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HomeMy WebLinkAbout13-7556 n � [HE PROTHOtia , ' 01 3 DEC 20 PM 3� 51 CUMBERLAND CoUiNI - 'r` PENNSYLVANIA MECHANIC'S LIEN CLAIM BY A SUBCONTRACTOR / SUPPLIER 49 P.S. § 1503 IN THE COURT OF COMMON PLEAS OF Cumberland COUNTY LIEN CLAIMANT: Robert Port, Restoration Direct 6301 Chelton Avenue Harrisburg PA 17111 versus PROPERTY OWNER: The Alliance Home of Carlisle, PA, Inc. Chapel Pointe at Carlisle NO. 770 S. Hanover Street Carlisle, PA 17013 Date of Completion of the Claimant's Property Liened: Work: July 19, 2013 Description of the property being liened and the improvements constructed thereupon: Date Formal Notice of Intent to Lien Was Sent: December 20, 2013 County of Cumberland Amount of Claim: The amount claimed State of Pennsylvania to be due is as follows, plus interest: Legally Described As: $ 7,972.83 ©2012 Express Lien, Inc. dba Olen b Hiring Party Labor/Materials Furnished: The Alliance Home of Carlisle, PA, Inc. The claim is made for the following labor and /or materials furnished to the property Chapel Pointe at Carlisle being liened by the Lien Claimant: 770 S Hanover St Carlisle PA 17013 Siloxane WB, labor, and final testing for waterproofed sealer We were the third party chemical These services were provided under a supplier, Chapel Pointe would not tell contract or contractors for an agreed sum: the identity of the contract. $ 7,972.83 If yes, a copy of the contract is attached. If no, a copy of a statement detailing the kind and character of the labor or materials furnished, or both, and the prices charged for each is attached. 1. The Claimant, Restoration Direct Robert Port , files this mechanic's lien claim as a subcontractor and /or supplier; 2. The owner(s) of the Property subject to the lien is above - identified as The Alliance Home of , Chapel Pointe Alliance, Inc 3. The date on which claimant completed the work for which claim is made was July 19. 2013 4. Claimant contracted with the above - identified Hiring Party, and gave formal notice of his intention to file this claim on Dec. 202013 5. This claim is made for the labor and materials above- identified as the Labor/Materials Furnished. 6. The amount claimed to be due is $ 7,972.83 , plus interest. 7. The improvement and property claimed to be subject to the lien is above- identified as the Property. Signature of Claiman Company: Restoration Direct Signed by: Robert Port Date: December 20,2013 © 2012 Express Lien, Inc. dba Dien Robert Port, Restoration Direct 6301 Chelton Avenue Harrisburg, PA 17111, Plaintiff v. The Affiance Home of Carlisle, PA, Inc. Chapel Pointe at Carlisle 770 S. Hanover Street Carlisle, PA 17013, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2013 -07556 -MLD Petition for Discharge Mechanic's Lien on Entry of Approved Surety filed on behalf of the Defendants by and through its attorney HALBRUNER, HATCH & GUISE, LLP 2109 Market Street Camp Hill, PA 17011 717-731-9600 Petition for Discharge of Mechanic's Lien upon entry of Approved Surety Owner The Alliance Home of Carlisle, by the undersigned counsel, petitions this Honorable Court pursuant to 49 Pa.C.S. §1510 to discharge the Mechanics' Lien claim of Plaintiff Robert Port, et al, on entry of approved security, and in support avers the following: 1. Claimant's Mechanic's Lien Claim, a copy of which is attached as "Exhibit A," was filed on December 20, 2013 against unidentified property of the Defendant. 2. Claimant claims a lien in the amount of $7,972.83 for labor and/or materials furnished in the alteration or repair of unidentified property of the defendant pursuant to an undocumented subcontract with an unknown prime contractor. 3. Owner proposes to deposit with the court the amount of $7,972.83 via corporate check. rn -r3 rn :1J ` WHEREFORE, it is respectfully requested this Honorable Court approve defendant's proposed security in the form of a corporate check and discharge plaintiff's mechanic's lien claim upon entry of such security. Respectfully submitted, HALBRUNER, HATCH & GUISE, LLP hn H. McCullough upreme Court ID 87875 2109 Market Street • Camp Hill, PA 17011 717-731-9600 j.mccullough@hhgllp.com Verification I hereby verify the facts set forth in the foregoing document are true and correct to the best of my knowledge. I understand that false statements contained herein may be subject to the penalties set forth at 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. The Alliance Home of Carlisle, PA, Inc. By: /- . Do-ef_ Title: '1 CERTIFICATE OF SERVICE I hereby certify I am serving the following parties in the manner set forth below: Via first class mail: Robert Port 6301 Chelton Avenue Harrisburg, PA 17111 Restoration Direct 6301 Chelton Avenue Harrisburg, PA 17111 Date: May 13, 2014 HALBRUNER, HATCH & GUISE, LLP Jo n H. McCullough preme Court ID 87875 109 Market Street Camp Hill, PA 17011 717-731-9600 j.mccullough@hhgllp.com FILE0-DFF1C ur THE. P ROTHONtJ�;N,r:Y MEC 20 PM 3: 5! CUMBERLAND COUNTY PENNSYLVANIA MECHANIC'S LIEN CLAIM BY A SUBCONTRACTOR / SUPPLIER 49 P.S. § 1503 IN THE COURT OF COMMON PLEAS OF Cumberland COUNTY LIEN CLAIMANT: Robert Port, Restoration Direct 6301 Chelton Avenue Harrisburg PA 17111 versus PROPERTY OWNER: The Alliance Home of Carlisle, PA, Inc. Chapel Pointe at Carlisle 770 S. Hanover Street Carlisle, PA 17013 / NO. /3 _ 'l 55 6 in L ` Date of Completion of the Claimant's Work: July 19, 2013 Property Liened: Description of the property being liened and the improvements constructed thereupon: County of Cumberland Date Formal Notice of Intent to Lien Was Sent: December 20, 2013 Amount of Claim: The amount claimed. to be due is as follows, plus interest: $ 7,972.83 State of Pennsylvania Legally Described As: © 2012 Express Lien, Inc. dba Zlien Aso p P/1' Ca64 Aff,219ess- Hiring Party: The Alliance Home of Carlisle, PA, Inc. Chapel Pointe at Carlisle 770 S Hanover St Carlisle PA 17013 We were the third party chemical supplier, Chapel Pointe would not tell the identity of the contract. Labor/Materials Furnished: The claim is made for the following labor and/or materials furnished to the property being liened by the Lien Claimant: Siloxane WB, labor, and final testing for waterproofed sealer These services were provided under a contract or contractors for an agreed sum: $ 7,972.83 If yes, a copy of the contract is attached. If no, a copy of a statement detailing the kind and character of the labor or materials furnished, or both, and the prices charged for each is attached. 1. The Claimant, Restoration Direct , Robert Port files this mechanic's lien claim as a subcontractor and/or supplier; 2. The owner(s) of the Property subject to the lien is above -identified as The Alliance Home of, Chapel Pointe Alliance. Inc 3. The date on which claimant completed the work for which claim is made was July 19. 2013 . 4. Claimant contracted with the above -identified Hiring Party, and gave formal notice of his intention to file this claim on Dec. 20. 2013 . 5. This claim is made for the labor and materials above -identified as the Labor/Materials Furnished. 6. The amount claimed to be due is $ 7.972.83 , plus interest. 7. The improvement and property claimed to be subject to the lien is above -identified as the Property. Signature of Claiman /Z-20 Company: Restoration Direct Signed by: Robert Port Date: Decemb r 20.2013 10 2012 Express Lien, Inc. dba Zlien Robert Port, Restoration Direct 6301 Chelton Avenue Harrisburg, PA 17111, Plaintiff v. The Alliance Home of Carlisle, PA, Inc. Chapel Pointe at Carlisle 770 S. Hanover Street Carlisle, PA 17013, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2013 -07556 -MLD Entry of Appearance filed on behalf of the Defendants by HALBRUNER, HATCH & GUISE, LLP 2109 Market Street Camp Hill, PA 17011 717-731-9600 Entry of Appearance To the Prothonotary of Cumberland County: Kindly enter my appearance on behalf of the defendant in the above captioned case. HALEiRUNER, HATCH & GUISE, LLP 1 I P. H. McCullough upreme Court ID 87875 2109 Market Street Camp Hill, PA 17011 717-731-9600 j.mccullough@hhglIp.com IN THE COURT OF COMMON PLEAS OF MIFFLIN COUNTY, PENNSYLVANIA Robert Port, Restoration Direct 6301 Chelton Avenue Harrisburg, PA 17111, Plaintiff v. The Alliance Home of Carlisle, PA, Inc. Chapel Pointe at Carlisle 770 S. Hanover Street Carlisle, PA 17013, Defendant ORDER ,20fit is HEREBY ORDERED on NOW, this/f day o No. 2013 -07556 -MLD o consideration of owner's petition to discharge the mechanics lien claim of claimant Robert Port, Restoration Direct on the entry of approved security, it is hereby ORDERED that claimant's above -captioned mechanic's lien claim shall be wholly discharged and struck from the judgment index on the filing of owner's surety in the amount of $7,972.83, as surety in the form attached to defendant's petition. he_iw- s-4 t Wci tL 4,--/5- • e5c- to•-/ir"-D "t-LtZ, BY THE COURT: c: John H. McCullough, Esq., albruner, Hatch & Guise, LLP 2109 Market Street, Camp Hill, PA 17011 Aobert Port, Restoration Direct, .1 6301 Chelton Avenue, Harrisburg, PA 17111 File RECEIPT FOR PAYMENT Cumberland County Prothonotary's Office Carlisle, Pa 17013 PORT ROBERT 6301 CHELTON AVENUE Receipt Date Receipt Time Receipt No. HARRISBURG, PA 17111 PORT ROBERT ET AL (vs) THE ALLIANCE HOME OF CARLISLE Case Number 2013-07556 Received of DEP IN MIDPENN BANK - 05-20-14 ACCT. # 17003708 - PAYEE #3978 Total Non -Cash + .00 Total Cash + 7,972.83 Change - .00 Receipt total = $7,972.83 Transaction Description BOND Distribution Of Payment 5/19/2014 12:18:30 306013 Payment Amount 7,972.83 17003708 - 10-9999 $7,972.83 Prothonotary of Cumberland County Vendor Code: 01505 • Vendor Code 01505 Invoice No. Description Date Amount Discount Withheld Net Amount Security 10-10-1381 PROOFCMB Prepaid Other Expenses• 05/13/2014 7,972.83 7 , 972 . 83 0.00 0.00 7,972.83 Check Date: 05/13/20141 Check #: 10000016820 Totals: 7,972.83 0.00 0.00 7, 972.83 ape l Pointe at Cartiste - Chapel Pointe at Carlisle -Chapet Pointe at Carlisle - Chapel Pointe at Carlisle - Chapel Pointe at Carlisle - Chapel Pointe at Carlisle - Chapel Pointe at Carlisle - Chapel Pointe at Carlisle • Chapel Pointe at Carlisle 770 South Hanover Street, Carlisle, PA 17013-4105 Pay to the order of Prothonotary of Cumberland .County M&T Bank Manufacturers & Traders Trust Company Altoona, PA 16601 Rn -2g 313 0000016820 ***Seven thousand nine hundred seventy two and 83/100 dollars May 13, 2014 $*****7,972.83 AUTHORI ZED SIGNATURE 11'00000 16E1 2011' 1:0 3 130 295 51: 20 70 7 Li" —1' • 0 ;C Win— LL Li1W Ls— CO i 0- N C.) 1 CASE # 13-7556 Order of Court Dated - Added into InFo Con on Receipt Number Deposited into Mid Penn Bank on IMay 14, 2014 5/19/2014 15/20/2014 • This was sent up to the Court on 05-13-2014 - Order of Court dated 05-14-2014 came back from the Courts on 05- 15-2014. I had off the 15th and 16th - I saw it on 05-19- 2014. All the paperwork was done then but because it was . the beginning of Civil Court week and we had two people call off, I deposited the monies on 05-20-2014. • The check was placed in the safe on 05-13-2014 when I received it. 2013-7556 Acccount # Case # Bank Payee Amount Deposited Date Deposited Receipt # in InfoCon Date Entered in InfoCon Order of Court Dated 17003807 2013-7556 MidPenn Bank 3978 7,972.83 May 20, 2014 306013 May 20, 2014 May 14, 2014 ROBERT PORT, RESTORATION : IN THE COURT OF COMMON PLEAS OF DIRECT, : CUMBERLAND COUNTY, PENNSYLVANIA Claimant : No. 2013 -07556 -MLD v. THE ALLIANCE HOME OF CARLISLE, PA, INC., Owner PETITION OF KELLY SYSTEMS, INC., TO INTERVENE AS PARTY DEFENDANT AND NOW comes Kelly Systems, Inc., by and through its undersigned attorneys, and files this Petition for leave to intervene in the above -referenced proceeding as a party defendant, and in support thereof, avers as follows: 1. Petitioner is Kelly Systems, Inc. ("Kelly"), a Pennsylvania corporation with offices located at 1441 Stoneridge Drive, Middletown, Pennsylvania. 2. Kelly is not a party in the above -captioned mechanic's lien proceeding. 3. Kelly is a general contractor for the above -captioned Owner, The Alliance Home of Carlisle, PA, Inc. ("Alliance"), which owns the real property upon which the mechanic's lien was filed. 4. Kelly had a contract as general contractor with Alliance for the erection, construction, alteration or repair of an improvement located at the Hanover Street location, and pursuant to that contract, Kelly entered into a subcontract with Turbo Tek Restoration, Inc. ("Turbo Tek") to provide certain labor and materials in connection with such erection, construction, alteration or repair. Turbo Tek, in turn, upon information and belief, may have purchased materials from the lien Claimant, Robert Port, for Turbo Tek's use in the project. 5. On or about June 12, 2014, Alliance provided notice to Kelly of the existence of this proceeding and demanded, pursuant to Section 603 of the Mechanic's Lien Law of 1963, 49 Pa.Stat.Ann. §1603 (Purdon's 2001), that Kelly settle, undertake to defend, or secure against the lien as provided therein. A true and correct copy of the notice received from Alliance is hereto attached as Exhibit A. 6. Kelly intends to undertake its statutory duty to defend pursuant to 49 Pa.Stat.Ann. § 1603 (2) (Purdon's 2001) and, in order to do so, seeks permission to intervene) 7. If permitted to intervene, Kelly will file preliminary objections in the form hereto attached as Exhibit B. WHEREFORE, Kelly respectfully requests leave to intervene as a party defendant in this proceeding. Dated: 7/1 %/I L/ Of Counsel Beckley & Madden 212 North Third Street Suite 301 Harrisburg, PA 17101 (717) 233-7691 Respectfully submitted, G. Milakovic I- & Thomas S. Beckley v Attorneys for Kelly Systems, Inc. 1 Specifically, Kelly intends to file preliminary objections to the Lien Claim pursuant to Section 505 of the Act, 49 Pa.Stat.Ann. §1505 (Purdon's 2001). However, in order to file objections pursuant to that Section, one is required by the terms of the statute to be a party. 2 JUL-16-2014(WED) 05:20 KELLY SYSTEMS (FAX)71?9020382 P.002/002 VEItIFIC:AT1(» • I, George Irwin, hereby verify that I am an adult individual; that I am authorized to make this verification in behalf of Kelly Systems, Inc,., the Petitioner in the foregoing Petition To Intervene; and that the facts set forth therein. are Vue to the hent of my knowledge. I *understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §49014., relating to unsworn falsification to authorities. Dated: George Irwin EXHIBIT A • Robert Port, Restoration Direct 6301 Chelton Avenue Harrisburg, PA 17111 Plaintiff v. No. 2013 -07556 -MLD The Alliance Home of Carlisle, PA, Inc. Chapel Pointe at Carlisle 770 S. Hanover Street Carlisle, PA 17013 Defendant Notice You, Kelly Systems, Inc., are hereby notified pursuant to 49 Pa.C.S. §1602 that: 1. Robert Port, Restoration Direct of 6301 Chelton Avenue, Harrisburg, PA 17111 has field a Mechanic's Lien Claim against The Alliance Home of Carlisle, PA, Inc, Chapel Pointe at Carlisle in the amount of $7,972.83. 2. The Alliance Home of Carlisle, PA, Inc., and/or Chapel Pointe at Carlisle have paid to Kelly Systems, Inc. the full amount due and owing for the work performed at Chapel Pointe at Carlisle, and no funds have been withheld. 3. Unless Kelly Systems, Inc. settle, undertake to defend or secure against the claim as provided by 49 Pa.C.S. §1603, within 30 days of the date of service of this notice, The Alliance Home of Carlisle, PA, Inc,. and/or Chapel Pointe may avail themselves of the remedies set forth in 49 P.S. §1604. You should provide a copy of this notice to your attorney at once. Once you have done so, please have your attorney contact me if they have any questions concerning this matter, or to discuss how it may be resolved. Halbruner, Hatch & Guise, LLP Jy 1 McCullough upreme Court ID 87875 2109 Market Street Camp Hill, PA 17011 717-731-9600 j.mccullough@a,hhgllp.com Counsel for Defendants EXHIBIT B ROBERT PORT, RESTORATION : IN THE COURT OF COMMON PLEAS OF DIRECT, : CUMBERLAND COUNTY, PENNSYLVANIA Claimant : No. 2013 -07556 -MLD v. THE ALLIANCE HOME OF CARLISLE, PA, INC., Owner -and- KELLY SYSTEMS, INC., Intervenor PRELIMINARY OBJECTIONS TO MECHANIC'S LIEN CLAIM AND NOW comes Intervenor ("Kelly"), by and through its undersigned attorneys, and files these Preliminary Objections to the Mechanic's Lien Claim in this proceeding, averring as follows: 1. Section 505 of the Mechanic's Lien Law of 1963, as amended, 49 Pa.Stat.Ann. §1505 (Purdon's 2001), provides as follows in pertinent part: Any party may preliminarily object to a claim upon a showing of ... lack of conformity with this act. The court shall determine all preliminary objections. If an issue of fact is raised in such objections, the court may take evidence by deposition or otherwise. 2. Claimant's Mechanic's Lien Claim in this proceeding does not conform to the Mechanic's Lien Law (the "Law") in multiple ways and should be stricken. I. FIRST OBJECTION—FAILURE TO CONFORM TO SECTION 501 3. Section 501(b.1) of the Law provides as follows in pertinent part: No claim by a subcontractor, whether for erection or construction or for alterations or repairs, shall be valid unless, at least thirty (30) days before the same is filed, he shall have given to the owner a formal notice of his intention to file a claim .... 49 Pa.Stat.Ann. §1501 (b.1) (Purdon's Supp. 2014). 4. It is apparent from the face of the record and Claimant's Mechanic's Lien Claim that Claimant, while a subcontractor, did not comply with the requirement that he provide a formal notice of intent at least thirty (30) days prior to the filing of the Lien Claim, to Alliance. 5. Hereto attached as Exhibit A is a certified copy of the docket entries in this proceeding. As shown thereon, Claimant's Mechanic's Lien Claim was filed on December 20, 2013. 6. Hereto attached as Exhibit B is a time -stamped copy of Claimant's Mechanic's Lien Claim in this proceeding. In both the title of the document and in numbered Paragraph 1 of said Mechanic's Lien Claim, Claimant avers that he was a "subcontractor and/or supplier." Thereafter, in both the lower left-hand block on the front of the Lien Claim and in numbered Paragraph 4, Claimant indicates that he did not provide the formal notice required by Section 501(b.1) until "December 20, 2013"—the very same day that the Lien Claim itself was filed. 7. Failure to provide the formal notice within the time frame required by the Law, by itself, mandates the striking of a mechanic's lien claim. See, e.g., Shoemaker v. Zerby, 10 D&C2d 227 (Somerset Co. 1958); Calvert v. Church, 17 Del. 339 (1926); Shuey v. Germano, 14 Wes.C.L.J. 115 (1926). WHEREFORE, Kelly respectfully requests that the Mechanic's Lien Claim in this proceeding be stricken for failure to comply with the Law. 2 II. SECOND OBJECTION—FAILURE TO CONFORM TO SECTION 502 8. Section 502(a)(2) of the Law provides as follows: To prefect a lien, every claimant must: (2) serve written notice of such filing upon the owner within one (1) month after filing, giving the court, term and number and date of filing of the claim. An affidavit of service of notice, or the acceptance of service, shall be filed within twenty (20) days after service setting forth the date and manner of service. Failure to serve such notice or to file the affidavit or acceptance of service within the times specified shall be sufficient ground for striking off the claim. 49 Pa.Stat.Ann. §1502(a)(2) (Purdon's Supp. 2014). 9. Claimant never served written notice of the filing of his Lien Claim upon the Owner ("Alliance"). Rather, upon information, Alliance discovered the existence of the Lien Claim by accident, when it was seeking to re -finance the property. 10. No affidavit or return of service is filed of record. See Exhibit A hereto. 11. Failure to comply strictly with the notice requirements of the Law requires the striking off of a lien claim. See Regency Investments, Inc. v. Inlander Ltd., 855 A.2d 75 (Pa.Super.), appeal denied, 863 A.2d 1148 (Pa 2004). WHEREFORE, Kelly respectfully requests that the Mechanic's Lien Claim in this proceeding be stricken for failure to comply with the Law. 3 III. THIRD OBJECTION—FAILURE TO CONFORM TO SECTION 503 12. Section 503 of the Law states as follows, in pertinent part: The claim shall state: (4) if filed by a subcontractor, the name of the person with whom he contracted .... (6) in all ... cases [other than in which a contractor files under a contract for an agreed sum], a detailed statement of the kind and character of the ... materials furnished ... and the prices charged for each thereof ... (8) such description of the improvement and of the property claimed to be subject to the lien as may be reasonably necessary to identify them. 49 Pa.Stat.Ann. §1503 (Purdon's 2001). 13. Claimant has failed to provide in his Lien Claim any of the foregoing required information. WHEREFORE, Kelly respectfully requests that the Mechanic's Lien Claim in this proceeding be stricken for failure to comply with the Law. Dated: Of Counsel Beckley & Madden 212 North Third Street, Suite 301 Harrisburg, PA 17101 (717) 233-7691 4 Respectfully submitted, John G. Milakovic Thomas S. Beckley Attorneys for Kelly Systems, Inc. CERTIFICATE OF SERVICE It is hereby certified that a copy of the foregoing document was this day served upon the following persons in the manner below indicated: SERVICE BY FIRST CLASS MAIL Dated: Vl tol/`i Robert Port, Restoration Direct 6301 Chelton Avenue Harrisburg, PA 17111 Claimant(s) John H. McCullough, Esquire Halbruner, Hatch & Guise, LLP 2109 Market Street Camp Hill, PA 17011 Attorney for Owner G. Milakovic ROBERT PORT, RESTORATION : IN THE COURT OF COMMON PLEAS OF DIRECT, : CUMBERLAND COUNTY, PENNSYLVANIA Claimant v. THE ALLIANCE HOME OF CARLISLE, PA, INC., Owner -and- KELLY SYSTEMS, INC., Petitioner : No. 2013 -07556 -MLD ORDER AND NOW, this 2/ day of , upon consideration of the foregoing Petition, it is hereby ordered that: (1) a rule is issued upon all parties ("Respondents") to show cause why the Petitioner is not entitled to the relief requested; (2) the Respondents shall file an answer to the Petition within L7O days of this date; (3) the petition shall be decided under Pa.R.Civ.P. 206.7; ays o is . ate; (5) argument shall be held , in Courtroom No. of the Cumberland County Courthouse; end' a .& . (6) notice of the entry of this Order shall be provided to all parties by the Petitioner. BY THE COURT: l' es freat RUy .r. rncc4.uo4f4 1 Robert Port, Restoration Direct 6301 Chelton Avenue Harrisburg, PA 17111, Plaintiff v. The Alliance Home of Carlisle, PA, Inc. Chapel Pointe at Carlisle 770 S. Hanover Street Carlisle, PA 17013, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2013 -07556 -MLD Answer to Prospective Intervenor's Petition to Intervene filed on behalf of the Defendant by and through its attorneys HALBRUNER, HATCH & GUISE, LLP 2109 Market Street Camp Hill, PA 17011 717-731-9600 Defendant's Answer to Prospective Intervenor's Petition for Leave to Intervene To the Honorable Judges of Said Court: ro tv CD The Alliance Home of Carlisle, PA, Inc., and Chapel Point at Carlisle, defendants in this matter, join in the Petition of Kelly Systems, Inc., to intervene in the above captioned matter, and ask that Kelly Systems, Inc., be added as an additional defendant pursuant to 49 Pa.C.S. §1603. Respectfully submitted, HALBRUNER, HATCH & GUISE, LLP • fn H. McCullough upreme Court ID 87875 2109 Market Street Camp Hill, PA 17011 717-731-9600 j.mccullough@hhgllp.com iks Certificate of Service I hereby certify I. am service a copy of the foregoing document on the following persons and in the following manner: Via First Class mail to: Robert Port, Restoration Direct 6301 Chelton Avenue Harrisburg, PA 1711 John G. Milakovic, Esquire Beckley & Madden 212 North Third Street, Suite 301 Harrisburg, PA 17101 HALBRUNER, HATCH & GUISE, LLP 91( (4)1,--- hn H. McCullough upreme Court ID 87875 2109 Market Street Camp Hill, PA 17011 717-731-9600 j.mccullough@hhgllp.com ROBERT PORT, RESTORATION : IN THE COURT OF COMMON PLEAS OF DIRECT, : CUMBERLAND COUNTY, PENNSYLVANIA Claimant : No. 2013 -07556 -MLD v. THE ALLIANCE HOME OF CARLISLE, PA, INC., Owner -and- KELLY SYSTEMS, INC., Petitioner MOTION OF KELLY SYSTEMS, INC., TO MAKE RULE TO SHOW CAUSE ABSOLUTE AND NOW comes Kelly Systems, Inc., by and through its undersigned attorneys, and files this Motion To Make the Rule Absolute on Kelly's petition for leave to intervene in the above - referenced proceeding as a party defendant, and in support thereof, avers as follows: 1. Kelly Systems, Inc. ("Kelly") filed a Petition To Intervene as a Party Defendant in the above -captioned proceeding on July 17, 2014. 2. On July 22, 2014, the Court entered a rule on all existing parties of record to show cause why Kelly should not be permitted to intervene as requested. Said rule was returnable within 20 days of July 21, 2014. A true and correct copy of the aforesaid rule is hereto attached marked as Exhibit A. 3. On July 23, 2014, counsel for Kelly caused copies of said rule to be served upon all existing parties. A true and correct copy of the communication from Kelly to all parties is hereto attached marked as Exhibit B. 4. The Owner, The Alliance Home of Carlisle, Inc., filed a response on or about July 24, 2014, indicating that it joins in Kelly's Petition To Intervene. To date, the Claimant, Robert Port/Restoration Direct, has failed to respond to the Petition. WHEREFORE, Kelly respectfully requests that the Court make the rule absolute and grant Kelly's Petition To Intervene. Dated:vi z -hi -1 Of Counsel Beckley & Madden 212 North Third Street Suite 301 Harrisburg, PA 17101 (717) 233-7691 2 Respectfully submitted, „9„,,,e1A Thomas S. Beckley Attorneys for Kelly Systems, Inc. EXHIBIT A ROBERT PORT, RESTORATION : IN THE COURT OF COMMON PLEAS OF DIRECT, : CUMBERLAND COUNTY, PENNSYLVANIA Claimant v. THE ALLIANCE HOME OF CARLISLE, PA, INC., Owner -and- KELLY SYSTEMS, INC., Petitioner : No. 2013 -07556 -MLD ORDER AND NOW, this 9/ day of , upon consideration of the foregoing Petition, it is hereby ordered that: (1) a rule is issued upon all parties ("Respondents") to show cause why the Petitioner is not entitled to the relief requested; (2) the Respondents shall file an answer to the Petition within days of this date; (3) the petition shall be decided under Pa.R.Civ.P. 206.7; ays o is s ate; (5) argument shall be held, , 4 .5 20 /' , in Courtroom No. of the Cumberland County Courthouse; and' a -‘4' 7/.1-70", 7 (6) notice of the entry of this Order shall be provided to all parties by the Petitioner. BY THE COURT: EXHIBIT B BECKLEY& MADDEN ATTORNEYS AT LAW 212 NORTH THIRD STREET, SUITE 301 HARRISBURG, PENNSYLVANIA 17101 PHONE: (717) 233-7691 TOLL FREE: (888) 299-7691 FAX: (717) 233-3740 EMAIL: beckley@pa.net Robert Port, Restoration Direct 6301 Chelton Avenue Harrisburg, PA 17111 MAILING ADDRESS• POST OFFICE Box 11998 HARRISBURG, PENNSYLVANIA 17108 July 23, 2014 John H. McCullough, Esquire Halbruner, Hatch & Guise, LLP 2109 Market Street Camp Hill, PA 17011 FILE No.) 300952 Re: Port v. The Alliance Home of Carlisle, No. 2013 -07556 -MLD (Cumb. Co.) Gentlemen: Enclosed for service upon you is an Order in the above -referenced matter. Very truly yours, BECKLEY & MADDEN Cc: Mr. George Irwin n G. Milakovic ROBERT PORT, RESTORATION : IN THE COURT OF COMMON PLEAS OF DIRECT, : CUMBERLAND COUNTY, PENNSYLVANIA Claimant v. THE ALLIANCE HOME OF CARLISLE, PA, INC., Owner -and- KELLY SYSTEMS, INC., Petitioner : No. 2013 -07556 -MLD ORDER AND NOW, this 97 .A/- day of , upon consideration of the foregoing Petition, it is hereby ordered that: (1) a rule is issued upon all parties ("Respondents") to show cause why the Petitioner is not entitled to the relief requested; (2) the Respondents shall file an answer to the Petition within q.� days of this date; (3) the petition shall be decided under Pa.R.Civ.P. 206.7; e e. wi in . ays of this date; /. GI Gc..ry, (5)argument shall be held of the Cumberland County Courthouse; arid a .6' J0�'° /11 J, 20 f y , in Courtroom No. _I. (6) notice of the entry of this Order shall be provided to all parties by the Petitioner. BY THE COURT: CERTIFICATE OF SERVICE It is hereby certified that a copy of the foregoing document was this day served upon the following persons in the manner below indicated: SERVICE BY FIRST CLASS MAIL Dated: /)L// �1 Robert Port, Restoration Direct 6301 Chelton Avenue Harrisburg, PA 17111 Claimant(s) John H. McCullough, Esquire Halbruner, Hatch & Guise, LLP 2109 Market Street Camp Hill, PA 17011 Attorney for Owner G. Milakovic HLEO-UFFiL. OF THE PROTHONOTARI 2014 AUG 14 PH 1:50 UMBERLAND COUNTY PENNSYLVANIA ROBERT PORT, RESTORATION : IN THE COURT OF COMMON PLEAS OF DIRECT, : CUMBERLAND COUNTY, PENNSYLVANIA Claimant .4 v. THE ALLIANCE HOME OF CARLISLE, PA, INC., Owner -and- KELLY SYSTEMS, INC., Petitioner : No. 2013 -07556 -MLD ORDER AND NOW, this 9/ day of , upon consideration of the foregoing Petition, it is hereby ordered that: (1) a rule is issued upon all parties ("Respondents") to show cause why the Petitioner is not entitled to the relief requested; (2) the Respondents shall file an answer to the Petition within ,A,T days of this date; (3) the petition shall be decided under Pa.R.Civ.P. 206.7; 1 fC-ccr,Tar^j�i (5)argument shall be held of the Cumberland County Courthouse; are a J, 2c /9/ , in Courtroom No. (6) notice of the entry of this Order shall be provided to all parties by the Petitioner. BY THE COURT: RESTORATION DIRECT, INC RESTORATION CHEMICALS & APPLICATION EQUIPMENT 6301 CHELTON AVENUE HARRISBURG, PA 17112 AUGUST 14, 2014 Clerk of Courts 1 Courthouse Square Carlisle, PA 17013 ATTORNEY DOESN'T RESPOND TO CALLS, LETTERS OR EMAILS Gentlemen; I need help. My Attorney has the data Supplied for our court date of August 25, 2014. Courtroom # 1 at 1:30 PM. I've called & emailed him and left my cell number for call backs. I'm assuming he is on vacation and not getting my telephone voicemails and emails. He has the information that is required for a defense of our request for payment from Chapel Pointe & their General Contractor. Please advise me of my best course of action? A request for information to be submitted to the Judge by August 16, 2014 won't have my Attorney's input. I feel the information is critical to my case and will be our defense. It is attached to be submitted. I feared we would miss the 6 months window after a project is completed for filing a lien. This was based upon Chapel Pointe refusing to give us any information on when the project was completed, who their contractor was, and where they were located. Chapel Pointe ignored our requests and withheld all of the critical information my company needed. It wasn't a lack of trying on our part. Chapel Pointe was extremely difficult to communicate with and refused us any information until a lien was filed. CELL # 717-343-6985 CC: Kent Patterson/ Attorney (,) Robert Port Technical Support RESTORATION DIRECT, INC RESTORATION CHEMICALS & APPLICATION EQUIPMENT 6301 CHELTON AVENUE HARRISBURG, PA 17112 JULY 18, 2014 Sequence of events: Chapel Pointe's people failed to be of even minimal assistance, didn't respond to our letters, and refused to talk to us or provide any data on their contractor until after we filed a lien. CHAPEL POINT SITUATION AND HOW IT HAPPENED Events as they happened. This is from memory and reasonably accurate 1) Tammy Richwine contacted me and said her husband was forcing her into bankruptcy and this Chapel Pointe contract to clean and waterproof a number of buildings was how she would get back on her financial feet. I knew her and her husband from years ago and even attended their wedding. 2) Tammy said she was being forced to bankrupt her restoration company but the material she so desperately needed would be purchased under Thermal Envelope systems which is the name she would be operating under. I called her husband, Bryan Richwine and he advised me to be careful. 3) We knew she had a contract and Chapel Pointe was in a position to pay for our material as part of her contract. Tammy Richwine failed to tell us she wasn't the general contractor on the project. We learned this fact when someone from Chapel Pointe finally informed us that they had no Idea who Thermal Envelope Systems is and weren't a bit interested in our problem. (Covered later) 4) We supplied the material & billed Thermal Envelope Systems on our invoice #5052 Dated 5-24-2013 ( Fast Payment discount has been removed ) 5) I personally went back to the jobsite and trained her team to properly apply the purchased waterproofing per the manufacturers specifications. 6) Tammy Richwine's people did a shameful cleaning job. They chemically burned and damaged much of the Chapel Pointe landscaping shrubbery. They didn't purchase the cleaning chemicals from my company so we weren't involved in the cleaning. Their years of experience should have indicated that building cleaning wasn't a skill they needed to be taught. All of their cleaning was sub -standard. 7) The water repellent is likely an even bigger disaster. A complete end of a building was missed and Tammy Richwine told me their bid was so low that no money was available to correct the missed water repellent application work. I dropped everything and went to the Chapel Pointe jobsite and personally helped Tammy finish the missed area. Tammy Richwine's team skipped waterproofing of many of the balcony walls on the project. Tammy indicated to me that her waterproofing them was far too costly to attempt to correct and this corrective work wouldn't be required to fulfill her contract obligations. 8) Thermal Envelope Solution applied 260 gallons total of water repellent to some very thirsty buildings & skipped many of the walls in the balcony areas. My professional opinion is that the waterproofing work was substandard. Chapel Pointe should have a water repellent expert come in and evaluate the work performed by Tammy Richwine's people aka TurboTek. Then Chapel Pointe should insist that the appropriate corrective work be paid for by Kelly Systems. It is a fact, from my observations, that this job exhibits both shortcuts and sloppy workmanship. Kelly Systems should be responsible for corrective action And if too little waterproofing was applied Kelly Systems should be responsible for the necessary extremely expensive corrective waterproofing action. Chapel Pointe surely did not receive an acceptable cleaning or waterproofing job. 9) When I trained their waterproofing team I had no idea how many square feet were to be waterproofed. Using only Twenty-six gallons of Siloxane WB was possibly far less than the proper amount of repellent required for the square footage to be treated. I told Tammy Richwine the building was requiring a heavy wet on wet application of repellent because I found that the block was extremely porous/thirsty during the training of her team. Tammy Richwine was present so there was not opportunity for my message to be misunderstood. The water repellent application represents gross negligence by her team. 10)Kelly Systems likely didn't deliver per the contract with Chapel Pointe. I've already pointed out that the cleaning was extremely sloppy, water repellent application was spotty and sometimes skipped. You can't assume the application amount and workmanship was appropriate to deliver an acceptable job based upon the quality issues already attributed to this team. Tammy Richwine & her team failed, failed again, and possibly under applied the water repellent also. There is less that 2 quarts of Siloxane in each five gallon pail as it is applied. This is why a heavy wet on wet application was required. Chapel Pointe and Kelly Systems should engage a qualified expert to evaluate the completed waterproofing work as done on this project. 11)Tammy next informed me that they had bid the project at only $16,000.00 and would have difficulty paying us immediately. Her price was far too low and I'm immediately concerned. I contact Chapel Pointe to see if they are holding a retainer on the job. The General Contractors normally hold 10% to cover the cost of things that have been missed or need correction or need paid. We at this point we believe that Chapel Pointe was acting as their own General Contractor. Chapel Pointe wouldn't talk to me and purposely withheld critical information about having a General Contractor from my company. 12)My experience is that the general contractors make their sub -contractors summit a form to the suppliers that is returned by the supplier indicating all materials have been paid for by their sub -contractors. Kelly Systems failed to do this very critical paperwork. Kelly Systems indicated that this wasn't done on this project. 13)I went to Chapel Pointe to talk with them about my payment concerns on about 9-20-13. Nobody was available to talk with me so I left detailed instructions with the Receptionist that we were having payment issues with their contractor that did their waterproofing. We never heard from Chapel Pointe following this visit. 14) We sent two letters and a magazine article indicating the owners of the building are responsible for payment to suppliers for materials used on the project. These all are indicating to Chapel point that we were expecting payment from Chapel Pointe if their contractor fails to pay our invoice. They again fail to respond. 15) I again make a trip to Chapel Pointe to talk to someone that can resolve the issue saying you're responsible and we need to talk. I'm at their facility and can't be ignored. A nice young lady comes out and listens to my concerns and promises she will relay my information. I tell her that a time limit exists for filing a Mechanics lien and I was concerned that we have already waited until the eleventh hour because they were not taking our requests to talk seriously. 16) As I'm driving home I receive a call from Shanna Wolfe from Chapel Pointe. She in effect said" We have no Idea what you're talking about." We paid our contractor for the work and have no idea who Tammy Richwine or Thermal Energy Systems might be as we didn't use their services. She then said they used Kelly Systems for the job and I wish you'd take your problem and go away I ask who Kelly Systems was and where they are located and she replied that information isn't available to me. I told her that Chapel Point is liable for material used and she said she read the article we supplied and her interpretation was they have no responsibility for material used on the project. 17)We Google Kelly Systems. Then I drive by and find a rundown farmhouse, with an overflowing mailbox. We believe this is Kelly Systems. Our concerns are now very serious. Chapel Point is saying go away, Tammy Richwine has disappeared, and Kelly Systems suddenly looks like a strange and surely unusual company. 18) My efforts to resolve the issues are becoming impossible. We looked at the time window for filing a lien and determined that we may have wasted the nearly the 6 months window required for filing a mechanics lien. We pursued a solution with Chapel Pointe and they ran us down to the wire by not telling us when the job was completed or they had a General Contractor. Chapel Pointe literally tried to run out the clock. Did they do this on purpose? Possibly not, but results are the same as if a planned activity based on withholding of critical information. We printed out the forms and executed them and I went to the Cumberland Courthouse to file a lean against Chapel Pointe. I had the 30 day notice form with me when I arrived at the courthouse. I told the clerk that I wanted to file a Tien and also had this notice document and wanted to know if it was necessary The clerk went ballistic and raised her voice saying we can't talk to you or answer your question. Then a second clerk loudly repeated the same basic information from the back of the room thereby intimidating me with their attitudes I told them that I still needed to fill a lien as time was filing rapidly running out. All someone needed to say, it's important & you should call a lawyer. I ask who notifies Chapel Pointe and get the same aggressive response. We have a receipt but they didn't supply a copy of the filed lien document. How would I know I needed a copy? I had a receipt. 19) I later called Brian Richwine, Tammy Richwines ex-husband, and ask if he had any Idea who this Kelly Systems guy might be and where he fit into this mess. He gave me their address and assured me they were a reputable firm and not likely the source of my problems 20) We contacted Kelly Systems by letters and as I last heard from them, a few weeks later, they were in the process of suing Tammy Richwine & TurboTech. I'm assuming this new attempt to avoid responsibility is a realization by their Attorney that not paying my company is the easiest solution for Kelly Systems problems. Tammy Richwine is a much more difficult target for Kelly Systems. 21) We were constantly put off by the Chapel Pointe people even though they were on numerous occasions informed verbally and in writing that they would be held responsible for to Waterproofing material costs. The 30 days notice wasn't a missed point as we suffered through months of being ignored & meeting with people that were at best good listeners. They knew we were going to file a lien and told us that they didn't care about our problems. Called and left Kevin Baker @ Kelly a voice mail saying: "Tell your lawyer you don't want to do this... Find another way" 8-6-14 9:47 AM Reasoning: Corrective water repellent work if required of Kelly Systems on Chapel Pointe buildings could equal or exceed what is owed my company. CELL # 717-343-6985 Pa4— Robert Port V -P Engineering Technical Support RESTORATION DIRECT, INC ORATION CHEMICALS & APPLICA TIO1 ' WIN ' f 6301 CHELTON AVENUE HARRISBURG, PA 17112 September 20, 2013 Accounts Payable Manager Chapel Point Hanover Street Carlisle, PA 17013 Water Repellent Recently Applied by Tammy Richwine Thermal Envelope Solutions Gentlemen; I am concerned. We delivered 26 gallons of Prosoco Siloxane WB Concentrate to your facility over 60 days ago. The material was applied by Thermal Envelope Solutions within 30 days of delivery to the jobsite. I stopped by and tested the treated walls and assisted them with corrective work on a gable end of a building where repellent wasn't applied by their employees. Our concern is that our customer hasn't paid our invoice or called us to return the loaner spray equipment we supplied. If you are holding any money on this project I am requesting that you insist we are paid by Chapel Point as we're extremely concerned that payment isn't going to be made by your contractor. 1) We have sent Thermal Envelope Solutions a registered letter. They should already have received it as you read this request for your assistance. 2) We provided a significant discount for fast payment. This causes even more concern on our part. Their approximate 20% material discount is significant and was not to be treated lightly. Something seems seriously wrong and immediate corrective action by Chapel Point is appropriate. 3) You can contact me on my Cell # 717-343-6985. My email address is: bob@restorationdirect.com Bob Port Immediate action by your people is requested. I stopped at your facility on 9-20-13 AM and nobody was available to discuss my concerns. I left a detailed message with your Receptionist and nobody has called. Something seems terribly wrong and your contractor may be avoiding us. Robert Port V -P Engineering ‘11::fts7abanswi Direc RESTORATION DIRECT, INC 6301 CHELTON AVENUE HARRISBURG, PA 17112 December 19, 2013 Chapel Pointe Accounts Payable Manager 770 South Hanover Street Carlisle, PA 17013 RE: Water Repellent Recently Applied by Tammy Richwine of Thermal Envelope Solutions Gentlemen; I am concerned: Restoration Direct delivered 28 gallons of Prosoco Siloxane WB Concentrate to your facility over 180 days ago. The material was applied by Thermal Envelope Solutions within 60 days of delivery to the jobsite. Chapel Point asked the contractor to correct an area of the building that had not been waterproofed. The contractor called and requested my help. I arrived approximately July 17, 2013 at the site and waterproofed the gable end of the building that the contractor had failed to complete. I picked up the two one gallon containers of Siloxane WB that were unopened. Our concern is that Thermal Envelope Solution (our customer) hasn't paid our invoice. Our attempts to collect from the contractor are as follows; invoices sent monthly, certified mail sent twice in September and October of this year. We have made repeated calls as well to no avail. On September 20, 2013 we visited your facility at the above address, as no one was available to speak with me I left a detailed message with your Receptionist. Chapel Point must have reached out to Thermal Envelope Solutions because; we received a phone call from this contractor, but have not received payment. We are requesting payment from Chapel Point at this time. The invoice total is $7,972.83. Please remit funds by December 27, 2013, if we are not in receipt of payment by this date we will be forced to file a 'Mechanics Lien against Chapel Pointe. It is not our desire to do so but we feel we do not have any other recourse. If you have any questions or concerns please contact either Bob Port at 717-343-6985 or by email to Bob@ RestorationDirect.com. Thank you for your consideration, Robert Port V -P Engineering RESTORATION DIRECT, INC 6301 CHELTON AVENUE HARRISBURG, PA 17112 February 7, 2014 Chapel Pointe Accounts Payable Manager 770 South Hanover Street Carlisle, PA 17013 RE: Water Repellent Recently Applied to your Buildings Gentlemen; I am concerned: Restoration Direct delivered 28 gallons of Prosoco Siloxane WB Concentrate to your facility over 196 days ago. The material was applied to your buildings within 60 days of delivery to the jobsite. Chapel Pointe asked the contractor to correct an area of the building that had not been waterproofed. The contractor called and requested my help. I arrived approximately July 17, 2013 at the site and waterproofed the gable end of the building that the contractor had failed to complete. I picked up the two one gallon containers of Siloxane WB that were unopened. Our concern is that our invoice hasn't been paid. Our attempts to collect from the contractor are as follows; invoices sent monthly, certified mail sent twice in September and October of this year. We have made repeated calls as well to no avail. On September 20, 2013 we visited your facility at the above address, as no one was available to speak with me I left a detailed message with your Receptionist. Chapel Pointe must have reached out to the contractor because; we received a phone call from this contractor, but have not received payment. A mechanics lien was file on Dec 20th after we again visited your facility and you said your contractors name wasn't available to us and you weren't interested in seeing that we were paid for our material. We are requesting payment from Chapel Pointe at this time. Attached to this letter are copies of the Pennsylvania's Contractor and Sub -Contractor Payment Act, and an article from ProSales Magazine outlining the owner of the property is responsible for payment to the supplier. The invoice total is $7,972.83 and we have added the interest due us of $1,002.61 for a total of $8,975.44 in due as of February 3, 2014. Please remit funds by February 11, 2014, or we will move forward with legal action. A 'Mechanics Lien was filed against Chapel Pointe on December 20, 2013, It is not our desire to move forward with legal action, but feel we do not have any other recourse if payment is not received. If you have any questions or concerns please contact either Bob Port at 717-343-6985 or by email to Bob@RestorationDirect.com. Thank you for your consideration, Robert PortV-P Engineering ILLUSTRATION: NEIL WEBS Credit Wranglers Tardy credit accounts drain profits. Here are tips for collecting what you're owed. Carrying late credit accounts is Iike letting a band of pick -pockets loose in the store after hours with the cash drawers open. As credit manager for Greenville, S.C.-based Guardian Building Products, Thea Dudley has seen her share of credit challenges. "Everybody wants to know how to collect money," Dudley says, but she believes that dealers are better off training customers than chasing the money. Vigilant file review is Dudley's first line of defense. "I review every file every year." she says. "You have to be diligent about who you are dealing with." Dudley and her staff www.prosalesmagazine.com constantly monitor accounts, especially those that have gone beyond the 30 -day repayment date. "I'm not saying that there aren't mitigating circumstances," she says. "But in the main, you need to pay on the terms we set up. By day seven, post 30, if you don't pay and don't have a good answer [as to why you haven't], I'm going to start getting into your business." That means intervention, and Dudley goes in earlier rather than waiting 60, 90, or 120 days for repayment. "Many times a builder is growing and trying to do every- thing," she says. "They aren't getting their billings in on time. If you have certain requirements, like bills in by the 15th or 20th, then you have to get on top of that." Sometimes, it's a matter of getting customers to set priorities, and it's up to dealers to make clear that they won't be content with being relegated to the back of the line when it comes to repayment. Depending on the customer and the situation, Dudley will set up a meeting to work through problems. Peny Schroeder, credit manager for Dubuque, Iowa -based Spahn & Rose Lumber, says, "It takes five times more money to find a new customer than it does to keep one. So we always try to maintain a line of communication with the customer." At Perkasie, Pa. -based Shelly January/February 2014 / ProSales / 43 Enterprises, credit manager Doug Gerhart monitors past -due accounts daily. "I just dealt with somebody today who promised me payment on Wednesday and didn't follow through. So I contacted him on Thursday, and he got mad," Gerhart says. "But not paying is like stealing money from me." Gerhart is a big advocate of a strong credit application that assigns all court costs, penalties, and associated fees to the customer in a court action. He also advises dealers to charge interest on past -due amounts. One tool that Carla Hutton likes to employ before things start to go south with late payments is a notice of right to lien. The credit manager for the Kalispell, Mont., dealer, Western Building Center, files a notice of right to lien on any project of more than $2,000. The notice alerts homeowners that the dealer is a materials supplier for the project and that if materials bills go unpaid, the homeowner will be served. When homeowners realize that they can be dunned for their builder's financial mistakes, they'll keep a closer eye on the project, which endsup benefiting the dealer. Another tool that Hutton uses to good effect in managing the yard's credit accounts is the personal guarantee. When setting up credit terms, she will ask customers to sign a personal guarantee, which allows her to attach personal as well as business assets, if the dealer pursues a legal action against a customer. Joey Enochson, credit man::er for Boise, Idaho—based . anklin Build • t Supply's . - asure Valley location, . • es : collections from the top do e's less concerned with the : all ac • its that may be la ' than he is with the big accounts. Intervention depends on customer history. "If it's a first time, I'll probably do nothing," he says. "If it continues and gets to be 60 days, then I'm making contact" While you don't want to lose a customer, Dudley points out, you shouldn't let people take advantage of you. "You can be a friendly business, but treat me and the relationship with respect. You have to think of it like any kind of relationship. My friends don't stiff me for cash." --Kate Tyndall ROBERT PORT, RESTORATION : IN THE COURT OF COMMON PLEAS OF DIRECT, : CUMBERLAND COUNTY, PENNSYLVANIA Claimant V. THE ALLIANCE HOME OF CARLISLE, PA, INC., Owner -and- KELLY SYSTEMS, INC., Intervenor AND NOW, this /' day : No. 2013 -07556 -MLD ORDER ,Af)/'upon consideration of the Motion of Kelly Systems, Inc., To Make Rule To Show Cause Absolute, it is hereby ORDERED that the rule which was issued on all parties in the above -captioned proceeding on July 22, 2014, to show cause why Kelly Systems, Inc., should not be permitted to intervene as a party defendant, is made absolute and the Petition of Kelly Systems, Inc., for leave to intervene is hereby GRANTED. Kelly Systems, Inc., is hereby pet flitted to intervene as a defendant in the above -captioned proceeding. The caption in this case shall be amended as set forth above. BY THE COURT: C) -0 a rn co zrfl ;r> <zJ > TA. C4-) :t - Ph CD ::Z: fl (7) - cz ROBERT PORT, RESTORATION : IN THE COURT OF COMMON PLEAS OF DIRECT, : CUMBERLAND COUNTY, PENNSYLVANIA Claimant : No. 2013 -07556 -MLD v. THE ALLIANCE HOME OF CARLISLE, PA, INC., Owner -and- KELLY SYSTEMS, INC., Intervenor cp li i77 s ` PRELIMINARY OBJECTIONS TO MECHANIC'S LIEN CLAIM AND NOW comes Intervenor ("Kelly"), by and through its undersigned attorneys, and files these Preliminary Objections to the Mechanic's Lien Claim in this proceeding, averring as follows: 1. Section 505 of the Mechanic's Lien Law of 1963, as amended, 49 Pa.Stat.Ann. §1505 (Purdon's 2001), provides as follows in pertinent part: Any party may preliminarily object to a claim upon a showing of ... lack of conformity with this act. The court shall determine all preliminary objections. If an issue of fact is raised in such objections, the court may take evidence by deposition or otherwise. 2. Claimant's Mechanic's Lien Claim in this proceeding does not conform to the Mechanic's Lien Law (the "Law") in multiple ways and should be stricken. I. FIRST OBJECTION—FAILURE TO CONFORM TO SECTION 501 3. Section 501(b.1) of the Law provides as follows in pertinent part: No claim by a subcontractor, whether for erection or construction or for alterations or repairs, shall be valid unless, at least thirty (30) days before the same is filed, he shall have given to the owner a formal notice of his intention to file a claim .... 49 Pa.Stat.Ann. §1501 (b.1) (Purdon's Supp. 2014). 4. It is apparent from the face of the record and Claimant's Mechanic's Lien Claim that Claimant, while a subcontractor, did not comply with the requirement that he provide a formal notice of intent at least thirty (30) days prior to the filing of the Lien Claim, to Alliance. 5. Hereto attached as Exhibit A is a certified copy of the docket entries in this proceeding. As shown thereon, Claimant's Mechanic's Lien Claim was filed on December 20, 2013. 6. Hereto attached as Exhibit B is a time -stamped copy of Claimant's Mechanic's Lien Claim in this proceeding. In both the title of the document and in numbered Paragraph 1 of said Mechanic's Lien Claim, Claimant avers that he was a "subcontractor and/or supplier." Thereafter, in both the lower left-hand block on the front of the Lien Claim and in numbered Paragraph 4, Claimant indicates that he did not provide the formal notice required by Section 501(b.1) until "December 20, 201.3"—the very same day that the Lien Claim itself was filed. 7. Failure to provide the formal notice within the time frame required by the Law, by itself, mandates the striking of a mechanic's lien claim. See, e.g., Shoemaker v. Zerby, 10 D&C2d 227 (Somerset Co. 1958); Calvert v. Church, 17 Del. 339 (1926); Shuey v. Germano, 14 Wes.C.L.J. 115 (1926). WHEREFORE, Kelly respectfully requests that the Mechanic's Lien Claim in this proceeding be stricken for failure to comply with the Law. 2 III. THIRD OBJECTION—FAILURE TO CONFORM TO SECTION 503 12. Section 503 of the Law states as follows, in pertinent part: The claim shall state: (4) if filed by a subcontractor, the name of the person with whom he contracted .... (6) in all ... cases [other than in which a contractor files under a contract for an agreed sum], a detailed statement of the kind and character of the ... materials furnished ... and the prices charged for each thereof ... (8) such description of the improvement and of the property claimed to be subject to the lien as may be reasonably necessary to identify them. 49 Pa.Stat.Ann. §1503 (Purdon's 2001). 13. Claimant has failed to provide in his Lien Claim any of the foregoing required information. WHEREFORE, Kelly respectfully requests that the Mechanic's Lien Claim in this proceeding be stricken for failure to comply with the Law. Dated: T/20/1`"/ Of Counsel Beckley & Madden 212 North Third Street, Suite 301 Harrisburg, PA 17101 (717) 233-7691 Respectfully submitted, 4 ohn G. Milakovic 1,04.e16/ Thomas S. Beckley Attorneys for Kelly Systems, Inc. Verification I hereby verify the facts set forth in paragraph 9 of the foregoing document are true and correct to the best of my knowledge. I understand that false statements contained herein maybe subject to the penalties set forth at 18 Pa.CS.A. §4904 relating to unsworn falsification to authorities. The Alliance Home of Carlisle, PA, Inc. Tide: V i (e-& or RUG-19-2014(TUE) 04:53 KELLY SYSTEMS VERIFICATION (FAX )t379020382 P. 002/002 I, George Irtivia, hereby verify that I am an adult ir;rivr'.d°.ual; that I ,am authoiizea to make this verification in behalf of Kelly Systems, Inc.,, f nc: Lrer tenor the ;forgoit►g Prelimina-y Objections to Mechanic's Lien Claim; and that the: fitcts forth therein arc true: :o the best of my knowledge. 1 understand that false statements herein are made subject to the penalties of 18 Fa_C.S. §4904, relating w'mswom :lsiliication to t.ut}tainti.:. Dated; SI 111 1I+ EXHIBIT A PYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2013-07556 PORT ROBERT ET AL (vs) THE ALLIANCE HOME OF CARLISLE Reference No..: Case Type • MECHANICS LIEN CLAIM Judgment 7,972.83 Judge Assigned: Disposed Desc.: Case Comments Filed Time Execution Date Jury Trial Disposed Date Higher Crt 1.: Higher Crt 2.: 12/20/2013 3:51 0/00/0000 0/00/0000 ******************************************************************************** General Index . Attorney Info PORT ROBERT 6301 CHELTON AVENUE HARRISBURG PA 17111 RESTORATION DIRECT 6301 CHELTON AVENUE HARRISBURG PA 17111 THE ALLIANCE HOME OF CARLISLE PA INC 770 S HANOVER STREET CARLISLE PA 17013 CLAIMANT CLAIMANT OWNER MCCULLOUGH JOHN H CHAPEL POINTE AT CARLISLE OWNER MCCULLOUGH JOHN H 770 S HANOVER STREET CARLISLE PA 17013 ******************************************************************************** Judgment Index Amount Date Desc THE ALLIANCE HOME OF CARLISLE PA INC CHAPEL POINTE AT CARLISLE 7,972.83 12/20/2013 MECHANICS CLAIM 7,972.83 12/20/2013 MECHANICS CLAIM ******************************************************************************** * Date Entries ******************************************************************************** 12/20/2013 5/13/2014 5/13/2014 5/15/2014 5/19/2014 FIRST ENTRY MECHANICS LIEN CLAIM IN THE AMOUNT OF $ 7972.83 - BY ROBERT PORT CLAIMANT. PETITION FOR DISCHARGE OF MECHANIC'S LIEN UPON ENTRY OF APPROVED SURETY - BY JOHN H MCCULLOUGH ATTY FOR DEFTS ENTRY OF APPEARANCE ON BEHALF OF DEFET BY JOHN H MCCULLOUGH ESQ ORDER DATED 05-14-2014 - THE PROTHONOTARY IS DIRECTED TO HOLD THE FUNDS IN AN INTEREST BEARING ESCROW ACCOUNT PENDING FURTHER ORDER FROM THIS COURT - BY THE COURT ALBERT H MASLAND J - COPIES MAILED 05-19-2014 DEPOSITED MONIES AS DIRECTED BY COURT DATED 05-14-2014 - IN THE AMOUNT OF $7,972.83 IN MIDPENN BANK ACCOUNT #17003708 - DAVID D BUELL, PROTHONOTARY LAST ENTRY ******************************************_************************************** * Escrow Information * Fees & Debits Beq Bal Pyymts/Ad End Bal ******************************** ******** ****** ******************************* MUNICIPAL LIEN 16.50 AUTOMATION FEE 5.00 BOND 7972.83 16.50 5.00 7972.83 .00 .00 .00 7994.33 7994.33 .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COPY FROM RECORD In Testimony whereof, I here unto set my hand and the seal of said C rt at Carlisle, Pa. This 3 day of , 20 yProthonotary / , /c, a, QV RECEIPT FOR PAYMENT Cumberland County Prothonotary's Office Carlisle, Pa 17013 Case Number 2014-99999 (VS) Received of PD BY BECKLEY & MADDEN BH 36o91 -2 - Receipt Date Receipt Time Receipt No. Total Non -Cash + 6.25 Check# 2585 Total Cash + .00 Change - .00 Receipt total = $6.25 Transaction Description COPIES CERTIFY 1ST PG Distribution Of Payment 7/03/2014 13:19:28 308051 Payment Amount .50 CUMBERLAND CO GENERAL FUND 5.75 CUMBERLAND CO GENERAL FUND $6.25 EXHIBIT B • N, F:LED—OFF1CC {A: THE PROTHONG IA R•nii 7.013 DEC 20 PH 3:5J CUMBERLAND COUNTY PENNSYLVANIA MECHANIC'S LIEN CLAIM BY A SUBCONTRACTOR / SUPPLIER 49 P.S. § 1503 IN THE COURT OF COMMON PLEAS OF Cumberland COUNTY LIEN CLAIMANT: Robert Port, Restoration Direct 6301 Chelton Avenue Harrisburg PA 17111 versus PROPERTY OWNER: The Alliance Home of Carlisle, PA, Inc. Chapel Pointe at Carlisle 770 S. Hanover Street Carlisle, PA 17013 NO. (3- q 55 in L b Date of Completion of the Claimant's Work: July 19, 2013 Property Liened: Description of the property being liened and the improvements constructed thereupon: County of Cumberland Date Formal Notice of Intent to Lien Was Sent: December 20, 2013 Amount of Claim: The amount claimed to be due is as follows, plus interest: $ 7,972.83 State of Pennsylvania Legally Described As: /• go p ic Ca64 © 2012 Express Lien, Inc. dba Zlien Hiring Party: The Alliance Home of Carlisle, PA, Inc. Chapel Pointe at Carlisle 770 S Hanover St Carlisle PA 17013 We were the third party chemical supplier, Chapel Pointe would not tell the identity of the contract. Labor/Materials Furnished: The claim is made for the following labor and/or materials furnished to the property being liened by the Lien Claimant: Siloxane WB, labor, and final testing for waterproofed sealer These services were provided under a contract or contractors for an agreed sum: $ 7,972.83 If yes, a copy of the contract is attached. If no, a copy of a statement detailing the kind and character of the labor or materials furnished, or both, and the prices charged for each is attached. 1. The Claimant, Restoration Direct , Robert Port files this mechanic's lien claim as a subcontractor and/or supplier; 2. The owner(s) of the Property subject to the lien is above -identified as The Alliance Home of , Chapel Pointe Alliance, Inc 3. The date on which claimant completed the work for which claim is made was July 19. 2013 . 4. Claimant contracted with the above -identified Hiring Party, and gave formal notice of his intention to file this claim on Dec. 20. 2013 5. This claim is made for the labor and materials above -identified as the Labor/Materials Furnished. 6. The amount claimed to be due is $ 7.972.83 , plus interest. 7. The improvement and property claimed to be subject to the lien is above -identified as the Property. /Z-26-/3 Company: Restoration Direct Signed by: Robert Port Date: December 20.2013 © 2012 Express Lien, Inc. dba Zlien CERTIFICATE OF SERVICE It is hereby certified that a copy of the foregoing document was this day served upon the following persons in the manner below indicated: SERVICE BY FIRST CLASS MAIL Dated:M.41V Robert Port, Restoration Direct 6301 Chelton Avenue Harrisburg, PA 17111 Claimant(s) John H. McCullough, Esquire Halbruner, Hatch & Guise, LLP 2109 Market Street Camp Hill, PA 17011 Attorney for Owner PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within Argument Court.) f"--9 matter for ext CAPTION OF CASE (entire caption must be stated in full) Robert Port/Restoration Direct, Claimant vs. The Alliance Home of Carlisle, PA, Inc., -and- Kelly Systems, Inc,, Intervenor Owner No. 2013 -07556 -NLD • rt,— Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Intervenor's Preliminary Objections to Mechanics Lien Claim 2. Identify all counsel who will argue cases: (a) for plaintiffs: No Counsel of Record (Name and Address) (b) for defendants: John G. Milakovic, 212 N. 3rd St., Suite 301, Harrisburg, PA 17101 (Kelly) (Name and Address) John H. McCullough, 2109 Market Street, Cane Hill, PA 17011 ;(Alliance) 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: September 26, 2014 Date: September 2, 2014 John G. Nilakovic Print your name Kelly ysterns z Inc . Intervenor 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 is relisted. 4011. .15' Pay A7rf iA*8(a00 CERTIFICATE OF SERVICE It is hereby certified that a copy of the foregoing document was this day served upon the following persons in the manner below indicated: SERVICE BY FIRST CLASS MAIL Dated: Robert Port, Restoration Direct 6301 Chelton Avenue Harrisburg, PA 17111 Claimant(s) John H. McCullough, Esquire Halbruner, Hatch & Guise, LLP 2109 Market Street Camp Hill, PA 17011 Attorney for Owner #28. ROBERT PORT, RESTORATION : IN THE COURT OF COMMON PLEAS OF DIRECT, : CUMBERLAND COUNTY, PENNSYLVANIA Claimant V. • THE ALLIANCE HOME OF : NO. 2013 — 7556 CIVIL TERM CARLISLE, PA, INC., • Owner V. KELLY SYSTEMS, INC., : MECHANICS LIEN CLAIM Intevenor IN RE: INTEVENOR'S PRELIMINARY OBJECTIONS BEFORE GUIDO, MASLAND, JJ. ORDER OF COURT CD —4 N) ua AND NOW, this 28TH day of OCTOBER, 2014, upon consideration of the Preliminary Objections to Mechanic's Lien Claim, as well as the brief filed in support thereof; and Plaintiff having failed to respond or to file a'brief, it is hereby ordered that the Preliminary Objections are SUSTAINED. The Mechanic's Lien Claim filed in this proceeding is hereby STRICKEN for failure of the Claimant to conform to Sections 501, 502, and 503 of the Mechanic's Lien Law of 1963, as amended. The Prothonotary shall refund the security posted by the Owner in this proceeding and shall close the file. Edward E. Guido, J. Robert Port, Restoration Direct John H. McCullough, Esquire John G. Milakovic, Esquire