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HomeMy WebLinkAbout05-3669 COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. Os- .J&~ cr NOTICE OF APPEAL ~ .....J.vw.......- Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date an in the case referenced below. This block will be signed ONLY when this notation is required under Pa. R.C.P.D.J. No. 10088. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. No. 1001(6) in action (20) days after filing the NOTICE of APPEAL. Signature of Prothonotary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (Th;s section of form to be used ONL Y when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before District JusUce. IF NOT USED, detach from copy of noUce of appeal to be seIYed upon appellee. PRAECIPE: To Prothonotary Enter rule upon ,/:f ,~ !fx.ej0...0'sf , Name of appellee(s) (Common Pleas No. OS- 3lt '" 9 ,.'__~ appellee(s). to file a complaint in this appeal RULE: To ~4tUf:;0~{0-0'<:1 entry of judgment of non pros. \1 Signature of appellant or attorney or agent , 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. Date: 7//'1 .20 6.s-- THIS NOTICE ~ (3) The date of service of this rule if service was by mail is the date of the mailing. YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENTITRANSCRlPT FORM WIT AOPC 312-02 COUR' FILE TO BE FILED WITH PROTHONOTARY PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DA YS AFTER filing of the nollce of appeal Check applicable bOXDS.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF : 5S AFFIDAVIT: J hereby (swear) (affirm) that I served o a copy of the Notice of Appeal. Common Pleas No. , upon the District Justrce designated thmein. on (dale of service) ,20 o by personal service 0 by {certified) (regIstered) rnad sender's receipt attached hereto, and upon the appellee, (name) , on ,20 o by personal serv,ce o by (certified) (registered) mail. sender's receipt attached hereto, (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF 20 SignEtoffl of affian! Signature of offlc#'I' before whom affidavit was mad", My commission expires on .20 (') t--> ~ = S = c.f' :rJ:I] <- c: nlF;; ~ ,- ~ -0 :'JY ~ ..0 CJ .t. _~,O (\ '. -0 ~;r:::n ~ ( --.'" '80 C- om ~ ~~-t c:' '-:;) .-' ~ 2: -J> :<I. e:> :v .,... w '-< ~ :t 0\ , C fJ r \ "\ Titre of offICial AOPC 312A - 02 COMMONWEALTH OF PENNSYLVANIA COUNTY OF' CUMBERLAND Address TBOKAS A. PLACEY 104 S SPORTING BILL MECBAlItICSBURG, PA 1m NOTICE OF JUDGMENTJTRANSCRIPT PLAINTIFF: CIVIL CAN~M~,"dADDRESS 'AQUA SPECIALISTS, INC. I P.O. BOX 123 160 SILVER SPRING ROAD ~CBAN'ICSBURG, PA 17055 .J VS. Mag0i5t No 09-3-04 MDJ Name: Hon 17050 DEFENDANT: laAER, :KRISTA 71 COLD SPRINGS 1m CARLISLE, PA 17013 L Docket No.: CV-0000007 - 05 Date Filed: 1/06/05 NAME and ADDRESS T""oo," (717) 761-8230 I .J . :KRISTA BUR 71 COLD SPRINGS RD CARLISLE, PA 17013 THIS IS TO NOTIFY YOU THAT: .. Judgment [i! Judgment was entered for: Dl!:FAM.T .1UDGlMK1IIT.. PLT1!' (Name) aQ1Ta. AI''If~T&T.T~'''A, T1Q'l" [i! Judgment was entered against: (Name) lIl....I!R, lrlZTRTlI. in the amount of $ 1, nn2 7!> on: (Date of Judgment) I; 12n'/n!> . L,~~~ o Defendants are jointly and severally liable. o Damages will be assessed on: (Date & Time) O Amount of Judgment Subject to Attachmentf42 Pa.C.S. S 8127 $ o Portion of Judgment for physical damages arising out of residential lease $ Amount of Judgment $ 911.62 Judgment Costs $ 91.13 Interest on Judgment $ .00 Attorney Fees $ .00 Total $ 1.002.75 . Post Judgment Credits $ Post Judgment Costs $ ------------ ------------ Certified Judgment Total $ \..)' o This case dismissed without prejudice. ANY. p. ARTY HAS THE RIGHT TO APPEAL. WITHIN..30 DAYS AFTE.R Tl-II: ENTRY. OF ~UDGMENT ~Y FILING!\ NOTICE Of APPEAL WITH THE PROTHONOTARY/CLERK OF THE eouRToF CONlMC)N PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENTITRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGEMENT 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 MA Y 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. v\ :lD \06 Date J ce1ify that this is a true a' d .sg.upel'WJ5Y.o: th '0 \:20 \ CS Date - Ij \ '-" Magistetj~rDistrict JUd~e reco~ oceedings containing the judgment. . Magisterial District Judge My commission expires first Monday of January, 2010 SEAL'. Aore 315-05 DATE PRINTED: 6/20/05 3:02:10 PM '''''~'' .,~.""-..-,~t.... ..,'"'" "'~.-' "''''"''':'''!t'"." " "-'~" "...... PROOF OF SERVICE OF NOTICE OF APPEAL AND RUL.E TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DA YS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF C1."",,~ J......J.. ; 5S AFFIDAVIT: I hereby (swear) (affirm) that I served /a copy of the Notice Of.APrra.l. Common Ple~ No. ~--.?U fupon the District Justice designated therein on (date of service) 7{ Z fa . 200'). D by personal service ([J.-15Y'(Certified) (registered) ma,l. sender's;7;kched her~;~ a~d~on t~ a:~:::~~a~:::~I1~fc~~:t):ail' ' on sender's receipt attached hereto. J /- ,",f"" '.I r .-::.. , ,A L\ ( [J/ ~SH~'r~ ~FFIR~:~6~ct~IB~D B,EJoO~E~E i ,Ju?tB--. \J7..l1 "P/'>o J!/J Si:na'u,. ~+~;ro whom aV5:7~di / ~ nb1cia, y My commission expires on "3:-.-;:'1 200~ COMMON PENNSYLVANIA NO MIAL SEAl VICTORIA RUSSEll. N<<afy Public 8aro of c.IiIII. CumIIIrIIncI County MyCamIl!i ''''~J~._'l.~ AOPC 312A - 02 Signature of affiant o ~ ....; ...., = = c.ro '- c::: ,- N Q:) :2. :2 2: -""" ~ ~-n nlF :9,iTl bX ~L:=r"\ ',Jr') ~~m ~ :< cO U1 CJ" ""'>'..,\,.;-,~-...,,,,,~ COMMONWEAlTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. u.s. .3 (p (" "1 NOTICE OF APPEAL U~ ....JJ2''Vv-..- Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date an in the case referenced below. ., s ,)A ." 1 ., ,\..) ZIP CODE - 0<:) This block will be signed ONLY when this notation is required under Pa. If ~ppellant was Cl'aimant (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 District Justice, will operate as a before a District Justice, A COMPLAINT MUST BE FILED within twenty SUPERSEDEAS to the jUdgment for possession in this case. (20) days after filing the NOTICE of APPEAL. Signature of Prothonotary orDeputy PRAECIPE TO ENTER RULE TO FILE COMl'LAINT AND RULE TO FILE (This section of form to be used ONL Y when appeliant was DEFENDANT (see Pa.R.CP.D.J. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appeliee. PRAECIPE: To Protho;tary /". " Enterrule upon ,779 ~ ~ C,.I ()-l (S! Name of appeJJee(s) appellee(s), to file a complaint in this appeal (Common Pleas No. {)S~ 3& (" 9 c..v..-I RULE: To ( .- i J . I ' " ~ " I '" . ,/ qU.fi- '--1-)(.' C i I: "X j C - Name of appel/ea(s) rule or su~entry of judgment of non pros. I ' , -I ') II Signature of appellant or attorney or agent , appellee(s) (1) You are notifiedJh;lt..~ rule is hereby entered upon you to file a complaint in this appeai within twenty (20) days after the date of service of this rule upon you bY'liert!'d~;q,.""(Vice or by certified or registered mail. . . . . . (2) If you do not file a COn1PiainHvllhin this lime, a J.UDGMENT OF NQN PROS MAY BE ENTERED AGAINST YOU. Date~3) Th; ~t/e: se~i:: o:t:::uie if service was by ma~ I. the date of the mailing'~t J ~ ~ . 1/. ~ I~ ~ ._" Sign.tu"'o(Pro.on~t.ryO'Oe ty '. .' J;~ YOU M~Iji,TI...,cLUDE A COPY' OF THE NOTICE OF JUDGMENTfTRANSCRIPT FORM WITI("THIS NOTICE OF APPEAL.~ AOPC 312-02 . COURT FILE " AQUA SPECIALISTS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 05-3669 CIVIL TERM KRISTA BAER, Defendant CIVIL ACTION 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 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 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 j;1fi:~ Attorney for Plaintiff LAW OH1CES MARLIN R. McCALEB AQUA SPECIALISTS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 05-3669 CIVIL TERM KRISTA BAER, Defendant CIVIL ACTION COMPLAINT 1. Plaintiff herein is AQUA SPECIALISTS, INC., a Pennsylvania corporation having its office and place of business at 160 Silver Spring Road (Hampden Township), Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Defendant herein is KRISTA BAER, an adult individual who lives and resides at 71 Cold Springs Road (Dickinson Township), Carlisle, Cumberland County, pennsylvania 17013. 3 . At all times relevant and material to this cause of action, Plaintiff is and has been in the business of cleaning, maintaining and repairing swimming pools and selling swimming pool equipment and supplies. 4 . On or about July 12, 2004, at the special instance and request of Defendant, Plaintiff agreed to provide labor, equipment and materials to clean and repair the Defendant's swimming pool at the premises described in Paragraph 2, above. LAW OffiCES .:\ARLIN R. McCALEB 5. Plaintiff's services included cleaning the pool and removing debris therefrom, cleaning and filtering the water in the pool, repairing the pump motors, cleaning the filters and testing and balancing the water with chemicals. 6. Plaintiff began its work on or about July 12, 2004, and completed the same in a good and workmanlike manner on or about August 11, 2004. 7 . On or about July 21, 2004, plaintiff sent to Defendant Invoice 49345 setting forth total charges in the amount of $890.37 for work and materials, a true copy of said Invoice being attached hereto and made a part hereof by reference thereto, marked Exhibit "A". 8. On or about October 28, 2004, Plaintiff sent to Defendant Invoice 52903 setting forth total charges in the amount of $117.25 for additional work and materials, a true copy of said Invoice being attached hereto and made a part hereof by reference thereto, marked Exhibit "B". 9 . plaintiff has credited Defendant in the amount of $96.00, as more fully set forth in Invoice C49907, a true copy of which is attached hereto and made a part hereof by reference thereto, LAW O~FICES \RLlN R. McCALEB -2- LAW ClFFIC~S \RUN R. McCALEB 1. marked Exhibit "C", thereby reducing the balance owed to Plaintiff to $911.62. 10. The prices which plaintiff charged for the services performed for, and the materials provided to, Defendant as set forth above were fair and reasonable prices for said labor and materials and were the ordinary market prices for the same. 11. Despite repeated requests by Plaintiff for payment, Defendant has failed and refused to pay to Plaintiff said sum of $911.62, or any part thereof. WHEREFORE, Plaintiff demands judgment in its favor and against the Defendant herein in the amount of $911.62, together with interest thereon and costs of suit (including but not limited to costs incurred before District Justice Thomas A. Placey in the amount of $91.13). tf;~~ Date: August :5 , 2005 Marlin R. McCaleb Attorney r.D. No. 06353 219 East Main Street P.O. Box 230 Mechanicsburg, Pennsylvania 17055 (717) 691-7770 FAX: (717) 691-7772 Attorney for Plaintiff -3- VERIFICATION JOHN L. SIECK hereby certifies and states as follows: that I am the President of AQUA SPECIALISTS, INC., a Pennsylvania corporation, the Plaintiff in the foregoing Complaint; that as such President I am authorized to and do make this verification for and on behalf of said Plaintiff; that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief; and I understand that all statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to Date: August :3 , 2005 ~ unsworn falsification to John L. Sieck LAW OFFICFS \RllN R. McCALEB -4 - CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the with- in Plaintiff's Complaint was served upon the Defendant herein on August 3 , 2005, by depositing same in the mail at the United States post office at Mechanicsburg, Pennsylvania, postage prepaid, properly addressed as follows: Krista Baer 71 Cold Springs Road Carlisle, PA 17013 ~~d~ Marlin R. McCaleb LAW OFFICES 'RUN R. McCALEB -5- Invoice 49345 Customer BAERK1 AQUA SPECIALISTS, INC. P. O. BOX 123 MECHANICSBURG PA 17055 WWW.AQUA-SPECIALISTS.COM Telephone 717/766-2541 Bill To: KRISTA BAER 71 COLD SPRINGS RD. CARLISLE, PA 17013 Ship To: KRISTA BAER 71 COLD SPRINGS RD. CARLISLE, PA 17013 0721/04 NET 30 DAYS Number 33104 IfPrfco Amount 1.000 LABOR LABOR N 576.00 576.00 18 18 SA01 SODA ASH - 1 LB. N 1.05 18.90 50 50 BS01 BICARB OF SODA - 1 LB. N 0.75 37.50 25 25 CCOl CALCIUM CHLORIDE - HB. N 0.60 15.00 40 40 HYPO SODIUM HYPO - 1 GAL. N 2.25 90.00 HS1600S STRAINER COVER GASKET y 7.10 7.10 1 CP-150 BAND UNION-1-1/2" PVC Y 5.25 5.25 12 12 CC01 CALCIUM CHLORIDE- 1 LB. N 0.60 7.20 2 2 J8401 AQUA STAIN&SCALE 1QT 12/CS N 13.95 27.90 2 2 J8102 AQUA ALGICIDE 30 1QT. 12/CS N 11.25 22.50 P071448 O-RING-T AHITIAN MUL TIPORT N 4.95 4.95 J2225 3'CHLORINE TABS-25 LBS. EA Y 65.95 65.95 4 4 C-36 #36 SS CLAMP y 1.75 7.00 406 408 255 MEMO N 0.00 0.00 7/12/04 SKIMMED AND BRUSHED THE POOL. BACKWASHED THE FILTER. SHOCKED THE OOL AND TREATED FOR ALGAE. NOTED LEAKS A T FILTER PUMP. 7/13/04 SKIMMED AND BRUSHED THE POOL. BACKWASHED THE FILTER. TESTED AND BALANCED THE WATER. FURNISHED AND INSTALLED NEW FILTER PUMP LID O-RING. /14/04 REPAIRED ADDITIONAL LEAKS ON THE FILTER PUMP. VACUUMED AND DREDGED HE POOL. TESTED AND BALANCED THE WATER. CONT... NonTaxable Subtotal Taxable Subtotal Tax @ 6.000% Total 799.95 85.30 5.12 890,37 Page 1 Customer Original (Reprinted) Exhibit "A" '. .--- Invoice 52903 Customer BAERK1 .' AQUA SPECIALISTS, INC. P. O. BOX 123 MECHANICSBURG PA 17055 WWW.AQUA-SPECIALISTS.COM Telephone 717/766-2541 Bill To: KRISTA BAER 71 COLD SPRINGS RD. CARLISLE, PA 17013 Ship To: KRISTA BAER 71 COLD SPRINGS RD. CARLISLE, PA 17013 25 25 HYPO SODIUM HYPO - 1 GAL. N 2.25 56.25 SA01 SODA ASH - 1 LB. N 1.05 1.05 30 30 CC01 CALCIUM CHLORIDE - I LB. N 0.60 18.00 3 3 436-015 MALE ADAPTER - 1-112" N 1.56 4.68 410-016 90 ELL - MT X S -1-1/2" N 3.00 3.00 2 2 HS14952S UNION-1.5"SKT(2"SLlP) N 9.75 19.50 2 2 406-015 90 ELL -1-112" N 2.04 4.08 429-015 COUPLING - 1-112" N 1.24 1.24 FE015 FITTING EXTENDER - 1 1/2" N 4'.95 4.95 3 3 40-015 SCH.40 PVC PIPE -1-1/2" N 1.00 3.00 40-015F FLEX PVC PIPE - 1-1/2" N 1.50 1.50 08/02, 08/03. 08/04, AND 08/06/04 CONTINUED POOL CLEARING PROCESS. REPAIRED LEAKS AT SUCTION AND DISCHARGE OF BOTH POOL PUMPS. OPENED FILTER ANKS TO ASSESS CONDITION OF FILTER MEDIA. PROPOSED CHANGING OF FILTER MEDIA. NO SERVICE WAS DESIRED AFTER THIS POINT. NO LABOR WAS CHARGED FOR ANY OF TH ABOVE TRIPS AS DICUSSED WITH CUSTOMER. NonTaxable Subtotal Taxable Subtotal Tax @ 6.000% Total 117,25 0.00 0,00 117.25 Page 1 Duplicate Exhibit "B" AQUA SPECIALISTS, INC. P. O. BOX 123 MECHANICSBURG PA 17055 WWW.AQUA-SPECIALlSTS.COM Telephone 717/766-2541 Bill To: KRISTA BAER 71 COLD SPRINGS RD. CARLISLE, PA 17013 08/02/04 : Re' uired. -1.000 LABOR " Invoice C49907 Customer BAERK1 Ship To: KRISTA BAER 71 COLD SPRINGS RD. CARLISLE, PA 17013 .... THIS IS A CREDIT MEMO .... LABOR N 96.00 NonTaxable Subtotal Taxable Subtotal Tax @ 6.000% Total Duplicate Exhibit "e" . , . Amount -96.00 -96.00 0.00 0,00 -96.00 Page 1 , en ~, .-..) C) .1 :..~ Hi '.,,"\ t,) , W ~, AQUA SPECIALISTS, INC., Plaintiff : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN1Y, PENNSYLVANIA CIVIL ACTION - LAW vs. NO.: 05-3669 CIVIL TERM KRISTA BAER, Defendant : CIVIL ACTION DEFENDANTS' PRELIMINARY OBJECTIONS Defendant, Krista Baer, by Michael T. Traxler, Esquire, of Abom & Kutulakis, UP, preliminarily objects to Plaintiffs Complaint as follows: I. FAILURE OF PLEADING TO CONFORM TO LAW OR RULE OF COURT 1. On August 3, 2005, Plaintiff filed its Complaint without naming a specific cause of action. Failure to name a specific cause of action violates Pennsylvania Rule of Civil Procedure 1020(a). 2. Plaintiffs claim sounds in "Breach of Contract." 3. Plaintiffs claim fails to state specifically if the contract is oral or writren, and therefore, is in violation of Pennsylvania Rule of Civil Procedure 1019(h). WHEREFORE, Defendant requests that Plaintiffs Complaint be stricken, II. LEGAL INSUFFICIENCY OF PLAINTIFF'S COMPLAINT (DEMURRER) 4. Defendant incorporates by reference paragraphs 1 thmugh 3 as though set forth at length. 5. Plaintiffs Complaint fails to state a cause of action against the Defendants for Breach of Contract. 6. Plaintiff has asserted a cause of action against Iafrate based on breach of contract. 7. The three elements necessary to properly plead a cause of action for breach of contract include (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages. J.F. Walker Co. v. Excalibur Oil Group. Inc., 792 A.2d 1269, 1272 (pa. Super. 2002). 8. The Plaintiff failed to prove that a contract existed between itself and Defendant. 9. The Plaintiff failed to aver facts necessary to establish a claim for Breach of Contract. WHEREFORE, due to Plaintiffs failure to establish a legally sufficient claim in Breach of Contract, Defendant respectfully requests that Plaintiffs Complaint be stricken. Respectfully submitted, ADOM lie KUTULAKlS, UP DA1E: 7 /6 ItS- I { . ~ ~~r/ Michael T. Traxler, Esquire Attorney I.D. No.: 90961 36 S. Hanover Street Carlisle, P A 17013 (717) 249-0900 Attorney for Dd'ndant CERTIFICATE OF SERVICE AND NOW, this 6th day of September, 2005, I, Michael T. Traxler, Esquire of ABOM & KUTULAKIS, LLP, hereby certify that I did serve or caused to be served a true and correct copy of the foregoing PRELIMINARY OBJECTIONS by first class mail to the following: Marlin R. McCaleb, Esquire 219 East Main Street P.O. Box 230 Mechanicsburg, P A 17055 ~~rt.:::~/~ Michael T. Traxler, Esquire I -~ ....> c::':) <:..-:.:) <;;J'") 0? l'''r~ --v I 0'" -" o -n --4 ::C ." rnr-"':' 7\~), ~-1, : ');,~ '::'t-r, , ) ':;:~ "'1 ::< '? N o AQUA SPECIALISTS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW vs. : NO.: 05-3669 CIVIL TERM KRISTA BAER, Defendant CIVIL ACTION ENTRY OF APPEARANCE Please enter the appearance of the undersigned as counsel for Defendant, Krista Baer, in the above-captioned matter. Respectfully submitted, ABOM & KU1"ULAKIS 'J14d...Lui?I-:-~ Michael T. Traxler, Esquire Pa. Attorney LD. 90961 36 South Hanover Street Carlisle, P A 17013 Attorney fOr Deftndant CERTIFICATE OF SERVICE AND NOW, this 61h day of September, 2005, I, Michael T. Traxler, Esquire of ABOM & KUTULAKIS, LLP, hereby certify that I did serve or caused to be s,erved a true and correct copy of the foregoing ENTRY OF APPEARANCE by first class mail to the following: Marlin R. McCaleb, Esquire 219 East Main Street P.O. Box 230 Mechanicsburg, P A 17055 -,.' / /)---~ ~j'I/t/V!A/~ I. I Michael T. Traxler, Esquire o ~.~ ...., = ~,:..'"=' c.n (/) r-~-l -0 o "T1 --4 ~ m:!J r"'- -,., rT1 :)C _J~i (_~;I :i:.~' -0 ;~)rTl :::,:, ~- .:0 -< , 0-' :s _:'.,. (...,,1 N o AQUA SPECIALISTS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 05-3669 CIVIL TERM KRISTA BAER, Defendant CIVIL ACTION 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 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 32 South Bedford Street Carlisle, pennsylvania 17013 (717) 249-3166 4ud~ Marlin R. McCaleb Attorney for Plaintiff I ,\\11/ ()f-~ICI.S MARLIN R. McCAI FB AQUA SPECIALISTS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 05-3669 CIVIL TERM KRISTA BAER, Defendant CIVIL ACTION AMENDED COMPLAINT 1. Plaintiff herein is AQUA SPECIALISTS, INC., a pennsylvania corporation having its office and place of business at 160 Silver Spring Road (Hampden Township), Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Defendant herein is KRISTA BAER, an adult individual who lives and resides at 71 Cold Springs Road (Dickinson Township) Carlisle, Cumberland County, pennsylvania 17013. 3. At all times relevant and material to this cause of action, Plaintiff is and has been in the business of cleaning, maintaining and repairing swimming pools and selling swimming pool equipment and supplies. 4 . On or about July 12, 2004, at the special oral instance and request of Defendant, Plaintiff orally agreed to provide labor, equipment and materials to clean and repair the LAW OI-f-lCtS MARLIN R. McCALEA Defendant's swimming pool at the premises described in Paragraph 2, above. 5. Plaintiff's services included cleaning the pool and removing debris therefrom, cleaning and filtering the water in the pool, repairing the pump motors, cleaning the filters and testing and balancing the water with chemicals. 6. Pursuant to the oral agreement described in Paragraph 4, above, Plaintiff began its work on or about July 12, 2004, and completed the same in a good and workmanlike manner on or about August 11, 2004. 7. On or about July 21, 2004, Plaintiff sent to Defendant Invoice 49345 setting forth total charges in the amount of $890.37 for work and materials, a true copy of said Invoice being attached hereto and made a part hereof by reference thereto, marked Exhibit "A". 8. On or about October 28, 2004, plaintiff sent to Defendant Invoice 52903 setting forth total charges in the amount of $117.25 for additional work and materials, a true copy of said Invoice being attached hereto and made a part hereof by reference thereto, marked Exhibit "B". LA\\' OIIICI S -2- MARLIN R. McCALEB 9. Plaintiff has credited Defendant in the amount of $96.00, as more fully set forth in Invoice C49907, a true copy of which is attached hereto and made a part hereof by reference thereto, marked Exhibit "C", thereby reducing the balance owed to Plaintiff to $911.62. 10. The prices which Plaintiff charged Defendant for the services performed for, and the materials provided to, Defendant as set forth above were fair and reasonable prices for said services and materials, represent the fair market value to Defendant of the said services and materials, were Plaintiff's customary and usual prices for said services and materials and are the prices that Defendant expressly or impliedly agreed to pay. 11. Despite repeated requests by Plaintiff for payment, Defendant has failed and refused to pay to Plaintiff said sum of $911.62, or any part thereof. WHEREFORE, Plaintiff demands judgment in its favor and against the Defendant herein in the amount of $911.62, together with interest thereon and costs of suit (including but not limited to costs incurred before District Justice Thomas A. I AVV OITICI S -3- MAKLIN R. McCAl_FR Placey in the amount of $91.13) Date: November 11 , 2005 ~d?~ Marlin R. McCaleb Attorney I.D. No. 06353 219 East Main Street P.O. Box 230 Mechanicsburg, Pennsylvania 17055 (717) 691-7770 FAX: (717) 691-7772 Attorney for Plaintiff IA'vV Of-rieLS -4- MARliN R. McCAL[B VERIFICATION JOHN L. SIECK hereby certifies and states as follows: that I am the President of AQUA SPECIALISTS, INC., a Pennsylvania corporation, the Plaintiff in the foregoing Amended Complaint; that as such President I am authorized to and do make this verification for and on behalf of said Plaintiff; that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief; and I understand that all statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 Date: November ~, 2005 relating to unsworn falsification 1/\VIi ()I-flerS MARI.lN R. McCALEB -5- CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the with- in Plaintiff's Amended Complaint was served upon the Defendant's attorney, Michael T. Traxler, Esquire, on November /~ ,2005, by depositing same in the mail at the United States post office at Mechanicsburg, Pennsylvania, postage prepaid, properly addressed as follows: Michael T. Traxler, Esquire Abom & Kutulakis, LLP 36 South Hanover Street Carlisle, PA 17013 ~4?~ Marlin R. McCaleb LAW OI-l'aTS -6- MARLIN R_ McCAI FA Invoice 49345 Customer BAERK1 AQUA SPECIALISTS, INC. P. O. BOX 123 MECHANICSBURG PA 17055 WWW.AQUA-SPECIALlSTS.COM Telephone 717/766-2541 Bill To: KRISTA BAER 71 COLD SPRINGS RD. CARLISLE, PA 17013 Ship To: KRISTA BAER 71 COLD SPRINGS RD. CARLISLE, PA 17013 Date I Shill Via. I F.G.E!. ....1 Terms 07/21/04 I I Oriain I NET 30 DAYS PurchaseOtcletNUl'l1ber Order Date .... ... ..Our Order Number Verbal 07/09/04 18 33104 > ..... ITa* Re';.;.uired Shin . "n ... .... Unit Price Amount 1.000 1.000 LABOR LABOR N 576.00 576.00 18 18 SAOl SODA ASH - 1 LB. N 1.05 18.90 50 50 BSOl BICARB OF SODA - 1 LB. N 0.75 37.50 25 25 CCOl CALCIUM CHLORIDE - 1 LB. N 0.60 15.00 40 40 HYPO SODIUM HYPO - 1 GAL. N 2.25 90.00 1 1 HS1600S STRAINER COVER GASKET Y 7.10 710 1 1 CP-150 BAND UNION-H /2" PVC Y 5.25 5.25 12 12 CCOl CALCIUM CHLORIDE - 1 LB. N 0.60 720 .' 2 2 J8401 AQUA STAIN&SCALE lQT 12/CS N 13.95 27.90 2 2 J8102 AQUA ALGICIDE 30 1 QT. 12/CS N 1125 22.50 1 1 P071448 O-RING.TAHITIAN MULTI PORT N 4.95 4.95 1 1 J2225 3"CHLORINE TABS-25 LBS. EA Y 65.95 65.95 4 4 C-36 #36 SS CLAMP Y 1.75 700 408 408 255 MEMO N 0.00 000 7/12/04 SKIMMED AND BRUSHED THE POOL BACKWASHED THE FILTER. SHOCKED THE POOL AND TREATED FOR ALGAE. NOTED LEAKS AT FILTER PUMP. 7/13/04 SKIMMED AND BRUSHED THE POOL BACKWASH ED THE FILTER. TESTED AND BALANCED THE WATER. FURNISHED AND INSTALLED NEW FILTER PUMP LID O-RING. "/14/04 REPAIRED ADDITIONAL LEAKS ON THE FILTER PUMP. VACUUMED AND DREDGED THE POOL TESTED AND BALANCED THE WATER. CONT... NonTaxable Subtotal 799.95 Taxable Subtotal 85.30 Tax @ 6.000% 5.12 Total 890.37 Customer Original (Reprinted) EXHIBIT "All Page --' Invoice 52903 Customer BAERK1 AQUA SPECIALISTS, INC. P. O. BOX 123 MECHANICSBURG PA 17055 WWW.AQUA-SPECIALlSTS.COM Telephone 7171766-2541 Bill To: Ship To: KRISTA BAER 71 COLD SPRINGS RD. CARLISLE, PA 17013 KRISTA BAER 71 COLD SPRINGS RD. CARLISLE, PA 17013 ~hip 10/28/04 ];pUh;ha$e'6,.~er).~ornb~'r Verbal Re'uired< 25 25 HYPO SODIUM HYPO. 1 GAL. N 56.25 SA01 SODA ASH - 1 LB. N 1.05 105 30 30 CC01 CALCIUM CHLORIDE - 1LS. N 0.60 18.00 3 3 436.015 MALE ADAPTER - 1-1/2" N 1.56 4.68 410-015 90 ELL. MT X S. 1-1/2" N 3.00 3.00 2 2 HS14952S UNION-1.5"SKT(2"SLlP) N 975 19.50 2 2 406.015 90 ELL -1-1/2" N 2.04 4.08 429-015 COUPLING .1-1/2" N 1.24 1.24 FE015 FITTING EXTENDER. 1 1/2" N 4.95 4.95 3 3 40.015 SCH.40 PVC PIPE .1-1/2" N 1.00 3.00 40-015F FLEX PVC PIPE. 1-1/2" N 1.50 1.50 8102, 08/03, 08104, AND 08106104 CONTINUED POOL CLEARING PROCESS. REPAIRED LEAKS AT SUCTION AND DISCHARGE OF BOTH POOL PUMPS. OPENED FILTER TANKS TO ASSESS CONDITION OF FILTER MEDIA. PROPOSED CHANGING OF FILTER MEDIA. NO SERVICE WAS DESIRED AFTER THIS POINT. NO LABOR WAS CHARGED FOR ANY OF TH ABOVE TRIPS AS DICUSSED WITH CUSTOMER. NonTaxable Subtotal Taxable Subtotal Tax @ 6.000% Total 117.25 0.00 0.00 117.25 Page 1 Duplicate EXHIBIT I1BII AQUA SPECIALISTS, INC. P. O. BOX 123 MECHANICSBURG PA 17055 WWW.AQUA-SPECIALlSTS.COM Telephone 717/766-2541 Bill To: KRISTA BAER 71 COLD SPRINGS RD. CARLISLE, PA 17013 Invoice C49907 Customer BAERK1 Ship To: KRISTA BAER 71 COLD SPRINGS RD. CARLISLE, PA 17013 .... THIS IS A CREDIT MEMO .... Date + Ship Via J F.O.S. I Terms 08/02/04 I I I Purchase Order Number Order Date Salesperson Our Order Number 08/02/04 16 Quantity Item Number Description Tax Unit Price Amount Renuired Shin B.O. -1.000 LABOR LABOR N 96.00 .96.00 .' NonTaxable Subtotal .96.00 Taxable Subtotal 0.00 Tax @ 6.000% 0.00 Total -96.00 Duplicate EXHIBIT lieu Page (1 1.'.' ,.:..:> C~:) '_0.' () ." :~ ~.. ., ,.. U"\ -C') ~ ..' C"c~; '" AQUA SPECIALISTS, INC., Plain tiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW vs. NO.: 05-3669 CIVIL TERM KRISTA BAER, Defendant CIVIL ACTION ANSWER TO PLAINTIFF'S AMENDED COMPLAINT Defendant, Krista Baer, by Michael T. Traxler, Esquire, of Abom & Kutulakis, LLP, responds to Plaintiff's Amended Complaint as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied. After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth or accuracy of these allegations. To the extent a responsive pleading is required, Plaintiff performed work that was not requested to be performed by Defendant and Plaintiff performed work that was not necessary. 5. Denied. After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth or accuracy of these allegations. To the extent a responsive pleading is required, any work performed by Plaintiff did not result in a clean pool and pool equipment and did not result in a fully functional pump motot. 6. Denied for the same reasons set forth in Paragraph 5, above. 7. Admitted. 8. Admitted. 9. Admitted. 10. Denied for the same reasons set forth in Paragraphs 4 and 5, above. 11. Admitted in part, denied in part. Admitted only to the extent that Defendant has not paid Plaintiff $911.62. Denied to the extent that Plaintiff performed work that was not requested by Defendant and the work that was performed by Plaintiff was not of workmanlike quality. Respectfully submitted, ADOM & KUTULAKIS, LLP ---yl~__L._evJ2~ Cf2 Michael T. Traxler, Esquire Attorney LD. No.: 90961 36 S. Hanover Street Carlisle, P A 17013 (717) 249-0900 Attorney fOr Deftndant VERIFICATION Michael T. Traxler, Esquire, states that he is the attorney for the party filing the foregoing document; that he makes this affidavit as an attorney, because the party he represents lacks sufficient knowledge or information upon which to make a verification and/or because he has greater personal knowledge of the information and belief than that of the party for whom he makes this affidavit; and/or because the party for whom he makes this affidavit is outside the jurisdiction of the court, and verification of none of them can be obtained within the time allowed for the filing of the document; and/or because the party for whom he makes this affidavit has failed to communicate with the undersigned; and that he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa.C.S. 4904, relating to unsworn falsification of authorities. ~e-~ --J'l4- -<..-&{A I.. I Michel T. Traxler CERTIFICATE OF SERVICE AND NOW, this IOh day of January, 2006, I, Michael T. Traxler, Esquire of ABOM & KUTULAKIS, LLP, hereby certify that I did serve or caused to be served a true and correct copy of the foregoing ANSWER by first class mail to the following: Marlin R. McCaleb, Esquire 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 , '" /;?--~ '-t74~~ I. I Michael T. Traxler, Esquire ~, (? (~l -l'l '-~ i"'! :~ ,+ o _.~.. r <.D , AQUA SPECIALISTS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 05~3669 CIVIL TERM KRISTA BAER, Defendant CIVIL ACTION PRAECIPE TO DISCONTINUE ACTION TO THE PROTHONOTARY: please mark this action as settled, discontinued and ended. ~~~ Marlin R. McCaleb Attorney I.D. No. 06353 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 (717) 691-7770 FAX: (717) 691-7772 Attorney for plaintiff Date: February 21, 2006 LAVIi (ll I ICI-\ MARLIN R. McCALEK ~ lAVI/ (HII(ES MARLIN R. McCALEB CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the with- In Plaintiff's Praecipe to Discontinue Action was served upon the Defendant's attorney, Michael T. Traxler, Esquire, on February 21, 2006, by depositing same in the mail at the United States post office at Mechanicsburg, Pennsylvania, postage prepaid, properly addressed as follows: Michael T. Traxler, Esquire Abom & Kutulakis, LLP 36 South Hanover Street Carlisle, PA 17013 ~2?~ Marlin R. McCaleb -2- r") r-<'I .,.., .~ -" 4" n.. ", C:;J