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HomeMy WebLinkAbout14-1667 COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS NOTICE OF APPEAL Judicial District, County Of FROM Cumberland MAGISTERIAL DISTRICT J UDGE JU COMMON PLEAS No. NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the Magisterial District Judge on the date and in the case referenced below. NAME OF APPELLANT MAG. DIST. NO. NAME OF MDJ Apicella -Lorei Orthodontics, PC MD- 09 -03 -05 Mark Martin ADDRESS OF APPELLANT CITY STATE ZIP CODE 400 East Main Street Mechanicsburg PA 17055 DATE OF JUDGMENT IN THE CASE OF (Plaintiff) (Defendant)' Apicella- Lorei, PC is the 03/06/2014 Duaine Murtoff ,s Apicello Lorei Orthodontics correct name for Appellant DOCKET No. SIGNATURE OF APPELLANT OR ATTORNEY OR AGENT MJ- 09305 -CV -3 -2014 , T v rz This block will be signed ONLY when this notation is required under Pa. If appellant was Claimant (see Pa. R.C.P.D.J. No. 1001(6) in action R.C.P.D.J. No. 1008B. This Notice of Appeal, when received by the Magisterial District Judge, will before a Magisterial District Judge, A COMPLAINT MUST BE FILED operate as a SUPERSEDEAS to the judgment for possession in this case. within twenty (20) days after filing the NOTICE of APPEAL. Signature of Prothonotary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before Magisterial District Judge. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon Duaine M urtoff appellee(s), to file a complaint in this appeal ame of appellee(s) (Common Pleas No. G �/— - U! ) within twenty (20) day Ic suffer entry of judgment of non pros. P � nature of appe ney or agent RULE: To Duaine Murtoff appellee(s) Name of appellee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. - (3) The date of service of this rule if service was by mail is the date of the mailing. Date: 20�� 1 Signature of Prothonotary or Deputy YOU MUST INCLUDE A COPY OF THE NOTIC, i QF JUDGMENT/TRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. f,dl� , 1 l_-}.!6 r-, 4F.l x'103 sb l aed/T AOPC 312 -05 COMMONWEALTH OF PENNSYLVANIA Notice Of Judgment/Transcript Civil COUNTY OF CUMBERLAND Case Mag. Dist. No: MDJ- 09 -3 -05 Duaine Murtoff MDJ Name: Honorable Mark Martin V. Address: 507 North York Street Apicello Lorei Orthodontics Mechanicsburg, PA 17055 Telephone: 717- 766 -4575 Todd Frederic Truntz, Esq. Docket No: MJ- 09305 -CV- 0000003 -2014 Saidis Sullivan & Rogers PC Case Filed: 1/14/2014 635 N 12TH St Ste 400 Lemoyne, PA 17043 Disposition Summary (cc - Cross complaint) Docket No Plaintiff Defendant Disposition Disposition Date MJ- 09305 -CV- 0000003 -2014 Duaine Murtoff Apicello Lorei Orthodontics Judgment for Plaintiff 03/06/2014 Judgment Summary Partici a}annt Joint/Several Liability Individual Liability Amo unt Apicello Lorei Orthodontics $0.00 $3,064.36 $3,064.36 Duaine Murtoff $0.00 $0.00 $0.00 Judgment Finding ( *PostJudgment) In the matter of Duaine Murtoff vs. Apicello Lorei Orthodontics on MJ- 09305 -CV- 0000003 -2014, on 3/06/2014 the judgment was awarded as follows: Judgment Component Joint/Several Liability Individual Liability De osit p Ip ied Amount Filing Fees $0.00 $128.62 $128.62 Civil Judgment $0.00 $2,935.74 $2,935.74 Grand Total: $3,064.36 ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY /CLERK OF COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. �J / //J/f(Ji/ / "[j�}JJ / /j/jf yy <; CUydeOy �✓ U 3-6-A ' s Date Magisterial District Judge Mark Martin I certify that this is a true and correct copy of the record of the proceedings containing the judgment. Date Magisterial District Judge MDJS 315 Page 1 of 2 Printed: 03/06/2014 11:12:02AM Duaine Murtoff Docket No.: MJ- 09305 -CV- 0000003 -2014 V. Apicello Lorei Orthodontics Participant List Private(s) Todd Frederic Truntz, Esq. Saidis Sullivan & Rogers PC 635 N 12TH St Ste 400 Lemoyne, PA 17043 Plaintiff(s) Duaine Murtoff 307 W. Main St. DBA Project Dragonfly Mechanicsburg, PA 17055 Defendant(s) Apicello Lorei Orthodontics 400 E. Main St. Mechanicsburg, PA 17055 MDJS 315 Page 2 of 2 Printed: 03/06/2014 11:12:02AM e. , Pri 2: 0 Todd F. Truntz, Esquire t� sJ Attorney I.D. No. 83302 PENN S � DUiJ r Saidis Sullivan &Rogers 635 North 12`h Street, Suite 400 Lemoyne, PA 17043 Phone: (717) 612-5802 Fax: (717) 612-5805 Email:sgrose @,ssr-attorneys.corn Attorneys for Defendant DUAINE MURTOFF, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, Plaintiff : PENNSYLVANIA vs. : NO.: 14-1667 CIVIL APICELLA-LOREI ORTHODONTICS, : PC, Defendant PROOF OF SERVICE TO THE PROTHONOTARY: Please see the attached Proof of Service of Notice of Appeal and Rule to File Complaint affirming that the undersigned has made service upon Duaine Murtoff and Magisterial District Judge Martin via certified mail, return receipt requested. Respectfully submitted, SAIDIS SULLIVAN &ROGERS Dated: March 26, 2014 By: TODD F. TRUNTZ - Attorney I.D. #83302 1 PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN(10)DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF Cumberland ;ss AFFIDAVIT: I hereby(swear)(affirm)that I served © a copy of the Notice of Appeal,Common Pleas No.14-1667, upon the Magisterial District Judge designated therein on (date of service) March25 20 14 , ❑ by personal service D by(certified)(registered)mail, Duaine Murtoff sender's receipt attached hereto, and upon the appellee, (name) ,on March 25 2014 Eby personal serviceD by(certified)(registered)mail, sender's receipt attached hereto. (SWORNgAFFIRMED)AND SUBSCRIBED BEFORE ME THIS iTT''TT--DA OF tladi, Py tilt ittf)ita Signature of o ial be r w m affidavit was made Signature of affia COMMONWEALTH OF PENNSYLVANIA Notary Public NOTARIAL SEAL Title of official KELLY R.HOWELL,Notary Public *`inkr c? Lemoyne Boro.,Cumberland County My commission expires on ,20 l y My Commission Expires September 2,2014 AOPC 312A-05 U.S. Postal Service, CERTIFIED MAIL RECEIPT co (Domestic Mail Only;No Insurance Coverage Provided) ri c:1 For delivery information visit our website at www.usps.com,-, Er ■!...1: r;I -• 71 , ,,, , ,, il• ,,tz i tz:: ru *41 V 4 4 ‘0' A L f4,Ntia....._ al imin 1 r gik .=" Postage f Q-• .0 n j UMW iir _ -9 Certified Fee ...., ru 1144" --.1 0 e Return Receipt Fee $2.70 c) Her kt, --., 1:=1 (Endorsement Required) Si 0 Restricted Delivery Fee MOO & ED (Endorsement Required) Sp m 03/2. — ..11 Total Postage&Fees $ 6. (.8',•70 ru m Sent To rq Illi ek P.111_1±.421___AL.Prthlyi 1:3 Street,kpf-tiV; --) or PO Box No. 307 mat majij a.s. City, ed- State,ZIP+4 IV - ) ) ,A I fi 411 41 PS Form 3800,August 2006 See Reverse for Instructions U.S. Postal Service-, CERTIFIED MAILTM RECEIPT m (Domestic Mail Only;No Insurance Coverage Provided) Ci 1:1:1 For delivery information visit our website at www.usps.com® Er 0.' ' fgn,I''' '7' Irst. ru $0.70 0011 .z-- Postage $ EU r.A Certified Fee 11.1 $3.30 a ":3 0 Return Receipt Fee tpostma _... 0 (Endorsement Required) Emirp Restricted Delivery.Fee IIIIIZkll 0 (Endorsement Required) N., .11 Total Postage&Fees $ U.64.70 ru 11 Sent To rn Y). ThartlY16n. . Street,Apt No.; N or PO Box No. 501 _go/ 5.1)/Cet- City'State,ZIP+4 c 0 b() '4 7O PS Form 3800.August 2006 See Reverse for Instructions CERTIFICATE OF SERVICE I, Todd F. Truntz, Esquire, one of the attorneys for defendant, Apicella-Lorei Orthodontic, PC, hereby certify that I have served the foregoing paper upon plaintiff, Duaine Murtoff, this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Duane Murtoff d/b/a Project Dragonfly 307 West Main Street Mechanicsburg, PA 17055 SAIDIS SULLIVAN & ROGERS By: 1 - Todd F. Truntz Dated: March 26, 2014 Supreme Court of Pennsylvania Court of Common Pleas Civil Cover Sheet (yiJ,r /o.,d County For Prothonotary Use Only: Docket No: The information collected 017 this .form is used solely fir court administration purposes. This form does not supplement or replace the f7/in and service ofpleadings or other papers as required bv law or rules o court. . . _ . . Commencement of Action: IrComplaint 0 Writ of Summons 0 Petition 0 Transfer from Another Jurisdiction 0 Declaration of Taking Lead Plaintiff's Name: ....- 4-o .f f d8 A Pt°J.Q.C.I. Orcyla ly Lead Defendant's Name: filcella -Lot q.i 0/4110 _ . Are money damages requested? 0 Yes 0 No Dollar Amount Requested: 0 within arbitration limits (check one) Doutside arbitration limits Is this a Class Action Suit? 0 Yes 0 No Is this an MDJ Appeal? Yes 0 No Name of Plaintiff/Appellant's Attorney: 2"..--Check here if you have no attorne ' (a re a Self-Represented [Pro SO Litigant) Nature of the Case: Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT (do not include Mass Tort) O Intentional O Malicious Prosecution O Motor Vehicle O Nuisance O Premises Liability O Product Liability (does not include mass tort) O Slander/Libel/ Defamation o Other: MASS TORT o Asbestos • Tobacco O Toxic Tort - DES O Toxic Tort - Implant O Toxic Waste o Other: PROFESSIONAL LIABLITY o Dental O Legal O Medical O Other Professional: CONTRACT (do not include Judgments) O Buyer Plaintiff O Debt Collection: Credit Card 0 Debt Collection: Other 0 Employment Dispute: Discrimination O Employment Dispute: Other O Other: REAL PROPERTY O Ejectment O Eminent Domain/Condemnation O Ground Rent O Landlord/Tenant Dispute O Mortgage Foreclosure: Residential O Mortgage Foreclosure: Commercial O Partition O Quiet Title O Other: CIVIL APPEALS Administrative Agencies O Board of Assessment O Board of Elections O Dept. of Transportation O Statutory Appeal: Other O Zoning Board E"Other: Centviiry MISCELLANEOUS O Common Law/Statutory Arbitration O Declaratory Judgment • Mandamus 0 Non-Domestic Relations Restraining Order 0 Quo Warranto Replevin 0 Other: Updated 1/1/2011 Duaine Murtoff dba Project Dragonfly vs. Apicella- Lorei Orthodontics , Pc, Cumberland County Court of Common Pleas Docket # 14- 1667 civil caption= Complaint What happened so far. • In the summer on 2013 Project Dragonfly ( PD) remodeled a 3,600sq. ft. dentist office in a 3 month period in Boiling Springs. After this job ,the happy client recommended ( PD) to another friend in the dental industry, Apicella Lorei Orthodontics ( ALO). Construction work in a working dental office requires minimal intrusion and minimal impact on the functioning office; to achieve this minimal impact, the planning and design stage is far more extensive and expensive than a more traditional project in which the occupants are evicted or substantially inconvenienced by the project. Think of it as the difference between planning a family vacation versus planning a trip to the moon. PD was contacted and a time to meet was set up. The ALO circumstances were similar to that of PD's referral client ,in that the entire scope of work was to be completed in a extremely compressed schedule, a 3 month period from start to finish ( Oct - Dec) = design, completed job scope, bid, order supplies and installation. At our first consultation meeting, with Brian, Sarah, and Al, which I provide at no cost to ALO (Mechanicsburg office) we discussed the specific challenges , as well as ideas the client had to offer for the space. I always try to gauge the client's perspective, and what their needs are, to best estimate what help they are needing from me. Two of my gauging questions in the first meeting were " Who is your descion maker?" and "What is your budget for the project?". The answers I received from ALO were, "we make our decisions together and we haven't discussed the budget." I suggested that Al and Brian come up with a budget number asap. Before leaving this meeting at the Mechanicsburg office we kicked around the number of $100,000.00, after more discussion late in the meeting involving moving walls it was clear to me that this building's needs were too great to meet the time deadline and therefore my response would require a time and scope adjustment. ALO was given 3 documents which make up the Design/ Project Management contract -they are as follows, Design Service Plan, Design Process, hourly charges Block Plan. ALO returned these signed documents, documented later in this narrative. I suggested in this initial meeting, that due to the time constrain of 3 months, that we • should start with the less complicated Carlisle office which would not require as much demolition ( not moving walls) but more of a face lift. The Mechanicsburg office would also require 3 new drawings done by an architect ( building as is, demo plan, and completed project). Because the Mechanicsburg office requires the architectural drawings and permits due to the extent of work, we focused first on the Carlisle office alone, which was a far less extensive project. I also made the client aware that we were compressing a process that normally requires 6 months into 3. This compressed time • would require over lapping of organizational steps ( Design Process doc.1-20). All billing up to the point that we could produce a defined scope of work, would be billed as time and materials billing, as all phases must move forward immediately overlapping each other. It is not possible to bid work that cannot be defined, and until this definition occurred, which required input from PD as well as ALO interactively, a defined bid was not possible. ( design, budget, work scope, and getting quality contractors on board). The design/project management contract clearly states billed hourly at each step. PD provided a second consolation on September 28 to ALO at no cost to ALO. At our second free consultation, in Carlisle, that Brian, Sarah and Al attended, PD and ALO reviewed the conversation and tour of the first meeting, including a building walkthrough, and an evaluation of what does ALO we need to keep, or what requires replacement? What are things ALO wants in the space? Etc. PD at this meeting specifically asked for a budget number, as this information is required to help define the scope of work and the supplies available for use in designing the space. We also discussed the billing procedure, and why ALO was being billed hourly, as well as the the necessity in this compressed project to overlap the 21 steps defined in the design process document. I used the analogy of a swimmer, I need the client to give me some solid information so that like the wall of the pool ( design, budget, work scope) PD has something to push off of, then things are more predictable. We discussed how much involvement ALO wanted in the project, and ALO chose a model that PD would work independently and less interactively with ALO, a mode which is specified in the Design Plan Selection document, option #1, The Designer's Plan. We discussed the Design Process (21 steps), and hourly Block Plan billing. It was discussed that the Block Plan is like a lawyers retainer and billing is not limited to the block purchased. It is simply a way to more effectively manage the billing process. ALO chose to buy an initial block of 40 hours. On 10/2/2013, PD received the deposit of $ 3,800.00 and the filled out documents presented. Work then commenced on the behalf of ALO ( see time sheet). To the total of the deposit $3,800.00 on 10/11/2013. I sent ALO an email on 10/12/ 2013 with a photo of the time sheet as well as a breakdown of the funds dispersal. I addressed some concerns in the emails that followed but there was never any mention of stopping the services being provided or termination of the contract. The emails leading up to the meeting scheduled on the 19th clearly make reference to work being done leading up to the meeting on the 19th. Some of the work included sketches, preparing the design boards and concepts, checking the Mechanicsburg office's weight bearing walls and marking them on the blueprints etc. During the meeting on the 19th it became quite clear that ALO had either not read their contract or had failed to communicate with each other. Their demeanor was smug and hostile. I opened the meeting with an open forum to answer any questions they had. •After an hour I realized they were caught in an emotional loop and we were going nowhere. I answered all the questions to the best of my ability, but it was obvious that the meeting was not going well. I then started presenting the design board and concept work. After the presentation of the design board and concept work, their comments were " you nailed it", and "it was spot on" " we didn't realize who involved is was". Then we resumed our conversation about the billing. As PD and ALO worked through the planning required to create a specific project scope, it was my observation that their comments belied an ignorance to the construction industry and how things needed to work under the time constraints required by ALO. The tone of the meeting to me seemed accusatory. When discussing the requirements of subcontractors, Sarah made inappropriate comments regarding subs such as " these people should be grateful they have jobs"" in this economy", and towards myself "If you're getting samples, we're not paying you to sit in a traffic jam" ect. Sarah then asked if she could take pictures of the design boards/ presented samples, and I replied that ALO could take pictures, given that they were paying me to make this intellectual property for them. After the meeting on the 19th, it was clear to me there were problems that would need to be talked through in order for there to be any trust moving forward. On Sunday the 20th ALO decided to opt out of the contract through an email from Sarah. I stopped billing time and materials to ALO on the 20th, and the outstanding billing that PD initially presented to court represents billing up to the 20th. I called Al and left a message on the 23rd suggesting the use of a relational coach 3rd party. He declined with a text ( that is included in the documents presented). I attempted to contact ALO by phone, text and in person over the next week or so receptively, to no avail. I prepared the opt out agreement, and final invoice, then delivered it to Al in person on October 29th. He asked "what the extra charges for?" 1 told him that they were for the work hours from 10/12- 10/18/ 2013. We shook hands and he excused himself for a family engagement. I received Sarah Loreis email response on October 31 (email included in documents submitted). I suggested we use the services of a professional mediator ( Neighborhood Dispute Settlement in Harrisburg 717-233- 8255) to help us resolve our differences. 1 received no response. I then received the cease and desist email, then I received two letters containing legal threats from Mr. Truntz. I hired Ted Adler (of Reager and Adler $300.00 ),to respond to Mr. Truntz' letters. I then took Mr. Adler's suggestion to file in small claims court. 1 filed in Jan. While away on a trip in February Mr. Adler informed me that he had communication from Mr. Truntz and that ALO was willing to settle for $1,000.00. 1 had Mr. Adler respond with a counter offer of $2,800.00. The court ruled in my favor, and that brings us to now, Mr. Truntz has appealed. Duaine Murtoff of Project Dragonfly 0 &tame fil h• 4-0 F S 307 W. Main Street Mechanicsburg, PA 17055 A p cell a NO: ILI -ICC7 ok/ Ce.rviCC U.S. Postal ServiceTM 302 m r-1 N C:I -1_0i-el' Or 44124 •cs Todd F, Tekm C54. tA,'Pe ath7, ?ley oft A iczlici -Lore; .0 thhoci, 417 resp§-ce. /-37e-re affeol eekei lal•■ CERTIFIED MAILTM RECEIPT (Domestic Mall Only; No Insurance Coverage Provided) For delivery information visit our website at www.usps.com5 Postag Certified Fe Return Receipt Fee (Endorsement Required) Restricted Delivery Fee (Endorsement Required) Total Postage & Fe e>o Here (0 C. Sent To Street, .4,to t. No, ; or PO Sox No. City, State, ZIP-I-4 PS Form 3800, August 2006 See Reverse for Instructions 6hihm,„4— ;z43i, -T7