HomeMy WebLinkAbout05-0557THOMAS WILLIAMS and IN THE COURT OF COMMON PLEAS
MAUREEN E. ROYER, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V.
CIVIL ACTION - LAW
DAVID T. HILSINGER,
NO. OS - S'517 L" u i 1 ?
Defendants
JURY TRIAL DEMANDED
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth
in the following pages, you must take action within twenty (20) days after this Complaint
and Notice are served, by entering a written appearance personally or by attorney and
filing in writing with the Court your defenses or objections to the claims set forth against
you. You are warned that if you fail to do so the case may proceed without you and a
judgment may be entered against you by the Court without further notice for any money
claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You
may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A
LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION
32 S. Bedford Street
Carlisle, PA 17013
(717) 249-3166 or 800-990-9108
FLED-OFFICE
OF THE PROTHONOTARY
2012 JAN -4 AM 11: 36
r,liMBERLAND COUNTY
PENNSYLVANIA
Bryan W. Shook, Esquire
ID # 203250
Dethlefs-Pykosh Law Group, LLC
2132 Market Street
Camp Hill, Pennsylvania 17011
Telephone - (717) 975-9446
Fay - (717) 975-2309
BShookQdnlglaw.com Attorney for Plaintiffs
THOMAS WILLIAMS, and IN THE COURT OF COMMON PLEAS
MAUREEN E. ROYER, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
No.: 05-0557 - CIVIL TERM
V.
DAVID T. HILSINGER, CIVIL ACTION - LAW
Defendant :
PLAINTIFFS' RESPONSE TO DEFENDANT'S NEW MATTER TO PLAINTIFFS'
PETITION TO REINSTATE CASE
AND NOW, comes the Plaintiffs, Thomas Williams and Maureen E. Royer, by
and through their counsel, the Dethlefs-Pykosh Law Group, LLC, by Bryan W. Shook,
Esquire, who respectfully respond to Defendant's New Matter to Plaintiffs Petition to
reinstate the above captioned case and in support thereof avers as follows:
21. Paragraph 21 being a paragraph of incorporation does not require a response.
22. Denied. The averments of paragraph 22 are specifically denied. Although
nothing had been filed in the above captioned case for over five years, the case
was not dormant.
23. Denied. After reasonable investigation, Plaintiffs are without knowledge
sufficient to form a belief as to the veracity of this averment. It is admitted
however that the practice of the Court and the Prothonotary is to give notice of
the pending termination of a case pursuant to Pa. R.C.P. 230.2.
24. Admitted. It is admitted that this case was terminated pursuant to Pa. R.C.P.
230.2.
25. Admitted.
26. Denied. The averments of paragraph 26 are specifically denied. Plaintiffs
first learned of this termination when Plaintiff, Maureen E. Royer, consulted with
the undersigned on November 17, 2011. Plaintiff, Maureen E. Royer, then took
the Order terminating the case to Plaintiff, Thomas Williams, who, for the first
time, learned of the termination on November 17, 2011. Plaintiffs were
previously represented by Kenneth Wise, Esquire. Plaintiffs were never informed
by Attorney Wise that this case had been terminated.
27.Admitted in part, Denied in Part. It is admitted that while the Plaintiffs along with
all other members of the public have access to the Courthouse, it is denied that
this was an obligation of the Plaintiffs as they were at all times being represented
by Kenneth Wise, Esquire. Plaintiffs did attempt to correspond with Attorney
Wise on numerous occasions.
28. Denied. The averments of paragraph 28 of Defendant's New Matter as
conclusions of law to which no response is required.
29. After reasonable investigation, Plaintiffs are without knowledge sufficient to form
a belief as to the veracity of the contents of this paragraph. By way of further
response, Plaintiffs believe that the only person with knowledge of the veracity of
this response is Defendant.
30. Denied. The allegation that Defendant's reliance upon the October 28, 2009
Order is justified is a conclusion of law to which no response is required. As to
the remainder of the averment, after reasonable investigation, Plaintiffs are
without knowledge sufficient to form a belief as to the veracity of the contents of
this paragraph. By way of further response, Plaintiffs believe that the only person
with knowledge of the veracity of this response is Defendant.
31. Denied. The averments of paragraph 31 of Defendant's New Matter as
conclusions of law to which no response is required.
WHEREFORE, Plaintiffs respectfully request that this Honorable Court grant their
Petition and reinstate this case.
Date: 1-3-ao?a
Respectfully Submi
Bry. Shook, Esquire
Dethlefs-Pykosh Law Group, LLC
2132 Market Street
Camp Hill, Pennsylvania 17011
Telephone: (717) 975-9446
BShook .dplglaw.com
VERIFICATION
I hereby verify that the statements of fact made in the foregoing documents are
true and correct to the best of my knowledge, information and belief. I understand that
any false statements therein are subject to the criminal penalties contained in 18 Pa C.
S. Section 4904, relating to unsworn falsification to authorities.
n
Date: / 01,1 Lf ,1
Thomas Williams
VERIFICATION
I hereby verify that the statements of fad made in the foregoing documents are
true and correct to the best of my knowledge, information and belief. I understand that
any false statements therein are subject to the criminal penalties contained in 18 Pa C.
S. Section 4904, relating to unswom falsification to authorities.
Date: EL1Z?1?r I 'ttiv`r~:a x?
THOMAS WILLIAMS, and
MAUREEN E. ROYER,
Plaintiffs
V.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No.: 05-0557 - CIVIL TERM
DAVID T. HILSINGER, CIVIL ACTION - LAW
Defendant :
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Petition, was hereby served by
depositing the same within the custody of the United States Postal Service, First Class,
postage prepaid, addressed as follows:
David T. Hilsinger
133 East Main Street
Mechanicsburg, Pennsylvania 17055-3854
Date: 1-3-aoID
Respectfully Submitted:
- x9r- &'.) A??
Bryai . Shook, Esquire
Dethlefs-Pykosh Law Group, LLC
2132 Market Street
Camp Hill, Pennsylvania 17011
Telephone: (717) 975-9446
BShook _dplglaw.com
AVISO
LISTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las
demandas que se presentan mfis adelante en las siguientes paginas, debe tomar
acci6n dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta
Demanda y Aviso radicando personalmente o por medio de un abogado una
comparecencia escrita y radicando en la Corte por escrito sus defensas de, y
objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que
si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder
sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier
otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra
suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u
otros derechos importantes para usted.
LISTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE.
Si LISTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA.
ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO
CONSEGUIR UN ABOGADO.
SI LISTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES
POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE
AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO 0 BAJO COSTO A
PERSONAS QUE CUALIFICAN.
CUMBERLAND COUNTY BAR ASSOCIATION
32 S. Bedford Street
Carlisle, PA 17013
(717) 249-3166 or 800-990-9108
THOMAS WILLIAMS and IN THE COURT OF COMMON PLEAS
MAUREEN E. ROYER, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V.
CIVIL ACTION - LAW
DAVID T. HILSINGER,
NO. 0.5-
Defendant l
JURY TRIAL DEMANDED
COMPLAINT
AND NOW, come Plaintiffs, by their undersigned counsel, and respectfully make
this Complaint at law, setting forth in support thereof as follows:
1. Plaintiffs, Thomas Williams and Maureen E. Royer, are adult individuals
residing together at 907 Thornton Drive, Mechanicsburg, Cumberland County,
Pennsylvania.
2. Defendant, David T. Hilsinger, is an adult individual with residence and a
place of business at 133 East Main Street, Mechanicsburg, Cumberland County,
Pennsylvania.
3. Plaintiffs are owners of the residence at 907 Thornton Drive,
Mechanicsburg, Pennsylvania.
4. Defendant holds himself out as a home remodeling contractor.
5. On or about September 8, 2004, the parties entered into an agreement
whereby Defendant would do remodeling of the kitchen, including demolition and
removal, installation of new flooring, a new window, cabinets, sink and countertop,
together with painting and finishing among other items. This was done pursuant to the
written agreement, a copy of which is attached hereto as Exhibit A and incorporated
herein by reference. Among the terms and conditions of the agreement was that
Plaintiffs were to pay the sum of $12,750.00 "for the purchase of products". That sum
was paid to Defendant by Plaintiffs by their personal check #1499, receipt of which was
acknowledged by Defendant on September 9, 2004. A further sum of $4,000 was given
on or about September 22, 2004. A third payment of $4,000 was given on October 14,
2004.
6. The contract was entered into after several visits by Defendant at
Plaintiff's home to take measurements, to discuss design and to sign the contract.
7. The only document of the agreement is attached as Exhibit A.
8. Defendant has failed to proceed with the job with due diligence, and has in
fact quit working on the job and notified Plaintiffs by letter that they will have to get
somebody else to finish the job. The letter was received by Plaintiffs on November 20,
2004. A copy of said letter is attached hereto as Exhibit B and incorporated by
reference herein.
9. The following are the major items that have not been completed:
A. Installation of the correct casement window;
B. Installation of Corian brand countertop, together with sink and
plumbing hardware; and
C. Installation of appliances.
E. Finished molding around floor;
F. Wall and ceiling surface prep and painting.
2
M In addition to the unfinished items, there are several items that have not
been performed in a workmanlike manner and will have to be redone:
A. The flooring installation has been installed apparently without
proper installation of a sub-base, and with high spots and low spots throughout,
preventing effective installation of cabinetry and appliances.
B. Trim around the door to the garage needs to be reinstalled, and
new drywall installed in order to have the door and trim hang properly.
C. The wrong style of kitchen window was installed, which will have to
be removed, and the proper window installed.
D. Improper installation of wall cabinets, and damage of wall cabinets,
which were installed.
E. Correct improper installation of finish, molding around cabinetry and
around floors, which showed several nail splits, misaligned and ill-fitting pieces of
molding.
11. Had Defendant not walked off the job, the above deficiencies in the
workmanship would have been brought to the Defendant's attention. In any event, he
has refused to correct the same by walking off the job.
12. Had Defendant proceeded with the job with reasonable diligence, the
renovation work would have been completed by October 8, 2004, which was promised
by Defendant.
13. As a result of Defendant's lack of diligence and subsequent refusal to
proceed, Plaintiffs have suffered a loss of enjoyment of their home.
3
A. Plaintiffs have been forced to prepare their meals with crock pots
and a propane camping stove, and have had to wash their dishes in the bathroom sink
and bathtub.
B. Plaintiffs had made plans to entertain guests over the October 8,
2004, weekend, but were unable to do so because of the state of disrepair of their
kitchen due to Defendant's failure to proceed with diligence.
14. Plaintiffs will have to hire another contractor, including making corrections
to deficiencies in construction left by Defendant.
15. The fair cost of completing the remodeling work under the terms of the
agreement is $20,500.
16. Defendant failed to use the $12,750 advance for materials, as he agreed
to under the terms of the contract. Defendant has converted at least $8,000.00 of that
money to his own use.
17. Defendant fraudulently induced Plaintiffs' to enter into the agreement in
that :
A. Defendant deliberately misrepresented his availability to do the
work in a timely and workmanlike manner.
B. Defendant deliberately misrepresented his skill in doing the work
necessary for the remodeling and that of his subcontractors;
18. Plaintiffs would not have executed the agreement had they known that
Defendant did not have the skill and the time needed to do the job.
19. The Plaintiffs' residence is 907 Thornton Drive, Mechanicsburg,
Cumberland County, Pennsylvania.
4
20. The execution of the agreement (Complaint, Exhibit "A") was proceeded
by discussions and negotiations, several of which took place when Defendant visited
Plaintiffs at their residence:
21. Section 7 of the Pennsylvania Unfair Trade Practices and Consumer
Protection Law, 73 P. S. §201-7, specifies in pertinent part that, "where goods or
services having a sale price of Twenty-five Dollars ($25) or more are sold or contracted
to be sold to a buyer, as a result of, or in connection with, a contact with or call on the
buyer at his residence, that consumer may avoid the contract or sale, by notifying, in
writing, the seller within three full business days following the day in which the contract
was made and returning or holding available for return to seller in its original condition,
any merchandise purchased under the contract or sale."
22 Said Unfair Trade Practices and Consumer Act also provides that the time
period for rescission does not begin to run until the buyer has been informed of his right
to cancel and has been provided with copies of a notice of cancellation in a form
specified in the Pennsylvania Unfair Practices and Consumer Protection Act. 73 PS
§201.7(e).
23. Said Act also requires that each buyer be informed of his right of
cancellation in the manner set forth in said Act.
24. Plaintiffs have a right to cancel the contracts under the Pennsylvania
Unfair Trade Practices and Consumer Protection Law.
25. Plaintiffs were never informed of their right of cancellation nor were they
provided a written notice in a manner specified under the Pennsylvania Unfair Trade
Practices and Consumer Protection Law, Section 7.
5
26. Plaintiffs have notified Defendant in writing of their election to cancel the
contract, and have notified Defendant that any merchandise he may have left behind is
available for pick up. A copy of the notice given is attached hereto as Exhibit "B" and
incorporated by reference herein.
COUNTI
27. Paragraphs 1 through 26 above are incorporated herein by reference
herein.
28. As a result of Defendant's breach of the agreement, as set forth more
particularly above, Plaintiffs have suffered damages in the amount of $20,500.
WHEREFORE Plaintiffs respectfully request judgment against Defendant in the
amount of $20,500, together with interest and costs of suit.
COUNT II
29. Paragraphs 1 through 28 above are incorporated herein by reference
herein.
26. Defendant committed unfair or deceptive trade practices or acts in that he:
A. Fraudulently misrepresented his skill and availability to do the job in
a workmanlike manner;
B. Fraudulently converted $ 6,000 of Plaintiffs' money to his own use
instead of using the monies for the purchase of materials as specified in the agreement;
C. Fraudulently failed to give notice of Plaintiffs' right to rescission, as
set forth in the Pennsylvania Unfair Trade Practices and Consumer Protection Law;
D. Fraudulently failed to honor the notice of rescission which Plaintiffs
were entitled to give.
6
WHEREFORE, Plaintiffs respectfully request the following relief against
Defendant:
A. Rescission, including the return of all monies given by Plaintiff to
Defendants in the amount of $ 20,750.00, together with interest and costs of suit.
B. Judgment in the amount of $6,000 for the converted monies;
C. Judgment for $20,500, less any amount granted under B, above;
D. Penalties of three times any judgment granted to Plaintiffs, as provided by
section 9.2 of the Pennsylvania Unfair Trade Practices and Consumer Protection Law or
$100, whichever is greater;
E. Reasonable attorneys fees;
F. Interest and costs of suit;
G. Such other relief as this Court finds reasonable and just.
Date: t7Tirri rat
Kenneth A. Wise, Esquire
Attorney I.D. No. 16142
Graybill & Wise, P.C.
126 Locust Street
P. O. Box 11489
Harrisburg, PA 17108-1489
(717) 238-3838
Attorney for Plaintiffs
7
MAUREEN ROYER/ TOM WILLIAMS
907 THORNTON DR
MECHANICSBURG, PA. 17055
SEPT 8, 2004
MILLWORK AND REMODELING PROPOSAL;
-KITCHEN RENOVATION TO INCLUDE
REMOVAL OF OLD CABINETS AND INSTALLATION OF APPROVED CABINETRY FROM
SWARTZ SUPPLY AS NOTED ON DRAWINGS SUPPLIED. ALL MOLDING ON CEILING AND
BASEBD. AS NOTED. HARDWARE CHOICE OF CUSTOMER
DOORS DRAWERS
-PROVIDE AND INSTALL NEW FLOOR W/ NEW 1/4" SUB FLOOR- CUSTOMER CHOICE
ARMSTRONG "SOLARIUM- RHYTHM- #92164.
-CORIAN TOP AS NOTED- 1 1/2" THICK ON FRONT EDGE WITH 4" BACK SPLASH; NOTE
CORIAN TO BE INSTALLED BEHIND STOVE AND UP TO MICROWAVE CABINET; COLOR
CHOICE OF CUSTOMER ; ALSO TO INCLUDE DOUBLE BOWL
INTEGRATED SINK- FAUCET BY CUSTOMER INSTALLED BY CONTRACTOR-
-INSTALL 7 RECESSED SPOTLIGHTS IN PLACES WHERE CUSTOMER WOULD LIKE THEM
INSTALLED.
INSTALL CUSTOMERS KITCHEN EQUIPMENT AS NOTED. CHECK OUT STATUS OF CURRENT
WILING AND REPAIR IN KITCHEN AREA
- PATCH DRYWALL AND PAINT IN KITCHEN. REMOVE OLD BEAMS IN DINING AREA, PATCH
AND PAINT. TWO COATS OF PAINT ON ALL WALL SURFACES. COLOR CHOICE OF
CUSTOMER. REMOVE OLD WALL PAPER- PREP FOR PAINT.
-INSTALL NEW WINDOW OVER SINK AREA APPROX 32" WIDE X 36" HIGH;?Trrn G ilA EMENj?
wr ?ToP?et?vED) Lri ?r
- REMOVE ALL OLD DEBRIS FROM PREMISES.
- INSTALL BEAD BD PLYWOOD WITH WATER RESISTANT SATIN LACQUER FINISH ABOVE
4" CORIAN SPLASH AND UP TO NEW CABINETS. COLOR CHOICE OF CUSTOMER
COSTS TO DO ALL THAT'S MENTIONED IS THE SUM OF $24,750.00
CONTRACTS C FOR ?T PAYMENT OF $12 750. 0 DOLLARS FOR THE PURCHASE
OF PRODUCTS.. (?J 1 DATE 7-4b04 t4gcl
DATE
CONTRACT C S FOR SECOND PAYMENT WITH COMMENCEMENT OF REMOVAL OF
CABINETRY WITH THE BEDGAINNING F 2 THE REMODELING STAGE- $4,000.00 U
CONTRACT FOR THIRD PAYMENT WITH COMPLETION OF PAINTING, FLOORING
AND INSTALL OF WITH ROOM BASICALLY READY FQR INSTALLATION OF 4 ? ti) N JI
I
CABINETS.-$4000.00 DATE I I J 1 iN td i
? (
WITH CABINETS AND CORIAN TOPS INSTALLED AND ALL EQUIPMENT INSTALLED FINAL W J?
PAYMENT OF $4000.00 TO BE MADE WITH COMPLETION-
,DAVID 1 ATE n
ATE pia
?? a1ODvJ ' CA??MN' T 12 CS?An£ c??
MAUREEN/TOM THURSDAY
RECEIVED A CALL TODAY ON MY CELL PHONE FROM BRIAN KREHLING WITH ANOTHER
DILEMMA WITH THIS KITCHEN. HE HAD CALLED ABOUT 8 DAYS AGO AND SAID THAT THE
CORIAN DID NOT MATCH AND THAT AS SOON AS A NEW BATCH CAME IN HE WOULD
COMPLETE PROJECT WHICH INCLUDED INSTALL. NOW TODAY THURSDAY I GET THE
CALL THAT THE SAME THING HAS HAPPENED AGAIN. THIS COLOR GREEN WAS AGAIN
MISMATCHED IN THE WAREHOUSE AND INCONSIDERATION TO THE EXTENT OF THE JOB
BRIAN DID NOT WANT TO FINISH THE TOPS WITH TWO DIFFERENT COLORS. LORD KNOWS
WE DID NOT NEED THAT TO HAPPEN. AT THIS JUNCTURE SINCE THERE IS ENOUGH
MONEY LEFT ON THE CONTRACT TO PAY FOR THE TOPS YOU MIGHT AS WELL GO ON
YOUR OWN AND CONTRACT WITH A MILL SHOP TO INCLUDE KREHLING IND. OR ANYONE
ELSE, DOWN EAST, TO PROVIDE YOU WITH THE TOPS. MAYBE AT THIS JUNCTURE A
DIFFERENT COLOR_ I CAME OUT TODAY AND REWIRED THE BOX FOR THE MICROWAVE.
IN CONSIDERATION TO WARRANTY I SUGGEST THAT YOU GET THE SUPPLIER OF THE
STOVE AND THE MICROWAVE TO INSTALL THE PRODUCTS. I HAVE NEVER INSTALLED
ANY SUCH EQUIPMENT. I HAVE IN MY CONTRACT TO INSTALL THE DISHWASHER,
ACTIVATE FAUCET AND GARBAGE DISPOSAL. WHEN YOU GET YOUR TOPS IN I WILL SEND
DAVE'S PLUMBING OVER TO INSTALL THOSE ITEMS. AS FOR THE FRIG IT'S NOT MY JOB
TO PUT THAT BACK
I KNOW EVERYONE IS SKITTERISH ABOUT THIS FLOOR AND DAMAGING IT BUT I DON'T
INSTALL EQUIPMENT LIKE THAT. NEVER HAVE, NEVER WILL. THE SAME EQUIPMENT
OUTFIT COULD PROVIDE THE MANPOWER AND THE EXPERTISE TO DO THAT CHORE
ALSO TODAY AS YOU NOTICED I PUT THE KNOBS ON AND TOUCHED UP THE MOLDING
WITH SOME FRESH PAINT.
I'M SURE YOUR VERY UPSET WITH THE LATEST DEVELOPMENTS. TODAY'S
PREDICAMENT IS NOT MY DOING. WILL CALL MY FRIEND OVER THE WEEKEND. HE HAS A
WHOLESALE WAREHOUSE IN LANCASTER AND I WILL CHECK ON THE WINDOW
I'M SURE WE WILL TALK AGAIN
DAVID HILSINGER
0I'28/2905 99:40 7172452457 a
NI1EFf60M TARGET MEDI RAGE: 92
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Tom Williams and Maureen Royer
907 Thornton Drive
Mechanicsburg, PA 17055
January 25, 2005
David T. Hilsinger
133 E. Main Street
Mechanicsburg, PA 17055
Re, Maureen RoyeriTom Williams
Property at 907 Thornton Drive
Mechanicsburg, Pennsylvania
Dear Mr. Hilsinger:
We hereby elect to cancel the kitchen home improvement contract with you. You
have ten business days from your receipt of this letter in which to pick up your
merchandise. We expect that when you do that you will have a complete refund of the
$20,750 that was paid to you by us.
Very truly yours,
Maureen E. Roy
Thomas R. Williams
VERIFICATION
Upon my personal knowledge or information and belief, I hereby verify that the
facts averred in the foregoing Complaint are true and correct to the best of my
knowledge, information, and belief. I understand that false statements or averments
therein made will subject me to the criminal penalties of ISPa.C.S. § 4904 relating to
unsworn falsification to authorities.
Date: t (k3/05 i G) I
Maureen E. Royer, PI ntiff
Date: / 3' 6 S Jay rruz-0 wa
Thomas Williams, Plaintiff
h\ ? U -t ?
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SHERIFF'S RETURN - REGULAR
CASE NO: 2005-00557 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
WILLIAMS THOMAS ET AL
VS
HILSINGER DAVID T
SHANNON SHERTZER Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
HILSINGER DAVID T the
DEFENDANT , at 2050:00 HOURS, on the 2nd day of February , 2005
at 133 EAST MAIN STREET
MECHANICSBURG, PA 17055 by handing to
DAVID HILSINGER
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs
Docketing 18.00
Service 7.40
Affidavit .00
Surcharge 10.00
.00
35.40
Sworn and Subscribed to before
me this day of
2ODA.D.
? 'Prothonotary'
So Answers:
R. Thomas Kline
02/03/2005
GRAYBILL & WISE n
Deputy Sheriff
SCHMIDT, RONCA k KRAMER, P.C.
BY, CHARLES E. SCHMIDT, JR., ESQUIRE
LD, #19198
209 State Street
Harrisburg, PA 17101
(717) 232-6300 Attorneys for Defendant
THOMAS WILLIAMS and IN THE COURT OF COMMON PLEAS
I,MAUREEN E. ROYER, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
CIVIL ACTION - LAW
V.
NO. 05-557 CIVIL TERM
DAVID T. HILSINGER,
Defendant JURY TRIAL DEMANDED
PRAECIPE FOR ENTRY OF APPERANCE
I}O: THE PROTHONTARY
Please enter the appearance of Charles E. Schmidt, Jr., Esquire, of
Schmidt, Ronca & Kramer, P,C., on behalf of the Defendant, David T.
Hilsinger.
Respectfully submitted,
SCH*21 7, RO?WA &
By:
Charles E. Schmid4Jr., Esquire
Attorney I.D. #19198
209 State Street
Harrisburg, PA 17101
(717) 232-6300
Attorneys for Defendant
P.C.
Date: April 25, 2005
CERTIFICATE OF SERVICE
AND NOW, this 25th day of April, 2005, I, Charles E. Schmidt, Jr.,
hereby certify that I have, this day, served a copy of the foregoing document by
serving a copy of the same in the United States mail, postage prepaid, at
Harrisburg, Pennsylvania, addressed to:
Kenneth A. Wise, Esq.
Graybill & Wise, P.C.
126 Locust Street
Harrisburg, PA 17101
Charles E. Schmidt, Jr., Esquire
Attorney I.D. #19198
209 State Street
Harrisburg, PA 17101
(717) 232-6300
Attorneys for Plaintiff(s)
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SCIIJMIDT, RONCA & KRAMER, P.C.
BY:I, CHARLES E. SCHMIDT, JR., ESQUIRE
I.D.#19195
209 State Street
Harrisburg, PA 17101
(717) 232-6300 Attorneys for Defendant
OMAS WILLIAMS and IN THE COURT OF COMMON PLEAS
.UREEN E. ROYER, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
CIVIL ACTION - LAW
V.
NO. 05-557 CIVIL TERM
VID T. HILSINGER,
Defendant : JURY TRIAL DEMANDED
NOTICE TO PLEAD
FO: Plaintiffs Thomas Williams and Maureen E. Royer
c/o Kenneth A. Wise, Esquire
Graybill 8v Wise, P.C.
126 Locust Street
Harrisburg, PA 17101
You are hereby notified to plead to the enclosed New Matter within
(20) days from service hereof or a default judgment may be entered
you.
bmitted,
La((:
Charles E. Schmidt, Jr., Esquire
Attorney I.D. #19198
209 State Street
Harrisburg, PA 17101
f 717-232-6300
513)05 Attorneys for Defendant
SCHMID , RONCA 8s K ER, P.C.
By:
, RONCA & KRAMER, P.C.
CHARLES E. SCHMIDT, JR., ESQUIRE
1. D. #19198
209 State Street
Harrisburg, PA 17101
(717) 232-6300
Attorneys for Defendant
WILLIAMS and
V E. ROYER,
Plaintiffs
V.
VID T. HILSINGER,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 05-557 CIVIL TERM
JURY TRIAL DEMANDED
DEFENDANT'S ANSWER WITH NEW MATTER
AND NOW, comes the Defendant, by his counsel, Charles E. Schmidt,
, of Schmidt, Ronca & Kramer, P.C., who sets forth the following Answer
New Matter to Plaintiffs' Complaint:
1. Admitted.
2. Admitted.
3. Admitted.
4. Denied. Defendant does not hold himself out as a remodeling
Defendant has, from time to time, performed remodeling projects
other people. The Defendant does not solicit door-to-door, nor does he
2
engage in the business of home remodeling. Defendant was
by Plaintiff Thomas Williams at the Mechanicsburg Men's Club and
on their prior relationship and friendship, was asked to do a remodeling
ect in the kitchen of his home.
5. Admitted in part. It is admitted that a contract was entered into
or about September 8, 2004. The Defendant also admits receiving the
installment payments from the Plaintiffs. The balance of the
are neither admitted or denied, as the contract is the best evidence
speaks for itself as to its terms and conditions.
6. Admitted.
7. Denied. A true and correct copy of the original agreement is
hereto at Exhibit AA.
8. Denied. It is specifically denied that Defendant failed to proceed
due diligence. Defendant at all times proceeded with reasonable care and
to the job. Plaintiffs, specifically Plaintiff Maureen Royer,
numerous changes from the original plan and contract which held
completion of the project. In addition, there was as problem with matching
Corian countertops which was never properly and finally addressed by the
Defendant had substantially completed the project at the time that
stopped. Moreover, the work stoppage happened as a result of a
over Plaintiffs requested changes to the original plan. Plaintiffs
that the left-right casement window installed in the kitchen be
3
removed at Defendant's expense, and a totally different window be substituted.
tiffs also requested that the Defendant remove cabinets which the
tiffs had selected and reinstall new cabinets. Defendant orally advised the
that he would not reinstall items such as the stove, microwave oven
refrigerator because he did not want to compromise the manufacturer's
Moreover, it is denied that the letter of November 20, 2004 states that
had to "get somebody else to finish the job." The Defendant merely
what the existing on-going problems were and possible solutions.
By way of further answer, the Defendant was terminated from the job on
anuary 25, 2005 by written letter from the Plaintiffs advising him that they
him to "remove all of his property" and refund them the full balance of
price paid to date.
9. A. Denied. The casement windows were installed as
per the contract.
B. Admitted. By way of further answer, see Exhibit B to
Plaintiffs' Complaint wherein the Defendant explained the problem
with obtaining the properly matched Corian from Krehling
Industries.
C. Admitted. By way of further answer, for reasons more
particularly set forth in paragraph 8, Defendant denies that he was
responsible for the installation of all appliances.
4
E. Denied. The molding is finished as per the contract.
F. Denied. All wall and ceiling surfaces were finished and
painted.
10. A. Denied. Defendant, in fact, redid the floor at his own
case at the insistence of the Plaintiffs. By way of further answer,
because of the age of the house there was a swale in the floor. The
standard in the industry is to put the cabinets plumb level and run
baseboard to cover up the shims. This was done and was accepted
by Plaintiffs.
B. Denied. The door and trim to the garage were done in
a workmanlike manner. Plaintiffs accepted the work at the time it
was done.
C. Denied. The kitchen window installed was the left,
right casement window which was called for in the contract.
D. Denied. All wall cabinets were properly installed and
approved by the Plaintiffs. Moreover, the cabinets were selected by
the Plaintiffs through Schwartz Supply in Harrisburg.
E. Denied. All molding was installed in a workmanlike
manner. All molding was glued, nailed, and puttied
11. Denied. It is specifically denied that the Defendant walked off the
:)b. Plaintiffs terminated the Defendant by their letter of July 25, 2004.
5
12. Denied. The Defendant never promised completion of the project
October 8, 2004. Work was not started until the middle of September. The
length of the job was approximately 8 weeks. Because of
changes by the Plaintiffs, and because of problems with the Corian
set forth previously, Defendant admits that there were some delays;
, Defendant denies that he is responsible for any delays.
13. Denied. It is specifically denied that the Defendant lacked
and refused to proceed. Moreover, Defendant avers that such
are not recoverable in this action.
A. Defendant is without knowledge or information to form
a belief as to the truth or falsity of this subparagraph, and,
therefore, proof of the same is demanded. Moreover, Defendant
avers that such damages are not recoverable in this action.
B. Defendant was aware of the planned entertainment on
October 8, 2004. Defendant specifically denies that he agreed to
have the work done at that time. Moreover, Defendant avers that
such damages are not recoverable in this action.
14. Defendant is without knowledge or information concerning the
contained in paragraph 14. Defendant admits that some work will
ve to be finished, but specifically denies that it is because of anything he
to do or that he breached his contract.
6
15. Denied. Defendant believes and avers that the cost of completing
work would be for the installation of the Corian, the sink, the dishwasher,
garbage disposal and the refrigerator. The Defendant remained ready and
up until the time he was terminated by the Plaintiffs, to do the garbage
sink and dishwasher. Defendant was willing to install the Corian
Plaintiffs resolved the problem with the color. The Defendant requested
t the Plaintiffs obtain installation of the refrigerator, stove and microwave by
manufactures or appropriate representatives thereof.
16. Denied. All monies given to Defendant were used to purchase
pay subcontractors, and allow a reasonable profit for the Defendant.
specifically denies that any money was converted to his own use in
sense it was used improperly, and Defendant demand strict proof of the
Moreover, Plaintiff believes and avers that the work done, to date,
substantial performance, the value of which is equal to or in excess
the amounts claimed by the Plaintiffs under this contract.
17. Denied. It is denied that Defendant fraudulently induced
, and strict proof thereof is required in accordance with Pennsylvania
of Procedure.
A. Defendant did not misrepresent his availability to do
work in a timely and workmanlike fashion, and strict proof thereof
is required in accordance with Pennsylvania Rules of Procedure.
7
B. Defendant did not misrepresent his skill in doing the
work necessary for the remodeling nor that of his subcontractors
and strict proof thereof is required in accordance with
Pennsylvania Rules of Procedure.
18. Denied. Plaintiff Williams was aware of Defendant's skill level as
had previously worked together on other construction projects.
19. Admitted.
20. See Answer to Paragraph 4, which is incorporated herein by
21. Defendant does not contest the statement of the law. Defendant
however, that the law applies to this type of transaction in that he is
in the business of doing kitchens, and is not a door-to-door salesman.
22. Paragraph 22 contains a conclusion of law which does not require
responsive pleading.
23. Paragraph 23 contains a conclusion of law which does not require
responsive pleading.
24. Paragraph 24 contains a conclusion of law which does not require
responsive pleading.
25. Defendant admits that no right of cancellation was ever given to
Plaintiffs. Defendant further avers that the Act does not apply to him.
26. Defendant admits receiving said letter terminating his contract
i the Plaintiffs.
8
COUNT I
27. Paragraph 27 does not require a responsive pleading.
28. Denied. It is denied that Plaintiffs suffered damages in the amount
$20,500 for reasons set forth in the preceding paragraphs and in New
WHEREFORE, Defendant requests that the Court dismiss the Complaint
the Plaintiffs, with prejudice.
COUNT II
29. Paragraph 29 does not require a responsive pleading.
30. Denied. It is specifically denied that the Defendant committed any
trade practices.
A. Denied. Defendant did not fraudulently misrepresent
his skill and ability to do the job in a workmanlike manner. In
fact, he was requested to do the work by Plaintiff Williams at the
Mechanicsburg Men's Club at a time when Defendant was not
working and he agreed to do a job for Plaintiff Williams.
Defendant did not solicit the Plaintiffs for the work. In addition,
Plaintiff was aware of Defendant's skill level from a personal
relationship, and was not in the business of doing remodeling.
B. Denied. It is denied that any money was converted.
By way of further answer, Defendant avers that all work was done
in a workmanlike fashion, that he has rendered substantial
9
performance under the contract, and that Plaintiffs have received
equal or greater value than the monies paid to Defendant
Hilsinger.
C. Denied. Defendant denies he committed any type of
fraud by not giving Plaintiffs notice of the right to rescission. It is
specifically denied that the Pennsylvania Unfair Trade Practices
and Consumer Protection Law applies to this transaction.
D. Denied. It is specifically that the Defendant committed
any fraud. In addition, it is denied that Plaintiffs were entitled to a
notice of right of rescission. It is further believed and averred that
the Plaintiffs are estopped from claiming rescission after receiving
substantial performance under the contract.
WHEREFORE, Defendant requests that the Plaintiffs' claim be
in total, with prejudice.
NEW MATTER
31. Plaintiffs' Complaint fails to state a cause of action for breath of
32. Plaintiffs breached the contact with Defendant by making changes
the original contract, and by making demands on the Defendant, which were
the contract in the following regards:
10
a. Defendant re-did all the flooring in the kitchen at his own cost
and expense because of subjective dissatisfaction of the
Plaintiffs;
b. Defendant was asked to replace all the cabinets by Plaintiff
Royer even though they had been selected by her;
c. Defendant was asked to remove the left-right casement window
called for in the contract and to substitute another window
because of the subjective dissatisfaction of Plaintiffs.
33. Defendant believes and avers that the Plaintiffs are guilty of
icipatory breach of contract due to subjective dissatisfaction.
34. Defendant has rendered substantial performance and is entitled to
awarded damages for the benefit of the value conferred and the amount of
paid to date.
35. Plaintiffs cannot recover damages for inconvenience and emotional
resulting as a result of a contract claim.
36. The Plaintiffs fail to state a cause of action for violation of the
Trade Practices Act in that the Act is not applicable because the
did not primarily arise out of a home solicitation, but rather through a
acquaintance and a prior relationship between Plaintiff Williams and
iefendant.
11
37. To the extent that fraud has been pleaded concerning the
concerning the Defendant, there has been no detrimental
by the Plaintiffs.
38. The Plaintiffs are estopped from rescinding the contract after
substantial performance.
WHEREFORE, Defendant requests that the Court dismiss the Complaint
the Plaintiffs, with prejudice.
Respectfully submitted,
SCHMID, RONCA 8c K ER, P.C.
By:
Charles E. Schmidt, Jr., Esquire
Attorney I.D. #19198
209 State Street
Harrisburg, PA 17101
f (717) 232-6300
513 O? Attorneys for Defendant
12
VERIFICATION BASED UPON PERSONAL
KNOWLEDGE AND INFORMATION SUPPLIED BY COUNSEL
I, David T. Hilsinger, verify that I am the Plaintiff in the foregoing action
that the foregoing Answer to Complaint is based upon the information
has been gathered by my counsel in preparation of this lawsuit. The
of the Complaint is that of counsel and is not mine. I have read the
Answer, and to the extent that it is based upon information which I
given to my counsel, it is true and correct to the best of my knowledge,
, and belief. To the extent that the contents of the Complaint are
of counsel, I have relied upon counsel in making this Verification.
I understand that intentional false statements herein are made subject to
penalties of 18 Pa.C.S. §4904 relating to unsworn falsifications made to
authorities.
DAVID T. HILSINGER
CERTIFICATE OF SERVICE
AND NOW, this 3rd day of May, 2005, I, Charles E. Schmidt, Jr., hereby
that I have, this day, served a copy of the foregoing document by serving
copy of the same via facsimile and in the United States mail, postage prepaid,
Harrisburg, Pennsylvania, addressed to:
Kenneth A. Wise, Esquire
Graybill & Wise, P.C.
126 Locust Street
P.O. Box 11489
Harrisburg, PA 17108-1489
Respectfully
RONCA & KRIAMER. P.C.
I
By:
Charles E. Schmidt, /Jr., Esquire
Attorney I.D. #19198
209 State Street
Harrisburg, PA 17101
(717) 232-6300
Attorneys for Defendant
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OCHMIDT, RONCA & KRAMER, P.C.
?3Y: CHARLES E. SCHMIDT, JR., ESQUIRE
I.D.#19198
209 State Street
'.. Harrisburg, PA 17101
(717) 232-6300
Attorneys for Defendant
WILLIAMS and
V E. ROYER,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
V.
DAVID T. HILSINGER,
Defendant
TO: THE PROTHONTARY
NO. 05-557 CIVIL TERM
JURY TRIAL DEMANDED
PRAECIPE
Please add the attached copy of the original agreement as Exhibit "A" to
Defendant's Answer Including New Matter which was mailed for filing on
May 3, 2005.
, RdNCA & KRADJER, P.C.
By:__
Charles E'.-49?c'hmidt, Jf.,
Attorney I.D. #19198
209 State Street
Harrisburg, PA 17101
(717) 232-6300
Attorneys for Defendant
Date: May 4, 2005
MAI;RFEN ROYER/ TOM WILLIAMS SFPT 8, 2004
407 "11IORNTON OR.
MECHANICSBURG, PA 17055
MILLWORK AND REMODELING PROPOSAL,
-KI ICHEN RENOVATION TO INCLLIDL-
RF:MOV'AI. OF OLD C.ABINE'FS AND INSTALLATION OF APPROVED CABINETRY FROM
SWARIZ SUPPLY AS NOTED ON DRAWINGS SUPPLIED- ALL MOLDING ON CEILING AND
BASFBD AS NOTED_ HARDWARE CHOICE OF CUSTOMER
DOORS DRAWERS
PROVIDE AND INSIALL NEW FLOOR WI NEW 1/4" SUB FLOOR-CUSTOMER CHO1CFi „) -
ARMS"FROND " SOI,AR]UM- RHYTHM- #92164 .
-C'ORIAN TOP AS NOTED- 1 U2" THICK ON FRONT EDGE WITH 4" BACK SPLASH, NO'] 'E
C'ORIAN '10 BE INSTALLED BEHIND STOVF AND UP TO MICROWAVE CABINET, COLOR
CHOICE OI CUSTOMERALSO TO INCLUDE DOUBLE BOWL
IN 1'EGRA FED SINK FAUCE F BY CUSTOMER INSTALLED BY CONTRACTOR.
INSTALL 7 RECESSED SPOT LIGHTS IN PLACES WHERE CUSTOMER WOULD LIKE: FHEM
INSTALLED. 0
INS FALL. CUSTOMERS KITCHEN EQUIPMENT AS NOTED CHECK OLI"1' SI-ATL]S OF (-I ]RRENI
WIRING AND REPAIR IN KITCHEN AREA
- PA'1('11 DRYWALL. AND PAIN']' IN KITCHEN REMOVE OLD BEAMS IN DINING AREA, PA7Y'11
AND PAINT TWO COATS OF PAINT ON AL I. WALL SURFACES- COLOR CHOICE Of
CUS'FOMf R REMOVE OLD WALL PAPER- PREP FOR PAINT
INSTALL. NEW WINDOW OVER SINK AREA APPROX 32" WIDE X 36' HIGH, Slidfit tttINcJ
w??, +((?uRVED) LaS £,?T tT w tai
- REMOVE ALL OLD DEBRIS FROM PREMISES.
- INSTALL. HEAD BD PLYWOOD WillI WATER RESISTANT SATIN 1.ACQUFiR FINISH ABOVE
-I" C ORIAN SPLASH AND UP TO NFW CABINETS. COLOR CHOICE OP COSTOMER ' t
,` j
COSI'S'f0 DO ALL'I'FIA"1"S MENTIONED 1S THE SUM OF $24,750.(#)
CONTRA('TS CALL, FOR AN INITIAL PAYMFN'F OF $12,750, CIO DOLLARS FOR THE PI IRCJ IASE.
OF PRODUCTS DA"FF.
DATE
CONTRACT CALLS FOR SECOND PAYMEN"F W FFH C'OMMETLCFMENT OF REMOVAL OF
CABINETRY ALONG Will I THE BEGINNING OF] HE REMODF.I.ING STAGE- $4,00000
DATE
('ON 'I RAC'I CALLS FOR THIRD PAYMENT WITH COMPLETION OF PAINTING, FLOORING
AND INSTALL OF WINDOW WITH ROOM BASICALLY READY FOR INS'T'ALLATION OE
CABlNF. FS - $4000.00 DATE
WITH ('ABINF:I'S AND C'OR1AN TOPS INSTALLED AND AI,I, L;QLIIPMEN'I' ENS CALLED 1'INAI.
PAYMENT OF $4000 0010 BE MADE. WITH COMPLETION.
I AVID F IIIIr6; I G E R DATE
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EXHIBIT "A"
CERTIFICATE OF SERVICE
AND NOW, this 4th day of May, 2005, I, Charles E. Schmidt, Jr., hereby
ertify that I have, this day, served a copy of the foregoing document by hand
delivering a copy of the same to:
Kenneth A. Wise, Esquire
Graybill & Wise, P.C.
126 Locust Street
Harrisburg, PA 17101
Respectfuljy, submitted,
SCHA & KRA]By:
P.C.
Charles E. Schmidt, J Esquire
Attorney I.D. #19198
209 State Street
Harrisburg, PA 17101
(717) 232-6300
Attorneys for Defendant
2
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THOMAS WILLIAMS and IN THE COURT OF COMMON PLEAS
MAUREEN E. ROYER, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V.
CIVIL ACTION - LAW
DAVID T. HILSINGER,
NO. 2005-00557 P
Defendant
JURY TRIAL DEMANDED
PLAINTIFFS' RESPONSE TO DEFENDANT'S NEW MATTER
31. Denied. To the contrary, Plaintiffs' Complaint states the causes of action.
32. Denied.
A. Denied. To the contrary, the floor installation was defective in that, among
other things, the floor underlayment was defectively nailed down;
B. Denied. The cabinets were damaged during the first installation, which
installation was not according to plan and interfered with the use of the doors; and
C. Denied. To the contrary, Defendant failed to install the window Plaintiffs
had selected.
33. Denied. To t he contrary, Defendant walked off the job.
34. Denied. This is a statement of law for which no response is necessary. To the
extent that one is, fair value damages are not available to a defendant for violations of the
Pennsylvania Unfair Trade Practices and Consumer Protection Law. Further, Defendant
owes Plaintiffs monies on a substantial compliance theory.
35. Denied. This is a statement of law for which no response is necessary. To the
extent one is, loss of use and enjoyment is a recognized consequential damage.
36. Denied. To the contrary, the sale was consummated following Defendant's visit at
Plaintiffs' residence to measure, present a proposal, and negotiate those terms. Further,
Defendant was never an acquaintance of Plaintiff, Maureen Royer. Further still, while
Plaintiff Williams and Defendant were prior acquaintances, the bill presented was the
result of negotiation and the result of Defendant knowing the competing against another
contractor's bid.
37. Denied. Among other things, Defendant held himself out as a remodeler on his
business cards, and, as part of his sales pitch, showed Plaintiffs albums of the work he
had done. Both helped convince Plaintiffs that Defendant had the experience and
resources necessary to do the kitchen remodeling in a workmanlike manner.
38. Denied. This is a conclusion of law for which no response is necessary. To the
extent one is, there is to estoppel because the rescission period only begins to run from
the time when the customer (i.e., Plaintiffs) is presented with the required Notice of the
Right of Cancellation.
WHEREFORE, Plaintiffs respectfully requests judgment as set forth in their
complaint.
Respectfully,
Date Kenneth A. Wise, Esquire
Id. No. 16142
126 Locust Street
P. O. Box 11489
Harrisburg, PA 17108-1489
(717) 238-3838
Attorney for Plaintiffs
2
CERTIFICATION OF SERVICE
I hereby certify that I am this day serving a true and correct copy of the
attached Plaintiffs' Response to Defendant's New Matter on the following
individual(s) by First Class U.S. Mail addressed as follows:
Charles E. Schmidt, Jr., Esquire
Schmidt, Ronca & Kramer, P.C.
209 State Street
Harrisburg, PA 17101
f ll ?„/'irG <
Date:j J G r'
Kenneth A. Wise, Esquire
I.D. No. 16142
126 Locust Street
P. O. Box 11489
Harrisburg, PA 17108-1489
(717) 238-3838
Attorney for Plaintiffs
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THOMAS WILLIAMS and
MAUREEN E. ROYER,
Plaintiffs
V.
DAVID T. HILSINGER,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 2005-00557 P
JURY TRIAL DEMANDED
MOTION OF PLAINTIFFS TO AMEND COMPLAINT TO ADD A DEFENDANT
AND NOW, come Movants, Plaintiffs, by their undersigned counsel, and
respectfully move this Court for leave to amend their complaint to add a party
defendant, and set forth in support thereof as follows:
1. Movants herein are Plaintiffs.
2. Respondent herein is Defendant.
3. This action is on a claim by Plaintiffs for damages relating to a home
improvement contract where Plaintiffs, the consumers, claim that Defendant, the
contractor, failed to finish a kitchen remodeling job, and Plaintiffs were forced to spend
extra money to have another contractor finish the job and correct defects in Defendant's
workmanship on the work that was done.
4. Part of the claim under the contract alleges a default for failure to use
certain monies specifically for the purchase of materials and supplies, as specified in
the contract.
5. During discovery, Plaintiffs discovered that the monies that were
supposed to go for the purchase of materials and supplies was actually put into a
personal family bank account and used for family expenses. As a result, certain needed
materials, including but not limited to the Corian counter tops and integrated double sink
and the arched top window, were not purchased and installed, forcing Plaintiffs to have
to spend extra money to purchase and install the products and correct the defects in
workmanship.
6. Defendant is married to Laurie Hilsinger.
7. Plaintiffs believe that Laurie Hilsinger received the benefit of the monies
that were supposed to go for the purchase of materials and supplies.
8. If Laurie Hilsinger received the benefit of these monies, she shared in the
profits of the contract, and as such is prima facie evidence that she is a partner under
the Pennsylvania Partnership Act, 59 Pa. C.S. § 312 (4) ("The receipt by a person of a
share of the profits of a business is prima facie evidence that he is a partner in the
business ....").
9. If Laurie Hilsinger is a partner, she has vicarious liability for the actions of
her partner, David Hilsinger.
10. The applicable statute of limitations has not run in this claim.
11. Amendment of a complaint by a plaintiff to add a party defendant has
been allowed by motion and rule. See, Belle v. Chierma, 442 Pa. Super. 371, 659 A.2d
1035 (1995).
12. Allowance of the proposed amendment will promote efficiency and
promote the administration of justice.
2
13. Pursuant to local rule 208.2(d), the undersigned attorney for Plaintiffs
certifies that he has contacted Charles Schmidt, Esq., counsel for Defendant, informed
Atty. Schmidt that Plaintiffs desired the relief requested in this Motion, and asked Atty.
Schmidt for his concurrence or non concurrence. He ( ) did (mid not concur.
WHEREFORE Plaintiffs respectfully request that this Court grant this
motion and allow them to add Laurie Hilsinger as a party defendant.
Date: 3 T l ?
Kenneth A. Wise, Esquire
Attorney I.D. No. 16142
Graybill & Wise, P.C.
126 Locust Street
P. O. Box 11489
Harrisburg, PA 17108-1489
(717) 238-3838
Attorneys for Plaintiffs
3
VERIFICATION
Upon my personal knowledge or information and belief, I hereby verify that the
facts averred in the foregoing Motion to Amend Complaint are true and correct to the
best of my knowledge, information, and belief. I understand that false statements or
averments therein made will subject me to the criminal penalties of 18Pa.C.S. § 4904
relating to unsworn falsification to authorities.
Date: 7 /31 /64
Maureen E. Royer, Plain
4
CERTIFICATION OF SERVICE
I hereby certify that I am this day serving a true and correct copy of the attached
Motion Of Plaintiffs To Amend Complaint To Add A Defendant on the following
individual(s) by First Class U.S. Mail addressed as follows:
Charles E. Schmidt, Jr., Esquire
Schmidt, Ronca & Kramer, P.C.
209 State Street
Harrisburg, PA 17101
Date: 3) T
16,??A4e'
enneth A. Wise, Esquire
Graybill & Wise, P.C.
Id. No. 16142
126 Locust Street
P. O. Box 11489
Harrisburg, PA 17108-1489
(717) 238-3838
Attorney For Plaintiffs
5
THOMAS WILLIAMS and IN THE COURT OF COMMON PLEAS OF
MAUREEN E. ROYER, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
DAVID T. HILSINGER,
Defendant 05-0557 CIVIL
ORDER OF COURT
AND NOW, this 9th day of August, 2006, upon consideration of the foregoing
Petition to Amend Complaint to Add Defendant, IT IS HEREBY ORDERED AND
DIRECTED that:
1. Pursuant to Pa.R.C.P. No. 206.5, a rule is issued upon the defendant to show
cause why the plaintiffs are not entitled to the relief requested;
2. The defendant will file an answer to this petition on or before August 29, 2006;
3. A copy of said answer will be filed with this Court;
5. If no answer to the Rule to Show cause is filed by the required date, the relief
requested by Plaintiffs shall be granted. If the Defendant files an answer to this Rule to
Show Cause, and the answer raises disputed issues of material fact, an evidentiary
hearing will then be scheduled.
By the Court,
hk - v -\
M. L. Ebert, Jr.,
Xenneth A. Wise, Esquire
Attorney for Plaintiff/Petitioner
iharles E. Schmidt, Jr., Esquire
Attorney for Defendant
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SCHMIDT KRAMER PC
BY: CHARLES E. SCHMIDT, JR., ESQUIRE
I.D.#19198
209 State Street
Harrisburg, PA 17101
(717) 232-6300
Attorneys for Defendant
THOMAS WILLIAMS and
MAUREEN E. ROYER,
Plaintiffs
V.
DAVID T. HILSINGER,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 05-557 CIVIL TERM
JURY TRIAL DEMANDED
DEFENDANT'S REPLY TO
PLAINTIFFS' MOTION TO AMEND COMPLAINT
AND NOW, comes the Defendant, David T. Hilsinger, who sets forth as
follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. The Complaint speaks for itself; no responsive pleading is required.
5. Denied. Defendant testified under oath that he placed money into
his personal account. By way of further answer, the account was neither a
joint account with his wife, Laurie Hilsinger, nor a partnership account. In
addition, said sums paid by Plaintiffs to Defendant were, in fact, used for work
performed prior to work stoppage. The specific sums which were used toward
i
the project and which were taken as profit by the Defendant are in dispute and
are the subject of the underlying litigation.
6. Admitted.
7. Denied as stated. Laurie Hilsinger was not a party to the contract
and did not receive direct payment from the Defendant. By way of further
answer, Laurie Hilsinger is a full time housewife and is not employed in the
contracting business.
8. Denied. It is specifically denied that Defendant's wife, Laurie
Hilsinger, becomes a partner with him by indirectly receiving the benefit of
monies spent or used by the Defendant. Plaintiffs fail to cite any legal
authority for this proposition.
9. Denied. Plaintiffs fail to state a legal claim upon which relief can
be granted, in that there is no vicarious liability between spouses.
10. Admitted.
11. Admitted.
12. Denied. It is specifically denied that Plaintiffs state a claim upon
which relief can be granted against Defendant's wife, Laurie Hilsinger.
13. Admitted.
2
I 1
WHEREFORE, Defendant respectfully requests that this Court deny the
Motion to add Laurie Hilsinger as a party defendant.
submitted,
PC
By:
Date: 8/24/06
Charles E. Schmidt, A., Esquire
Attorney I.D. #19198
209 State Street
Harrisburg, PA 17101
(717) 232-6300
Attorneys for Defendant
3
VERIFICATION BASED UPON PERSONAL
KNOWLEDGE AND INFORMATION SUPPLIED BY COUNSEL
I, David T. Hilsinger, verify that I am the Defendant in this action and
that the foregoing Reply to Plaintiffs' Motion to Amend Complaint is based
upon the information which has been gathered by my counsel in preparation of
this lawsuit. The language of the Reply is that of counsel and is not mine. I
have read the Reply, and to the extent that it is based upon information which
I have given to my counsel, it is true and correct to the best of my knowledge,
information, and belief. To the extent that the contents of the Reply are that of
counsel, I have relied upon counsel in making this Verification.
I understand that intentional false statements herein are made subject to
the penalties of 18 Pa.C.S. §4904 relating to unsworn falsifications made to
authorities.
V:? ?-- ?Vs-, -
DAVID T. HILSINGER
r
CERTIFICATE OF SERVICE
AND NOW, I, Charles E. Schmidt, Jr., hereby certify that I have, this day,
served a copy of the foregoing document by serving a copy of the same in the
United States mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to:
Kenneth A. Wise, Esquire
Graybill & Wise, P.C.
126 Locust Street
Harrisburg, PA 17101
submitted,
SCHMI T 9 PC
By:
Charles E. Schmidt, Jr., Esquire
Attorney I.D. #19198
209 State Street
Harrisburg, PA 17101
(717) 232-6300
Attorneys for Plaintiff
Date: 8 / 25/ 06
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Curtis R. Long
Prothonotary
office of toe Vrotoonotarp
Cumberlanb Countp
Renee K. Simpson
Deputy Prothonotary
John E. Slike
Solicitor
CSS' - 5 S CVIL TERM
ORDER OF TERMINATION OF COURT CASES
AND NOW THIS 28TH DAY OF OCTOBER, 2009, AFTER MAILING NOTICE OF
INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE
CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA
R C P 230.2.
BY THE COURT,
CURTIS R. LONG
PROTHONOTARY
One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573
F?WILESUients\14652 Mlsinger\14652. Lpra
Revised: 2/15/12 0:02PM
FILED-OFFICE
OF THE PROTHONOTARY
David A. Fitzsimons, Esquires F?? ! Ph 3?
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALL 2 7
MARTSON LAW OFFICES C RLANO COUNTY
I.D. 41722 P.?t15YLYANIA
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Defendant David Hilsinger
THOMAS WILLIAMS and IN THE COURT OF COMMON PLEAS OF
MAUREEN E. ROYER, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
DAVID T. HILSINGER,
Defendant
NO. 2005-0557
CIVIL ACTION - LAW
PRAECIPE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Enter the appearance of MARTSON LAW OFFICES on behalf of Defendant, David T.
Hilsinger, in the above matter.
MARTSON LAW OFFICES
By ?i
David A. Fitzsimons, Esquire
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Defendant
Dated: February 15, 2012
CERTIFICATE OF SERVICE
I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy &
Faller, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same
in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows:
Bryan W. Shook, Esquire
2132 Market Street
Camp Hill, PA 17011
MARTSON LAW OFFICES
By
Tricia irfkkenroad
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Dated: February 15, 2012
THOMAS WILLIAMS and IN THE COURT OF COMMON PLEAS OF
MAUREEN ROYER, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V
05-0557 CIVIL TERM
DAVID HILSINGER,
Defendant
IN RE: PETITION TO REINSTATE CASE
ORDER OF COURT
AND NOW, this 21st day of February, 2012, after
hearing in the above-captioned matter, and after status
conference with counsel in chambers, IT IS HEREBY ORDERED AND
DIRECTED that the petition to reinstate the case terminated
pursuant to Pa. R.C.P. 230-2 is denied.
By the Court,
M. L. Ebert, Jr., }
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:ZM -n `Y'
? Bryan W. Shook, Esquire
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For the Plaintiffs a
v'David Fitzsimons, Esquire Z
For the Defendant
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