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Home My WebLink About05-1267 Paul E. Biniek, Jr. d/b/a BINIEK ROOFING IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. : NO. Oj~./ /..)."7 J.H. BRANDT AND ASSOCIATES, INe. CIVIL ACTION - LAW ~. IIiIl Ill" Defendants NOTICE TO PLEAD TO: J,H, Brandt and Associates, Inc., Defendant 657 Forge Road Carlisle, PAl 70 13 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 Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you, YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Date: U'>-J f~ Richard P. Mislitsky, Esquire Attorney ID # 28123 One West High Street P. O. Box 1290 Carlisle, PA 17013 (717) 241-6363 ark W. Allshouse, Es Attorney ID # 780 I 4 4833 Spring Road Shermans Dale, PAl 7090 (717) 582-4006 Attorneys for Plaintiff Paul E. Biniek, Jr. d/b/a BINIEK ROOFING IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. J.H. BRANDT AND ASSOCIATES, INC. CIVIL ACTION - LA Wand EQUITY Defendants COMPLAINT AND NOW, comes the Plaintiff, Biniek Roofing, by and through his Attorneys, Richard p, Mislitsky, Esquire, and Mark W, Allshouse, Esquire and respectfully files the following Complaint: 1, Plaintiff, Biniek Roofing, is a Pennsylvania business having an address of 703 Highland Avenue, Mount Holly Springs, Cumberland County, Pennsylvania 17065. 2. Defendant, J.H, Brandt Associates, Inc" is a Pennsylvania corporation having an address of 657 Forge Road, Carlisle, Cumberland County, Pennsylvania, 17013. I. BREACH OF CONTRACT 3. On or about February 2004, Plaintiff and Defendant executed a contract wherein Plaintiff agreed to provide roofing materials and services to complete the roof on the West Shore Evangelical Free Church in return for payment in the amount of 21,500.00. 4, Defendant is in possession of the sole copy of the executed contract and has not to date provided Plaintiff with a copy of such contract. Therefore, the contract has not been attached. 5. In addition to the contract price, Plaintiff performed work pursuant to several requested change orders by Defendants. The amount due pursuant to those change orders is $6,137,50. 6, On or about October IS, 2004, Plaintiff completed work pursuant to the terms of the contract and change orders. 7. Plaintiff performed all work in a good and workmanlike manner and has received no complaints regarding the completion or quality ofthe work performed for Defendant. 8. To date Defendant has acknowledged the amount owed and has made payment to the Plaintiff in the amount of$14,137.46, plus has retained $1,500.00 to pay an OSHA fine. 9. Despite requests, Defendant has failed or refused to make payment of the remaining outstanding balance of$12,000.00. WHEREFORE, Plaintiff respectfully judgment for Plaintiff and against Defendant in the amount of $12,000.00 together with interest, costs of suit and attorneys fees. II, BREACH OF IMPLIED IN FACT CONTRACT 10. Paragraphs 1 through 9 are hereby incorporated by reference as if set forth in length. 11. In the alternative, if an express contact is not found to exist between the parties, an implied in fact contract must be implied for the acts of the parties in light of all surrounding circumstances as set forth above. 12. By reason of the foregoing, Defendants have breached their implied contract with Plaintiff. 13. As a proximate result of Defendants' breach of contract, Plaintiff has been damaged in the amount of$12,000.00 together with interest, costs of suit and attorneys fees, WHEREFORE, Plaintiff requests this Honorable Court to award judgment in favor of Plaintiff and against Defendants in the amount of $12,000.00 together with interest, costs of suit and attorneys fees. III. BREACH OF OUASI-CONTRACT Paragraphs 1 through 13 are hereby incorporated by reference as if set forth in 14. length. 15. In the alternative, if neither an express nor an implied contract is found to have existed between the parties, an obligation in quasi contract should be imposed upon Defendants by law and reason of justice. 16. Plaintiff conferred the benefit upon Defendants consisting of materials and labor previously set forth herein. 17. Defendants have accepted and retained those benefits under the circumstances in which it would be unconscionable for them to retain such materials and services without payment of value. 18. Defendants will thereby be unjustly enriched unless the court grants Plaintiff such relief as equity and justice require. WHEREFORE, Plaintiff requests this Honorable Court to award judgment in favor of Plaintiff and against Defendants in the amount of $12,000,00 together with interest, costs of suit and attorneys fees. IV. PROMISSORY ESTOPPEL 19. Paragraphs 1 through 18 are hereby incorporated by reference as if set forth in length. 20. Plaintiff detrimentally relied on Defendants' representations and promIses to make payment for the work and services provided. 21. Defendants' representations and promises would reasonably be expected by persons in Plaintiff's position to induce them to provide the materials and perform the work requested, 22. Plaintiff reasonably relied on Defendants' representations and promises as set forth herein. 23. The injustice can only be avoided by enforcement of Defendants' representations and promises. 24. Defendants should, therefore, be estopped from denying the existence and terms of the contract with Plaintiff. WHEREFORE, Plaintiff requests this Honorable Court to award judgment in favor of Plaintiff and against Defendants in the amount of $12,000.00 together with interest, costs of suit and attorneys fees. V. BREACH OF CONTRACT 25. Paragraphs 1 through 24 are hereby incorporated by reference as if set forth in length. 26. On or about November I, 2004, Plaintiff and Defendant entered into an oral contract for Plaintiff to provide roofing services for the Forest Park Nursing Home in Carlisle, Pennsylvania in return for payment in the amount of$6,000.00, 27, Defendant has acknowledged the debt yet to date has made no payments to Plaintiffleaving an amount past due and owing of $6,000.00. 28. Despite requests Defendant has refused to make payment of the $6,000.00 due and owing. WHEREFORE, Plaintiff respectfully judgment for Plaintiff and against Defendant in the amount of $6,000.00 together with interest, costs of suit and attorneys fees. VI. BREACH OF IMPLIED IN FACT CONTRACT 29. Paragraphs I through 28 are hereby incorporated by reference as if set forth in length. 30. In the alternative, if an express contact is not found to exist between the parties, an implied in fact contract must be implied for the acts of the parties in light of all surrounding circumstances as set forth above. 31. By reason of the foregoing, Defendants have breached their implied contract with Plaintiff. 32. As a proximate result of Defendants' breach of contract, Plaintiff has been damaged in the amount of $6,000.00 together with interest, costs of suit and attorneys fees. WHEREFORE, Plaintiff requests this Honorable Court to award judgment in favor of Plaintiff and against Defendants in the amount of $6,000.00 together with interest, costs of suit and attorneys fees, VII. BREACH OF OUASI-CONTRACT 33, Paragraphs 1 through 32 are hereby incorporated by reference as if set forth in length. 34. In the alternative, if neither an express nor an implied contract is found to have existed between the parties, an obligation in quasi contract should be imposed upon Defendants by law and reason of justice. 35. Plaintiff conferred the benefit upon Defendants consisting of materials and labor previously set forth herein. 36. Defendants have accepted and retained those benefits under the circumstances in which it would be unconscionable for them to retain such materials and services without payment of value. 37. Defendants will thereby be unjustly enriched unless the court grants Plaintiff such relief as equity and justice require. WHEREFORE, Plaintiff requests this Honorable Court to award judgment in favor of Plaintiff and against Defendants in the amount of $6,000.00 together with interest, costs of suit and attorneys fees. VIII. PROMISSORY ESTOPPEL 38. Paragraphs 1 through 37 are hereby incorporated by reference as if set forth in length, 39. Plaintiff detrimentally relied on Defendants' representations and promises to make payment for the work and services provided. 40. Defendants' representations and promises would reasonably be expected by persons in Plaintiffs position to induce them to provide the materials and perform the work requested. 41. Plaintiff reasonably relied on Defendants' representations and promises as set forth herein. 42. The injustice can only be avoided by enforcement of Defendants' representations and promises. 43. Defendants should, therefore, be estopped from denying the existence and terms of the contract with Plaintiff. WHEREFORE, Plaintiff respectfully requests this Honorable Court to enter judgment in favor of Plaintiff and against Defendant in the amount of $6,000.00 together with interest, costs of suit and attorneys' fees Respectfully submitted, Date: ~~l.Jft~ Attorney ID # 28123 One West High Street P. O. Box 1290 Carlisle, P A 17013 (717) 241-6363 ark W. Allshouse, Attorney ID # 78014 4833 Spring Road Shermans Dale. P A 17090 (717) 582-4006 Attorneys for Plaintiff . VERIFlCA nON I, Paul Biniek, of Biniek Roofing, verify that the statements in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa,C.S.A. Section 4904, relating to unsworn falsification to authorities, Date: -. ~ "" ~ ~ - ~I\ ~ }- ~ "" c~, C, "n c . ::f! rr1 ~ C.J ~ ......,.. - - ~ ~-,~.- -- .. , C,:J -<. -J ~ e,\ , \ CA I:J SHERIFF'S RETURN - REGULAR CASE NO: 2005-01267 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BINIEK PAUL E JR VS JH BRANDT & ASSOCIATES INC VALERIE WEARY Sheriff or Deputy Sheriff of cumberland County,Pennsylvania, who being duly sworn according to law, was served upon says, the within COMPLAINT & NOTICE JH BRANDT & ASSOCIATES INC th DEFENDANT , at 0959:00 HOURS, on the 15th day of March 2005 at 657 FORGE ROAD CARLISLE, PA 17013 AL KERCHNER, CONTROLLER, by handing to ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together w th and at the same time directing His attention to the contents the of. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 3.70 .00 10.00 .00 31.70 Sworn and Subscribed to before me this {J -1:..4... day of -~u So Answers: /;1' _~I'~)_"r i~jJ--f':> ._,..\';'~:'::-~. ,." ._..../~ . . .", .,' ",.... ..,~",.:.,:.~,~..--,".:;:~.~ R. Thomas Kline 03/16/2005 RICHARD MISLITSKY By: 'fL. Deputy Sherif Paul Biniek, d/b/a BINIEK ROOFING, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. : NO. 05-1267 J.H. BRANDT AND ASSOCIATES, INC. : CIVIL ACTION - LAW and EQUITY Defendants PRAECIPE TO ENTER DEF AUL T JUDGMENT TO THE PROTHONOTARY: Kindly enter Judgment against the Defendant(s) above named, in default of an Answer in the amount of $9,000.00 computed as follows: Amount claimed in Complaint (for two contracts) $18,000.00 Interest: NONE $ 0.00 Less amount paid by Defendant $ 9,000.00 Total ' $ 9,000.00 I hereby certifY that appropriate Notices of Default, as attached, have been mailed in accordance with Pa. R.C.P. 237.1 on the date indicated on the Notices, Dol' ~Ho( wp.~~ R chard P. Mislitsky, Esquire 7t Attorney ID # 28123 One West High Street P. O. Box 1290 Carlisle, PA 17013 (717) 241-6363 Attorney for Plaintiff Plaintiff: One West High Street, P.O. Box 1290, Carlisle, PA 17013 Defendant: 657 Forge Road, Carlisle, PA 17013 . I Paul E. Biniek, Jr. d/b/a BINIEK ROOFING : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v, : NO. 05-1267 J,H. BRANDT AND ASSOCIATES, INC. : CIVIL ACTION - LAW and EQUITY Defendants NOTICE OF PRAECIPE TO ENTER JUDGMENT BY DEFAULT You are in default because you have failed to enter a written appearance personally or by attorney and file in writing with the court your defenses or objections to the claims set forth against you. Unless you act within ten days from the date of this notice, a judgment may be entered against you without a hearing and you may lose your property or other important rights. You should take this paper to your lawyer at once. If you do not have a lawyer, go to or telephone one of the offices set forth below. These offices can provide you with information about hiring a lawyer. If you cannot afford to hire a lawyer, these offices 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. Respectfully submitted, Date: jw f./h.~ Richard P. Mislitsky, Esquire Attorney ID # 28123 One West High Street p, O. Box 1290 Carlisle, PAl 7013 (717) 241-6363 Mar W. A Ishouse, Esquire Att ey ID # 78014 4833 Spring Road Shermans Dale, P A 17090 (717) 582-4006 Attorneys for Plaintiff r'l <C r'l r'l u.~. Postal Service," 'CERTIFIED MAIL" RECEIPT (DomesiiclliiTr(Jii{'-j;7roTiiSurBiic,i'C'O!/6fifIii"PYlr <U ;T r'l f'- Postage I'll o o Return Rooept m CJ (Endorsement Required) o Restrk:ted Delivery Fee U1 {Endorsement RequiredJ I'll r'l Certified Fee Postman< Hera Total Postage & Fees ;T g Sent O..j Ii r- sfieef,'AjiCiiD:;_h or PO Box No. City,'Stai8;ZlP+;r ,II . Complete ~ems t. 2. and 3, Also complete item 4 if Restricted Delivery is desired. . Print your name and address on the reverse so that we can return the card to you; . Attach this card to the back of the mailpiec8, or on the front if space permits. 1. Article Addressed to: , \-\ bR {-\ IU bT ....'A~S<:C-ilTI uS 1 t-OlZC1E ~D CJ\~USLGI PA- l-7{)(j o Agent o Addressee 9-f>a~~ of DeliverY ~--l{ -(J') item 17 0 Yes o No 3. Service Type o Certified Mall o Registered tJ Insured Mail o Express Mail o Return Receipt for Merchandise OC.O.D, 4. Restricted Delivery? (Extra Fee) 0 Yes 2. Artlcie Number (Transfer from service label) PS Form 3811, February 2004 7004 1350 0003 7148 1181 DomestIc Aetum Receipt 102595-<l2-M-1540 ~ ~ ~:;J F( ~ Cf' .... 'C P'" :1:""'\, c::: '('"np: r.;) _fJrf'\ \- \J - -,:pc.? <:J" '..),t) \:) :?~ jA ~ - ~ '.~")~ <;- ~ .,'"-to ~ -S :.) _\ t V') 0 ~~ ..c 0 \"" - D ~ VI / Paul Biniek, d/b/a BINIEK ROOFING, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 05-1267 J.H. BRANDT AND ASSOCIATES, INC. : CIVIL ACTION - LAW and EQUITY Defendants NOTICE OF JUDGMENT To: J.H. Brandt and Associates, Inc., Defendant 657 Forge Road Carlisle, P A 17013 You are hereby notified that on August /10 +~ , 200S, Judgment was entered against you in the sum of $9,000,00 in the above captioned case. Date: A1 U." d60-S- Pro~~ YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIA nON 2 Liberty A venue Carlisle, PA 17013 (717) 249-3166 I hereby certify that the following is the address of the defendant stated in the Certificate of Residence: 657 Forge Road, Carlisle, PA 17013 Date: ~/J(o( b( &~,~1!!:~ Attorney ID # 28123 One West High Street P. O. Box 1290 Carlisle, PA 17013 (717) 241-6363 Attorney for Plaintiff Paul Biniek, d/b/a BINIEK ROOFING, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. : NO. 05-1267 J.H. BRANDT AND ASSOCIATES, INC. : CIVIL ACTION - LAW and EQUITY Defendants A: J.H. Brandt and Associates, Inc., Defendido/a 657 Forge Road Carlisle, P A 17013 Isted esta siendo notificado que el (day) de Agusto (month) del 2005, se anoto en contra suya un fallo por confesion en la suma de $9,000.00 en el caso mencionado en el epigrafe. Fecha: Protonotario USTED DEBE LLEV AR INMEDIA T AMENTE ESTE DOCUMENTO A SU ABOGADO. SI USTED NO TlENE UN ABOGADO 0 NO PUEDE P AGARLE A UNO, LLAME 0 VA Y A A LA SIGUINTE OFICINA PARA A VERIGUAR DONDE PUEDE ENCONTRAR ASlSTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, P A 17013 (717) 249-3166 Certifico que la siguiente direccion es la del defendido/a segun indicada en el certificado de residencia: 657 Forge Road, Carlisle, P A 17013 D,'" 2J I~[O <; Ric ard P. Mislitsky, Esquire Attorney ID # 28123 One West High Street P. O. Box 1290 Carlisle, P A 17013 (717) 241-6363 Abogado del Demandante