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HomeMy WebLinkAbout13-7098 COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS NOTICE OF APPEAL Judicial District, County Of Cumberland FROM MAGISTERIAL DISTRICT JUDGE JUDGMENT COMMON PLEAS No. NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the Magisterial District Judge on the date and in the case referenced below. NAME OF APPELLANT MAG. DIST, NO, NAME OF MDJ Qui Chau (improperly captioned as "Qui Chan ") 09 -1 -02 Honorable Elizabeth S. Beckley ADDRESS OF APPELLANT CITY STATE ZIP CODE 3020 Columbia Avenue Camp Hill PA 17011 DATE OF JUDGMENT IN THE CASE OF (Pfaintifl) (Defendant)' 11/05/2013 Donald C. Ulzheimer VS Qui Chau (improperly captioned as "Qui Chan ") DOCKET No. SIGNATURE OF APP NT OR ATTORNEY OR AGENT MJ- 09102 -CV- 0000206 -2013 fe� /-/ This block will be signed ONLY when this notation is required under Pa. If appellant was Claimant (see Pa. R.C.P.D.J. No. 1001(6) in action R.C.P.D.J. No. 10086. This Notice of Appeal, when received by the Magisterial District Judge, will before a Magisterial District Judge, A COMPLAINT MUST BE FILED operate as a SUPERSEDEAS to the judgment for possession in this case. within twenty (20) days after filing the NOTICE of APPEAL. Signature of Prothonotary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before Magisterial District Judge, IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon Donald C. Ulzheimer appellee(s), to file a complaint in this appeal !� N of appellee(s) (Common Pleas No. 1 5— 7o / a ) within twenty (20) days after service of rule or suffer entry of ' udgment of non pros. L Signature o appellant or attorney or agent RULE: To D C. U l zhe i m er appellee(s) Name of appeflee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAYBE ENTERED AGAINST YOU. (3) The date of service of this rule if service was b y mail is the date of the mailing. Date: oZ � 2013 ,�(�(��Nv 1uc? ^ ryry F ff Signature of Prothonotary or Deputy �7 t J i st�;' t YOU MUST INCLUDE A COPY OF T IE QT(C_rgOF 3UDGMENT/TRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312 -05 /� �O /,t7w COMMONWEALTH OF PENNSYLVANIA Notice of JudgmentlTranscript Civil COUNTY OF CUMBERLAND Case Mag. Dist. No: MDJ- 09 -1 -02 Donald C Ulzheimer MDJ Name: Honorable EMzabeth S. Beckley V. Address: 1901 State Street Qui Chan Camp Hill, PA 17011 Telephone: 717- 761 -0583 Qui Chan Docket No: MJ- 09102 -CV- 0000206 -2013 3020 Columbia Ave Case Filed: 10/4/2013 Camp Hill, PA 17011 Disposition Summary - Cross Complaint) Docket No Plaintiff Defendant Disposition Disposition Date MJ- 09102 -CV- 0000206 -2013 Donald C Ulzheimer Qui Chan Default Judgment for Plaintiff 11/0512013 Judgment Summary Participant Joint/Several Liability Individual Liability Amount Donald C Ulzheimer $0.00 $0.00 $0.00 Qui Chan $0.00 $12,195.82 $12,195.82 Judgment Finding. ( *po ... __... _ .......,., _ ...... ., ._...._ ..,.,.,........__ - ..,. _..._,_., . .._.__...,.. __ r .. _.__ ,. .,._... _,.. . st Judgment) In the matter of Donald C Ulzheimer vs. Qui Chan on MJ- 09102 -CV- 0000206 -2013, on 11/05/2013 the judgment was awarded as follows: Judgment Component Jo)nV$everal Liability Individual Liability Deposit Applied Amount Civil Judgment $0.00 $12,000.00 $12,000.00 Filing Fees $0.00 $195.82 $195.82 Grand Total: $12,195.82 ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY /CLERK OF COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. NOV 0 5 2013 ^` Date Elizabeth S. Beckley `� �•�_ �, certify a is is a true and correct copy of e record of e proceedings containing the judgment. Date Magisterial District Judge MDJS 315 Page 1 of 2 Printed: 11/05/2013 2:32:52PM Donald C Wzheimer Docket No. MJ- 09102 -CV- 0000206 -2013 V. Qui Chan Participant List Private(s) Susan K. Pickford, Esq. 3400 Trindle Rd Fl 2 Camp Hill, PA 17011 Plaintiff(s) Donald C Ulzheimer 201 West Main Street Mechancisburg, PA 17055 Defendant(s) Qui Chan 3020 Columbia Ave Camp Hill, PA 17011 MDJS 315 Page.2 of 2 Printed: 11/05/2013 2:32:52PM , f 'a _ 1H ;. POTHONOTAR'i 2013 DEC 12 PM 2: 08 CUMBERLAND COUNTY PENNSYLVANIA PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN(10)DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF cAmielbstrionvi 1jAUPIN11,\ ; ss AFFIDAVIT: I hereby(swear)(affirm)that I served ® a copy of the Notice of Appeal, Common Pleas No. 13-7098 Civil, upon the Magisterial District Judge designated therein on (date of service) December 6,2013, ❑ by personal service ® by(certified) (registered)mail, sender's receipt attached hereto, and upon the appellee, (name) Donald C. Ulzheimer,on or about December 6, 2013 ❑by personal service ►1 by(certified)(registered) mail, sender's receipt attached hereto. (SWORN) (AFFIRMED)AND SUBSCRIBED BEFORE ME THIS 10th DAY OF December, 2013 L71q 4.01 V` (hi I i Signature of off al before whom affidavit was made Signa ure of affiant Peter M. Good, Esquire COMM WEALTH OF PENNSYLVANIA Caldwell&Keams, P.C. Notarial Seal 3631 N. Front Street Nancy L Breski,Notary Public Harrisburg, PA 17110 Susquehanna Twp.,Dauphin County My Commission Expires March 16,2016 MEMBER,PENNSYLVANIA ASSOCIATION OF NOTARIES Title of official My commission expires on ,20 AOPC 312A-05 j f SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY • Complete items 1,2,and 3.Also complete A. Sig ature item 4 If Restricted Delivery is desired. x ❑Agent ■ Print your name and address on the reverse ❑Addressee so that we can return the card to you. B. Receiv by(Pnn d Name) C. Date of D livery ■ Attach this card to the back of the mailpiece, N� R £, +x/i Ti or on the front if space permits. ❑I D. Is delivery address diffe t from item 1? Yes 1. Article Addressed to: If YES,enter delivery address below: ❑ No • ora- E)1 be:i-h •IS.er,ICi'tk M oq l-oz 19 C)I Si-,,,i-e.. S-k y ut 3. .Servlce Type ,; Certified Mail ❑Express Mail „,.A E CS P t<U j Q,JE ilk) I ❑Registered jJ Return Receipt fors archandise ' ❑ Insured Mall ❑G.O.D. R� 4. Restricted Delivery?(Extra Fee) , 0 Yes a 2. Article Number 7 012 3050 D Q 01 3 815:11889 l (Transfer from service label) u4. . 4. , '-` ,,- i PS Form 3811,February 2004 Domestic Return Receipt 102595-02-M-1540 SENDER: COMPLETE THIS SECTION , COMPLETE THIS SECTION ON DELIVERY ■ Complete items 1,2,and 3.Also complete A. gnet item 4 if Restricted.Delivery is desired. C ❑Agent • Print your name and address on the reverse X1�4 _.� �..-_ 0 *•dressee so that we can return the card to you. B. -eceived"tiy(Pf'ted Na m C. sate of Delivery ■ Attach this card to the back of the mailpiece, or on the front if space permits. D. Is delivery address different from item 1? ❑Yes 1. Article Addressed to: If YES,enter delivery address below: ❑ No I R SO n Pt of trd , E c � ' f� 3..Service Type-, - - .sk-i- DL--) -I-- rICLOt. ro 6 c''''' .- ' ��m p r 4 LL i (A 1-1 ,i I Mail Otpress Mail ❑'Registered eturn Receipt for Merchandise ❑ Insured Mall 0 C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number 7012 3050 00-01 3815 1872 (Transfer from service label) PS Form 3811,February 2004 Domestic Return Receipt 102595-02-M-1540 PICKFORD LAW OFFICE Susan K.Pickford,Esq. C p k.2,: a 3400 Trindle Road W Camp Hill,PA 717-695-3294 17011 Attorney for Plaintiff P E- I S Y LJ p,ti t r� DONALD ULZHEIMER, : IN THE COURT OF COMMON PLEAS an individual and doing business as :CUMBERLAND COUNTY,PENNSYLVANIA PREMIER REMODELING Plaintiff • vs :ACTION IN LAW AND EQUITY QUI CHAU, an individual : NO. 13-7098 and : 361 DESIGNS, Inc. • Defendants • COMPLAINT BREACH OF CONTRACT UNJUST ENRICHMENT NOW COMES,Donald Ulzheimer,Plaintiff,by and through his attorney, Susan K Pickford, Esq. and files this Complaint and sets forth the following in support thereof: 1. Plaintiff is an individual residing in Cumberland County and doing business as Premier Remodeling also in Cumberland County, Pennsylvania. 2. Defendant is an individual and who, at all times relevant to this complaint, was doing business as 361 Designs, Inc. and residing and operating in Cumberland County, Pennsylvania. Defendant's business engaged in web design services. 3. On or about November 18,2011,Plaintiff and Defendant entered into a written contract for services which is attached hereto as Exhibit A and incorporated herein by reference. 4. Under the terms of the contract,Defendant was to provide web design and maintenance for Plaintiff's business as specifically outlined in Schedule A affixed to Exhibit A, a value of$12,055.00. 5. Under the terms of the contract, Plaintiff was to provide construction services including remodeling of a master bath and first floor bath in Defendant's home located at 3020 Columbia Avenue, Camp Hill, Cumberland County,Pennsylvania, as outlined on Schedule B of Exhibit A. In addition,Plaintiff was to perform hourly construction services at a rate of$60.00/hour to bring his services to $12,005.00. FIRST CAUSE OF ACTION BREACH OF CONTRACT 6. Plaintiff incorporates paragraphs 1 through5 above by reference as if fully set forth herein. 7. Plaintiff performed his obligations under the contract in full with diligence and quality workmanship. 8. Plaintiff completed all items on Schedule B and performed an additional 79.5 hours of work per Defendant's request at$60/hr for a total due of$4,770.00 in addition to the contract price. 9. Under the contract Defendant was to complete the webpage by January 31, 2012 and have it published, hosted and promoted. 10. At the date of the filing of this complaint,Defendant has failed and refused to perform the services outlined in Schedule A of Exhibit A to wit: he failed to perform services listed as e, f, h, i, k, 1, m, n, o, and p of Schedule A of the contract. 11. Plaintiff has attempted to contact Defendant on numerous occasions. Defendant has failed to respond. 12. On February 1, 2013,Plaintiff retained counsel who attempted to resolve the matter with Defendant. 13. Plaintiff alleges that Defendant has wrongfully breached the terms of the contract by failing to perform the work he promised. WHEREFORE, Plaintiff request damages as follows: a. For general damages in an amount exceeding the minimal jurisdictional amount of the court. b. For the contract price of$12055.00. c. For the additional work performed per Defendant's request, $4,770.00. d. For any and all damages resulting from lost profits as a result of failure to produce the website. e. For attorney's fees in the sum to be determined by invoice at the time of hearing. f. For cost of suit incurred herein. g. For interest at the legal rate in the foregoing sums the date of judgment until paid in full. h. For such other and further relief, at law or in equity,to which plaintiff may be justly entitled. SECOND CAUSE OF ACTION UNJUST ENRICHMENT 14. Plaintiff incorporates paragraphs 1 through 13 above by reference as if fully set forth herein. 15. Plaintiff provided Defendant with 2 fully remodeled bathrooms including replacement of tubs,vanities and toilets, re-plumbing and removing a wall and all other items listed in Schedule B of Exhibit A. 16. This service was provided in Defendant's home where he participated in and permitted the renovation to take place and enjoys the benefit of Plaintiff's labor. Plaintiff expected performance of the terms of the contract,to wit: building, maintaining and promoting a website for his business, a$12,055 value, in compensation. 17. Plaintiff performed a service with a value of at least$6,900.00 for the bathrooms and $4,770.00 for addition work referenced in Paragraph 8 above. It would be unjust and frustrate public policy to allow Defendant to enjoy the services provided by Plaintiff without paying for same. 18. Plaintiff alleges that Defendant is unjustly enriched by receiving services from Plaintiff without compensating him for same. WHEREFORE, Plaintiff request damages as follows: a. For general damages in an amount exceeding the minimal jurisdictional amount of the court. b. For the price of benefit received in the amount of$11670.00. c. For attorney's fees in the sum to be determined by production of invoices at the time of hearing. d. For cost of suit incurred herein. e. For interest at the legal rate in the foregoing sums the date of judgment until paid in full. f. For such other and further relief, at law or in equity,to which plaintiff may be justly entitled. Respectfully submitted, PICKFORD W OFFICE By: S. an . Pickford, 'sq. ID# 43093 3400 Trindle Road Camp Hill,PA 17011 (717)695-3294 (p) (717)695-3592 (f) Attorney for Plaintiff VERIFICATION I, Donald Ulzheimer, hereby state that I have read the foregoing Complaint and the statements set forth therein are true and correct to the best of my knowledge, information and belief. Further I understand that this Verification is made subject to the penalties of 18 Pa.C.S. §4904,which relates to unsworn falsification to authorities. Date: Irt'( �r/ Donald Ulzheimer DONALD ULZHEIMER, • IN THE COURT OF COMMON PLEAS an individual and doing business as :CUMBERLAND COUNTY,PENNSYLVANIA PREMIER REMODELING Plaintiff • • vs •ACTION IN LAW AND EQUITY QUI CHAU, • NO. an individual and doing business as 361 DESIGNS, Inc. Defendant • CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Complaint in the above captioned case was served upon the person, at the location and in the manner indicated below. Qui Chau ,4t,- Gra, 361 D gns, Inc 302 Columbia Avenue 34,3 / mp Hill,PA 17011 AiQ,,,t�fw P �o� / 7// U 7 . • Date: / /6 /5 �• .�4 C 1 t.�1;7 1 L Caldwell&Kearns,P.C. 1 Peter M. Good,Esq. 3631 North Front Street I.D.No. 64316 Harrisburg,PA 17110 ?CI if JAN -6 AM 1Q: 4 5 Jessica E. Mercy,Esq. (717) 232-7661 (phone) t� I.D.No.206405 (717) 232-2766 (fax) CUMBERLAND COUNTY pgood @cklegal.net PENNSYLVANIA jmercy @cklegal.net Attorneys for Defendants DONALD ULZHEIMER, an individual IN THE COURT OF COMMON PLEAS and d/b/a PREMIER REMODELING, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, • v. NO. 13-7098 • QUI CHAU, and individual, and 361 DESIGNS, INC., JURY TRIAL DEMANDED Defendants. . NOTICE TO PLEAD TO: Susan K. Pickford, Esquire Pickford Law Office 3400 Trindle Road Camp Hill, PA 17011 Attorney for P laintiy Donald UIt heimer You are hereby advised to file a written response to the enclosed Defendants'Preliminary Objections to Plaintiff's Complaint within twenty (20) days from service hereof, or judgment may be entered against you. CALDWELL & KEARNS, P.C. Dated: January 3, 2014 By: /jA :14 Peter M. Good, Esquire—I.D. No. 64316 Jessica E. Mercy, Esquire—I.D. No. 206405 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 pgood @cklegal.net jmercy @cklegal.net Attorneys for Defendants Caldwell&Kearns,P.C. Peter M. Good,Esq. 3631 North Front Street I.D.No.64316 Harrisburg,PA 17110 Jessica E. Mercy,Esq. (717)232-7661 (phone) I.D.No.206405 (717) 232-2766 (fax) pgood @cklegal.net jmercy @cklegal.net Attorneys for Defendants DONALD ULZHEIMER,an individual IN THE COURT OF COMMON PLEAS and d/b ja PREMIER REMODELING, • CUMBERLAND COUNTY,PENNSYLVANIA Plaintiff, • v. • NO. 13-7098 QUI CHAU, and individual, and • 361 DESIGNS, INC., JURY TRIAL DEMANDED Defendants. . DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW COMES, Defendants Qui Chau and 361 Designs, Inc., by and through their attorneys Caldwell& Kearns, P.C., to file the within Preliminary Objections to Plaintiff's Complaint and in support thereof aver as follows: 1. Plaintiff Donald Ulzheimer (hereinafter "Plaintiff") initiated this action by filing a complaint solely against Defendant Qui Chau (hereinafter "Defendant Chau") before Magisterial District Judge Elizabeth S. Beckley (hereinafter "MDJ Beckley") on or about October 4, 2013 (hereinafter the "MDJ Action"). 2. On or about November 5, 2013, MD]Beckley entered a default judgment in favor of Plaintiff and against Defendant Chau in the amount of$12,195.82 (hereinafter the "MDJ Judgment"). 3. On or about December 2, 2013, Defendant Chau timely appealed the MDJ Judgment to this Court and a rule was issued on Plaintiff to file a Complaint. 4. Thereafter, on or about December 16, 2013,Plaintiff filed a complaint (hereinafter "Plaintiff's Complaint") against Defendant Chau and Defendant 361 Designs, Inc. (hereinafter. "Defendant 361") (Defendant Chau and Defendant 361 are hereinafter collectively referred to as "Defendants") before this Court setting forth causes of action for breach of contract and unjust enrichment (hereinafter the "Second Proceeding"). 5. On or about June 17, 2013, prior to filing the MDJ Action against Defendant Chau, Plaintiff filed a complaint before this Court against Defendant Chau individually and doing business as 361 Designs, Inc. (hereinafter the "First Proceeding"). 6. The First Proceeding was docketed at No. 13-3449 and set forth causes of action against Defendant Chau for breach of contract and unjust enrichment. 7. After a complaint was served on Defendant Chau in the First Proceeding, the undersigned counsel, in an effort to avoid the necessity for filing preliminary objections, contacted Plaintiffs counsel and requested that the complaint be amended to assert causes of action against Defendant 361, the proper defendant, and to remove Defendant Chau as a named defendant; Defendant 361 is the proper defendant because the contract that is the subject matter of this action was made and entered into between Plaintiff and Defendant 361 and Defendant 361 is a corporate entity that is separate and distinct from Defendant Chau. 8. In response to the undersigned counsel's requests, Plaintiff filed a Motion for Leave to File Amended Complaint Pursuant to Pa. R.C.P. 1033,which was granted by the Court on or about August 20, 2013. 9. However, rather than filing an amended complaint in the First Proceeding, Plaintiff filed the MDJ Action and obtained the MDJ Judgment,which was appealed by Defendant Chau and ultimately resulted in the Second Proceeding before this Court. 10. The allegations set forth in the First Proceeding are identical to the allegations set forth in the Second Proceeding. 11. It appears that the only difference between the First Proceeding and the Second 2 • Proceeding is that in the caption of the First Proceeding, Plaintiff named Defendant Chau in his individual capacity and doing business as 361 Designs, Inc. and in the caption of the Second Proceeding, Plaintiff named Defendant Chau and Defendant 361 as separate defendants. I. First Preliminary Objection—All Causes of Action— Failure of a Pleading to Conform to Rule of Court 12. Defendants hereby incorporate Paragraphs 1 through 11 of these Preliminary Objections as if fully set forth herein. 13. Pennsylvania Rule of Civil Procedure 1018.1 provides that every complaint filed by a plaintiff must begin with a notice to defend. 14. Plaintiff's Complaint does not begin with a notice to defend. 15. As a result, Plaintiff's Complaint should be dismissed because it fails to conform to Pennsylvania Rule of Civil Procedure 1018.1. WHEREFORE. Defendants Qui Chau and 361 Designs, Inc. respectfully request that this Honorable Court sustain their Preliminary Objections and dismiss Plaintiff Donald Ulzheimer's Complaint with prejudice. II. Second Preliminary Objection—First Cause of Action—Breach of Contract—Failure of a Pleading to Conform to Rule of Court 16. Defendants hereby incorporate Paragraphs 1 through 15 of these Preliminary Objections as if fully set forth herein. 17. In the First Cause of Action of Plaintiff's Complaint, Plaintiff asserts a cause of action against Defendants for breach of contract. 18. Plaintiff alleges that Plaintiff and defendant (which defendant, Defendant Chau or Defendant 361, is not specified) entered into a written contract for services. 19. Pennsylvania Rule of Civil Procedure 1019(i) provides that when any claim is based upon a writing, a copy of the writing must be attached to the pleading. 3 20. A copy of a written contract between Plaintiff and Defendant Chau and/or Defendant 361 is not attached to Plaintiff's Complaint. 21. As a result, the First Cause of Action of Plaintiff's Complaint should be dismissed because it fails to conform to Pennsylvania Rule of Civil Procedure 1019(i). WHEREFORE. Defendants Qui Chau and 361 Designs, Inc. respectfully request that this Honorable Court sustain their Preliminary Objections and dismiss the First Cause of Action of Plaintiff Donald Ulzheimer's Complaint with prejudice. III. Third Preliminary Objection—All Causes of Action—Pendency of a Prior Action 22. Defendants hereby incorporate Paragraphs 1 through 21 of these Preliminary Objections as if fully set forth herein. 23. On or about June 17, 2013, Plaintiff filed a complaint in the First Proceeding against Defendant Chau in his individual capacity and doing business as 361 Designs, Inc. 24. During the pendency of the First Proceeding, Plaintiff also filed the MDJ Action against Defendant Chau and obtained the MDJ Judgment. 25. The MDJ Judgment was appealed by Defendant Chau and resulted in the Second Proceeding before this Court. 26. The allegations set forth in the First Proceeding are identical to the allegations set forth in the Second Proceeding. 27. It appears that the only difference between the First Proceeding and the Second Proceeding is that in the caption of the First Proceeding, Plaintiff named Defendant Chau in his individual capacity and doing business as 361 Designs, Inc. and in the caption of the Second Proceeding, Plaintiff named Defendant Chau and Defendant 361 as separate defendants. 28. As a result, Plaintiff's Complaint should be dismissed because the First Proceeding was already pending with this Court at the time that the MDJ Action and the Second Proceeding 4 were initiated by Plaintiff. WHEREFORE. Defendants Qui Chau and 361 Designs, Inc. respectfully request that this Honorable Court sustain their Preliminary Objections and dismiss Plaintiff Donald Ulzheimer's Complaint with prejudice. IV. Fourth Preliminary Objection—First Cause of Action—Breach of Contract—Legal Insufficiency/Failure to State a Cause of Action (Demurrer) 29. Defendants hereby incorporate Paragraphs 1 through 28 of these Preliminary Objections as if fully set forth herein. 30. In the First Cause of Action of Plaintiff's Complaint,Plaintiff asserts a cause of action against Defendants for breach of contract. 31. Plaintiff alleges that Plaintiff and defendant (which defendant, Defendant Chau or Defendant 361, is not specified) entered into a written contract for services. 32. Plaintiff fails to allege whether the written contract was between Plaintiff and Defendant Chau, Plaintiff and Defendant 361 or Plaintiff and both Defendant Chau and Defendant 361. 33. As a result, the First Cause of Action of Plaintiff's Complaint should be dismissed because it is legally insufficient and fails to state a cause of action against either Defendant Chau or Defendant 361 for breach of contract. 34. In addition, the contract that was attached to the complaint in the First Proceeding was made and entered into between Plaintiff and Defendant 361; Defendant Chau was not a party to the contract, but rather signed the contract in his capacity as an authorized representative of Defendant 361. 35. Therefore,in the event that the First Cause of Action of Plaintiff's Complaint is not dismissed for being legally insufficient as to both Defendant Chau and Defendant 361, the First Cause of Action of Plaintiff's Complaint should be dismissed as to Defendant Chau because it is 5 legally insufficient as to Defendant Chau and fails to state a cause of action against Defendant Chau for breach of contract. WHEREFORE. Defendants Qui Chau and 361 Designs, Inc. respectfully request that this Honorable Court sustain their Preliminary Objections and dismiss the First Cause of Action of Plaintiff Donald Ulzheimer's Complaint with prejudice. V. Fifth Preliminary Objection—Second Cause of Action—Unjust Enrichment—Legal Insufficiency/Failure to State a Cause of Action (Demurrer) 36. Defendants hereby incorporate Paragraphs 1 through 35 of these Preliminary Objections as if fully set forth herein. 37. In the Second Cause of Action of Plaintiff's Complaint, Plaintiff asserts a cause of action against Defendants for unjust enrichment. 38. Plaintiff alleges that he provided defendant (which defendant, Defendant Chau or Defendant 361,is not specified) with certain services, that plaintiff expected to be compensated for such services, that defendant has not paid for such services and that it would be unjust for defendant to retain the benefit of such services with compensating Plaintiff for such services. 39. Plaintiff fails to allege whether he provided the services to Defendant Chau, Defendant 361 or both Defendant Chau and Defendant 361. 40. As a result, the Second Cause of Action of Plaintiffs Complaint should be dismissed because it is legally insufficient and fails to state a cause of action against either Defendant Chau or Defendant 361 for unjust enrichment. 41. In addition, the alleged services provided by Plaintiff would have been provided by Plaintiff in accordance with the terms and conditions of the written contract between Plaintiff and Defendant 361 that was attached to the complaint in the First Proceeding; Defendant Chau was not a party to the contract, but rather signed the contract in his capacity as an authorized representative of Defendant 361. 6 42. For this reason, any cause of action for unjust enrichment can only be maintained against Defendant 361. 43. Therefore, in the event that the Second Cause of Action of Plaintiff's Complaint is not dismissed for being legally insufficient as to both Defendant Chau and Defendant 361, the Second Cause of Action of Plaintiffs Complaint should be dismissed as to Defendant Chau because it is legally insufficient as to Defendant Chau and fails to state a cause of action against Defendant Chau for unjust enrichment. WHEREFORE. Defendants Qui Chau and 361 Designs, Inc. respectfully request that this Honorable Court sustain their Preliminary Objections and dismiss the Second Cause of Action of Plaintiff Donald Ulzheimer's Complaint with prejudice. VI. Sixth Preliminary Objection—Legal Insufficiency/Failure to State a Cause of Action (Demurrer) and/or MisJoinder of a Cause of Action 44. Defendants hereby incorporate Paragraphs 1 through 43 of these Preliminary Objections as if fully set forth herein. 45. Plaintiff filed the MDJ Action and obtained the MDJ Judgment solely against Defendant Chau. 46. Nevertheless, Plaintiff's Complaint,which was filed in the Second Proceeding after Defendant Chau appealed the MDJ Judgment to this Court, names both Defendant Chau and Defendant 361 as defendants. 47. Plaintiffs causes of action against Defendant 361 in the Second Proceeding are legally insufficient and/or Defendant 361 was misjoined in the Second Proceeding because Defendant 361 was not a party to the MDJ Action. 48. As a result, Plaintiffs Complaint should be dismissed with respect to Defendant 361 because it is legally insufficient and fails to state a claim against Defendant 361 and/or Defendant 361 was misjoined by Plaintiff in the Second Proceeding. 7 WHEREFORE. Defendants Qui Chau and 361 Designs, Inc. respectfully request that this Honorable Court sustain their Preliminary Objections and dismiss Plaintiff Donald Ulzheimer's Complaint with respect to Defendant 361 Designs, Inc. with prejudice. Respectfully Submitted, CALDWELL & KEARNS, P.C. Dated: January 3, 2014 By: Peter M. Good, Esquire—I.D. No. 64316 Jessica E. Mercy, Esquire—I.D. No. 206405 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 pgood @cklegal.net jmercy@cldegal.net Attorneys for Defendants 8 DONALD ULZHEIMER, an individual • IN THE COURT OF COMMON PLEAS and d/b/a PREMIER REMODELING, • CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, • v. • NO. 13-7098 QUI CHAU, and individual, and • 361 DESIGNS INC. • JURY TRIAL DEMANDED Defendants. . CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the foregoing Defendants' Preliminary Objections to Plaintiffs' Complaint on the following by depositing a true and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: Susan K. Pickford, Esquire Pickford Law Office 3400 Trindle Road Camp Hill, PA 17011 CALDWELL & KEA NS, P.C. Dated: January 3, 2014 By: Peter M. Good, Esquire—I.D. No. 64316 Jessica E. Mercy, Esquire—I.D. No. 206405 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 (717) 232-2766 pgood @cklegal.net jmercy @cklegal.net Attorneys for Defendants PICKFORD LAW OFFICE Susan K.Pickford,Esq. 3400 Trindle Road Camp Hill,PA 17011 717-695-3294 Attorney for Plaintiff DONALD ULZHEIMER, : IN THE COURT OF COMMON PLEAS an individual and doing business as :CUMBERLAND COUNTY,PENNSYLVANIA PREMIER REMODELING Plaintiff • r r1 vs :ACTION IN LAW AND EQUITY Z - •' N 4.5(71 QUI CHAU, an individual : NO. 13-7098 r-z °r-,; and : � -; 361 DESIGNS, Inc. • D Defendants • -c r MOTION FOR EXTENSION OF TIME TO RESPOND TO PRELIMINARY OBJECTIONS Plaintiff, by and through his attorney, Susan K. Pickford,Esq., moves this court for an extension of time to answer Defendant's Preliminary Objections and states the following in support thereof: 1. On or about December 16, 2013,Plaintiff filed a complaint in Cumberland County Court alleging Breach of Contract and Unjust Enrichment. 2. On or about January 3rd, 2014,Defendant filed Preliminary Objections and served them through regular mail to the correct address for Plaintiff's attorney. 3. Plaintiff's attorney received the packet on or about January 23, 2013 as it had apparently been mixed in with the mail from another office in the building. 4. Defendant's Notice to Plead provided for a response to be filed within 20 days of the service of the Preliminary Objections. 5. Counsel for Plaintiff called Counsel for Defendant on Monday morning January 26, 2014 and explained the situation and sought an extension of time to answer. Counsel for Defendant did not object. WHEREFORE,Plaintiff seeks an extension of time to January 30, 2014 to file the Answer to Preliminary Objections. Respectfully submitted, • /Susan K. Pic d,Esq. 43093 / 3400 Trindle Road Camp Hill, PA 17011 (717)695-3294 (o) (717)695-3592 (f) CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the foregoing document on the following person and at that location and time indicated below. Peter M. Good,Esq. 3631 NorthFront Street Harrisburg PA 17110 VIA FAX and regular mail Dated: January 27, 2014 Susan K. Pick ord, #43093 3400 Trindle Road Camp Hill,PA 17011 (717)695-3294 (p) (717)695-3592 (f) Attorneypickford@a,gmail.corn Attorney for Plaintiff DONALD ULZHEIMER, : IN THE COURT OF COMMON PLEAS an individual and doing business as :CUMBERLAND COUNTY,PENNSYLVANIA PREMIER REMODELING Plaintiff vs :ACTION IN LAW AND EQUITY C = m;' r'tto C Tm QUI CHAD, an individual : NO. 13-7098 i and : �' "J CD 361 DESIGNS, Inc. <a Defendants z -' PLAINTIFF'S ANSWER ; TO DEFENDANT'S PRELIMINARY OBJECTIONS Plaintiff, by and through his attorney, sets forth the following in Answer to Defendants Preliminary Objections: 1. Admitted. 2. Admitted 3. Admitted 4. Admitted 5. Admitted 6. Admitted 7. Admitted in part and Denied in part. It is admitted that the communications alleged took place. By way of further answer,Plaintiff amended the Complaint to separate the individual Defendant Chau from 361 Designs, Inc. However, it is denied that Defendant Chau is not an appropriate defendant,Defendant Chau was not only the owner of 361 Design, a closely held corporation with no shareholders,the subject of the contract was not a benefit to 361 Design, Inc. but a personal benefit to Mr. Chau as it involved renovation to his private home. Defendant's manner of ownership and the nature of the contracted services pierce the corporate veil of protection. The services were provided to benefit Mr Chau personally. The fact that he continues to enjoy the benefits of Plaintiff's work even after his separation from 361 Designs provides the elements for an Unjust Enrichment claim. 8. Admitted 9. Denied in part and Admitted in part. Plaintiff did file an amended complaint simultaneously with the Motion for leave to amend. Plaintiff did, however, file an MDJ action,to which Defendant failed to appear and judgment was entered against him. 10. Admitted 11. Admitted. However, by way for further answer,the Complaint in the "first proceeding" was amended. I. First Preliminary Obiection 12. No answer required. 13. Admitted 14. Denied. The Complaint did include a Notice to Defend. Upon filing the Complaint in response to Defendant's Appeal,the original Complaint was incorporated into the appeal case by the prothonotary's office. 15. Defendant's averment is a conclusion of law and therefore requires no response. WHEREFORE,Defendant's First Preliminary Objection should be dismissed. H. Second Preliminary Objection 16. No answer required. 17. Admitted 18. Admitted 19. Admitted. 20. Denied. It is in fact attached as Exhibit"A"and is of record in the prothonotary's office 21. Defendant's averment is a conclusion of law and therefore requires no response. WHEREFORE,Defendant's Second Preliminary Objection should be dismissed. III, Third Preliminary Objection 22. No response required. 23. Admitted 24. Admitted 25. Admitted 26. Admitted 27. Admitted, however,the Complaint was amended as indicated above. 28. Defendant states a conclusion of law and opinion and therefore no response is required. By way of further answer,Plaintiff is not aware of a point of law, nor has one been offered by Defendant,that precludes filing in multiple venues. However, the Complaint in the `first proceeding' was incorporated into the case file for the appeal filed by Defendant in Common Pleas and has merged with it for all purposes. WHEREFORE, Defendant's Third Preliminary Objection should be dismissed. IV. Fourth Preliminary Objection 29. No response required. 30. Admitted 31. Admitted 32. Denied. The Complaint specifically identifies"Defendant Chau"when indicating his individual activity and responsibility and"defendants"when including both Defendant Chau and 361 Designs. 33. Defendant states a legal conclusion with no averment of fact and therefore requires no response. 34. Denied. Defendant Chau was not only the owner of 361 Design, a closely held corporation with no shareholders,the subject of the contract was not a benefit to 361 Design, Inc. but a personal benefit to Mr. Chau as it involved renovation to his private home. Defendant's manner of ownership and the nature of the contracted services pierce the corporate veil of protection. 35. Defendant states a conclusion of law and opinion and therefore no response is required. WHEREFORE,Defendant's fourth preliminary objection should be dismissed. V. Fifth Preliminary Obiection 36. No response necessary. 37. Admitted 38. Admitted in part and Denied in part. It is denied that Plaintiff did not designate the Defendant by name. The Complaint specifically indicates Defendant Chau. In addition as answered in Paragraph 34 above,there exists no corporate protection in this case. All other averments of this paragraph are admitted. 39. Denied. Paragraph 6 of the Complaint, which is incorporated throughout the Complaint specifically states that the services provided by Plaintiff included renovations to Defendant Chau's home. 40. Defendant states a conclusion of law and opinion and therefore no response is required 41. Denied. Plaintiff incorporates herein by reference the responses to paragraph 34. 42. Denied. Defendant states a conclusion of law and opinion and therefore a response is not required. However,the benefit of the services provided by Plaintiff enured to Defendant Chau personally. Further, as explained in Paragraph 34 above, the Defendant is liable for the actions of a closely held corporation where the actions benefit him personally. 43. Defendant states a conclusion of law and opinion and therefore no response is required. WHEREFORE,Defendants Fifth Preliminary Objection should be dismissed. VI. Sixth Preliminary Objection 44. No response required. 45. Admitted 46. Admitted 47. Denied. Defendant states a conclusion of law and opinion to which no response is required. However, appeals from MDJ actions are taken de novo and in accordance with Rule 1007 of the Rules of Civil Procedure,Plaintiff is not limited to parties, amounts in controversy or averments on appeal to the Common Pleas Court. 48. Defendant states a conclusion of law and opinion and therefore no response is required. WHEREFORE, Defendants Sixth Preliminary Objection should be dismissed. Rubmitted, Date: January 27, 2014 an K. Pic f rd,?043093 3400 Trindle Road Camp Hill,PA 17011 (717)695-3294 (p) (717)695-3592 (f) Attomeypickfordggmail.com Attorney for Plaintiff CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the foregoing document on the following person and at that location and time indicated below. Peter M. Good,Esq. 3631 NorthFront Street Harrisburg PA 17110 VIA FAX and regular mail c Dated: January 27, 2014 4usan Pic o ,Es q. 3093 dle Road Camp Hill, PA 17011 (717)695-3294 (p) (717)695-3592 (f) Attorneypickford@gmail,com Attorney for Plaintiff DONALD ULZHEIMER, : IN THE COURT OF COMMON PLEAS an individual and doing business as :CUMBERLAND COUNTY,PENNSYLVANIA PREMIER REMODELING Plaintiff • vs :ACTION IN LAW AND EQUITY QUI CHAU, an individual : NO. 13-7098 and : 361 DESIGNS, Inc. • Defendants • ORDER -Oh AND NOW this k a day of January, 2014, having considered the Plaintiff's Motion for Extension of Time to respond to Defendant's Preliminary Objections, the Motion is hereby GRANTED and time is extended to January 30, 2014 for Plaintiff's Answer to be filed. BY THE COURT 11)i DISTRIBUTION Susan K. Pickford,Esq. 3400 Trindle Road Camp Hill,PA 17011 c -t3 eter M. Good, Esq. mot; 3631 North Front Street '; Harrisburg,PA 17110 ter -> ' Copl'ESc /`3v/iy' ce,f-z PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the-next-0 Argument Court.) CAPTION OF CASE (entire caption must be stated in full) DONALD ULZHEIMER VS. QUI CHAU and 361 DESIGNS, Inc No. 13-7098 CT) Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections 2. Identify all counsel who will argue cases: (a) for plaintiffs: Susan K. Pickford, Esq (Name and Address) 3400 Trindle Road, Camp Hill, PA 17011 (b) for defendants: Peter M. Good, Esq. (Name and Address) 3631 North Front Street, Harrisburg, PA 17110 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: rzt1124,14 MIW Pca- 20 Date: March 7, 2014 Print your name Plaintiff Attorney for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case i relisted. (..7 /9. 76- / Ac dcv_s‘ ,634-3D3/o0 DONALD ULZHEIMER, an individual, and d/b/a PREMIER REMODELING, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION — LAW vs. : NO. 13-7098 CIVIL QUI CHAU, an individual, and 361 DESIGNS, INC., Defendants : JURY TRIAL DEMANDED IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE HESS, P.J., EBERT, JR. AND PECK, J.J. ORDER AND NOW, this 9` day of May, 2014, the preliminary objection of the defendants in the nature of the pendency of a prior action, pending at 13-3449, is SUSTAINED and the captioned complaint is DISMISSED. BY THE=COURT, ✓Susan M. Pickford, Esquire 3400 Trindle Road Camp Hill, PA 17011 For the Plaintiff rn co Aeter M. Good, Esquire =x) 3631 North Front Street Harrisburg, PA 17110 rcz) For the Defendants , �Q >c -) :rlm 00 :C Wd 6- AVW tQ� -4 mC_DF ot c