial. 30. DENIED. 31. No answer required—Plaintiff is not seeking any compensation for this project. 32. DENIED.The Mani project is not one of the claims raised by Plaintiff's Complaint. 33. DENIED. Plaintiff Anderson lacks sufficient information to form a belief as to the truth of the averment contained at paragraph 33 of Defendant's New Matter and, accordingly, denies the same. Strict proof is demanded at time of trial. 34. DENIED. 35. No answer required—Plaintiff is not seeking any compensation for this project. 36. DENIED.The Feese project is not one of the claims raised by Plaintiff's Complaint. 37. DENIED. Plaintiff Anderson lacks sufficient information to form a belief as to truth of the averment contained at paragraph 37 of Defendant's New Matter and, accordingly,denies the same.Strict proof, if relevant, is demanded at time of trial. 38. DENIED. 39. DENIED.The Sprangler project is not one of the claims raised by Plaintiff's Complaint. re! 40. DENIED. Plaintiff Anderson lacks sufficient information to form a belief as to the 2,„„, i""`P` truth of the averment contained at paragraph 40 of Defendant's New Matter and, 5020 Ritter Road Suite 104 Mechanicsburg,PA 17055 PHONE: 717.766.4008 accordingly, denies the same. Strict proof, if relevant, is demanded at time of trial. FAx: 717.766.4066 41. DENIED. 42. No answer required—Plaintiff is not seeking any compensation for this project. 43. DENIED.The Young project is not one of the claims raised by Plaintiffs Complaint. 44. DENIED. Plaintiff Anderson lacks sufficient information to form a belief as to the truth of the averment contained at paragraph 44 of Defendant's New Matter and, accordingly,denies the same. Strict proof is demanded at time of trial. 45. DENIED. 46. No answer required—Plaintiff is not seeking any compensation for this project. 47—48. DENIED.The averments contained at paragraphs 47-48 of Defendant's New Matter represent conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 49. DENIED. Scott Kerstetter did not do all the work. Instead,the homeowner wanted to wait until the new windows were put in. Plaintiff Anderson did the adjuster meeting; measured the house; signed the contractor; and collected the check. 50. DENIED. Plaintiff Anderson signed the contract with Mahood. He just did not collect the final check. 51. DENIED. Plaintiff Anderson signed the contract with Sergeant. By way of further answer,following termination of his employment, Plaintiff Anderson e-mailed a list of all jobs to the owners of Defendant company. 52. DENIED. Plaintiff Anderson signed the contract with Olmstead. 53-58. DENIED. Plaintiff Anderson lacks sufficient information to form a belief as to ty■'"'r"/""`F'(' the truth of the averments contained at paragraphs 53-58 of Defendant's New Matter and, 5020 Ritter Road Suite 104 Mechanicsburg,PA 17055 PHONE: 717.766.4008 accordingly, denies the same.Strict proof is demanded at time of trial. By way of further FAx: 717.766.4066 answer, none of these so-called duties were called for under the subcontractor agreement or were specified to affect Plaintiffs right to commissions. 59. DENIED. Plaintiff Anderson lacks sufficient information to form a belief as to the truth of the averment contained at paragraph 59 of Defendant's New Matter and, accordingly, denies the same. Strict proof is demanded at time of trial. 60.-62. DENIED. BREACH OF CONTRACT 63. Plaintiff Anderson incorporates by reference,as if fully set forth in its entirety, his answers to paragraphs 12-62 of Defendant's New Matter. 64.-66. DENIED.The averments contained at paragraphs 64-66 of Defendant's New Matter represent conclusions of law,to which no response is required under the Pennsylvania Rules of Civil Procedure. 67. DENIED. 68. DENIED. 69. No answer required. WHEREFORE, it is requested that judgment be entered in favor of Plaintiff, and against Defendant, as to the Breach of Contract counterclaim. Respectfully submitted, Jo M. Kerr, Esquire 2 y Attorney I.D.#26414 "�'"�`'�`�`'" c John Kerr Law, P.C. 5020 Ritter 1004 5020 Ritter Road Mechanicsburg,PA 17055 Puors: 717.766.4008 Suite 104 FAX: 717.766.4066 Mechanicsburg, PA 17055 (717)766-4008 Dated: November 12, 2013 CERTIFICATE OF SERVICE The undersigned hereby certifies that he has served a copy of the foregoing, "Plaintiff's Answer to New Matter and Counterclaims," on the below-identified individual in the manner indicated: First Class Mail, Postage Prepaid Peter J. Russo 5006 East Trindle Road Suite 203 Mechanicsburg, PA 17050 f I// %, Joh . Kerr, Esquire 50 0 Ritter Road Suite 104 Mechanicsburg, PA 17050 (717)766-4008 Dated: November 12, 2013 2hfl jZ PC 5020 Ritter Road Suite 104 Mechanicsburg,PA 17055 PHONE: 717.766.4008 FAx: 717.766.4066 VERIFICATION The undersigned, James Anderson, hereby states I am the Plaintiff in the foregoing action and, as such, am authorized to execute this Verification, and that any factual statement contained in the preceding Answer to New Matter and Counterclaim is true and correct to the best of my knowledge, information, and belief. I understand that false statements are subject to the penalties prescribed at 18 Pa. C.S. §4904, relating to unsworn falsification made to authorities. -a/0/l/ 0 /1/( J es Anderson