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HomeMy WebLinkAbout13-4983 Supreme Coi t Pennsylvania COu l mo leas For Prothonotary Use Only: V h� 't j , v Docket No: r t r q P CU 1' County (v tt 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 law or rules of court. Commencement of Action: S [R Complaint © Writ of Summons ® Petition ® Transfer from Another Jurisdiction © Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: R.F. FAGER COMPANY WHISLER'S WELL DRILLING, INC. �T Dollar Amount Requested: El within arbitration limits I Are money damages requested. x+ Yes El No (check one) 12 outside arbitration limits 4 N Is this a Class Action Suit? [3 Yes 0 No Is this an MDJAppeal? [3 Yes x No A Name of Plaintiff /Appellant's Attorney: John S. Kundrat, Esquire + ® Check here ifyou 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 Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS Intentional ® Buyer Plaintiff Administrative Agencies Malicious Prosecution ® Debt Collection: Credit Card ® Board of Assessment ® Motor Vehicle Debt Collection: Other © Board of Elections Nuisance Goods Sold ® Dept. of Transportation ® Premises Liability ® Statutory Appeal: Other S ® Product Liability (does not include E mass tort) ® Employment Dispute: Discrimination ® Slander/Libel/ Defamation Employment Dis ute: Other C [3 Other: P E3 Zoning Board 'T E3 Other: t 0 MASS TORT ®Other: - ® Asbestos N ® Tobacco ® Toxic Tort - DES ® Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS 13 Toxic Waste f ® Other: Ejectment [3 Common Law /Statutory Arbitration B Eminent Domain/Condemnation ® Declaratory Judgment © Ground Rent ® Mandamus Landlord/Tenant Dispute ® Non- Domestic Relations ® Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY ® Mortgage Foreclosure: Commercial ® Quo Warranto ® Dental ® Partition ® Replevin ® Legal ® Quiet Title ® Other: f ® Medical ® Other: ® Other Professional: t I Updated 1 /1/2011 2�i'3ALI;2 Ali I1: 0 CUMBERLAND COUNTY PENNSYLVANIA R.F. FAGER COMPANY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 1 WHISLER'S WELL DRILLING, INC. Defendant CIVIL ACTION —LAW 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 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 or 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle PA 17013 717 - 249 -3166 1- 800 - 990 -9108 (2-# R.F. FAGER COMPANY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff ; V. NO. WHISLER'S WELL DRILLING, INC. Defendant CIVIL ACTION —LAW AVISO USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderse de las quejas expuestas enlas paginas siguientes, debe tomar accion dentro de veinte (20) dias a partir de la fecha en que recibio la demanda y el aviso. Usted debe presentar comparecencia escrita en persona o por abogado y presentar en la Corte por escrito sus defensas o sus objeciones a las demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso o notificacion por cualquier dinero reclamado en la demanda o por cualquier otra queja o compensacion reclamados por el Demandante. USTED PUEDE PERDER DINERO, O PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED NO TIENE O NO CONOCE UN ABOGADO, VAYA O LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARA A VERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle PA 17013 717- 249 -3166 1- 800 - 990 -9108 John S. Kundrat, Esquire Kundrat & Associates 107 Boas Street Harrisburg, PA 17102 Attorney ID No. 24958 Telephone: 717-232-3755 Fax: 717- 232 -9608 kundrat - associates @pa.net R.F. FAGER COMPANY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. WHISLER'S WELL DRILLING, INC. Defendant CIVIL ACTION — LAW COMPLAINT AND NOW, comes Plaintiff, R.F. FAGER COMPANY, by its attorneys, KUNDRAT & ASSOCIATES, and states the following cause of action: 1. Plaintiff, R.F. Fager Company, is a Pennsylvania corporation with offices and/or a place of business situate at 2058 State Road, Camp Hill, Cumberland County, Pennsylvania. 2. Defendant, WHISLER'S WELL DRILLING, INC. is a Pennsylvania corporation with a business address of 366 -1 Green Spring Road, Newville, Cumberland County, Pennsylvania. 3. Plaintiff is, and at all relevant times was, a distributor of building supplies. 4. Defendant is, and at all relevant times was, a contractor. 5. Between September 19, 2012, and May 10, 2013, various products, goods, supplies, and materials (hereinafter collectively referred to as "products ") were ordered by Defendant from Plaintiff. Plaintiff sold and provided the products ordered by Defendant, the same being represented by invoices. The invoices are too numerous to be attached hereto, however invoices shall, upon request, be supplied to Defendant prior to trial. 6. The prices charged for the products sold to Defendant were the fair, reasonable, and market prices of the products, and the prices that Defendant agreed to pay. 7. Plaintiff has maintained a statement of account keeping an accurate and running amount of debits and credits for the sale of products sold to Defendant by Plaintiff. 8. Plaintiff has submitted to Defendant a monthly statement of account accurately showing all debits and credits for transactions with Defendant, the most recent statement of account shows an amount owing to Plaintiff of $28,112.12 as of August 1, 2013. A copy of the statement of account is attached hereto and made a part hereof referred to as Exhibit "A ". 9. Pursuant to the terms and conditions of sale contained on the invoices, Plaintiff is entitled to receive a finance charge of 1.5% per month on past due amounts. 10. Any and all conditions precedent to the bringing of this action have been performed by Plaintiff. 11. The amount in controversy is within the jurisdictional amount requiring compulsory arbitration. WHEREFORE, Plaintiff, R.F. FAGER COMPANY, respectfully requests that judgment be entered in its behalf and against Defendant, WHISLER'S WELL DRILLING, INC., in the 2 amount of $28,112.12, plus interest at the rate of 1.5% per month from July 31, 2013, plus attorney's fees, the costs of this action, and such relief as the court deems just and proper. KUNDRAT & ASSOCIATES By o . Kundrat, Esquire A rney for Plaintiff Date: $ 15- /3 3 R. F. FAGER CO. Statement 2058 STATE RD. CAMP HILL PA 17011 REMIT TO: 717 - 761 -0660 Fax 717 - 761 -6428 R. F. FAGER CO. 2058 STATE RD. CAMP HILL PA 17011 717 - 761 -0660 --------------- - - - - -- ------- - - - - -- STATEMENT DATE CUST NO. CUSTOMER 08/14/13 4101 --------------- - - - - -- ------- - - - - -- WHISLER WELL DRILLING HVAC PAGE NO. 366-1 GREEN SPRING RD ----------------------------------- NEWVILLE, PA 17241 1 of 3 - - - -- ----------------------- - - - - -- ------------------------------- - - - - -- ----------------- - - - - -- ----------------- - - - - -- ----------------- - - - - -- DATE INVOICE NUMBER PURCHASE ORDER NUMBER INVOICE AMOUNT PAYMENTS /CREDITS NET DUE - - - -- - - -- - - �12 - -------------------- --- - - - - -- --- L- ------ -- ? -- -- ----- ----- ----- ------- ----------- ------ - --- -- ----------------- - - - - -- ----------------------- - 09�19 51943587.001 N 483.87 09/25/12 S1936036.001 TXV VALVE 130.83 09/25/12 51947539.001 REEFER 66.22 10/01/12 51950646.001 ANIMAL INN 168.96 10/04/12 S1953869.001 DICK 25.09 10/04/12 S1953890.001 D & E 3,731.86 10/04/12 51953890.002 D & E 16.14 10/05/12 S1955819.001 return - 485.13 10/09/12 S1956769.001 STOCK 340.80 10/15/12 51960698.001 RON SHANK 22.26 10/16/12 51961850.001 BROWN 542.06 10/22/12 51965559.001 WATER TREATMENT 102.76 10/22/12 51965737.001 MINNICH RD. 110.93 10/25/12 51968591.001 WATER TREATMENT 68.61 10/29/12 S1971990.001 D & E CONSTRUCTION 225.01 10/31/12 51974430.001 Sery Chrg 252.60 11/01/12 S1973334.001 WARRANTIES 68.95 11/06/12 S1977407.001 BIDENIK 484.89 11/15/12 51984449.001 WATER TREATMENT 289.14 11/20/12 S1987911.001 WATER TREATMENT 49.44 11/20/12 S1987948.001 JESSICA 12.67 11/23/12 51990215.001 JEFF 135.31 11/29/12 51984449.002 WATER TREATMENT 17.85 12/04/12 51996615.001 MCGOWAN 109.58 12/05/12 51998101.001 MCGOWAN 58.00 12/07/12 S1998971.001 MCGOWAN 52.83 12/10/12 51999982.001 MCGOWAN 136.92 12/11/12 52000923.001 MCGOWAN -50.28 12/11/12 52000925.001 HOPKINS 188.62 12/12/12 S2002343.001 HOFFMAN / MANTY 2,725.18 PREY BALANCE PAYMENTS CREDITS PURCHASES SERVICE CHARGE NEW BALANCE ------------------- - - - - -- ------------------- - - - - -- ------------------- - - - - -- ------------------- - - - - -- ------------------- - - - - -- --------------------- - - - - -- ------------------- - - - - -- ------------------- - - - - -- ------------------- - - - - -- -------- ------ -- --- - - - - -- ------------------- - - - - -- FUTURE CURRENT 31 -60 DAYS 61.90 DAYS OVER 90 DAYS EXHIBIT A R. F. FAGER CO. Statement 2058 STATE RD. CAMP HILL PA 17011 REMIT TO: 717 - 761 -0660 Fax 717 - 761 -6428 R. F. FAGER CO. 2058 STATE RD. CAMP HILL PA 17011 717 - 761 -0660 --------------- - - - - -- ------- - - - - -- STATEMENT DATE CUST NO. CUSTOMER 08/14/13 4101 - - ------- - - - - -- WHISLER WELL DRILLING HVAC PAGE NO. 3 --------------------- 66-1 GREEN SPRING RD -------------- NEWVILLE, PA 17241 2 of 3 ----------- - - - - -- ----------------------- - - - - -- ------------------------------- - - - - -- ----------------- - - - - -- ----------------------------------------------- DATE INVOICE NUMBER PURCHASE ORDER NUMBER INVOICE AMOUNT PAYMENTS /CREDITS NET DUE - - - - -- - - -- - -- ---------------------- -- - - -- ------ --- -- -- --- - - ---- - ------ -- - - - - -- ------------- ----- - - - -- ----------------------------------------------- 12 13 12 52003233. BRIAN 32.22 12/14/12 S2004014.001 johnson 68.18 12/17/12 S2004845.001 LENNY / RENTAL 98.81 12/18/12 52006282.001 STIEN 188.62 12/19/12 52004712.001 FARRELL 215.04 12/20/12 52004712.002 FARRELL 11.59 12/20/12 S2008096.001 SENSENIG 225.71 12/20/12 52008100.001 SERVICE 306.15 12/20/12 52008131.001 SERVICE 62.17 12/31/12 S2013592.001 Sery Chrg 360.98 01/07/13 52017249.001 ANDERSON 304.94 01/31/13 52020228.001 HOFFMAN / BRUMM 2,976.45 01/31/13 S2020312.001 HOFFMAN / BRUMM 1,912.47 01/31/13 52035320.001 Sery Chrg 344.87 02/01/13 S2020312.002 HOFFMAN / BRUMM 2,442.59 02/12/13 52041989.001 JASON - CHAMBERSBU 750.79 02/12/13 52042081.001 JASON - CHAMBERSBU 20.59 02/13/13 52042401.001 JASON - CHAMBERSBU 3,437.07 02/21/13 52048646.001 BRUMM 562.74 02/22/13 S2049608.001 HOFFMAN / BRUMM 574.38 02/27/13 52049608.002 HOFFMAN / BRUMM 399.01 02/27/13 52052690.001 HOFFMAN / BRUM 242.10 02/28/13 52055053.001 Sery Chrg 430.36 03/05/13 52050037.001 HOFFMAN BRUMM 71.37 03/07/13 S2050037.002 HOFFMAN BRUMM 11.71 03/22/13 52069051.001 1126 141.91 03/25/13 52066367.001 WHISLER WARRANTY 791.39 03/26/13 S2070753.001 MATT MILLER 282.38 03/31/13 52075314.001 Sery Chrg 463.11 04/05/13 52078827.001 SERVICE 428.27 ------------------- - - - - -- ------------------- - - - - -- ------------------- - - - - -- ------------------- - - - - -- --------- -------- ----- - -- --------------------- - - - - -- PREY BALANCE PAYMENTS CREDITS PURCHASES SERVICE CHARGE NEW BALANCE ------------------- - - - - -- ------------------- - - - - -- -------------- ---- -- - -- -- ------------------- - - - - -- ------------------- - - - - -- FUTURE CURRENT 31 -60 DAYS 61 -90 DAYS OVER 90 DAYS R. F. FAGER CO. Statement 2058 STATE RD. CAMP HILL PA 17011 REMIT TO: 717 - 761 -0660 Fax 717 - 761 -6428 R. F. FAGER CO. 2058 STATE RD. CAMP HILL PA 17011 717 - 761 -0660 --- ------------ - - - - ------ ------ STATEMENT DATE - -- CUST N0. CUSTOMER ___0_8_/__14/ 13 ---- 4101 WHISLER WELL DRILLING HVAC PAGE NO. -- - - - - -- 366-1 GREEN SPRING RD ----------------------------------- NEWVILLE, PA 17241 3 of 3 ----------- - - - - -- ----------------------- - - - - -- ------------------------------- - - - - -- ----------------- - - - - -- ----------------- - - - - -- ----------------- - - - - -- DATE INVOICE NUMBER PURCHASE ORDER NUMBER INVOICE AMOUNT PAYMENTS /CREDITS NET DUE - - - - - - - - - - -- ------------------------------ - - - - - -- -------- --- ------ -- - - -- ----------------------- ----------------- - - - - -- 04]10]13 52078004.001 WHISLER WARRANTY 695.63 04/11/13 S2078004.002 WHISLER WARRANTY 113.94 04/23/13 52091069.001 HEAT CONTROLLER - 159.00 04/29/13 S2094327.001 FREIGHT - 113.94 04/30/13 S2096898.001 Sery Chrg 488.40 05/17/13 S2108465.001 BROWN 205.06 05/20/13 52109739.001 RETURNS - 530.74 05/31/13 S2090086.001 COMPRESSER - 1,373.99 05/31/13 S2118702.001 Sery Chrg 478.39 06/30/13 S2138792.001 Sery Chrg 405.34 07/08/13 52140238.001 FOOTE -27.64 07/15/13 52047059.001 WARRANTY 331.85 331.85 07/15/13 52144818.001 WARRANTY - 331.85 - 331.85 07/16/13 52148116.001 RETURNS - 866.49 - 866.49 07/23/13 S2056287.002 GEO SYSTEM CONTROL 140.08 140.08 07/31/13 52160580.001 Sery Chrg 380.46 380.46 08/01/13 52072548.001 ROOF CAP 43.89 43.89 08/01/13 52149074.001 KEN LIN DRIVE -7.21 -7.21 In an effort to continue to improve our Service to you please provide your email address (preferred) or fax number s that we may send your invoices a d statement to you using one of these options. You ma email your information to ar @rffag r.com, fax it to 7P-761-5839 Dr mail it ' ith your remit ance. Thank you! We appreciate _your _bus ne s s_! _______ ________ __ 1 ------- ----- ---------- ------------------------ - - - -- --------------------------- PREV BALANCE PAYMENTS CREDITS PURCHASES SERVICE CHARGE NEW BALANCE 2 8, 421.39 ________ ---------- _____ 0__ 0 0 _ 2� 519 _________ 1, 8 2 9_. 5 5 ___________ -- 380.461 _________ 28,112.12 ----------------- -- -. - - - -- ------------- ---- -- - - - -- ------- ------------------------------- - - - - -- FUTURE CURRENT -- --- - -- - - - - -- DAYS ------- 61 - -- - - - - -- ------ 90 DAYS OVER -- DAYS 4 3 8 9 __705 ___________ -680.56 _______ = ______-29,254 All past due balances subject to FINANCE CHARGES of 1.50% per month. VERIFICATION I, TERR.I HUNSECKER, authorized agent of R.F. FAGER CO., do hereby verify that the facts stated in the foregoing instrument are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unworn falsification to authorities. Terri Hunsecker Date: SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff lip �LEt) OF F I Q Jody S Smith °' Chief Deputy ?013 SEP -6 AM f6 Richard W Stewart ' Solicitor OF CEOF'm E$RERIFr CUMBERLAND COUNTY PENNSYLVANIA R.F. Fager Company Case Number vs. 2013-4983 Whisler Well Drilling, Inc. SHERIFF'S RETURN OF SERVICE 08/26/2013 10:35 AM -Deputy William Cline, being duly sworn according to law, served the requested Complaint& Notice by handing a true copy to a person representing themselves to be Kenny Whisler, Owner, who accepted as"Adult Person in Charge"for Whisler Well Drilling, Inc. at 366-1 Gree pring Road, North Newton Township, Newville, PA 17241. KICLIAM CLINE, DEPUTY SHERIFF COST: $41.56 SO ANSWERS, August 27, 2013 R-ONO R ANDERSON, SHERIFF (c)CountySuite Sheriff,Teleosoft,Inc. H°m »Z+.-•ewex4ir+.+w h*+P ^ Mr'-«p'°t_i xr�.-„+k3-nfl.,»✓cer7±3;+N»:-�: .55..k_m a,em153^455. 55, 5555555X� »*v5,. :.€» ,5..,s,a.,� .. _... ,. _ .._... ■' 1 kit 9 1 3 i(Li iJ5 T�OM 21113 Q"T Ku i T. LAKIS -9 �'''� 3 0 Jason P.Kutulakis,Esquire C UMBEiSt_:A tNL) U0 U I vttornev 1.1).#: 80411 PENNSYLVANIA 2 West[ugh Street Carlisle,PA 17013 (717)249-09(8) R.F. FAGER COMPANY : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, • v. : No. 13-4983 WHISLER'S WELL DRILLING, INC. • : CIVIL ACTION —LAW Defendant NOTICE TO PLEAD TO: PLAINTIFF c/o John S. Kundrat, Esquire Kundrat&Associates 107 Boas Street Harrisburg, PA 17102 YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN PRELIMINARY OBJECTIONS OF PLAINTIFF TO DEFENDANT'S PRELIMINERY OBJECTIONS TO THE PLAINTIFF'S AMENDED COMPLAINT WITHIN TWENTY (20) DAYS OF THE DATE OF SERVICE OF THIS PLEADING. Respectfully Submitted, ABOM & KUTULAKIS, L.L.P. °IIv 1,1? Date ason P. Kutulakis, Esquire upreme Court I.D. 80411 West High Street Carlisle, PA 17013 (717) 249-0900 AOMB' ULAKIS Jason P.Kutulakis,Esquire Attorney I.D.#: 80411 2 West High Street Carlisle,PA 17013 (717)249-0900 R.F. FAGER COMPANY : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. : No. 13-4983 • WHISLER'S WELL DRILLING, INC. : CIVIL ACTION—LAW Defendant PRELIMINARY OBJECTIONS AND NOW, comes Defendant, Whisler's Well Drilling, Inc., by and through its attorney, Jason P. Kutulakis, Esquire, of ABOM & KUTULAKIS, L.L.P., and files the within Preliminary Objections to Plaintiff's Complaint. I. Preliminary Objection based upon 1028(a)(2) - Failure of a Pleading to Conform 1. Under Pennsylvania Rule of Civil Procedure 1019(h), "when any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written." Pa.R.C.P. 1019(h). 2. Plaintiff in the instant matter does not allege whether the agreement between the parties is oral or written, instead merely attaching a running accounting of the alleged amounts due. 3. Furthermore, Pennsylvania Rules of Civil Procedure require that if a claim is based upon a writing, the pleader must attach the writing. Pa.R.C.P. 1019(i). 4. Plaintiff in the instant matter fails to attach all invoices showing the individual amounts due and payable. 4 WHEREFORE, Defendant, Whisler's Well Drilling, Inc., respectfully requests that this Honorable Court grant its first Preliminary Objection based upon Plaintiffs failure of the pleading to conform and dismiss the Plaintiffs Complaint. II. Preliminary Objection based upon 1028(a)(3) Insufficient Specificity 5. Paragraphs one (1) through four (4) are hereby incorporated by reference as if set forth in full. 6. In Plaintiffs Complaint,Plaintiff alleges that Defendants owe $28,112.12. 7. However, Plaintiff merely provides a statement of accounting with the amounts due and payable. 8. Plaintiff did not attach each invoice they are claiming is due to them for review by the Defendant so that the Defendant can formulate a proper defense. 9. Further, Plaintiff fails to describe the terms and conditions of the alleged contract between Plaintiff and Defendant. 10. Without these terms and conditions, Defendant cannot properly formulate an appropriate defense to the claims Plaintiff is alleging. WHEREFORE, Defendant, Whisler's Well Drilling, Inc., respectfully requests that this Honorable Court grant its second Preliminary Objection based upon Plaintiffs lack of specificity in its Complaint. III. Preliminary Objection based upon 1028(a)(4) —Legal Insufficiency 11. Paragraphs one (1) through ten (10) are hereby incorporated by reference as if set forth in full. 12. Plaintiff alleges in averment 9 that 1.5% interest was agreed to be collected on past due amounts. 13. However, at no time did Plaintiff provide the alleged contract indicating that Plaintiff and Defendant agreed to 1.5%interest to be added to past due amounts. 14. The addition of interest it appears was only on the invoice after the products had been purchased and was not a meeting of the minds between Plaintiff and Defendant when they initially entered into an agreement. 15. Therefore, the claim for 1.5%interest is legally insufficient to proceed. 16. Furthermore, Plaintiff is asking for attorney's fees and costs as a form of relief in Plaintiffs Complaint. 17. In Pennsylvania, reasonable counsel fees may be awarded if"the conduct of another party in commencing the action or otherwise was arbitrary, vexatious or in bad faith." 42 Pa.C.S.A. § 2503(9). 18. However, Plaintiffs Complaint fails to allege that Defendant has acted in an arbitrary, vexatious, or bad faith manner. 19. As such, the claim for counsel fees is legally insufficient to proceed. WHEREFORE, Defendant, Whisler's Well Drilling, Inc., respectfully requests that this Honorable Court grant its third Preliminary Objection based upon Legal Insufficiency and strike the addition of 1.5%interest and attorney's fees from Plaintiffs Complaint. IV. Preliminary Objection based upon 1028(a)(5) —non joinder of a necessary party 20. Paragraphs one (1) through nineteen (19) are hereby incorporated by reference as if set forth in full. 21. In Plaintiffs Complaint, Plaintiff fails to join Hoffman's Custom Homes, Inc., whom Plaintiff and Defendant both had met with when formulating their agreement. 22. Hoffman's Custom Homes, Inc. is a necessary party to this action since not only did Plaintiff and Hoffman's Custom Homes enter into an agreement, but also Hoffman's Custom Homes Inc. appears on the accounting for a majority of charges the Plaintiff claims are payable to them from the Defendant. 23. Therefore, Hoffman's Custom Homes, Inc. should also be joined in the action. WHEREFORE, Defendant, Whisler's Well Drilling, Inc., respectfully requests this Honorable Court grant its fourth Preliminary Objection based upon Plaintiffs failure to join a necessary party to the action and dismiss the Plaintiffs Complaint. Respectfully submitted, Aif M&KUTULAKIS,LLP DATE:OCTOBER 9,2013 Jas in P. utulakis, Esquire A orney 4# 80411 2 est High Street Carlisle,PA 17013 (717) 249-0900 Attorney for Defendant CERTIFICATE OF SERVICE AND NOW, this 9th day of October, 2013, I, Shannon Freeman, of Abom & Kutulakis, LLP, hereby certify that I did serve a true and correct copy of the foregoing Preliminary Objections by depositing, or causing to be deposited, same in the United States Mail, first-class mail, postage prepaid addressed to the following: John S. Kundrat, Esquire Kundrat&Associates 107 Boas Street Harrisburg, PA 17102 Attorney for Plaintiff I annon Freema " F T!4 HOT l7 TA.F, 401 3 00T 30 A !t: 20 CUMBERLAND COUNTY PENNSYLVANIA John S. Kundrat, Esquire Kundrat&Associates 107 Boas Street Harrisburg, PA 17102 Attorney ID No. 24958 Telephone: 717-232-3755 Fax: 717-232-9608 kundrat-associatesa,pa.net R.F. FAGER COMPANY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 13-4983 WHISLER'S WELL DRILLING, INC. Defendant CIVIL ACTION—LAW RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS AND NOW,comes Plaintiff, R.F. FAGER COMPANY,by its attorneys, KUNDRAT & ASSOCIATES, and responds to Defendant's Preliminary Objections and in support thereof states as follows: I. Preliminary Obiection based upon 1028(a)(2)—Failure of a Pleading to Conform 1. Pa. R.C.P. 1019(h) speaks for itself. 2. Plaintiff pleads that the action between the parties is based upon an open book account. 3. Pa. R.C.P. 1019(1) speaks for itself. 4. It is admitted that Plaintiff did not attach the invoices referenced in the statement to the Complaint but did state in Paragraph 5: "The invoices are too numerous to be attached hereto,however, invoices shall,upon request,be supplied to Defendant prior to trial." Defendant made no request for the invoices prior to filing the Preliminary Objection. When counsel for Plaintiff and Defendant spoke subsequent to the filing of the Preliminary Objections, Plaintiff's counsel,by cover letter attached as Exhibit A", mailed to Defendant's counsel all invoices identified in the open account statement. WHEREFORE, Plaintiff, R.F. Fager Company, respectfully requests that this Honorable Court deny this Preliminary Objection. II. Preliminary Objection based upon 1028(a)(3) Insufficient Specificity 5. No response is required. 6. Admitted. 7. Admitted in part and denied in part. It is admitted that Plaintiff provided a statement of account reflecting the amounts due and payable. The balance of the averment is denied in that Plaintiff did supply the invoices to Defendant when requested. See Paragraph 4 above. 8. Admitted with clarification. See Paragraph 7 above. 9. Denied. To the contrary, there was a running open account between the parties whereby Plaintiff sold to and Defendant purchased products from 1996 and payment was required for same pursuant to thirty(30) day terms or interest at a rate of 1 %2%per month would accrue. This relationship between the parties was their course of dealing since 1996. By way of further answer, subsequent to this matter being referred to counsel for collection, Defendant 2 voluntarily and without objection paid several payments totaling$7,382.60. 10. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of this averment and,therefore, it is denied and strict proof at trial is demanded. WHEREFORE,Plaintiff respectfully requests that this Honorable Court deny the second Preliminary Objection. M. Preliminary Objection based upon 1028(a)(4)—Legal Insufficiency 11. No response is required. 12. Admitted. 13. Admitted with clarification. It is admitted that Plaintiff did not provide a contract between the parties. By way of further answer, the parties conducted business since 1996 under the open account with terms of net thirty(30) days and interest at the rate of 1-1/2%per month if not paid within terms. 14. Denied. To the contrary, Defendant acknowledged the interest charges and has paid many since 1996 when business was commenced between the parties. 15. Paragraph 15 is a conclusion of law to which no response is required. 16. Admitted. Plaintiff has requested attorney's fees. This was based upon the belief of Plaintiff that it had in its possession a credit application permitting the collection of attorney's fees should the matter be referred to counsel for collection. As of the date of this response, however, the credit application cannot be located. If the credit application cannot be located prior to trial,Plaintiff shall withdraw its demand for legal fees. 17. 42 Pa.C.S.A. § 2503(9) speaks for itself. By way of further answer,the Statute is 3 not the exclusive law in determining the award of legal fees in the Commonwealth. The parties may have an understanding of payment of legal fees by agreement. 18. Admitted. See Paragraph 17 above. 19. Paragraph 19 is a conclusion of law to which no response is required. WHEREFORE, Plaintiff respectfully requests that this Honorable Court deny the third Preliminary Objection of Defendant. IV. Preliminary Objection based upon 1028(a)(5)—non Joinder of a necessary party 20. No response is required. 21. Admitted in part with clarification and denied in part. It is admitted that Plaintiff did not join Hoffinan's Custom Homes, Inc. as a Defendant. By way of further answer, Defendant references an agreement but does not state if it was written or oral. It is denied that any written or oral agreement exists among the parties. Additionally, it is acknowledged that Plaintiff did meet with Defendant and a representative of Hoffman's Custom Homes. However, this was only to verify that Defendant was to perform substantial work for Hoffinan's Custom Homes, Inc., and that Defendant would require a larger open account from Plaintiff to complete the work,which open account was subsequently increased to accommodate Defendant. See Affidavit attached as Exhibit`B". 22. Denied. It is denied that Hoffinan's Custom Homes, Inc. is a necessary party to this action in that there never was an agreement among Plaintiff, Defendant and Hoffinan's Custom Homes, Inc. The balance of the averment is denied in that, after reasonable investigation,Plaintiff is without knowledge or information sufficient to form a belief as to the 4 truth of this averment and, therefore, it is denied and strict proof at trial is demanded. WHEREFORE, Plaintiff respectfully requests this Honorable Court to deny Defendant's fourth Preliminary Objection. KUNDRAT &ASSOCIATES By S ndrat, rsquire Attorney for Plaintiff Date: October 28, 2013 5 KUNDRAT & ASSOCIATES LAW OFFICES 107 BOAS STREET HARRISBURG,PENNSYLVANIA 17102 JOHN S.BUNDRAT-LL.M.Tag (717)232-3755 E-mail:kundrat-associates @pa.net FAX(717)232-9608 October 16, 2013 ---------------Jason-I'.-Kutulakis—Esquire--- ------------------ -------- ----- -------------------------- ABOM&KUTULAKIS 2 West High Street Carlisle,PA 17013 Re: R.F.Fager Company v. Whisler's Well Drilling,Inc. Our File No. 109-2013(5) Dear Mr. Kutulakis: We enclose the invoices referenced in Paragraph 5 of the Complaint. We are securing a copy of the credit application. As a final note, in speaking with our client,there was no agreement among Fager, Mr. Hoffman and Whisler's Well Drilling. If you have any evidence of same,please supply it to the undersigned. We have been working with Mr.Whisler on this matter since May 14,2013. We have, for the most part,been in contact with him on a weekly basis and he never disputed anything owed in this matter nor did he make any mention of the alleged Hoffman agreement. In fact,he has paid on the account$7,382.60. We request that you revisit this matter with Mr.Whisler in order to save both parties substantial legal fees. Sincerely, K T & SSO TES J. f undrat JSK:amh Enclosures cc: Terri Hunsecker,wo/enc. EXHIBIT t r AFFIDAVIT OF ROBERT MACKAY The undersigned,Robert MacKay, executes this Affidavit with the knowledge it shall be attached to the Response to Defendant's Preliminary Objections, and that the averments of fact contained below are true and correct to the best of my information,knowledge and belief. I have acted as office manager for the R.F. Fager Company since 1992. I met with Tim Hoffinan of Hoffman's Custom Homes and Ken Whisler of Whisler's Well Drilling,Inc.,on July 26,2012. Hoff van's Custom Homes,Inc.has an account with R.F. Fager Company on a COD basis. Whisler's Well Drilling, Inc.had an open account since 1996. Mr. Wlusler indicated that he was going to start doing work for Mr.Hoffman consisting of installing geothermal heating/cooling units and plumbing work on large executive custom homes which Mr.Hoffinan was going to building. Mr. Whisler indicated that the open account that R.F.Fager Company had for Whisler's Well Drilling,Inc.,was inadequate and requested a larger open account. Mr. Hoffman verified that Whisler's Well Drilling,Inc.,was going to be the exclusive plumbing contractor going forward with Hoffman's Custom Homes, Inc. Mr. Hoffiman never authorized Whisler's Well Drilling,Inc., access to his account nor guaranteed any obligation of Whisler's Well Drilling,Inc. Prior to referring this collection to counsel,Mr.Whisler never indicated any problem with the interest charges which had accrued on the account. Furthermore,he indicated to me on several occasions that he couldn't pay because he was owed in excess of$100,000.00 from Hoffinan's Custom Homes,Inc. I,ROBERT MACKAY,authorized agent of R.F.FAGER CO.,do hereby verify that the facts stated in the foregoing instrument are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subj ct to the penalties of 18 Pa.C.S. $4904 relating to unswom falsification t uthoritie . Robert MacKay EXHIBIT CERTIFICATE OF SERVICE AND NOW, this My"-Jay of 600 6M , 2013, I, Anna M. Hause, secretary for the law firm of Kundrat&Associates, Counsel for Plaintiff, hereby certify that a true and correct copy of the foregoing Response to Defendant's Preliminary Objections was served via first class mail,postage prepaid addressed to the parties or counsel of record as follows: Jason P. Kutulakis, Esquire ABOM &KUTULAKIS 2 West High Street Carlisle, PA 17013 KUNDRAT &ASSOCIATES Anna M. Hause 107 Boas Streets Harrisburg, PA 17102 717-232-3755 eOM & l , ,, t'n0T O ,T ITLILAKIS 2)!3 NOV 18 PH 3: 30 Attu ey l Kutulakis, D.#: 80411uire CUMBERLAND COUNTY 2 West High Street PENNSYLVANIA Carlisle,PA 17013 (717)249-0900 R.F. FAGER COMPANY : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. : No. 13-4983 WHISLER'S WELL DRILLING, INC. • : CIVIL ACTION —LAW Defendant PRAECIPE TO WITHDRAW DEFENDANT'S PRELIMINRY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes the above-named Defendant, Whisler's Well Drilling, Inc., by and through its attorney,Jason P. Kutulakis, Esquire of Abom& Kutulakis, L.L.P. and wish to withdraw the Preliminary Objections to Plaintiff's Complaint that was filed with the Cumberland County Prothonotary against the above-named Plaintiff, R.F. Fager Company, on October 9, 2013. Respectfully Submitted, • is • & KUTULAKIS, L.L.P. _ __/_3_____Ii /Z / jU f, D l o Jas 4 n P. K ;Kakis, Esquire Supreme Court I.D. 80411 2 West High Street Carlisle, PA 17013 (717) 249-0900 CERTIFICATE OF SERVICE AND NOW, this 18th day of November, 2013, I, Shannon Freeman, of Abom & Kutulakis, LLP, hereby certify that I did serve a true and correct copy of the foregoing Praecipe to Withdraw Defendant's Preliminary Objections to Plaintiffs Complaint by depositing, or causing to be deposited, same in the United States Mail, first-class mail, postage prepaid addressed to the following: John S. Kundrat, Esquire Kundrat&Associates 107 Boas Street Harrisburg, PA 17102 Attorney for Plaintiff I /. . annon Freeman t & T w &U,ULAKIS ^a 131)JEC —5 PH 3. 45z Jason P.Kutulal:is,Esquire Attorneyr.n.#: 80411 BLE �t r;Gl�'rTY 2 Wcst High Street PENNSYLVANIA Carlisle,PA 17013 (717)249-0900 R.F. FAGER COMPANY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, V. No. 13-4983 WHISLER'S WELL DRILLING, INC. CIVIL ACTION—LAW Defendant ANSWER AND NEW MATTER AND NOW, comes Defendant, Whisler's Well Drilling, Inc., by and through its attorney, Jason P. Kutulakis, Esquire, of ABOM & KUTULAKIS, L.L.P., and files the within Answer to Plaintiff's Complaint. 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted in part, denied in part. By way of further answer, it is specifically admitted that Plaintiff sold and provided products that were ordered by the Defendant from the Plaintiff. It is specifically denied that the invoices are too numerous to be attached hereto. By way of even further answer, Defendant was not the only individual ordering products from the Plaintiff on the account that Plaintiff is demanding payment. 6. Denied. It is specifically denied that the prices charged for the products sold to Defendant were the fair, reasonable, and market prices of the products. It is also specifically denied that the prices of the products are the prices that Defendant agreed to pay to Plaintiff. 7. After reasonable investigation, Defendant is without sufficient knowledge to admit or deny this statement. To the extent an answer is deemed to be required, Defendant denies that the Plaintiff has maintained a statement of account keeping an accurate and running amount of debits and credits for the sale of products sold to Defendant by Plaintiff. 8. Admitted in part, denied in part. It is specifically admitted that a copy of account from August 1, 2013 is attached to the Complaint. It is specifically denied that Plaintiff has submitted to Defendant a monthly statement of account that accurately shows all debits and credits for transactions between the Plaintiff and Defendant. 9. Admitted in part, denied in part. It is specifically admitted that the terms and conditions of sale are contained on the invoices. It is specifically denied that the Plaintiff is entitled to receive a finance charge of 1.5%per month on past due accounts. 10. After reasonable investigation, Defendant is without sufficient knowledge to admit or deny this statement. To the extent an answer is deemed to be required, Defendant denies that all conditions precedent to the bringing of this action have been performed by Plaintiff and strict proof to the contrary is demanded. 11. Admitted. It is specifically admitted that the amount the Plaintiff is claiming that is in controversy is within the compulsory arbitration limits. NEW MATTER 12. All previous paragraphs in Defendant's Answer are incorporated by reference as if set forth in full. 13. Plaintiff and Tim Hoffman of Hoffman Custom Contracting, Inc. entered into an agreement whereby Mr. Hoffman could purchase materials on Defendant's account with Plaintiff since Hoffman Custom Contracting, Inc. 14. Based upon Plaintiff's Exhibit A to the Complaint, Hoffman has charged approximately $11,355.26 to Defendant's account that Plaintiff is claiming is unpaid. 15. Plaintiff is in privity of contract with Hoffman Custom Contracting, Inc. 16. Hoffman Custom Contracting, Inc. is liable to Defendant in that amount, $11,355.26. 17. Plaintiff has erroneously charged interest to Defendant without any agreement between Plaintiff and Defendant. 18. Defendant is not liable to Plaintiff for interest or financing charges whatsoever. 19. Plaintiff's claim and ability to recover is barred by Plaintiffs failure to add necessary defendants including,but not limited to, Hoffman Custom Contracting, Inc. 20. Plaintiffs claim and ability to recover is barred by Plaintiff's failure to mitigate his damages. 21. Plaintiff's claim and ability to recover is barred by the defense of laches. 22. Plaintiffs claim and ability to recover is barred by the statute of limitation. 23. Plaintiff's claim and ability to recover is barred by the defense of estoppel. 24. Plaintiff's claim and ability to recover is barred by the defense of fraud. 25. Plaintiff's claim and ability to recover is barred by the defense of impossibility of performance. 26. Plaintiff's claim and ability to recover is barred by the defense of legality. 27. Plaintiff's claim and ability to recover is barred by the defense of justification. 28. Plaintiff's claim and ability to recover is barred by the defense of excuse. 29. Plaintiff's claim and ability to recover is barred by the defense of assumption of risk. 30. Plaintiff's claim and ability to recover is barred by the defense of consent. WHEREFORE, Defendant respectfully requests that Plaintiff's Complaint be dismissed. Respectfully submitted, oM&KUTULmus,LLP DATE: I/� ��„L3 If Jas n P ul 4A orn # 80 11 est High Street arlisle,PA 17013 (717) 249-0900 Attorney for Defendant VERIFICATION I, Kenneth Whisler,verify that the statements made in the foregoing ANSWER AND NEW MATTER are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. )etc Kenneth Whisler CERTIFICATE OF SERVICE AND NOW, this 5" day of December, 2013, I, Shannon Freeman, of Abom & I-,'-utulakis, LLP, hereby certify that I did serve a true and correct copy of the foregoing Answer by depositing, or causing to be deposited, same in the United States Mail, first-class mail, postage prepaid addressed to the following: John S. Kundrat, Esquire Kundrat&Associates 107 Boas Street Harrisburg,PA 17102 Attorney for Plaintiff r nnon Freema ;';1 L PR(�r�CNO TAG;',, John S. Kundrat, Esquire + Kundrat &Associates 2013 DEC I I All 11: S I 107 Boas Street fi1jM8ERLANO COUNTY Harrisburg, PA 17102 PENNSYLVANIA Attorney ID No. 24958 Telephone: 717-232-3755 Fax: 717-232-9608 kundrat-associates@pa.net R.F. FAGER COMPANY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 13-4983 WHISLER'S WELL DRILLING, INC. Defendant CIVIL ACTION—LAW PLAINTIFF'S RESPONSE TO DEFENDANT'S NEW MATTER AND NOW, comes Plaintiff, R.F. FAGER COMPANY,by its attorneys, KUNDRAT & ASSOCIATES, and responds to Defendant's New Matter and, in support thereof, states as follows: 12. No response is required. 13. Denied. It is denied that Plaintiff entered into any agreement with Hoffinan Custom Contracting, Inc. or Tim Hoffinan whereby Hoffinan Custom Contracting, Inc., could purchase materials on Defendant's account. Only charges made by Defendant were charged to Defendant's account. 14. Denied. It is denied that Tim Hoffman or Hoffinan Custom Contracting, Inc. has charged$11,355.26 to Defendant's account. By way of further answer, Hoffinan has not charged anything to Defendant's account. 15. Denied. It is denied that Plaintiff has any privity of contract with Hoffinan Custom Contracting, Inc. or Tim Hoffman in this matter. By way of further answer, see Paragraph 13 above. 16. Denied. It is denied that Hoffinan Custom Contracting, Inc., is liable to Defendant in the amount of$11,355.26 or any other amount. 17. Denied. It is denied that Plaintiff erroneously charged interest to Defendant without agreement between Plaintiff and Defendant. Defendant knew of the interest charge and, in fact,Defendant and Plaintiff had a course of dealing since 1996 wherein interest was charged on the account when not paid pursuant to terms. 18. Denied. It is denied that Defendant is not liable to Plaintiff for interest or finance charges. By way of further answer, see Paragraph 17 above. 19. Denied. It is denied that Plaintiff's claim is barred by Plaintiff not adding any necessary defendants. By way of further answer, there are no necessary defendants in the claim other than Defendant. 20. Denied. It is denied that Plaintiff's claim is barred as a result of Plaintiff's failure to mitigate its damages. Plaintiff has attempted to mitigate its damages and continues to do so. 21. Denied. Paragraph 21 is a conclusion of law to which no response is necessary. 22. Denied. Paragraph 22 is a conclusion of law to which no response is necessary. 23. Denied. Paragraph 23 is a conclusion of law to which no response is necessary. 24. Denied. Paragraph 24 is a conclusion of law to which no response is necessary. 25. Denied. Paragraph 25 is a conclusion of law to which no response is necessary. 26. Denied. Paragraph 26 is a conclusion of law to which no response is necessary. 27. Denied. Paragraph 27 is a conclusion of law to which no response is necessary. 28. Denied. Paragraph 28 is a conclusion of law to which no response is necessary. 29. Denied. Paragraph 29 is a conclusion of law to which no response is necessary. 30. Denied. Paragraph 30 is a conclusion of law to which no response is necessary. WHEREFORE, Plaintiff respectfully requests that Defendant's New Matter be dismissed KUNDRAT &ASSOCIATES By Jol,A S. Kundrat, Esquire Attorney for Plaintiff Dated: VERIFICATION 1, TERRI HUNSECKER,authorized agent of R.F.FAGER CO.,do hereby verify that the facts stated in the foregoing instrument are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.§4904 relating to unsworn falsification to authorities. Terri Hunsecker Date: �� �� CERTIFICATE OF SERVICE AND NOW, this 10 t6L day of 12013, I, Anna M. Hause, secretary for the law firm of Kundrat &Associates, Counsel for Plaintiff,hereby certify that a true and correct copy of the foregoing Plaintiff's Response to Defendant's New Matter was served via first class mail,postage prepaid addressed to the parties or counsel of record as follows: Jason P. Kutulakis, Esquire ABOM &KUTULAKIS 2 West High Street Carlisle, PA 17013 KUNDRAT &ASSOCIATES Anna M. Hause 107 Boas Streets Harrisburg, PA 17102 717-232-3755