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Home My WebLink About14-4646 COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS NOTICE OF APPEAL Judicial District, County Of FROM (2 t- / ` MAGISTERIAL DISTRICT J�UfDGE JUDGMENT / COMMON PLEAS No. f r �t0 CJ'i t 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. A ,A/P�PE/L�LA�rNT / L,��. �0�� j )i(JC.4�d1'\ ��DI�T. '' CT Z N,_ fc�el hx�(ea� ADDRESS OF AP LLANT CITY TE ZIP CODE � 1 G 6 h5-�- (24qr I,0'-- 12613 D OF U GnMEN I IN E CASE OF(Plaintiff) jj ��^^ (Defendant)' f 6� uGT Yy�Cs , DOC ET No. SIGN RE/F APPEL T O XTNEY OR GENT 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 appellee(s),to file a complaint in this appeal Name of appellee(s) (Common Pleas No. )within twenty(20)days after service of rule or suffer entry of judgment of non pros. Signature of appellant or attorney or agent RULE: To 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 MAYBE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: 20 Alt n00 QHv a3e n Signature of Prothonotary or Deputy YOU MUST INCLUDE A COPY OF THE NOTICE OF INKIM/TRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. Mfr Okd0H10Pd .QHS .l`� �!l3. 5'U y Tac/( AOPC 312-05 12; 3 61 ys'Y COMMONWEALTH OF PENNSYLVANIA Notice of Judgment/Transcript Civil COUNTY OF CUMBERLANDa� � Case 4011 Mag. Dist. No: MDJ-09-2-02 Bitner Brothers Construction Inc. MDJ Name: Honorable Jessica Brewbaker V Address: 18 North Hanover Street, Suite 106 Mila Foster Business Central Building Carlisle, PA 17013 Telephone: 717-240-6564 Bitner Brothers Construction Inc. Docket No: MJ-09202-CV-0000064-2014 416 E. North Street Case Filed: 4/11/2014 C/o Charles H. Bitner Cross Complaint Docket No(s): Carlisle, PA 17013 MJ-09202-CV-0000082-2014 Disposition Summary (cc-Cross complaint) Docket No Plaintiff Defendant Disposition Disposition Date MJ-09202-CV-0000064-2014 Bitner Brothers Construction Inc. Mila Foster Judgment for Defendant 07/22/2014 MJ-09202-CV-0000082-2014cc Mila Foster Bitner Brothers Construction Inc. Judgment for Plaintiff 07/22/2014 Judgment Summary Participant Joint/Several Liability Individual Liability Amount Bitner Brothers Construction Inc. $0.00 $2,950.00 $2,950.00 Mila 'Foster $0.00 $0.00 $0.00 Judgment Finding g (*Post Judgment) In the matter of Mila Foster vs. Bitner Brothers Construction Inc. on MJ-09202-CV-0000082-2014, on 7/22/2014 the judgment was awarded as follows: Judgment Component Joint/Several Liability Individual Liability Deposit Applied Amount Civil Judgment $0.00 $2,950.00 $2,950.00 Grand Total: $2,950.00 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. C6k*A C& _.. DateMagisterial District Judge Jessica Brewbaker � 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:07/22/2014 12:14:OOPM Bitner Brothers Construction Inc. Docket No.: MJ-09202-CV-0000064-2014 V. Mila Foster Participant List Private(s) Adam Ronald Deluca, Esq. Allied Attorneys of Central PA 61 W Louther St Carlisle, PA 17013 Daniel Pollock, Esq. 801 Sandbank Rd Lot 18 Mt Holly Springs, PA 17065-1152 Plaintiff(s) Bitner Brothers Construction Inc. 416 E. North Street c/o Charles H. Bitner Carlisle, PA 17013 Defendant(s) Mila Foster 441 Walnut Bottom Rd. Carlisle, PA 17013 MDJS 315 Page 2 of 2 Printed:07/22/2014 12:14:OOPM slC''. 2Mti AUG .I6 KA 10 DS CUMBERLAND COUNTY PENNSYLVANIA PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF CO ))c., 1 AFFIDAVIT: I hereby (swear) (affirm) that I served ; ss ❑ a copy of the Notice of Appeal, Common Pleas No. (date of service)09 ,20 0411 upon the Magisterial District Judge designated therein on TS by personal service ❑ by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name) /%%, 20 1 "► by personal service sender's receipt attached hereto. (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF , 20 , on by M' (q ed) ail, Signature of official before whom affidavit was made Signature of affiant Title of official My commission expires on , 20 AOPC 312A - 05 0, Ln m m D fU D D D rU D m m D (N - U.S. Postal Service,. CERTIFIED MAILTM RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) For delivery information visit our website at www.usps.ct+m® A13LIPF 71113 r Postage Certified Fee Return Receipt Fee (Endorsement Required) Restricted Delivery Fee (Endorsement Required) Total Postage & Fees Sent To $0.49 $3.30 $2.70 $0.00 $ $6.49 0055 (.50 (MG Postmark 4 , f✓ Here AUG 15 2014 9 8/15/2014 Street, Apt. No.; or PO Box No. City,e, IP+ PS Form 3800, August 2006 See Reverse for s E C T I O N A s E C T I 0 N Supreme Court}of:Pennsylvania Courts of CommonPleas Civil :Cover Sleet I r 1 ,he '°:. . . . County For Prothonotary Use Only: Docket No: The information collected on this forst is used solely, for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Com encement of Action: omplaint ❑ Writ of Summons ❑ Petition ❑ Transfer from Another Jurisdiction ❑ Declaration of Taking Led Plaintiff's N .me: _D itne r of "-ecus 0_,,,if\ 5cfol 1 Lead Defendant's Nam • (.l'®'5)er Dollar Amount Requested: aisVithin arbitration limits (check one) ❑outside arbitration limits Are money damages requested? -Wes ■ No Is this a Class Action Suit? • ❑ YesCTo . Is this an MDJAppeal? Yes • No Name ofPIaintiff/Appellant's Attorney: -4rve...1 11d c/( a Self -Represented (Pro Se! Litigant) • Check here if you have no attorney (are 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) ❑ Intentional O Malicious Prosecution ❑ Motor Vehicle ❑ Nuisance ❑ Premises Liability ❑ Product Liability (does not include mass tort) O Slander/Libel/ Defamation ❑ Other: MASS TORT ❑ Asbestos ❑ Tobacco O Toxic Tort - DES O Toxic Tort - Implant ❑ Toxic Waste ❑ Other: PROFESSIONAL LIABLITY O Dental O Legal O Medical ❑ Other Professional: CONTRACT (do not include Judgments) 0 Buyer Plaintiff 0 Debt Collection: Credit Card 0 Debt Collection: Other 0 Employment Dispute: Discrimination O Employment Dispute: Other of e(:_c_1‘ 04' foci' kichml- REAL PROPERTY ❑ Ejectment • ❑ Eminent Domain/Condemnation ❑ Ground Rent O Landlord/Tenant Dispute O Mortgage Foreclosure: Residential ❑ Mortgage Foreclosure: Commercial O Partition ❑ Quiet Title 0 Other: CIVIL APPEALS Administrative Agencies • Board of Assessment O Board of Elections O Dept. of Transportation ❑ Statutory Appeal: Other O Zoning Board ❑ Other: MISCELLANEOUS • ❑ Common Law/Statutory Arbitration ❑ Declaratory Judgment ❑ Mandamus ❑ Non -Domestic Relations Restraining Order ❑ Quo Warranto 0 Replevin ❑ Other: Updated 1/1/2011 IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY Bitner Brothers Construction, Inc. Plaintiff V. Mila Foster Defendant c-) Civil Action –Law a rn Docket NO. 2014-4646 r-= <c) z — Appeal from MDJ 09-2-02 CV 64-2014, CV 82-2014 (A) NOTICE TO DEFEND 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 CAN NOT AFFORD TO HIRE AN ATTORNEY 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, Pennsylvania 17013 717-249-3166 IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY BITNER BROTHERS CONSTRUCTION, INC. 416 E. North Street Appeal from MbJ 09-2-02 Carlisle, Pa. 17013 Plaintiff Docket No. 14-4646 V. Mila Foster Civil Action -Law 441 Walnut Bottom Road Breach of Contract Carlisle, Pa. 17013 Defendant AND NOW Here comes the Plaintiff, Bitner Brothers Construction, Inc. through its President Charles H. Bitner Jr. and By and through Its attorney, Daniel Pollock, to bring this complain t for breach of contract against Mila Foster for the reasons set out below PARTIES 1. The Plaintiff in this matter is Bitner Brothers Construction Inc. a duly licensed corporation by the Commonwealth of Pennsylvania whose principle place of business is located at 416 E. North Street Carlisle, pa. 17013 2. The Defendant in this action is Mila Foster, and individual adult whose residence is 441 Walnut Bottom Road, Carlisle, pa. 17013 COUNT I BREACH OF CONTRACT 3. Paragraph 1-2 are incorporated by reference. 4. During the fall of 2013 Ms. Foster contacted Bitner Brothers Construction Inc. about doing some repairs and remodeling to her home. 5. Bitner Brothers Gave Ms. Foster an estimate between $19,000 and $20,000 to do the work that she requested. 6. Throughout the winter of 2013-2014 Ms. Foster and Bitner Brothers negotioated on the estimate. 7. On March 25, 2014 Ms. Foster and Bitner Brothers Construction agreed on a price of $16,000 to do the work to Ms. Foster's Basement, Main Bathroom and a 1/2 Bathroom in her home. 8. On March 26, 2014 Bitner Brothers started work on her home. 9. Throughout the time Bitner Brothers was on the Job, Ms. Foster was consistently harassing them tdjdo work that was outside the scope of work agreed upon at the time of contract and insisting that this work be thrown in. 10. For some minor tasks Bitner Brothers obliged Ms. Foster's requests. 11. On April 9, 2014 Ms. Foster threw Bitner Brothers off her property after Bitner Brothers refused to do any more work that was outside of the scope of work for free. 12. At that time Ms4 Foster had only paid Bitner Brothers $8,000 of the $16,000 mentioned in the contract. 13. At the time of the breach of contract by Ms. Foster Bitner Brothers only needed to do some touch up work to completely finish the contract, which would have only taken about 2-3 days to do which would not have run them past any time constraints of the contract. 14. Bitner Brothers maintain that they had substantially completed the terms of the contract and hence are due the remaining moneys due under the contract. Wherefore Bitner Brothers Pray that this Honorable Court award a verdict in its favor in the amount of the unpaid portion of the contract with Ms. Foster. Respectfully Submitted Daniel Pollock, Esq. Attorney for Bitner Brothers Construction , Inc. 801 Sandbank Road, #18 Mount Holly Springs, Pa. 17065 Pa. Super. Id. 70315 Phone (717) 486-0030 Cell # (717) 226-0119 E-mail Dbigdanp@Aol.com I, Charles H. Bitner Jr., do affirm that the contents of this complaint are true and correct to the best of my memory and recollect. I understand that statements made herein are subject to the penalties of 18 Pa.C.S. 4904 governing unsworn falsification to authorities. Date Charles H. Bitner Jr. President Bitner Brothers Construction, Inc. AFFIDAVIT OF SERVICE On August 25, 2014, I Daniel Pollock, Esq. did mail by first class mail a copy of this complaint to the following party at the following address: Mila Foster 441 Walnut Bottom Road Carlisle, Pa. 17013 tfully ubmitted, Daniel Pollock, Esq. Attorney for the Plaintiff Bitner Brothers Construction, Inc. w Of f Adam R. Deluca, Esquire PA Supreme Court ID #311738 2014 AUG 28 PH 1: 4 Allied Attorneys of Central Pennsylvania, L.L.C. 61 West Louther Street CUMBERLAf4J COUNTY Carlisle, PA 17013 PENNSYLVANIA (717) 249-1177 (717) 249-4514 Fax Attorney for Defendant BITNER BROTHERS IN THE COURT OF COMMON PLEAS CONSTRUCTION, INC. OF CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. CIVIL ACTION-LAW MILA FOSTER NO. 14-4646 Defendant BREACH OF CONTRACT NOTICE TO PLEAD TO: Bitner Brothers Construction, Inc. c/o Daniel Pollock, Esq. You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. Adam R. Deluca, Esquire PA Supreme Court ID #311738 Allied Attorneys of Central Pennsylvania, L.L.C. 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax Attorney for Defendant . y Adam R. Deluca, Esquire PA Supreme Court ID #311738 Allied Attorneys of Central Pennsylvania, L.L.C. 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax Attorney for Defendant BITNER BROTHERS IN THE COURT OF COMMON PLEAS CONSTRUCTION,INC. OF CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. CIVIL ACTION -LAW MILA FOSTER NO. 14-4646 Defendant BREACH OF CONTRACT PRELIMINARY OBJECTIONS TO COMPLAINT AND NOW comes the Defendant, Mila Foster, by and through her attorneys, Adam R. Deluca, Esquire and Allied Attorneys of Central Pennsylvania, L.L.C., who files these Preliminary Objections to the Plaintiff s Complaint Pursuant to Pa.R.C.P. 1028 as follows: 1. Plaintiff has filed suit against Defendant, Mila Foster, alleging that Plaintiff suffered damages arising from a home improvement contract. 2. Plaintiff s attorney caused Mila Foster to receive a copy of the Complaint on or about August 26, 2014 by first class mail. FIRST PRELIMINARY OBJECTION—Pa.R.C.P. 1028(a)(1) Improper Form of Service 3. Attorney for Plaintiff caused Mila Foster to receive a copy of the Complaint on or about August 26, 2014 by first class mail. 4. Pa.R.C.P. 402 and 403 govern the Manner and Acceptance of Service of Original Process, which states that service which is acceptable by mail be sent by any form of mail requiring receipt signed by the defendant or her authorized agent. Service is complete upon delivery of the mail. 5. Attorney for Plaintiff failed to deliver the Complaint in a manner acceptable by Pa.R.C.P. 402 and 403 and as such service is not complete. WHEREFORE, Defendant, Mila Foster, respectfully requests that the Court sustain her Preliminary Objections and dismiss Plaintiff's Complaint with prejudice, or, in the alternative, dismiss Plaintiff's Complaint without prejudice with leave for Plaintiff to serve the Complaint properly. SECOND PRELIMINARY OBJECTION—Pa.R.C.P. 1028(a)(3) Insufficient Specificity in a Pleading 6. Pennsylvania Rules of Civil Procedure require a Complaint to specifically plead the material facts giving rise to the cause of action. Accordingly, a complaint not only must give the Defendant notice of the Plaintiff's claim and grounds upon which it rests, but must also plead facts sufficient to support the claim. 7. Plaintiff's Complaint fails to plead with sufficient specificity a cause of action against the named Defendant, Mila Foster. Plaintiff asserts that a contract was breached by Defendant, yet only alludes to an "agreement" and fails to assert that a contract was entered into or reference said contract as an exhibit. (Comp. ¶7). WHEREFORE, Defendant, Mila Foster, respectfully requests that the Court sustain her Preliminary Objections and dismiss Plaintiffs Complaint with prejudice, or, in the alternative, dismiss Plaintiffs Complaint without prejudice with leave for Plaintiff to replead with the requisite specificity. THIRD PRELIMINARY OBJECTION—Pa.R.C.P. 1028(a)(4) Legal Insufficiency of a Pleading 8. Count I of Plaintiff's Complaint purports to allege a cause of action for breach of contract. 9. In order to state a claim for breach of contract, Plaintiff must demonstrate the existence of an actual contract. 10. Plaintiff has failed to allege with sufficiency the existence of a contract. WHEREFORE, Defendant, Mila Foster, respectfully requests that the Court sustain her Preliminary Objections and dismiss Plaintiffs Complaint with prejudice. FOURTH PRELIMINARY OBJECTION—Pa.R.C.P. 1028(a)(6) Agreement for Alternative Dispute Resolution 11. Plaintiff, although failing to reference or assert with sufficiency the contract alluded to in their Complaint, are in fact in possession of a contract, which, by its very language, mandates that any dispute arising out of or related to said contract first try to be settled through "mediation administered by the American Arbitration Association under it's Construction Industry Mediation Procedures before resorting to arbitration, litigation, or any other dispute resolution procedure." WHEREFORE, Defendant, Mila Foster, respectfully requests that the Court sustain her Preliminary Objections and dismiss Plaintiffs Complaint with prejudice. WHEREFORE, Defendant, Mila Foster, requests that her Preliminary Objections be sustained by this Honorable Court, and the Plaintiff's Complaint be dismissed. Respectfully submitted, Date: ADAM R. DELUCA, ESQUIRE PA Supreme Court ID 4311738 Allied Attorneys of Central Pennsylvania, L.L.C. 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax Attorney for Defendant VERIFICATION I, Mila Foster, verify that the statements made in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. DATE: Mila Foster, Defendant Adam R. Deluca, Esquire PA Supreme Court ID #311738 Allied Attorneys of Central Pennsylvania, L.L.C. 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax Attorney for Defendant BITNER BROTHERS IN THE COURT OF COMMON PLEAS CONSTRUCTION, INC. OF CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. CIVIL ACTION-LAW MILA FOSTER NO. 14-4646 Defendant BREACH OF CONTRACT CERTIFICATE OF SERVICE I, Adam R. Deluca, Esquire, hereby certify that a copy of the Preliminary Objections to Complaint was served upon Plaintiff, this�206'day of August, 2014, by first-class mail, postage prepaid, at the following: Daniel Pollock, Esq. 801 Sandbank Road, #18 Mount Holly Springs, PA 17065 ADAM R. DELUCA, ESQUIRE PA Supreme Court ID #311738 Allied Attorneys of Central Pennsylvania, L.L.C. 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax Attorney for Defendant Bitner Brothers Construction, Inc Plaintiff VS Mila Foster Defendant In the Court of Common Pleas of Cumberland County, Pennsylvania No.14-4646 Civil Term PRAECIPE CIVIL ACTION LAW BREACH OF CONTRACT Defendant, Mila Foster, by and through her attorneys, Adam R. Deluca, Esq. and Allied Attorneys of Central Pennsylvania, LLC, filed Preliminary Objections to Complaint in the above captioned matter on August 28, 2014 and served them on Plaintiffs counsel the same day. More than twenty (20) days has passed since service of the Preliminary Objections and no response has been filed. WHEREFORE, Defendant respectfully requests that her Preliminary Objections be sustained. David D. Buell, Prothonotary Attorney Info: 11 cx-.) Adam R. Deluca, Esquire Attorney for Defendant PA Sup CtID# 311738 Allied Attorneys of Central Pennsylvania, LLC 61 West Louther Street Carlisle, PA 17013 Adam R. Deluca, Esquire PA Supreme Court ID #311738 Allied Attorneys of Central Pennsylvania, L.L.C. 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax Attorney for Defendant J1 L nlif SEP 22 RI 3: 39 CUMBERLAND COUNTY PENNSYLVANIA BITNER BROTHERS CONSTRUCTION, INC. Plaintiff V. MILA FOSTER Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 14-4646 BREACH OF CONTRACT CERTIFICATE OF SERVICE I, Adam R. Deluca, Esquire, hereby certify that a copy of the Praecipe to Sustain Preliminary Objections was served upon Plaintiff, this 18th day of August, 2014, by first-class mail, postage prepaid, at the following: DATE: Daniel Pollock, Esq. 801 Sandbank Road, #18 Mount Holly Springs, PA 17065 ADAM R. DELUCA, ESQUIRE PA Supreme Court ID #311738 Allied Attorneys of Central Pennsylvania, L.L.C. 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax Attorney for Defendant IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY Bitner Brothers Construction , Inc. Plaintiff Civil Action —Law V. Docket NO. 14-4646 Mila Foster Defendant Appeal from MDJ 09-2-02 c-� G NOTICE TO DEFEND 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 CAN NOT AFFORD TO HIRE AN ATTORNEY 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, Pennsylvania 17013 717-249-3166 IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY BITNER BROTHERS CONSTRUCTION, INC. 416 E. North Street Appeal from MDJ 09-2-02 Carlisle, Pa. 17013 Plaintiff Docket No. 14-4646 V. Mila Foster Civil Action -Law 441 Walnut Bottom Road Breach of Contract Carlisle, Pa. 17013 Defendant Amended Complaint AND NOW Here comes the Plaintiff, Bitner Brothers Construction, Inc. through its President Charles H. Bitner Jr. and By and through Its attorney, Daniel Pollock, to bring this complaint for breach of contract against Mila Foster for the reasons set out below PARTIES 1. The Plaintiff in this matter is Bitner Brothers Construction Inc. a duly licensed corporation by the Commonwealth of Pennsylvania whose principle place of business is located at 416 E. North Street Carlisle, Pa. 17013 2. The Defendant in this action is Mila Foster, and individual adult whose residence is 441 Walnut Bottom Road, Carlisle, pa. 17013 COUNTI BREACH OF CONTRACT 3. Paragraph 1-2 are incorporated by reference. 4. During the fall of 2013 Ms. Foster contacted Bitner Brothers Construction Inc. about doing some repairs and remodeling to her home. 5. Bitner Brothers Gave Ms. Foster an estimate between $19,000 and $20,000 to do the work that she requested. 6. Throughout the winter of 2013-2014 Ms. Foster and Bitner Brothers negotiated on the estimate. 7. On March 25, 2014 Ms. Foster and Bitner Brothers Construction agreed on a price of $16,000 to do the work to Ms. Foster's Basement, Main Bathroom and a 1/2 Bathroom in her home. (Contract is attached as exhibit A) 8. On March 26, 2014 Bitner Brothers started work on her home. 9. Throughout the time Bitner Brothers was on the Job, Ms. Foster was consistently harassing them to do work that was outside the scope of work agreed upon at the time of contract and insisting that this work be thrown in. 10. For some minor tasks Bitner Brothers obliged Ms. Foster's requests. 11. On April 9, 2014 Ms. Foster threw Bitner Brothers off her property after Bitner Brothers refused to do any more work that was outside of the scope of work for free. 12. At that time Ms/ Foster had only paid Bitner Brothers $8,000 of the $16,000 mentioned in the contract. 13. At the time of the breach of contract by Ms. Foster Bitner Brothers only needed to do some touch up work to completely finish the contract, which would have only taken about 2-3 days to do which would not have run them past any time constraints of the contract. 14. Bitner Brothers maintain that they had substantially completed the terms of the contract and hence are due the remaining moneys due under the contract. Wherefore Bitner Brothers Pray that this Honorable Court award a verdict in its favor in the amount of the unpaid portion of the contract with Ms. Foster. Respectfull Submitted Daniel Pollock, Esq. Attorney for Bitner Brothers Construction, Inc. 801 Sandbank Road, #18 Mount Holly Springs, Pa. 17O65 Pa. Super. Id. 70315 Phone (717) 486-0030 Cell #(717)226-0119 E-mail Dbigdanp@Aol.com (*,9 Af4r-l% do affirm that the contents of this complaint are true and correct to the best of my memory and recollect. I understand that statements made herein are subject to the penalties of 18 Pa.C.S. 4904 governing unsworn falsification to authorities. 9(Q1 Date Charles Bitner, President Bitner Brothers Construction Al On Septembe , l 2014, I Daniel Pollock, Esq. did mail by first class mail a copy of this complaint to the following parties at the following address: AFFIDAVIT OF SERVICE Anthony Deluca, Esq. C/O Allied Attornies of Central Pennsylvania 61 West Louther Street Carlisle, Pa. 17013 Respect Sub Daniel Pollock, Esq. Attorney for the Plaintiff Bitner Brothers Construction, Inc. License# PA017457 BITNER BROTHERS CONSTRUCION, INC. 416 East North Street, Carlisle, PA 17013 717-249-2874 THIS AGREEMENT made this 24th day of March, 2014 by and between Bitner Brothers Construction, Inc. hereinafter called the Contractor and Mila Foster hereinafter called the Owner. • WITNSSETH that the Contractor and the Owner for the considerations named agree as follows: Article 1. Scope of Work The Contactor shall perform all of the work shown on the Estimate, as attachment one hereto as it pertains to work to be performed on property at: 441 Walnut Bottom Road, Carlisle, PA 17013 Article 2. Time of Completion The work under this Contract shall be commenced on March 25, 2014 and the estimation of completion date is approximately 30 days after the start of work. The following constitutes substantial completion of work pursuant to this proposal and contract: Upon completion of jobwith approval of owner after review of final job check list. Both Parties have seventy-two (72) hours from the date of this contract being signed to void the contract for any reason. Notice must be given in writing. Article 3. The Contract Price The Owner shall pay the Contractor for the material and labor to be performed under the Contract the sum of sixteen thousand dollars ($16,000.00) and is subject to additions and deductions pursuant to authorized change orders as agreed on by the Parties. 6011 \ IA- A\ Article 4. Progress Payments Payments of the Contract Price shall be paid in the manner following: First Payment of Five thousand dollars ($5,000.00) is due upon the signing of this contract. Second payment of Five thousand dollars ($5,000.00) is due upon completion of work in Master Bath and Half Bath. Third payment of Three thousand dollars ($3,000.00) is due upon completion of Garage Door removal and framing of Garage Man Door Entrance. Final payment of Three thousand dollars ($3,000.00) is due upon job completion. Initials: Owner Contractor - Article 5. Underlying conditions not readily observed at the time of the estimate may be grounds for the extension of completion date. Any alterations or deviation from the above specifications, including but not limited to any such alteration or deviation involving additional material and/or labor costs, will be executed only upon a written order for same, signed by Owner and Contractor, and if there is any order for such alteration or deviation, any additional charges will be in addition to the contract price as herein agreed. If payment is not made as herein agreed, Contractor shall suspend work on the job until such time as all payments and owed have been paid to contractor. A failure to make said payment for a period in excess of fifteen days from the due date of the payment shall be deemed a material breach of this contract. Any punch list items or satisfaction disputes will allow Owner to hold five hundred dollars ($500.00) retainer until issues are resolved by both parties. All payments will be satisfied upon job completion. A fee of forty-one dollars ($41.00) will be charged for any returned checks due to non -sufficient funds. Article 6. Arbitration 1. If a dispute arises out of or related to this contract or contract warranty, or the breach thereof, and if the dispute cannot be settled through negotiations, the Parties agree, in good faith, to first try settling the dispute by mediation administered by The American Arbitration Association under it's Construction Industry Mediation Procedures before resorting to arbitration, litigation, or any other dispute resolution procedure. 2. The location of arbitration hearings held under the agreement shall be the county in which the job is located unless agreed to by all Parties to the arbitration. Article . In addition, the following general provisions apply: 1. All work shall be completed in a workman -like manner and in compliance with all building codes and other applicable laws of the Commonwealth of Pennsylvania. 2. To 'the extent required by law, all work shall be performed by individuals duly licensed and authorized by law to perform said work. 3. Contractor may at its discretion engage subcontractors to perform work hereunder, provided, Contractor shall fully pay said subcontractor and in all instances remain responsible for the proper completion of this Contract. 4. Contractor shall furnish Owner appropriate releases or waivers of lien for all work performed or materials provided at the time the next periodic payment shall be due and owing. 5. Contractor shall at its own expense obtain all permits necessary for the work to be performed as may be required by law and/or ordinance. 6. Contractor agrees to remove all debris and leave the premises in broom clean condition. 7. In the event Owner shall fail to pay any periodic or installment payment due hereunder, Contractor may cease work without breach pending payment or resolution of any dispute. 8. Contractor shall not be liable for any delay due to circumstances beyond its control including strikes, casualty or general unavailability of materials. 9. Contractor warrants all workmanship as performed for a period of one year following the date of completion. Contractor reserves the right to be notified first of any defects or issue with said job, and reserve the right to fix or repair any such defects or issues before any wok is done by a third party contractor. 10. Contractor hereby notifies Owner that Rotted/Damaged plywood will be replaced at a cost of $ 65.00/ sheet labor included. Owner to be notified prior to replacement. 11. Communication between Contractor and Owner is limited to the Owner as stated above. If Owner wants to appoint a representative to speak on their behalf, that person must be put on the contract at time of contract signing. Owner is to deal with the Contractor, Charles Bitner, or the office manager of Bitner Brothers Construction, Inc. All dealings with other employees or subcontractors shall be null and void by Bitner Brothers Construction, Inc. at their discretion. Initials: Owner- GU/ fi Contractor- a Article 8. Insurance The Contractor represents that it has purchased insurance and agrees that it will keep in force for the duration of the performance of the work as will protect Bitner Brother Construction, Inc. and the Owner of the site, from claims for loss or injury which might arise out of or result from the Contractor operations under this project, whether such operations be by the Contractor or by a subcontractor or its subcontractors. The Contractor represents and agrees that said insurance binder is written for and shall be maintained in an amount not less than the limits of the liability required by law. The Contractor certifies that coverage written on a "claims made form" will be maintained without interruption from the commencement of work until the expiration of all applicable statutes of limitation. The Contractor shall provide the Owner a copy of its insurance binder, PA Contractors License and all municipal permits which may be required by law. Owner: Mila Foster (717) 254-1942 (H) Name Telephone 441 Walnut Bottom Road, Carlisle, PA 17013 Signed this 25th day of March, 2014. Contractor: Bitner Brother Construction, Inc. (717) 249-2874 416 East North Street, Carlisle, PA 17013 bitnerbrothers@yahoo.com Owner Signature: 4441 Print Name Contractor Signature Signature Charles H. Bitner, Jr., President Print Name and Title Notice Both Parties have seventy-two (72) hours from the date of the contract being signed to void the contract for any reason. Notice must be given in writing. Adam R. Deluca, Esquire PA Supreme Court ID #311738 Allied Attorneys of Central Pennsylvania, L.L.C. 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax Attorney for Defendant LED-OrFPJ_ THE P OTH0N0T/2,R ' 2L 1 4 HOV -7 PH 2:44 CUMBERLAND COUNTY PENNSYLVANIA BITNER BROTHERS CONSTRUCTION, INC. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW NO. 14-4646 BREACH OF CONTRACT NOTICE TO PLEAD TO: Bitner Brothers Construction, Inc. c/o Daniel Pollock, Esq. MILA FOSTER Defendant You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. Adam R. Deluca, Esquire PA Supreme Court ID #311738 Allied Attorneys of Central Pennsylvania, L.L.C. 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax Attorney for Defendant Adam R. Deluca, Esquire PA Supreme Court ID #311738 Allied Attorneys of Central Pennsylvania, L.L.C. 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax Attorney for Defendant BITNER BROTHERS CONSTRUCTION, INC. Plaintiff v. MILA FOSTER Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 14-4646 BREACH OF CONTRACT PRELIMINARY OBJECTIONS TO AMENDED COMPLAINT AND NOW comes the Defendant, Mila Foster, by and through her attorneys, Adam R. Deluca, Esquire and Allied Attorneys of Central Pennsylvania, L.L.C., who files these Preliminary Objections to the Plaintiff's Amended Complaint Pursuant to Pa.R.C.P. 1028 as follows: 1. Plaintiff has filed suit against Defendant, Mila Foster, alleging that Plaintiff suffered damages arising from a home improvement contract. 2. Plaintiffs attorney caused Mila Foster to receive a copy of the Complaint on or about August 26, 2014 by first class mail. 3. Defendant, Mila Foster, by and through her attorneys, Adam R. Deluca, Esquire and Allied Attorneys of Central Pennsylvania, L.L.C., filed Preliminary Objections and served them on Plaintiff's counsel on August 27, 2014 which required further pleading by the Plaintiffs within twenty (20) days. 4. After receiving no response, Defendant, Mila Foster, by and through her attorneys, Adam R. Deluca, Esquire and Allied Attorneys of Central Pennsylvania, L.L.C., filed a Praecipe to Sustain Preliminary Objections and served said Praecipe on Plaintiff's counsel on September 18, 2014. 5. As of November 6, 2014, Defendant, Mila Foster, and her counsel, had not received a response from Plaintiffs. Defendant's counsel accessed the Prothonotary's Laserfiche on November 6, 2014 and found a subsequent filing by Plaintiffs time stamped September 25, 2014, and supposedly served by first class mail on September 26, 2014 on Defendant's counsel. However, Defendant's counsel has never received any subsequent filing. Furthermore, Plaintiff's Affidavit of Service, although indicating the correct property address, is addressed to "Anthony Deluca, Esq.", who is not the counsel of record for the Defendant nor is he located at this address. FIRST PRELIMINARY OBJECTION — Pa.R.C.P. 1028(a)(1) Improper Form of Service 6. Attorney for Plaintiff caused Mila Foster to receive a copy of the Complaint on or about August 26, 2014 by first class mail. 7. Pa.R.C.P. 402 and 403 govern the Manner and Acceptance of Service of Original Process, which states that service which is acceptable by mail shall be sent by any form of mail requiring receipt signed by the defendant or her authorized agent. Service is complete upon delivery of the mail. 8. Attorney for Plaintiff failed to deliver the Complaint in a manner acceptable by Pa.R.C.P. 402 and 403 and as such service is not complete. 9. Attorney for Plaintiff subsequently failed to deliver any copy of the Amended Complaint in a manner acceptable by Pa. R.C.P. 402 and 403 and such, service of the Amended Complaint is not complete. WHEREFORE, Defendant, Mila Foster, respectfully requests that the Court sustain her Preliminary Objections to Amended Complaint and dismiss Plaintiff's Amended Complaint with prejudice, or, in the alternative, dismiss Plaintiff's Amended Complaint without prejudice with leave for Plaintiff to serve the Complaint properly. SECOND PRELIMINARY OBJECTION — Pa.R.C.P. 1028(a)(3) Insufficient Specificity in a Pleading 10. Pennsylvania Rules of Civil Procedure require a Complaint to specifically plead the material facts giving rise to the cause of action. Accordingly, a Complaint not only must give the Defendant notice of the Plaintiff's claim and grounds upon which it rests, but must also plead facts sufficient to support the claim. 11. Plaintiff's Complaint fails to plead with sufficient specificity a cause of action against the named Defendant, Mila Foster. Plaintiff asserts that a contract was breached by Defendant, yet fails to assert that a contract was entered into in any paragraph of the Complaint. WHEREFORE, Defendant, Mila Foster, respectfully requests that the Court sustain her Preliminary Objections and dismiss Plaintiff's Amended Complaint with prejudice, or, in the alternative, dismiss Plaintiff's Amended Complaint without prejudice with leave for Plaintiff to replead with the requisite specificity. THIRD PRELIMINARY OBJECTION — Pa.R.C.P. 1028(a)(4) Legal Insufficiency of a Pleading 12. Count I of Plaintiff's Complaint purports to allege a cause of action for breach of contract. 13. In order to state a claim for breach of contract, Plaintiff must demonstrate the existence of an actual contract. 14. Plaintiff references a contract only as an exhibit, but fails to ever plead that a contract was entered into. 15. Plaintiff has failed to allege with sufficiency the existence of a contract. WHEREFORE, Defendant, Mila Foster, respectfully requests that the Court sustain her Preliminary Objections to Amended Complaint and dismiss Plaintiff's Amended Complaint with prejudice. FOURTH PRELIMINARY OBJECTION — Pa.R.C.P. 1028(a)(6) Agreement for Alternative Dispute Resolution 16. Plaintiff has attached to their Amended Complaint "Exhibit A", a contract, which, by its very language, mandates that any dispute arising out of or related to said contract first try to be settled through "mediation administered by the American Arbitration Association under it's Construction Industry Mediation Procedures before resorting to arbitration, litigation, or any other dispute resolution procedure." 17. Plaintiffs have not engaged in any effort to attempt "mediation administered by the American Arbitration Association under it's Construction Industry Mediation Procedures before resorting to arbitration, litigation, or any other dispute resolution procedure." WHEREFORE, Defendant, Mila Foster, respectfully requests that the Court sustain her Preliminary Objections to Amended Complaint and dismiss Plaintiff's Amended Complaint with prejudice. WHEREFORE, Defendant, Mila Foster, requests that her Preliminary Objections to Amended Complaint be sustained by this Honorable Court, and the Plaintiff's Complaint be dismissed with prejudice. Date: C V7fr Respectfully submitted, ADAM R. DELUCA, ESQUIRE PA Supreme Court ID #311738 Allied Attorneys of Central Pennsylvania, L.L.C. 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax Attorney for Defendant VERIFICATION I, Mila Foster, verify that the statements made in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. DATE: 1/ 144,;69,1,7,o, rt bit Mila Fostr, Defendant Adam R. Deluca, Esquire PA Supreme Court ID #311738 Allied Attorneys of Central Pennsylvania, L.L.C. 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax Attorney for Defendant BITNER BROTHERS CONSTRUCTION, INC. Plaintiff v. MILA FOSTER Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 14-4646 BREACH OF CONTRACT CERTIFICATE OF SERVICE I, Adam R. Deluca, Esquire, hereby certify that a copy of the Preliminary Objections to Amended Complaint was served upon Plaintiff, this 7 day of November, 2014, by first-class mail, postage prepaid, at the following: DATE: 1 V/A6( Daniel Pollock, Esq. 801 Sandbank Road, #18 Mount Holly Springs, PA 17065 ADAM R. DELUCA, ESQUIRE PA Supreme Court ID #311738 Allied Attorneys of Central Pennsylvania, L.L.C. 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax Attorney for Defendant