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HomeMy WebLinkAbout06-0921 IN THE COURT Of' COMMON PLEAS Of' CUvIBERL-\ND COUN'JY, PENNS'r'LVANIA CIVIL ACTION COMMONWEALTH OF PENNSYLVANIA Acting by ATTORNEY GENERAL THOMAS W. C:ORBElT,JR. ; COG, - '-)JI C', v II PLA INTI Ff' v. DAV]]) MERLE KYLER, Individually and d/b/a D. I\L KYLER C:ONSTRCCTION SERVICES, fNC. DEFENDAN"rS KATHRYN H. SILCOX DEPCTY ATTORNEY GENER~AL XnORNEY ID NO. 81735 OHICE OF ATTORNEY GENERAL Bl:REJ\l; OF CONSCMER PROTECTION HARRISBURG REGIONAL OJ'FICE 301 CHESTNCT STREET, Sl'nE 105 HARRISBURG, Pel, 17101 717-787-7109 IN THE COURT OF COMMON PLEAS C)!' CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION COMMONWEALlH OF PENNSYLVANIA ,\cting by A DORNEY GENERAL THOMAS W. CORBETf,jR. PLA INTIFF v. DAVID MERLE KYLER, Individually and d/b/a D. M. KYLER CONSTRl;C~TION SERVlCES,INC. DEFENDANTS NOTICE YOl" HAVE BEEN SeED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days aftcr this Petition and N oticc arc served, by entering in writing with thc court your defenses or objections to the claims set forth against you. You arc warncd that if you fail to do so, the case may proceed without you and a judgmcnt may be entercd against you by the eourt without further noticc for moncy claimed in thc Pctition or for any other claim or relicf requested by thc Plaintiff. You may losc moncy or propcrty or other rights important to you. yew 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 OFl-ICES SET FORTH BELOW. THIS OFFICE C\N PROVIDE YOU WITH INFORMATION ABOtT HIRING A LA \'V'YER. IF YOU CANNOT AFFORD TO HIRE A I.A WYER, THIS OFFICE MAY BE ABI,E TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT T\L\Y OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERI,AND COUNTY BAR ASSOCIATION 2 LIBEKIY AVENUE CARLISLE, PENNSYLVANIA TELEPHONE NUMBER 717-249-3166 PENNSYLVANIA BAR ASSOCIATION L\\X'YER REFERRAL SERVICE 100 SOCTH STREET, P.O. BOX 186 HARRISBl7RG, PA 17108 TELEPHONE: 800-692-7375 IN THE C:OL'RT OF COMMON PLEAS OF CCMBERLAND COCN'IY, PENNSYLVANIA CIVIL ACTION COMMONWEAI,TH OF PENNSYl X ANIA ,\cting by A"ITORNEY GENERAL THOMAS W. CORBETl',JR. PLAINTIFF ~LI; 0(.- 9.2/ ~ ~ v. DAVID MEIU.E KYI.ER, Individually and d/b/a D. M. KYLER CONSTRUCTION SERVICES,INC. DEFENDANTS COMPLAINT IN EOUlTY AND PETITION FOR PERMANENT INTUNCTION . AND NOW, this '. yll --,b' /62 davof /-t:. I-.~'c: ....../ , , , 2006, comcs thc Commonwealth of Pennsylvania, acting by the Officc of A tlorney Gencral, through the Bureau of Consumer Protection (hercinaftcr refcrred to as "Commonwealth"), who brings this action pursuant to thc Unfair Tradc Practices and Consumcr Protection Law, Act of December 17, 1968, P.L. 1224, No. 387, as amendcd by the Act of November 24,1976, P.L. 1166, No. 260, as amendcd by thc Act of Dccember 4,1996, P.L. 906, No.146, 73 P.S. ~~ 2011 - 201-9.2, and as amendcd by thc Act of .June 25,1997, P.L. 287, No. 27, 73 P.S. ~5 201-1 - 201-9.3 (hereinafter referred to as "Consumer Protection Law"), to rcstrain by Permanent Injunction unfair methods of competition and unfair or deccptive acts or practices in the conduct of any trade or commerce declared unlawful by 5 201-3 of the Consumer Protection La\v. I n support thereof, the Commonwealth respectfully represents the following: JURISDICTION AND VENUE 1. 'rhis Court has jurisdiction over this action pursuant to Section 931 of the Judicial Code. 42 Pa. C.S.A. ~ 931. 2. Venue is proper in this action pursuant to Section 931 of the Judicial Code. 42 Pa. C.S.A. 5 931. PARTIES 3. Plaintiff is the Commonwealth of Pennsylvania, acting through i\ttorney General Thomas W. Corbett,Jr., through the Bureau of Consumer Protection, Harrisburg Regional Office, 301 Chestnut Street, Suite 105, Harrisburg, Pennsylvania 17101, on behalf of the citizens of the Commonwealth. 4. Defendants, David Merle Kvler, Individuallv and d/b/a D. M. Kvler Construction . ; o. . Services, Ine., hereinafter "Defendants," maintain a principal place of busincss located at 230 Hcrman Avenuc, Lemoyne, Cumberland County, Pennsylvania, 17043. 5. Defendants, directly or through their agel1ls, arc cngagcd in trade and commerce throughout the Commonwealth by providing new roofs and rcpairs to existing roofs. BACKGROUND 6. The Commonwealth has rcason to belicve thar thc Defendants havc used methods, acts or practiccs declared unlawful by ~201-3 of the Consumer Protection] ,aw. 7. Pursuant to ~201-2(4)(ii), (v), (vii), (xvi) and (xxi) of the Consumer Protection Law, the following acts or practices are defined as unfair or deccptivc: (ii) Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, certification of goods or scn!iccs; 2 (v) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that hc does not have; (vii) Representing that goods or services are of a particular standard, quality or grade, or that goods arc of a particular style or model, if they arc of another; (xvi) Making repairs, improvements or replacements on tangible, real or personal property, of a nature or quality inferior to or below the standard of thar agreed to in writing; (xxi) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding. 73 P.S. ~ 201-2(4) (ii), (v), (vii), (x-vi) and (xxi). 8. Section 201-4 of the Consumer Protection Law provides, in pertinent part, that if the Attorney C;'eneral has reason to believe that any person is using or about to use any method, act or practice declared unlawful by the ~ 201-3 of the Consumer Protection Law, the Attorney Ceneral may bring an action to impose a civil penalty and to seek other relief, including injunctive relief, under the Consumer Protection I,aw. 73 P.S. ~ 201-4. 9. The Commonwealth believes that the public interest is served by seeking a Permanent Injunction to restrain the methods, acts and practices of the Defendants as hereinafter set forth. Further, the Commonwealth requests injunctive relief, civil penalties, costs and other appropriate equitable relief as redress for violations of the Consumer Protection J..aw. 10. i\t all times relevant and material hereto thc unfair methods, acts and practices complained of herein have bcen willfully used by Defendants. 3 11. 1'he Commonwealth is informed, believes and therefore avers that Defendants directed, supervised, controlled, approved, formulated, authorized, ratified, benefited from and/or otherwise participated in the acts and practices hereinafter alleged herein. COUNT I FAILURE TO COMPLETE WORK AS PROMISED 12. Paragraphs 1 through 11 are incorporated herein and made part hereof as if fully set forth herein. 13. The Defendants have entered into contracts with consumers at their residenccs for the rcpair and/ or replacement of roofs. 14. Plaintiff is advised, believes and therefore avers that Defendants represented that rhey could provide skilled and competent home improvement contracting and other work. 15. Plaintiff is advised, believes and therefore avers that Defendants did not fully perform the services contracted for with consumers or performed the services in a shoddy or unworkmanlike manner. 16. Plaintiff is advised, believes and therefore avers that Defendants have failed to sarisfactorily complete their contractual obligations. 17. Plaintiff is advised, believes, and therefore avers that Defendants, despite being contracted by consumers requesting that the jobs contracted for be satisfactorily completed or their money returned, have ignored the consumers' requests or failed to satisfactorily address the complaints. 18. Plaintiff is advised, believes, and therefore avers that Defendants have failed to beh>in work and complete \.vork as agreed to in a timely manner on contracts entered into with consumers after taking substantial payments from the consumers. 4 19. Consumers have suffered harm as the result of the Defendants' acts and practices due to the fact that they paid the Defendants for work ro be completed on thcir homes which they failed to provide or provided in a shoddy manner. The impact of thc Defendants' practices are illustrated in the following examples: a. Consumer Robert Bashioum paid Six Hundred Twenty-t'ive Dollars (3625.00) to Defendants as a deposit for removal of an old roof and installation of a new roof. Despite the Defendants' promises, they havc failed ro either start the job and to repay the deposits. b. Consumer Theresa Pavlovic paid Defcndants a down payment of One Thousand Four Hundred Ninety Dollars (Sl,490.00) to replace the mof. Although the Defendants patched Consumcr Pavlovic's roof, they never returned to replace the roof. c. On June 11,2005, Consumer Michael Asken paid Defendants Seven Hundred Twcnty Dollars ($720.00) for cleaning and re-hanging of gutters as wcll as painting work. Despite numerous telephone calls to the Defendants requesting a start date for work to begin, thc work still has not been started. 20. By conducting the aforesaid acts and practices, the Defendants have engaged in unfair methods of competition andlor unfair and deceptivc acts or practices prohibited by Section 201-3 of the Consumer Protcction Law, including, without limitation: (a) Causing a likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or scrvices in violation of 73 P.S. ~ 201-2(4)(ii); (b) Reprcsenting that goods or services havc sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have 5 or that person has a sponsorship, approval, status, affiliation, or connection that he does not have in violation of T\ P.S. ~ 201-2(4)(v); (c) Representing that goods or services arc of a particular standard, quality or grade, or that goods are of a parricular style or model, if they are of another in violation of73 P.S. ~ 201-2(4)(vii); (d) Making repairs, improvements or replacements on tangible, real or personal propcrty, of a naturc or quality inferior to or below the standard of that agreed to in writing in violation of 73 P.S. ~ 201-2(4)(xvi); and, (e) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding in violation of T\ P.s. ~ 201- 2(4) (xxi). 21. The acts, practices and methods of competition set forth above arc unlawful and in violation of ~ 201-3 of the Consumer Protection Law in that they constitute "unfair methods of competition" and "unfair or deceptive acts or practices" in the conduct of trade and commerce set forrh in ~ 201-2(4) of the Consumer Protection Law. 22. Residents of the Commonwealth of Pennsylvania are suffering and will continue to suffer irreparable harm unless the acts and practices complained of herein are permanently enjoined. PRAYER FOR RELIEF WHI~RE]iORE, the Commonwealth respectfully requests this Honorable Courr to issue an Order: A. Permanently enjoining Defendants~ their agents, successors, assignees and employees acting directly or through any corporate device from engaging in the aforementioned 6 acts, practices, methods of competition or any other practice violative of the Consumer Protection Law; B. Directing the Defendants to pay restirution to consumers who have filed or come forward to file verified consumer complaints against the Defendants with thc Pennsylvania Office of Attorney General regarding the business practices complained of herein; C. Directing the Defendants to disgorge and forfeit all profits they have derived as a result of their unfair and deceptive practices set forth in this Complaint; D. Directing the Defendants to pay civil penalties in the amount of One Thousand and 00/100 Dollars ($1,000.00) for each and every violation of the Consumer Protection Law and increased to Three Thousand and 00/100 Dollars ($3,000.00) for each violation involving a consumer 60 years of age and older; E. Directing the Defendants to pay the Commonwealth for the costs of its investigation and prosecution of this action; F Directing the Defendants to forfeit their right or franchise to engage in the home improvement contracting business within the Commonwealth of Pennsylvania until such time as all monies have been paid for restitution, costs and civil penalties; and, G. Providing any other such relief as the Court may deem necessary and appropriate. COUNT II FAILURE TO PROVIDE PROPER NOTICE OF RIGHT TO CANCEL 23. Paragraphs I through 22 are incorporated herein and made part hereof as if fully set forth herein. 24. In conducting business within the Commonwealth, the Defendants executed contracts with consumers in the consumers' hcnnes or were due to a call or contact at the home. 7 25. Defendants sell or contract to sell home improvement services to consumers having a sales price in excess of twenty-five dollars ($25.00). 26. Defendants' contract fails to refer to a notice of cancellation or an explanation of the right to cancel as provided for in ~ 201-7 of the Consumer Protection Law. A true and correct copy of the contract is hereto attached as Exhibit A. 27. The acts, practices and methods of competition set forth above arc unlawful and in violation of ~ 201-3 of the Consumer Protection Law in that they constitute "unfair methods of competition" and "unfair or deceptive acts or practices" in the conduct of trade and commerce as set forth in ~ 201-2(4) of the Consumer Protection Law. 28. Residents of the Commonwealth of Pennsylvania are suffering and will continue to suffer irreparable harm unless the acts and practices complained of herein arc permanently enjoined. PRAYER FOR RELIEF WHEREFORE, the Commonwealth respectfully requests this Honorable Court to issue an Order: A. I)ermanently enjoining Defendants, their agents, successors, assignees and employees acting directly or through any corporate device from engaging in the aforementioned acts, practices, methods of competition or any other practice violative of the Consumer Protection Law; B. Directing the Defendants to pay restitution to consumers who have filed or come forward to file verified consumer complaints against the Defendants with the Pennsylvania Office of Attorney General regarding the business practices complained of herein; 8 c:. Directing the Defendant, to disgorge and forfeit all profits they have derived as a result of their unfair and deceptive practices set forth in thi, Complaint; D. Directing the Defendants to pay civil penalties in the amount of One Thousand and 00/100 Dollars ($l,O()O.OO) for each and every violation of the Consumer Protection Law and increa,ed to Three Thousand and 00/100 Dollars ($3,000.00) for each violation involving a consumer GO years of age and older; E. Directing the Defendants to pay the Commonwealth for the cost, of its investigation and prosecution of this action; F. Directing the Defendants to forfeit their right or franchi,e to engage in the home improvement contracting business within the Commonwealth of Pennsylvania until such time as all monies have been paid for re,titution, costs and civil penalties; and, G. Providing any other such relief as the Court may deem necessary and appropriate. DATE: cJ//iJ'/ D0 . Respectfully submitted, BY: 'n-IOMAS W. CORBET!". lR. THOMAS W. CORBETT,JR. ATIORNEY GENERAL FRANK T. DONAGHUE FRANK T. DONAGHUE CHIEF DEPU'IY ATfORNEY GENERAL ,~Iy0"J~ Ki~THRYN H. SILCOX DEPl1"lY ATfORNEY GENERAL OFFICE OF ATTORNEY GENERAL BUREAU OF CONSUMER PROTECTION HARRISBURG REGIONAL OFFICE 301 CHESTNUT STREET, SUITE 105 HARRISBl:RG, P,\ 17101 (717) 787.7109 9 VERIFICATION I, Harry A. Dorn, III, hereby verify that the statements made in the foregoing Complaint in Equity and Petition for Permanent Injunction are true and correct upon my information and belief. I understand that any false statements are subject to the penalties of 18 Pa. C.S. !'j4904 relating to unsworn falsification to authorities. Dale d-Jrp/b~ By: ~ !1~ , ' EXHIBIT A ~~;~~~~ ;n(~~ k~,' t~~f~:5-rt?€ ~;~~L=Y ;) \u \--\-e {0-"1."'-.0' A\I-t' G I i\ 7e \- (1"/';- ;: , L. -' ^"'- (I ') "(_ -\.. (-'c- \!o'i)' 1./ , PROPOSAL NO DATE 5 '( -o~/ WORK TO BE PERFORMED AT ADDRESS DATE OF PLANS PHONE NO ARCHITECT We hereby propose to furnish the materials and perform the labor necessary for the completion of I~~ ~~;~,li ~")1;ru~l + U~ rJ"~ I" j \~~ {U.O<J-e A_~ \. ~.Q...~V ( S 91'1 C; (X) ~ uUfv =~ ~, <"'.5 ..D 01'-' /~.~ with payments to be made as fOIlOWS.){ .D 0 ..u 0J fY a. tV C42 .u- ...b ~ ~ c::-- .;.= c::... ~ c;r-' ~ " , ~ ..?Ce' ~ Respectfully submitted Any all~ deViatIOn from above s~j~ns iniJbb:iDi osls wi~lec~upon written order, an~come ~a ~ Per ov~ang abo~lhe ~ate. All agreements ~as.upon strike~ac- cident~ys beyond our control. r . ----- , ..ao.. .-5(. All material is guaranteed to be as specified, and the above work to be performed in accordance with the drawings and specifi. cations submitted for above work and completed in a substantial workmanlike manner for the sum of Dollars ($ U olv LCl,'cAf \'t+rvA. /-// ( )/ "WdJ' ~' (; Note - This proposal may be~drawn by us if not accepted within ~ days. Date ~ -..7/1'/1 to do the work ACCEPTANCE OF PROP A The above prices, specifications and condilions are satisfactory and a her by as specified, Payments will be made as outlined above, B' Bd.tm.. NC 3818-50 PIU')PfI<:;:A I p ~ ~ in::. ~ --- "- \ \.1\ ~ -c '0) .z ~ ~ -....- 00 >"" Cv'" '!\ '^ "" '" ~ ., c. (i? r. ,/'" ::n , -, C; _. ~....' T-. <. ' ? ~ ~ ~-~ f ' . COMMONWEALTH OF PENNSYLVANIA BY ATTORNEY GENERAL THOMAS W. CORBETT, JR., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plain tiff 2006-92 I CIVIL v. DAVID MERLE KYLER, individually, and d/b/a D.M. KYLER CONSTRUCTION SERVICES, INC., Defendants RETURN OF SERVICE Attached hereto please find an original Affidavit of Service executed by Harry A. Dorn III of the Office of Attorney General, Bureau of Consumer Protection. Senior Agent Darn served Defendant with the Complaint in Equity and Petition for Permanent Injunction on February 16,2006. Respectfully submitted, Date: )/}I/{fr y_,-/I(~L . " )...., '- '.) ~",-~, Kathryn H. Silcox Deputy Attorney General Attorney LD. No. 81735 Office of Attorney General Bureau of Consumer Protection Harrisburg Regional Office 301 Chestnut Street, Suite 105 Harrisburg, PA 17101 Telephone: (717) 787-7109 FAX: (717) 772-3560 COMMONWEALTH OF PENNSYLVANIA BY ATTORNEY GENERAL THOMAS W. CORBETT, JR., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plain tiff 2006-921 CIVIL v. DAVID MERLE KYLER, individually, and d/b/a D.M. KYLER CONSTRUCTION SERVICES, INC., Defendants AFFIDAVIT OF SERVICE I, Harry A. Dorn, III, being duly sworn according to law depose and state that I am a Senior Agent for the Harrisburg Regional Office of the Bureau of Consumer Protection, and I hereby certify that on February 16,2006 at 12:25 P.M., a copy of the Complaint in Equity and Petition for Permanent Injunction was personally served to Elizabeth Over, an adult individual at 230 Herman Avenue, Lemoyne, PA 17043: By: /~ ~ Q~-7Jl ~ Harry A. om, III Senior Agent Sworn to and subscribed before rne this l~:::f J~(W ,200~. , ~al)' Public My Commission Expires: NO/AFlIAL SeAL SUSAN J DORN City of Har;isburg D NOf':,'Y Public My Corron" : aup",n County ISSIOIl EXPires March 14, 2007 -,-'\ "' :.1 ,-,-, (:) . , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION COMMONWEALTH OF PENNSYLVANIA Acting by ATTORNEY GENERAL THOMAS W. CORBETT,JR. PLAINTIFF 2006-921 Civil v. DAVID MERLE KYLER, Individually and d/b/a D. M. KYLER CONSTRUCTION SERVICES, INC. DEFENDANT PRAECIPE FOR ENTRY OF JUDGMENT BY DEFAULT To The Prothonatary: Kindly enter judgment by default pursuant to Pa. R.c.P. No. 1511 against Defendant David Merle Kyler, Individually and d/b/a D.M. Kyler Construction Services, Inc., for failure to plead within the time required to a Complaint in Equity containing Notices to Defend. 1. Service of aforesaid Complaint in Equity upon Defendant David Merle Kyler, Individually and d/b/a D.M. Kyler Construction Services, Inc., was made on February 16, 2006, as set forth in the Affidavit attached hereto as Exhibit A. 2. On March 17, 2006, a Ten-Day Notice to file a Praecipe for Entry of Default Judgment was mailed to Defendant David Merle Kyler, Individually and djbj a D.M. Kyler Construction Services, Inc., in accordance with Pa. R.c.P. No. 237.1. A copy of the Ten-Day Notice and proof of service is attached hereto as Exhibit B. 3. Over ten days has passed since the Plaintiff sent the notice to Defendant and Defendant has not responded. WHEREFORE Judgment by Default should be entered in favor of Plaintiff. 4"..sl1 ~~ KATHRYN H. SILCOX Deputy Attorney General Office of Attorney General Bureau of Consumer Protection 301 Chestnut Street, Suite 105 Harrisburg, PA 17101 PHONE: (717) 787-7109 FAX: (717) 772-3560 Dated: April 17 , 2006 , , EXHIBIT A COMMONWEALTH OF PENNSYLVANIA BY AITORNEY GENERAL THOMAS W. CORBEIT, JR., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff 2006-92 I CIVIL v. C:I c t....J CJ ." I -1"1 .-j T r , fi-] \.:.;-) r,) Cr,) -r; G..) CJ _J DAVID MERLE KYLER, individually, and d/b/a D.M. KYLER CONSTRUCTION SERVICES, INC., T. t-i-; Defendants .-2 RETURN OF SERVICE Attached hereto please find an original Affidavit of Service executed by Harry A. Dorn III of the Office of Attorney General, Bureau of Consumer Protection. Senior Agent Dorn served Defendant with the Complaint in Equity and Petition for Permanent Injunction on February 16,2006. Respectfully submitted, Date: ;) /JIIU , /)()_'~' Ii ,,--/J r'-,-.--' Kathryn H. Silcox Deputy Attorney General Attorney I.D. No. 81735 Office of Attorney General Bureau of Consumer Protection Harrisburg Regional Office 301 Chestnut Street, Suite 105 Harrisburg, PA 17101 Telephone: (717) 787-7109 FAX: (717) 772-3560 COMMONWEALTH OF PENNSYLVANIA BY ATTORNEY GENERAL THOMAS W, CORBETT, JR., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff 2006-92 I CIVIL v. DAVID MERLE KYLER, individually, and d/b/a D.M. KYLER CONSTRUCTION SERVICES, INC., Defendants AFFIDAVIT OF SERVICE I, Harry A. Dorn, III, being duly sworn according to law depose and state that I am a Senior Agent for the Harrisburg Regional Office of the Bureau of Consumer Protection, and I hereby certify that on February 16, 2006 at 12:25 P.M" a copy of the Complaint in Equity and Petition for Permanent Injunction was personally served to Elizabeth Over, an adult individual at 230 Herman By: <?L~" 9~-k'- Harry A. orn, III Senior Agent Avenue, Lemoyne, PA 17043: Sworn to and subscribed before me this ~ i1, day of J.Jrt:lu.~ ,20 (J 10. _LA_"-'"'-- t _Ie: - N~ary Public My Commission Expires: ._-~. NOf~L SMl ., SUSAN J DORN City at H " , Notary Public My COmmiS~;~~b~~~;r~a:~~~ ~~,u~~7 EXHIBIT B INTI-II ': COIII(T (J1' <:< Hvl M( IN 1'LI ':i\S 01' ClIMIII'](Li\ND COllNTY, 1'1':NNSYLVi\NII\ CIVIL i\CTION (:( lJ\1M( JNWI ,:i\J :I'I-J (W 1'1 ':NNSYl ,V i\ Nl i\ I\cting by AJTORNEY c;l ,:NI <](I\L TI/OMi\S W. CORBEJT, /Ie 2()()('-<J21 Civil Pl ,i\INTlJ 'I' v, DAVlD MERLE KYLER, Individually and d/b/a D. M. KYLER CONSTRUCTION SERVICES,INC. DEFENDANTS NOTICE OF INTENTION TO FILE PRAECIPE FOR ENTRY OF DEFAULT JUDGEMENT TO: DA VID MERLE KYLER, Individually and d/b/a D. M. KYLER CONSTRUCTION SERV1CES, INC. DATE OF NOT1CE: March 17,2006 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Centnll Penl1sylvaniH Legal Services, ]nc. 213 North I'mnt Street llarrisburg, PennsylvanialJ'1 ()'I (717) :m-OSKI Puhlic Servjccs and] ,Hwycrs Re(erral C(>l11mittcc Dauphin County Bar Associat;on 21 ~ North J'rom Street Harrisburg, Pennsylvania 17'101 (717) 2~2-7S~6 THOMAS W. CORBETT,JR. Attorney General By: c ~Ir-i / ~ J~~) KATHRYN H. SILCOX Deputy Attorney General Bureau of Consumer Protection Office of Attorney General Bureau of Consumer Protection 301 Chestnut Street, Suite 105 Harrisburg, PA 17101 PHONE: (717) 787-7109 FAX: (717) 772-3560 Dated: March 17,2006 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION COMMONWEALTH OF PENNSYLVANIA Acting by A'ITORNEY GENERAL THOMAS W. CORBE'IT, JR. 2006-921 Civil PLAINTIFF v. DAVID MERLE KYLER, Individually and d/b/a D. M. KYLER CONSTRUCTION SERVICES, INC. DEFENDANTS AFFIDAVIT OF SERVICE I, Maritza Lopez, being duly sworn according to law depose and state that I arn a Clerk Typist for the Harrisburg Regional Office of the Bureau of Consumer Protection, and I hereby certify that on Friday, March 17, 2006, a copy of the Notice of Intention to file Praecipe for Entry of Default Judgment was sent via First Class to the following: David Merle Kyler d/b/a D. M. Kyler Construction Service, Inc. 230 Herman Avenue Lemoyne, PA 17043 By: '-(/7d/uo/ (Y~j'. ) Mantza Lopez Clerk Typist , 20J2.k. ary Public My Commission Expires: NOfAi'UAL lllEAL SUSAN J, DORN, Notary Public City 01 Harrisburg, Dauphin County My Commission Expires March 14,2007 . COMMONWEALTH OF PENNSYLVANIA BY ATI'ORNEY GENERAL THOMAS W. CORBETI', JR., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff 2006-921 CIVIL v. DAVID MERLE KYLER, individually, and d/b/a D.M. KYLER CONSTRUCTION SERVICES, INC., Defendants CERTInCATEOFSER~CE I, Kathryn H. Silcox, hereby certify that on this 17+" day of rLp,.{1 , 2006, I caused to be served a true and correct copy of the foregoing document titled Praecipe for Entry of Judgment by Default by First class mail to the following: David Merle Kyler 230 Herman Avenue Lemoyne, PA 17043 By: ~~~ Kathryn H. Silcox Deputy Attorney ~ -lQ. ~ XJ 7'. ....(J n 1f- tt \) ~:-: , ""!:7" C) ~', .....,.. f -- -,) ~.,' "- G'"'- o.) ~ ...c:: F- e , ~ }...> - N ~ ::'jJ 0- f:? --, ~ -' , ~ ",.--, - r. :.:< Fl: --1 [) --.....( r----. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA BY A TIORNEY GENERAL THOMAS W. CORBETI,JR., PLAINTIFF v. 2006-921 Civil DAVID MERLE KYLER, Individually and d/b/a D. M. KYLER CONSTRUCTION SERVICES, INC. DEFENDANTS COMMONWEALTH'S MOTION FOR THE IMPOSITION OF CIVIL PENALTIES, COSTS. FEES, INJUNCTIVE AND OTHER EOUITABLE RELIEF The Commonwealth of Pennsylvania, through Attorney General Thomas W. Corbett, Jr., hereby moves for the imposition of civil penalties, costs, fees, injunctive and other equitable relief as against defendant David Merle Kyler, Individually and d/b/a D. M. Kyler Construction Services, Inc. (hereinafter "Defendants"). In support of this motion, the Commonwealth states the following: 1. The Commonwealth filed a Complaint against Defendants on February 16,2006 alleging violations of the Unfair Trade Practices and Consumer Protection Law, Act of December 17,1968, P.L. 1224, No. 387, as amended and reenacted by the Act of November 24, 1976, P.L 1166, No. 260, and the Act of December 3, 1996, P.L. 906, No. 146, 73 P.S. ~201-1, et seq. (hereinafter referred to as the "Consumer Protection Law" ) based upon Defendants' activities of failing to fully perform roofing services contracted for with consumers or performing the services in a shoddy or unworkmanlike manner. 2. Personal service of aforesaid Complaint and Petition for a Permanent Injunction was made to Elizabeth Over, an adult individual at 230 Herman Avenue, Lemoyne, PA 17043, on February 16, 2006. 3. On March 17, 2006, a Notice of Intention to File Praecipe for Entry of Default Judgment was mailed to Defendants in accordance with Pa. R.C.P. No. 237.1. 4. Defendants failed to respond to aforementioned Notice. 5. On April 28, 2006, a Praecipe for Entry of Default Judgment was filed with this court. 6. A Default Judgment was awarded to the Commonwealth on April 28, 2006. WHEREFORE, the Commonwealth respectfully requests this Honorable Court to enter an Order: 1. Stating that the Defendants are hereby permanently enjoined from conducting business in the Commonwealth of Pennsylvania beginning from the date of this Order, in violation of the Consumer Protection Law. 2. Directing Defendants to, within 60 days from the date of this Order: a. pay restitution to consumers who have fIled or come forward to file verifIed consumer complaints against the Defendants with the Pennsylvania OffIce of Attorney General in the amount of Three Thousand Six Hundred Fifty-Five and 00/100 Dollars ($3,655.00); b. pay the Commonwealth civil penalties in the amount ofTen Thousand and 00/100 Dollars ($10,000.00) for violations of the Consumer Protection Law; c. pay the Commonwealth Two Thousand and 00/100 ($2,000.00) for the costs of its investigation and prosecution of this action; d. forfeit their right or franchise to engage in the home improvement 2 contracting business within the Commonwealth of Pennsylvania until such time as all monies have been paid for restitution, costs and civil penalties. Once the judgments are satisfied in full, Defendants may petition the Court to determine whether he is permitted to operate a commercial construction company or operate as a subcontractor for a home improvement company. Respectfully submitted, (p /30/010 THOMAS W. CORBEIT, JR. A ITORNEY GENERAL BY: ~p KA HRYN H. SILCOX Deputy Attorney General Attorney ID #81735 MICHAEL C. GERDES Deputy Attorney General Attorney ID #88390 Office of Attorney General Bureau of Consumer Protection 301 Chestnut Street, Suite 105 Harrisburg, PA 17101 (717)787-7109 3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA BY A TfORNEY GENERAL THOMAS W. CORBETf,]R., PLAINTIFF v. 2006-921 Civil DAVID MERLE KYLER, Individually and d/b/a D. M. KYLER CONSTRUCTION SERVICES, INC. DEFENDANTS VERIFICATION Kathryn H. Silcox, states that she is a Deputy Attorney General for the Pennsylvania Office of Attorney General, Bureau of Consumer Protection, that she has been authorized to make this Verification on behalf of the Plaintiff, and that the statements set forth in the foregoing Commonwealth's Motion for the Impositions of Civil Penalties, Costs, Fees, Injunctive and Other Equitable Relief are true and correct to the best of her knowledge, information and belief. These statements are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Date: gu,1o-L ...30, Zr:x::xc , ~~'r-/ ~ c~ ( ._,~ , U) C) -.! COMMONWEALTH OF PENNSL YV ANIA BY ATTORNEY GENERAL THOMAS W. CORBETT, JR., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLV~A v. CIVIL ACTION DAVID MERLE KYLER, Individually and d/b/a D.M. KYLER CONSTRUCTION SERVICES, INC. Defendants : No. 2006-921 CIVIL TERM RULE TO SHOW CAUSE AND NOW, this 14th day July 2006, upon consideration of the Plaintiff's Motion for the Imposition of Civil Penalties, Costs, Fees, Injunctive and Other Equitable Relief, a Rule is issued upon the Defendants to show cause why the relief requested in the Motion should not be granted. Rule returnable within 10 days of service. BY THE COURT, ~thryn H. Silcox " OOice of Attorney General /Bureau of Consumer Protection 301 Chestnut Street, Suite 105 Harrisburg, PA 17101 Attorney for Plaintiff ~ \p (:\,tJ ~\ \) ..??:avid Merle Kyler d/b/a D.M. Kyler Construction Services, Inc. 230 Herman Avenue Lemoyne, PA 17043 Defendants ,\,; 07 :2 Ild f:H ~ , COMMONWEALTH OF PENNSYLVANIA BY ATfORNEY GENERAL THOMAS W. CORBETI,]R., PLAINTIFF v. DAVID MERLE KYLER, Individually and d/b/a D. M. KYLER CONSTRUCTION SERVICES, INC. DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION No. 2006-921 CIVIL TERM COMMONWEALTH'S MOTION TO MAKE THE RULE ABSOLUTE KATHRYN H. SILCOX DEPUTY ATIORNEY GENERAL ATfORNEY I.D. NO. 81735 OFFICE OF ATfORNEY GENERAL BUREAU OF CONSUMER PROTECTION 301 CHESTNUT STREET, SUITE 105 HARRISBURG, PA 17101 (717) 787-7109 COMMONWEALTH OF PENNSYLVANIA BY ATIORNEY GENERAL THOMAS W. CORBETI,JR., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN1Y, PENNSYLVANIA PLAINTIFF v. CIVIL ACTION DAVID MERLE KYLER, Individually and d/b/ aD. M. KYLER CONSTRUCTION SERVICES, INC. DEFENDANTS No. 2006-921 CIVIL TERM MOTION TO MAKE RULE ABSOLUTE The Commonwealth of Pennsylvania, acting by Attorney General Thomas W. Corbett, Jr., through the Bureau of Consumer Protection ("Commonwealth"), files this Motion to Make Rule Absolute. In support thereof, the Commonwealth avers the following: 1. The Commonwealth filed a Complaint against Defendants on February 16,2006, alleging violations of the Unfair Trade Practices and Consumer Protection Law, Act of December 17, 1968, P.L. 1224, No. 387, as amended and reenacted by the Act of November 24, 1976, P.L 1166, No. 260, and the Act of December 3, 1996, P.L. 906, No. 146, 73 P.S. ,~~ 201-1 - 201-9.2. (hereinafter referred to as the "Consumer Protection Law" ) based upon Defendants' activities of failing to fully perform roofing services contracted for with consumers or performing the services in a shoddy or unworkmanlike manner. 2. Personal service of aforesaid Complaint and Petition for a Permanent Injunction was made to Elizabeth Over, an adult individual at 230 Herman Avenue, Lemoyne, P A 17043, on February 16,2006. 3. On March 17, 2006, a Notice of Intention to File Praecipe for Entry of Default Judgment was mailed to Defendants in accordance with Pa. R.C.P. No. 237.1. 4. Defendants failed to respond to aforementioned Notice. 5. On April 28, 2006, a Praecipe for Entry of Default Judgment was flIed with this court. 6. A Default Judgment was entered against Defendants on April 28, 2006. 7. On July 6, 2006, the Commonwealth f1led a Motion seeking the imposition of civil penalties, restitution, costs of investigation, and an injunction prohibiting Defendants from engaging in the home improvement business. 8. This Honorable Court issued a Rule to Show Cause upon Defendants on July 14, 2006. 9. To date, Defendants have failed to respond to the aforesaid Rule, the response being due within ten days of service (on or about July 25, 2006). 10. For the reasons set forth in the Commonwealth's Motion, the Commonwealth is entitled to an Order granting said Motion and compelling the Defendants' compliance with the relief requested. WHEREFORE, the Commonwealth respectfully requests that this Court enter a Final Order and Judgment against Defendants, who shall within 60 days from the date of this Order: a. pay restitution to consumers who have f1led consumer complaints against the Defendants with the Pennsylvania Offlce of Attorney General in the amount of Three Thousand Six Hundred Fifty-Five and 00/100 Dollars ($3,655.00); b. pay the Commonwealth civil penalties in the amount ofTen Thousand and 00/100 Dollars ($10,000.00) for violations of the Consumer Protection Law; c. pay the Commonwealth Two Thousand and 00/100 ($2,000.00) for the costs of its investigation and prosecution of this action; d. pay costs to the Commonwealth in the amount of One Hundred One and 75/100 Dollars ($101.75) for filing fees; and e. forfeit their right or franchise to engage ill the home improvement contracting business within the Commonwealth of Pennsylvania until such time as all monies have been paid for restitution, costs and civil penalties. Once the judgments are satisfied in full, Defendants may petition the Court to determine whether he is permitted to operate a commercial construction company or operate as a subcontractor for a home improvement company. Respectfully submitted: THOMAS W. CORBETT. TR. - THOMAS W. CORBETI,JR. A TIORNEY GENERAL cJ(CCCir-7f~ KATHRYN H. SILCOX DEPUTY ATIORNEY GENERAL A TIORNEY LD. NO. 81735 JODI L. ZUCCO DEPUTY ATIORNEY GENERAL ATIORNEY LD. NO. 58131 OFFICE OF A TIORNEY GENERAL BUREAU OF CONSUMER PROTECTION 301' CHESTNUT STREET, SUITE 105 HARRISBURG, P A 17101 (717) 787-7109 DATE: / I/I.P /010 CERTIFICATE OF SERVICE k I hereby certify that on the to day of No va n\~ ,2006, I served a true and correct copy of the foregoing Motion to Make Rule Absolute upon the following, by ftrst class and certifted mail at the following address: DAVID MERLE KYLER d/b/ a D.M. KYLER CONSTRUCTION SERVICES, INC. 230 HERMAN AVENUE LEMOYNE, P A 17043 ~~f(i~ Kathryn H. Silcox Deputy Attorney General r-1 c:::> {J":::':';) <.f"o ! co ~ Ui C1 .ry NOV 0 I 2DD6fr'{ COMMONWEALTH OF PENNSYLVANIA BY A TIORNEY GENERAL THOMAS W. CORBETI, JR., PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION DAVID MERLE KYLER, Individually and d/b/a D. M. KYLER CONSTRUCTION SERVICES, INC. No. 2006-921 CIVIL TERM DEFENDANTS ORDER AND NOW, this ~ day of l>e.G. , 2006, upon consideration of the Defendants' failure to respond to the previously issued Rule and Commonwealth's Motion to Make Rule Absolute, it is hereby ORDERED that a Final Order and Judgment shall be entered against Defendants, who shall within 60 days from the date of this Order shall: a. pay restitution to consumers who have filed consumer complaints against the Defendants with the Pennsylvania Office of Attorney General in the amount of Three Thousand Six Hundred Fifty-Five and 00/100 Dollars ($3,655.00); b. pay the Commonwealth civil penalties in the amount ofTen Thousand and , 00/100 Dollars ($10,000.00) for violations of the Consumer Protection Law; c. pay the Commonwealth Two Thousand and 00/100 ($2,000.00) for the costs of its investigation and prosecution of this action; d. pay costs to the Commonwealth in the amount of One Hundred One and 75/100 Dollars ($101.75) for filing fees; and e. forfeit their right or franchise to engage ill the home improvement \/lNYAlASNN3d )J.Nno:~\ .J\r:i.F~iV~nO SS :01 WV Z I 330900l ALl'.'l"" ,.1 'I ,'''" 'J ~1Hl ..In ov \...h\\..)t"'l:J)tKl ~. ~V 3~'); :~:lO-,'J311::l contracting business within the Commonwealth of Pennsylvania until such time as all monies have been paid for restitution, costs and civil penalties. J.