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HomeMy WebLinkAbout06-1379 vs, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA NO: OL. - Iliff Ci()L(~~ CIVIL ACTION - LAW JOHN R. PHILLIPS, Plaintiff RANDALL DAVIS, Defendant NOTICE 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_ MidPenn Legal Services 213 N. Front Street Harrisburg, PA 17101 1-800-932-0356 Lawyers' Referral Service 100 South Street P. O. Box 186 Harrisburg, PA 17108 800-692-7375 or Dated: 3/8 lOb By: A. PHILPOTT, ESQUIRE S re e Court ID # 47624 27 orth High Street, P.O. Box 116 D cannon, P A 17020 717) 834-3087 Attorney for Plaintiff , vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA NO: O~ - J,j 7 tf C,'u~L ~ 82-~ JOHN R. PHILLIPS, Plaintiff RANDALL DAVIS, Defendant CIVIL ACTION - LAW & EQUITY COMPLAINT L Plaintiff is John R. Phillips, who resides in Myrtle Beach, SC, and who has an office address of 16-A Benvenue Road, Duncannon, PA 17020, in Dauphin County, Pennsylvania. 2. Defendant is Randall Davis, who resides at 580 Oak Hill Road, Biglerville, P A 17307, in Adams County, Pennsylvania. 3. On or about September 15, 1995, plaintiff and defendant entered into an oral agreement for defendant to prepare for plaintiff a "street rod" consisting of a fiberglass body provided by plaintiffto defendant and a Chevrolet engine also provided by plaintiff to defendant, the engine to be rebuilt and the whole to be hand-built and finished to the point where it could be driven on the highways of Pennsylvania, in short to make a "street legal" replica of a 1930 Ford roadster but with a modern engine. 4. Pursuant to this oral agreement, plaintiff furnished the main assemblies (the fiberglass body and the engine) and paid defendant an initial $2,10L58 in 1995_ 5_ Over the ensuing years, defendant tendered to plaintiff 85 invoices, all of which plaintiff 1 , paid. 6. Plaintiff made one of the last payments to defendant at plaintiffs Carlisle rental apartments, which is why venue lies in Cumberland County. Most other payments were made at plaintiff s Dauphin County business location. Payments were made in every year up until 2003 except for 2002. The last payment was made in August 2003. 7_ In all, plaintiff paid defendant $55,053.88 towards the construction of the street rod. 8. At all times, defendant represented to plaintiff that work was progressing. 9. On April 29, 2005, in front of a witness, plaintiff confronted defendant and asked "what do we need to get this job done?" 10. Defendant responded to plaintiff that it was "almost done." 11. When defendant still had not produced the street rod six months later, plaintiff again confronted him on October 28,2005, in plaintiffs Dauphin County office. Plaintiff had heard "through the grape vine" that defendant had in fact sold the street rod to someone else and asked him about that. Defendant punched plaintiff in the shoulder and stormed from his office after insinuating that he would harm plaintiff. - COUNT I - SPECIFIC PERFORMANCE - 12. The parties entered into an oral contract for production of a "street rod". 13. Plaintiff has paid all the monies demanded of him by defendant. 14_ Defendant represented to plaintiff on April 29, 2005, that the street rod was "almost done_" 15. Defendant has not produced to plaintiff the street rod. 16. Although the agreement was not reduced to writing, the terms were certain, distinct, and 2 free from ambiguity, in that plaintiff delivered the two main components, to wit, the fiberglass body and the engine, to defendant, who was to assemble the street rod into a "street legal" final product 17. By not producing the finished product, defendant has wholly failed to complete his part of the contract WHEREFORE, plaintiff respectfully demands judgment in plaintiffs favor and against the defendant for specific performance and for an order that defendant produce the street rod in 'street legal" condition, and for such other relief as the court may deem appropriate. - COUNT II - BREACH OF CONTRACT - 18_ Plaintiff incorporates by reference into this Count II the foregoing Paragraphs I-II of this complaint as though set forth in full herein_ 19_ The parties entered into an oral contract for production of a "street rod" by defendant for plaintiff at plaintiff's expense. 20. Plaintiff has performed his part of the contract 21_ Defendant has failed and refuses to perform his part of the contract WHEREFORE, plaintiff respectfully demands judgment in plaintiffs favor and against the defendant on this Count II in the amount of Fifty five thousand fifty three dollars and eighty-eight cents ($55,053_88), exclusive of costs and damages for delay, and for such otherreliefas the court may deem appropriate. - COUNT III - UNJUST ENRICHMENT - 22. Plaintiff incorporates by reference into this Count III the foregoing Paragraphs I-II of this 3 , complaint as though set forth in full herein. 23. Plaintiff, in good faith reliance on the existence of a contract and on defendant's invoices for work done tendered to him a regular intervals, has paid to defendant $55,053_88 for the production of a street rod. 24. Defendant has not produced the street rod and apparently never intends to do so. 25_ Defendant has become unjustly enriched by receiving $55,053.88 and not producing anything for the payments_ WHEREFORE, plaintiff respectfully demands judgment in plaintiffs favor and against the defendant on this Count III in the amount of Fifty five thousand fifty three dollars and eighty-eight cents ($55,053.88), exclusive of costs and damages for delay, and for such other relief as the court may deem appropriate. Dated: March 8, 2006 ~- . Philpott, Esquire p me Court ID # 47624 22 No. High Street, P_O. Box 116 ncannon, P A 17020 4 T, John Phillips, verify that the statements made in the foregoing document are true and correct to my best personal knowledge, information and belief T understand that false statements herein are made subject to the penalties of 18 Pa.C.S. ~ 4904, relating to unsworn falsification to authorities. John P IV 0 <<;). 9 \t- 1L 0 r . ~ "1 ' , , ~ ~ -.'"! - ~ ..c:: ,.d'_ ~ r- c w - - \ g - -- ~ . ,,- " ~ SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2006-01379 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PHILLIPS JOHN R VS DAVIS RANDALL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: DAVID RANDALL but was unable to locate Him deputized the sheriff of ADAMS in his bailiwick. He therefore County, Pennsylvania. to serve the within COMPLAINT & NOTICE On April 3rd , 2006 , this office was in receipt of the attached return from ADAMS Sheriff's Costs: Docketing Out of County Surcharge Dep Adams County Postage 18.00 9.00 10.00 24.00 .78 61.78 04/03/2006 JERRY PHILPOTT County Sworn and subscribed to before me this l'l~ day of ~.h'l ~\lt)(. A.D. Prothonotary rl. ... In The Court of Common Pleas of Cumberland County, Pennsylvania John R. Phillips VS. \ Randall Davis N 06-1379 civil o. Now, March 13, 2006 , I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Adams County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. . r~~~~ Sheriff of Cumberland County, PA Affidavit of Service Now, March 27 ,2006 , at 8:08 o'clock P. M. served the within Complaint in Civil Action upon Randall Davis. at 580 Oak Hill Road, Biglerville, PA 17307 by handing to Sharon Heller, adult in charge of residence at time of service a true & attested copy of the original complaint and made !mown to Sharon Heller the contents thereof. L So ans Kevin Miller o ,PA Sworn and subscribed before me this _ day of N/ A , COSTS SERVICE MILEAGE AFFIDAVIT ,20_ $18.00 6.00 $24.00 Ri. 3/213/fX> C:J ~; ,1't./lJ\l .1-'I'I~' ~ -'_J 0__1 S Zt: :01 \1 SI L-n,: qnDZ ~ ~": ..',' , - , - .. JOHN R. PHILLIPS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA vs. NO: 06-1379 RANDALL DAVIS, Defendant CIVIL ACTION - LAW PRAECIPE FOR ENTRY OF JUDGMENT BY DEFAULT To the Prothonotary: Please enter judgment of default in favor of plaintiff John R. Phillips and against defendant Randall Davis for defendant's failure to plead to the complaint in this action within the required time. The complaint contains a notice to defend within twenty days from the date of service thereof. Defendant was served with the complaint by the Adams County Sheriff on March 27, 2006, and defendant's answer was due to be file on April 17, 2006. Attached hereto as Exhibit "A" is a copy of plaintiff's written Notice of Intention to File Praecipe for Entry of Default Judgment, which I certify was mailed by regular mail on July 31, 2006, to the defendant at both the address at which service was originally made by the sheriff and an address he furnished upon his moving to South Carolina, which is at least 10 days prior to the filing of this Praecipe. Please assess damages in the amount of $55,05 complaint. being the amount demanded in the Dated: August 21, 2006 Enc!.: Exhibit A - Copy of Notice ofIntention to File Praecipe for Entry of Default Judgment 40 JOHN I~. PHILLIPS, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA \'5. NO: 06-1379 RANDALL DAVIS Defendant CIVIL ACTION - LAW To: Randall Davis 185 General Road Marion. SC 29571 and Randall Davis 580 Oak Hill Road Biglerville, PA 17307 CERTIFIED MAIL. I~ETURN RECEIPT REOUESTED & REGULAR MAIL Date of Notice: July 31, 2006 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HA VE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE, UNLESS YOU ACT WITHIN TEN DAYS OF THE DATE OF THIS NOTICE. A JUDGMENT MAYBE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MA Y LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE 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. Lawyers' Referral Service 100 South Street P. O. Box 186 Harrisburg. P A 17108 800-692-7375 or MidPenn Legal Services 213 N_ Front Street Harrisburg. PA 17101 1-800-932-0356 Dated: July 31. 2006 ~ ...0 . t> C> lJ'1 -u ~~~ ~~~ ~ \i-~ o 'c~~ C7t- - r 't ~ 2 2': -o\i. n'"'\ f' ~ -/ "'~ "'7~> (f;> :;,./. ~,- ~'~::~ .. ~ Q. ~ ".. ~-,-, c: rn r- ~) -0 PJ. l" ,r,,, N o,c) ::'i; %~ '1? ~ N ~ .1'"