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HomeMy WebLinkAbout06-1389I IN Ut- I'CNNJTL COURT OF COMMON PLEAS Judicial District, County Of NOTICE OF APPEAL FROM DISTRICT.JUSTICE JUDGMENT I COMMON PLEAS No. NOTICE OF APPEAL Notice is given that the appellant has fled in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. C C' ??c> tt? q L-Te eny F. LAfus?? I 9 t a s e1 le.Ji V. Mtwr )V C ADDRESS OF APPELLANT CITY STATE ZIP DOD, 35a\ bodJ S?. Ikil s ( M 111(1 -13-. C;V - C3O(7(-]tDLA , This block will be signed ONLY when this notation is required under Pa. R.C.P.D.J. No. 1008B. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. VS R.C.P.D.J. No. before a District Justice, A COMPLAINT MUST BE FILED within twenty (20) days after riling the NOTICE of APPEAL. Sgoature 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. +001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon ofappellee(s) appellee(s), to file a complaint in this appeal (Common Pleas No. ) within twenty (20) days after service of rule or suffer entry of judgment of non pros. ?CJ Signature of appellant or attorney or agent RULE: To tom' ?. y . appellee(s) Name o appellees) (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 dale of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: , 20 ? a, 241-RA Signature thonotary D p (7 V YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENTfTRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 WHITE-COURT FILE TO BE FILED WITH PROTHONOTARY GREEN-COURTFILE YELLOW-APPELLANT'S COPY PINK-COPY TO BE SERVED ON APPELLEE GOLD-COPY TO BE SERVED ON DISTRICT JUSTICE PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE Fit ED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ss AFFIDAVIT: I hereby (swear) (affirm) that I served ? a copy of the Notice of Appeal, Common Pleas , upon the District Justice designated therein on (date of service) 20 . ? by personal service ? by (certified) (registered) matt, sender's receipt attached hereto, and upon the appellee, (name) on 20 ? by personal service ? by (certified) (registered) mail, senders receipt attached hereto (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF 20 sicnaru;e of "flan: Signature of official before whom affidavif was mad" Title of officili My commission expires on 20 Ti -j C ., K 'C51AMONWEALTH OF PENNSYLVANIA C(ll [MTV nr- CUMZRLkUD 09-1-02 1.10J We. Hm. ROBERT V. MANLOVE Aaa'ese. 1901 STATE ST CAXP HILL, PA Teiep^(-ne (717 ) 761-0593 17011-0000 NOTICE OF JUDGMENT/TRANSCRIPT PLAINTIFF. CIVIL CASE NAME and ADDRESS FBUR[ET, DAVID B 237 SUSQUEHIWNA AVE ENOLA, PA 17025 L J VS. DEFENDANT: NAME.,I ADDRESS rC AND C ROOFING 3521 EUCLID ST HARRISBURG, PA 17111 C AM C ROOFING TERRI CARUSO L J 3521 EUCLID ST EDocket No.: CV-0000642-05 HARRISBURG, PA 17111 Filed: 12/30/05 THIS IS TO NOTIFY YOU THAT: -Judgment: F{?R pLir?rrgg ® Judgment was entered for: (Name) _B,j=-_ nxQtn R FZ Judgment was entered against: (Name) _CiND a pmrxNc in the amount of $ 2.676.50 on: (Date of Judgment) 2113109 _ 0 Defendants are jointly and severally liable. (Date & Time) El Damages will be assessed on: This case dismissed without prejudice. Amount of Judgment Subject to .Attachment142 Pa.C.S. § 8127 $ Portion of Judgment for physical damages arising out of residential __- lease $ Amount of Judgment Judgment Costs Interest on Judgment Attorney Fees Total Post Judgment Credits Post Judgment Costs $ Certified Judgment Total $ - I 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 THE COURT OF COMMON 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 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. z ° Date Maglstpriabi4"'Ot Judge Ae 97- P /I f I certi y t !'hit this is a tr ct c rd it he proceedinSs corsair nq tho ju gmentr w Date i)tlagSstOai Dt jrict Judge My commission expires first Monday of January, 2012. SEAL AOPC 315.05 DATE PRINTED: 2/13/06 10 t 28 t 03 AN -. i 4 (.. ? rt v5189P `' S n fined F e i . A 1 ? C3 HeWr Rc nipt Fee iEi?` e tRequirad rn i b - Q I P-. O ae t a, AOryrei i 1 i tUl:, / f? n ? e. Ill fF a r R6gu m F _ ?bFb (T a . aaa A Fe.fi ? al: N . p S, 6i -. .. ?p C3 i .... 13(ree Aur Np.. 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 J?h ss AFFIDAVIT: I hereby (swear) (affirm) that I served C' ?L if 3 r) C1 ? a copy of the Notice of Appeal, Common Pleas _L__ __ 0 , upon the District Justice designated therein on (date of service) 20 ? by personal service 6;Yby (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name) , on , 20 ? by personal service Orby (certified) (registered) mail, sender's receipt attached hereto. (SWORN) AFFIRMED) AND SUBSCRIBED BEFORE ME DAY OF V -0-Y% 20_n_( a Signa official fore whom affidavit was made Signature ofa(rant Title of official V My commission expires on EComNOTARIAL SEAL DANYELL R. WITTLE Notary Put*c CITY OF HARRMIRG DAUPHIN COUNTY misston Expires Mor 2Q 20118 CERTIFIED MA (Domestic Mall Only; Ni ? Pasinge $ ' p O c.ndlfled Fe9 9 0 Return Recelpi (F..-dcvsement Required) d) H I •Ift co a Pestnaocl Delivery Fee -{ nJ (Endorsement Required) -0 ra S total Postage & Fees + USP l1J C3 Sen To [? Sweet, Apt No.; or PO box No. city, state, ZIP+4 e'1 L-a_.';? ?UMMUNWtAL IM VF F'ENNS COURT OF COMMON PLEAS Judicial District, County Of NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. notation in action R.C.P.D.J. No. 10088. 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 SUPERSEDERS to the judgment for possession in this case. (20) days after filing the NOTICE of APPEAL. Sgnafu of P Ihonotary 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 District Justice. 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 a4me of appellees) (Common Pleas No. within twenty (20) days after service of rule or suffer entry of judgment of non pros. i - Signature of appellant or attorney or agent RULE: To , appellee(s) - r ----- "Name o/appellee(s) ' (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: 20 . Signature or thonotaq or piny ' YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENTITRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 WHITE-COURT FILE TO BE FILED WITH PROTHONOTARY GREEN-COURTFILE YELLOW- APPELLANT'S COPY PINK-COPY TO BE SERVED ON APPELLEE GOLD-COPY TO BE SERVED ON DISTRICT JUSTICE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA David B. Burkey, CIVIL ACTION 237 Susquehanna Avenue NO. 06-1389 Enola, PA 17025, Plaintiff V. C & C Roofing 3521 Euclid Street Harrisburg, PA 17111 Defendant. TRIAL BY JURY DEMANDED 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, 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. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 717-249-3166 1-800-990-9108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA David B. Burkey, CIVIL ACTION 237 Susquehanna Avenue NO. 06-1389 Enola, PA 17025, Plaintiff vi. C & C Roofing 3521 Euclid Street Harrisburg, PA 17111 Defendant. TRIAL BY JURY DEMANDED COMPLAINT Plaintiff David B. Burkey (hereinafter "Plaintiff"), by and through his attorneys the Law Offices of Peter J. Russo, P.C., in support of Plaintiff's Complaint aver the following: 1. Plaintiff resides at and owns the property located at 237 Susquehanna Ave Enola, Pennsylvania, 17025. 2. Defendant is doing business in the Commonwealth of Pennsylvania with an office address of 3521 Euclid Street Harrisburg, Pennsylvania 17111. 3. On July 25, 2003, Plaintiff spoke with Terry Caruso, Sr., who is believed to have an ownership interest in C & C Roofing, to negotiate a price for having Defendant re-shingle Plaintiff's roof. 4. Plaintiff was informed that the proposed roofing job would at most take Two (2) Days to complete. 5. A proposal dated July 25, 2003, was produced as a result of the aforementioned conversation between Plaintiff and Mr. Caruso Sr. 6. A true and correct copy of the proposal is attached hereto as Exhibit A. 7. The proposal states that for Four Thousand Seven Hundred Dollars and No Cents ($4,700.00) the Defendant would perform the following services: a. Tear off Two (2) Layers of Old Shingles b. Install New Aluminum Drip Edging c. Install New Vent Flashings d. Install New Hidden Valleys e. Install New Thirty (30) Year Fiberglass Shingles f. Clean Up Job Site. 8. On or about October 2, 2005, Plaintiff paid Defendant a down payment in the amount of Two Thousand Five Hundred Dollars and No Cents ($2,500.00). 9. Defendant's employees were to commence work within Three (3) Weeks of Plaintiff paying the above mentioned down payment. 10. On or about October 24, 2005, Plaintiff called Defendant for a status check and was informed that work would commence in Two (2) Weeks. 11. On or about November 10, 2005, Plaintiff again called Defendant for a status check and was informed that work would commence on November 14, 2005. 12. Defendant's employees commenced work on Plaintiff's property on November 14, 2005. 13. On November 14, 2005, Plaintiff noticed and reported that the old shingle debris, which was being stripped by Defendant's employees, was damaging Plaintiff's first floor awnings 14. After approximately Five (5) Hours, Defendant's employees quit working on Plaintiff's property. 15. Defendant's employees did not appear at Plaintiff's property on November 15, 2005. 16. Defendant's employees showed at Plaintiff's property on November 16, 2005, and commenced their second day of work. 17. Plaintiff noticed and reported that there were numerous nails exposed, that the shingles were not lying properly and that there was exposed flashing wrapped against the Dormer of Plaintiff's roof. 18. Plaintiff was informed that the shingles would lie after a warm day and that the extra exposed flashing would be removed. 19. After approximately Five (5) Hours, Defendant's employees left Plaintiff's residence for the day. 20. The flashing was never removed, nor did the shingles ever lie properly. 21. Defendant's employees did not appear at Plaintiff's property on November 17, 2005. 22. Defendant's employees performed work at Plaintiff's on November 18, 2005. 23. Plaintiff noted and reported that the clear metal used in the corner of the Dormer was an eye sore. 24. Plaintiff was promised by Defendant's employee that the metal would be painted white. 25. After approximately Five (5) hours, Defendant's employees quit working on Plaintiff's property. 26. Before departing, Plaintiff granted Defendant's employees permission to leave Defendant's dump truck in Plaintiff's driveway under the condition that they would return to remove the truck the following day. 27. The metal dormer was never painted white. 28. The Defendant's employees failed to appear at Plaintiff's residence on November 19, 2005, leaving the dump truck in Plaintiff's driveway. 29. On November 19, 2005, Plaintiff called Defendant for a status check. 30. Mr. Terry Caruso, Sr. informed Plaintiff that all of the aforementioned problems would be fixed, that he did not want to pay the employees overtime in order to complete Plaintiff's property work, and that payment could be made on Plaintiff's terms. 31. Defendant's employees appeared at Plaintiff's residence to complete work on November 21, 2005. 32. Plaintiff had surgery on this day and was not present. 33. Plaintiff did not have the opportunity for a walk around inspection with Mr. Caruso, Sr. 34. Plaintiff called Defendant on November 22, 2005, and voiced his concerns of the loose boards hanging and the debris left in Plaintiff's attic. 35. On November 25, 2005, Defendant's employees appeared and cleaned up the debris in the attic but never repaired the loose boards. 36. There was still debris present on Plaintiff's neighbor's roof and in Plaintiff's shed roof and in the spouting of Plaintiff's residence. 37. The following work was never performed: a. the flashing around the Dormer was never removed; b, the clear metal was never painted white; c. the attic boards were never repaired; d. all of the debris was never cleaned up; e. the drip edging was never fully installed; f. the new vent flashing was never installed; g. the new hidden valley systems were never installed. 38. Pursuant to municipal ordinances an inspection was performed and a report was produced on or about December 19, 2005. The East Pennsboro Township Inspection Report listed problems concerning the ice guard, moisture at the Dormer, and work being performed before permit issuance. A true and correct copy of the Inspection Report is hereto attached as Exhibit B. 39. Said deficiencies noted on the report have not been cured. 40. Plaintiff suffered further damages including the following: a. Damage to his ground floor awnings; b. Hydraulic fluid leakage in his driveway; c. Exposed nails on his roof; d. Misplaced nails on his roof; e. Improperly laid shingles on his roof; f. Blobs of caulking on his roof; and g. Delay in completion of the job. COUNT 1 - BREACH OF CONTRACT 41. Plaintiff adopts by reference paragraphs 1-40. 42. Plaintiff and Defendant entered into a contract for Defendant to re-shingle Plaintiff's roof in exchange for Four Thousand Seven Hundred Dollars and No Cents ($4,700.00). 43. Defendant failed to perform the services promised and caused further damage to Plaintiff's property. WHEREFORE, Plaintiff claims damages from Defendant in an amount in excess of Four Thousand Seven Hundred Dollars and No Cents ($4,700.00), plus interests, costs and any other appropriate damages. COUNT II - UNJUST ENRICHMENT 44. Plaintiff adopts by reference paragraphs 1-43. 45. Plaintiff and Defendant entered into a contract for Defendant to re-shingle Plaintiff's roof. 46. Plaintiff relied on Defendant's promise to fully and properly complete the promised services without causing damages to Plaintiff's property. 47. Defendant failed to fully and properly complete the work promised and Defendant's employees caused further damage to Plaintiff's property. 48. As a result of the aforementioned, Defendant has received payment for services that were not performed and have become unjustly enriched at Plaintiff's expense. WHEREFORE, Plaintiff claims damages from Defendant in an amount in excess of Four Thousand Seven Hundred Dollars and No Cents ($4,700.00), plus interests, costs and any other appropriate damages. Respectfully submitted, LAW OFFICE F TER J. RUSSO, P.C. Attorneys for Plaintiff Peter J. Russo, Esquire ID No. 72897 Scott A. Stein, Esquire ID No. 81738 Elizabeth J. Saylor, Esquire ID No. 200139 EXHIBIT A P i 3521 Et CUO G1 HARRISBURG, Pf-% ? 17-11, WORK TO BE PERFORMED AT. PROPOSAL SUBfvH7TED TO: NAME ADDRESS y` PHONE N0. PROPOSALNO. SHEET NO. DATE We hereby propose to furnish the materials and perfor labor necessary for the completion of - e? '? All material ' guaran e -t be as specified, and the above work to be performed in accordance with the drawings and specifi- cations s mitted for-abork and complete in'a substantial '7 r 'anlik manner for the sum of " -.. ) Z 1 ) e? Dollars ($ 7 wltM yments t e made as follows. Respectfully submitted Any alteration or deviation from above specifications involving extra costs ' will be executed only upon wren order, and will become an extra charge over and above the estimate. All agreements contingent upon strikes, ac- " cidents , or delays beyond our control. f Note-This proposal may be withdrawn by us if not accepted within A days. ACCEPTANCE OF PROPOSAL The above prices, specifications and conditions are satisfactory and are hereby accepted. You are authorized to do the work as specified. Payments will be made as outlined above. Signature Date Signature a.. gym, NO 3818-50 PROPOSAL MADE IN USA EXHIBIT B e EAST PENNSBORO TOWNSHIP 98 SOUTH ENOLA DRIVE ENOLA, PA 17025 (717) 732-0711 ('717) 732-7810 Fax Building Permit INSPECTION REPORT LOCATION: - DATE: .. TIME: RECEIVED BY: At the applicant's request a non-destructive inspection gl?he ° tt"' performed at the ahove referenced location. The fallox ing conditions it ere observed and recomneendatio s made Please refer am questions or continents to the Building Inspector at the Tosvoship Office. INSPECTOR'S SIGNATURE vr-rarn,m i ivn ,hjvjQ6Aay, verify that the statements made in Plaintiffs Complaint a 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. Dated: David Kelli Burkey CERTIFICATE OF SERVICE I hereby certify that I have on this day served a true and correct copy of the Plaintiff's Complaint, upon the following person, in the manner indicated: U.S. Mail C & C Roofing 3521 Euclid Street Harrisburg, PA 17111 DATE: y -?-Q(v Elizabeth J. V or, squire u- -! FRIEDMAN & KING, P.C. Richard S. Friedman, Esquire ID #07176 600 N. Second Street Penthouse Suite P. O, Box 984 Harrisburg, PA 17108 Tel.: (717) 236-8000/Fax: (717) 236-8080 Attorney for Plaintiff DAVID B. BURKEY, Plaintiff V. C & C ROOFING, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PA NO. 06-1389 CIVIL ACTION - LAW ANSWER AND NOW COMES Terry Caruso, who trades and does business as C & C Roofing, the Defendant, by and through his attorneys, Friedman & King, P.C., and answers the Complaint as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Denied. No time for completion of the job was discussed. However, Mr. Caruso told Defendant that shortly after materials were received, the job would be commenced and completed. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Denied and proof thereof demanded. 10. Admitted. 11. Admitted. Moreover, the delay was caused by a delay in receipt of the materials necessary to install the roof. 12. Admitted. 13. Denied and proof thereof demanded. 14. It is admitted that after five hours, Defendant's employees terminated their work due to the manner in which the roof was to be installed, to wit: as portions of the roof were removed, they had to be replaced before further portions could be removed, to protect the premises. 15. Defendant has no knowledge as to the truth or falsity of the allegations contained in paragraph 15. If true, however, it was due to adverse weather conditions. 16. Admitted. 17. Admitted in part and denied in part. It is admitted that Plaintiff made some complaints. Moreover it is averred that said complaints were not pointed out to Defendant until after all work was substantially completed, and after Plaintiff's check in the amount of One Thousand ($1,000.00) Dollars was returned for non-sufficient funds. A copy of said returned check is attached hereto and marked Exhibit A. 18. It is admitted that the complaints would be corrected after Plaintiff replaced the check returned for non-sufficient funds. 19. Denied and proof thereof demanded. 20. Admitted. Moreover, it is averred that Plaintiff has failed to make payment on account of the One Thousand ($1,000.00) Dollar check returned for non-sufficient funds, and further has failed to assure Defendant that Plaintiff would pay the balance due under the contract immediately upon completion of the work. 21. Admitted for reasons previously set forth. 22. Admitted. 23. Denied. 24. It is admitted that Defendant's employee promised that all corrections, which were minor, would be completed after the bad check was paid and Defendant could reasonably expect the balance of the contract price. 25. Denied. 26. Admitted. 27. Admitted due to failure of Plaintiff to replace the $1,000.00 bad check and make arrangements for payment of the balance. 28. The allegations contained in paragraph 28 are admitted. However, the timing set forth in said allegation is incorrect. 29. The allegations contained in paragraph 29 are admitted. However, the timing set forth in said allegation is incorrect. 30. The allegations contained in paragraph 30 are denied and proof thereof is demanded. 31. Admitted. 32. Denied and proof thereof demanded. 33. Denied and proof thereof demanded. Moreover, it is averred that a physical inspection was conducted with Plaintiff on or about November 21 or 22, 2005. 34. It is denied that any complaints or concerns were voiced on November 22, 2005, when Defendant received the aforesaid check, which was subsequently returned by the bank for non-sufficient funds. 35. Admitted. Moreover, it is averred that the balance of the work to be completed would have been completed by Defendant immediately after receipt of funds to cover the check which was returned for non-sufficient funds. 36. Admitted. Moreover, it is averred that the balance of the work to be completed would have been completed by Defendant immediately after receipt of funds to cover the check which was returned for non-sufficient funds. 37. a. Denied and proof thereof demanded. b. Admitted. c. Denied and proof thereof demanded. d. The debris was substantially cleaned up. e. Denied and proof thereof demanded. f Denied and proof thereof demanded. g. Denied and proof thereof demanded. 38. Denied as pleaded. The inspection report which is alleged was never turned over to Defendant, but was received almost four (4) weeks after the return of Plaintiffs check for non- sufficient funds. 39. Admitted. Defendant did not have knowledge of the report until long after Plaintiff s check was returned for non-sufficient funds, and Defendant therefore refused to perform any further services until paid. 40. Denied and proof thereof demanded. COUNT - I BREACH OF CONTRACT 41. Admitted. 42. Admitted. 43. Denied as a conclusion of law. WHEREFORE, Defendant demands judgment in his favor and against Plaintiff. COUNT II - UNJUST ENRICHMENT 44. Admitted. 45. Admitted. 46. Admitted. Moreover, the promises of Defendant would have been fully complied with had Plaintiff fulfilled his obligation under the contract. 47. Denied and proof thereof demanded. 48. Denied and proof thereof demanded. WHEREFORE, Defendant demands judgment in his favor and against Plaintiff. COUNTERCLAIM 49. The averments contained in paragraphs I to 48 of the above Answer are incorporated herein. 50. The total price as set forth in Plaintiff's Exhibit A was Four Thousand Seven Hundred ($4,700.00) Dollars. 51. Plaintiff paid a down payment of Two Thousand Five Hundred ($2,500.00) Dollars. 52. On November 21, 2005, Defendant tendered to Plaintiff a statement in the amount of Two Thousand Two Hundred ($2,200.00) Dollars, representing the balance of the total price. A copy of said statement is attached hereto and marked Exhibit B. 53. On November 21, 2005, Plaintiff tendered to Defendant a check in the amount of One Thousand ($1,000.00) Dollars (see Exhibit A hereto). 54. Had said One Thousand ($1,000.00) Dollar check been negotiable, Plaintiff would have owed Defendant an additional One Thousand Two Hundred ($1,200.00) Dollars, which said amount Plaintiff promised on or about November 21, 2005 would be paid in Two Hundred ($200.00) Dollar weekly payments commencing December 8, 2005 (see Exhibit B hereto). 55. The One Thousand ($1,000.00) Dollar payment referred to in paragraph 53 herein was subsequently returned for non-sufficient funds. 56. Plaintiff has never replaced said One Thousand ($1,000.00) Dollar payment. 57. Plaintiff has never tendered any sum on account of the One Thousand Two Hundred ($1,200.00) Dollars referred to in paragraph 54 herein. 58. Plaintiff therefore is still obligated to Defendant in the amount of Two Thousand Two Hundred ($2,200.00) Dollars. 59. Upon receipt thereof, or upon said funds being placed in escrow, all reasonable complaints of Plaintiff will be satisfied. Date: -4240 Respectfully submitted, FRIEDMANA KING, P.C. Richard S. Friedman, Esquire 600 N. Second Street Penthouse Suite P. O. Box 984 Harrisburg, PA 17108 (717) 236-8000 RSF:ka VERIFICATION I, Terry Caruso, hereby acknowledge that I am the owner of C & C Roofing, Defendant in the foregoing action; that I have read the foregoing Answer and Counterclaim, and the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: y 2,P Terry Carus FRIEDMAN & KING, P.C. Richard S. Friedman, Esquire ID #07176 600 N. Second Street Penthouse Suite P. O. Box 984 Harrisburg, PA 17108 Tel.: (717) 236-8000/Fax: (717) 236-8080 DAVID B. BURKEY, Plaintiff V. C & C ROOFING, Defendant Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PA NO. 06-1389 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Richard S. Friedman, Esquire, hereby certify that on April 28, 2006, I served a copy of the within Answer and Counterclaim, by depositing same in the United States Mail, first class, postage prepaid, addressed as follows: Elizabeth J. Saylor, Esq. Law Offices of Peter J. Russo, PC The Chelsea Building 3800 Market St. Camp Hill PA 17011 & KING, P.C. Richard S. Friedman, Esquire 600 N. Second Street Penthouse Suite P. O. Box 984 Harrisburg, PA 17108 (717) 236-8000 G? 'I ??Y:?HIL`•# A'{:;," CI{ ",144"8 {i"]'J`.> D VIDE B` KEY,SR s. 303 ; z37 SUSQUEHANNA AVE ?3!L ENOLA, PA 17025 M,?T 717-732-2603 PAY TO THE C ?? d.- ?. _'' IVO ?/ E TH b a! ' OLLARS R. _.. A neriChoice' - 1111RA e.. , , e '41]5 W1. BU ]IeW1. OMe MttIY.W9?A1'1055.-" L-2 - .. - _ w• .GN 3 8 2 2 6 71:• 1 38 2 360 13 711' 0303 11,0000100 010 I ?% ?G?, b y-f- vJJI c c_ a ? C and C ROOFING " - - 3521 EUCLID STREET - DATE ?1 S V HARRISBURG, PENNSYLVANIA 17111 NUMBER Phone: 561-9917 QAvlc) (Sorke) Ltom 7 ins ?2hANUA 5?, ?.? _ v j TERMS: ( E D R r7k 01) PL ASE ETACH AND ETURN . WITH YOUR REMITTANCE i 99I DATE CHARGES AND CREDITS BALANCE - - BALANCE FORWARD I --, 1. Tare., 01A Cor' oe}e 4N??N t-f. - ?.. Sn,s?'a,?PC` New ?r?l> PQgiNq _ Y?a?' t J J 3. 3w54JeA ?P,.o vc y, I,Js?ci1€c` NeW a',?1eN vti11r ,?,.;?_ ? SN's}?1?P?? NeW S 3D1t,, ?e?k r , paPee; '. i SN S ?IIed ^'°-w 3o?a, s1 Ilk E [ Q COU7 . . C l ecec? C and C ROOFING nK `rte/au PAY LAST AMOUNT gfiQ ' IN THIS COLUMN LAW OFFICES OF PETER J. RUSSO, P.C. Attorneys for Plaintiff By: Elizabeth J. Saylor, Esquire 3800 Market Street Camp Hill, PA 17011 (717) 591-1755 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA David B. Burkey, Plaintiff V. C & C Roofing Defendant. CIVIL ACTION NO. 06-1389 PLAINTIFF'S RESPONSE TO DEFENDANT'S COUNTERCLAIM AND NOW, COMES the above-named Plaintiff by and through his attorney Elizabeth J. Saylor, and responds to Defendant's Counterclaim as more fully set forth below: 49. Denied. The Rules of Civil Procedure do not require a response to the advent contained in Paragraph 28. By way of further response, Defendant hereby incorporate their responses to Paragraphs 1 through 27 by reference herein. 50. Admitted in part, denied in part. Plaintiff admits that in exchange for the services promised he was to pay Defendant Four Thousand Seven Hundred Dollars ($4,700.00). It is denied that those services were ever fully preformed by the Defendant. 51. Admitted. It is admitted that on or about October 5, 2005, Plaintiff paid Defendant via check a down payment of Two Thousand Five Hundred Dollars ($2,500.00) as requested by Terry Caruso. 52. Admitted. 53. Admitted. 54. Admitted in part, denied in part. It is admitted that on or about November 19, 2005, payment arrangements of Two Hundred Dollars ($200.00) weekly were between Plaintiff and Defendant. It is denied that had said One Thousand Dollar ($1,000.00) check been negotiable, Plaintiff would have owed Defendant an additional One Thousand Two Hundred Dollars ($1,200.00) because the work items set forth on Defendant's Exhibit B were never fully performed by Defendant. By way of further response, the averment in Paragraph 54 contains statements from a document which controls and any interpretational gloss placed thereon by Plaintiff is strictly denied 55. Admitted. 56. Admitted. 57. Admitted. 58. Denied. It is denied that Plaintiff is still obligated to Defendant in the amount of Two Thousand Two Hundred Dollars ($2,200.00) because Defendant never fully performed the services that were to be provided in exchange for said amount. a ! 59. Denied. The averment in Paragraph 59 is a legal conclusion and thus no response is required. Plaintiff denies all other allegations in Paragraphs 49 through 59 of Defendant's Counterclaim that are not specifically admitted. WHEREFORE, Plaintiff demands judgment in his favor and against Defendant. LAW OFFICES OF PETER J. RUSSO, P.C. Attorneys for Plaint' Peter J. Russo, Esquire D # 72897 Scott A. Stein, Esquire ID # 81738 Elizabeth J. Saylor, Esquire ID # 200139 Date: S /7 . 00 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA David B. Burkey, CIVIL ACTION Plaintiff NO. 06-1389 V. C & C Roofing Defendant. CERTIFICATE OF SERVICE I hereby certify that I have on this day served a true and correct copy of Plaintiff's Response to Defendant's Counterclaim upon the following person, in the manner indicated: FIRST CLASS MAIL Richard S. Friedman, Esquire 600 N. Second Street Penthouse Suite P.O. Box 984 Harrisburg, PA 17108 LAW OFFICE OF PETER J. RUSSO, P.C. Attorneys for Plaintiff G frr- BY: _ Elizabeth J. Saylor, Esquire Date: S Attorney I.D. No. 200139 r.a -TI nl? ., 1f ' C11 .`.l7 LAW OFFICES OF PETER J. RUSSO, P.C. Attorneys for Plaintiff By: Elizabeth J. Saylor, Esquire 3800 Market Street Camp Hill, PA 17011 (717) 591-1755 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA David B. Burkey, CIVIL ACTION Plaintiff NO. 06-1389 V. C & C Roofing Defendant PETITION FOR COURT APPROVAL TO WITHDRAW AS COUNSEL FOR PLAINTIFF AND NOW, comes Elizabeth J. Saylor, Esquire, attorney for the Plaintiff, David B. Burkey, and files this Petition for Court Approval to Withdraw, and in support thereof, states the following: 1. Plaintiff, David B. Burkey, is currently represented by Attorney Elizabeth J. Saylor. 2. On or about April 5, 2006, Plaintiff filed a Complaint by and through his counsel. 3. On or about April 28, 2006, Defendant, C&C Roofing, filed an Answer to Plaintiff's Complaint with a Counterclaim, by and through its counsel Richard S. Friedman, Esquire. 4. On or about May 19, 2006, Plaintiff filed a Response to Defendant's Counterclaim. 5. On or about September 25, 2006, Plaintiff informed his Counsel that he wished to precede pro se. 6. Petitioner wishes to withdraw its representation of Plaintiff in the above Complaint. Petitioner has informed Plaintiff that it will petition the Court to withdraw its appearance. 7. Under the Rules of Professional Responsibility Rule 1. 16, Petitioner may withdraw its appearance as counsel for Plaintiff but must get Court approval. 8. Petitioner has informed counsel for the Defendant, Richard S. Friedman, Esquire of its intention to withdraw as counsel and he has no objections to Petitioner's withdrawal. 9. Petitioner is of the belief and therefore avers that the withdrawal of her representation in this matter will not delay the proceedings. 10. Petitioner certifies that no Judge has yet to rule on an issue concerning this action. WHEREFORE, Elizabeth J. Saylor, Esquire respectfully requests this Honorable Court to grant its Petition to Withdraw as Counsel for Plaintiff in the above matter. Date: /J THE LAW OFFICES OF PETER J. RUSSO, P.C. Elizabeth J. Saylor; Esc 3800 Market Street Camp Hill, PA 17011 (717) 591-1755 Attorney for the Plaintiff uire LAW OFFICES OF PETER J. RUSSO, P.C. Attorneys for Plaintiff By: Elizabeth J. Saylor, Esquire 3800 Market Street Camp Hill, PA 17011 (717) 591-1755 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA David B. Burkey, CIVIL ACTION Plaintiff NO. 06-1389 V. . C & C Roofing . Defendant VERIFICATION I, David B. Burkey, verify that the statements made in the Petition for Court Approval to Withdraw as Counsel for Plaintiff 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. Dated: 16 -J G -04 avid Burkey LAW OFFICES OF PETER J. RUSSO, P.C. Attorneys for Plaintiff By: Elizabeth J. Saylor, Esquire 3800 Market Street Camp Hill, PA 17011 (717) 591-1755 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA David B. Burkey, CIVIL ACTION Plaintiff NO. 06-1389 V. C & C Roofing Defendant CERTIFICATE OF SERVICE I hereby certify that I have on this day served a true and correct copy of the Petition for Court Approval to Withdraw as Counsel for Plaintiff upon the following persons, in the manner indicated: FIRST CLASS MAIL Richard S. Friedman, Esquire David B. Burkey 600 N. Second Street 40 Tory Circle Penthouse Suite Enola, PA 17025 P.O. Box 984 Harrisburg, PA 17108 LAW OFFICE OF PETER J. RUSSO, P.C. Attorneys for Plaintiff BY: Elizabeth J. Saylor, Esquire v ?// _ (o Date: Attorney I.D. No. 200139 G(9 i 14 W ?i+ , 1 DAVID B. BURKEY , PLAINTIFF V. C & C ROOFING, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-1389 CIVIL ORDER OF COURT AND NOW, this 27th day of October, 2006, upon consideration of the Petition for Court Approval to Withdraw as Counsel for Plaintiff, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Plaintiff to show cause why the relief requested should not be granted; 2. The Plaintiff will file an answer on or before November 16, 2006; 3. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Petitioner shall be granted upon the Court's receipt of a Motion requesting Rule be made Absolute. If the Plaintiff files an answer to this Rule to Show Cause, and the answer raises disputed issues of material fact, an evidentiary hearing will then be scheduled. The Prothonotary is directed to forward said Answer to this Court. By the Court, -? ?-a 'v\ M. L. Ebert, Jr., J. abeth J. Saylor, Esquire Attorney for Plaintiff Xchard S. Friedman, Esquire Attorney for Defendant Xavid B. Burkey, Plaintiff bas 0?9 ??t ,;"1?;,£tc 1 'XI u :-Z L o LAW OFFICES OF PETER J. RUSSO, P.C. Attorneys for Plaintiff BY: Elizabeth J. Saylor, Esquire PA Supreme Court ID: 200139 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Email: lsaylor@pjrlaw.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA David B. Burkey, CIVIL ACTION Plaintiff NO. 06-1389 V. C & C Roofing Defendant PETITION TO MAKE RULE ABSOLUTE AND NOW, comes Elizabeth J. Saylor, Esquire, attorney for Plaintiff, David B. Burkey, and files this Petition to Make Rule Absolute, and in support thereof, states as follows: 1. Petitioner-Attorney filed a Petition to Withdraw as Counsel on or about October 19, 2006, requesting this Court to withdraw her appearance as counsel for Plaintiff, David B. Burkey. 2. In a Rule to Show Case entered on October 27, 2006, this court granted the Defendant's counsel and Plaintiff twenty (20) days to file a response to Petitioner-Attorney's Petition. 3. To date, neither Plaintiff nor Defendant's counsel have filed a response to this Court's Rule r f 1 WHEREFORE, Elizabeth J. Saylor, Esquire, attorney for Plaintiff, David B. Burkey, respectfully requests this Honorable Court to grant her Petition to Make Rule Absolute to allow her to withdraw as counsel of record for Plaintiff in the above matter. THE LAW OFFICE OF PETER J. RUSSO, P.C. Peter J. usso, Esquire Attorney I.D. No. 72897 John N. Papoutsis, Esquire Attorney I.D. No. 70312 Scott A Stein, Esquire Attorney I.D. No. 81738 Elizabeth J. Saylor, Esquire Attorney I.D. No. 20013 Attorneys for Plaintiff 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 LAW OFFICES OF PETER J. RUSSO, P.C. Attorneys for Plaintiff BY: Elizabeth J. Saylor, Esquire PA Supreme Court ID: 200139, 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Email: Isaylor@pjdaw.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA David B. Burkey, CIVIL ACTION Plaintiff NO. 06-1389 V. C & C Roofing Defendant CERTIFICATE OF SERVICE I, Ashley R. Sipe, hereby certify that I am on this day serving a copy of the Petition to Make Rule Absolute upon the person(s) and in the manner indicated below: US Mail addressed as follows: Richard S. Friedman, Esquire 600 N. Second Street Penthouse Suite P.O. Box 984 Harrisburg, PA 171108 Date: ) , l-7 -do _ David B. Burkey 40 Tory Circle Enola, PA 17025 J et E. Bush, Paralega r."? :;`> ?-- t-:.., -? ~ rye r _. k A ?!? _ __ '"? ?.._ ? _?' i . ?. -i ......- ?'*. :k , }„S ^? W ? 4L. NOV 2 2 2006 LAW OFFICES OF PETER J. RUSSO, P.C. BY: Elizabeth J. Saylor, Esquire PA Supreme Court ID: 200139 3800 Market Street Camp Hill, PA 17011 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Email: Isaylor@pjrlaw.com Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA David B. Burkey, CIVIL ACTION Plaintiff NO. 06-1389 V. C & C Roofing . Defendant ORDER 1? AND NOW, this '*KTday of N 01J• , 2006 upon consideration of the Petitioner-Attomey Petition to Make Rule Absolute, it is hereby ORDERED that the Rule which was issued upon the Plaintiff on or about October 27, 2006, is made absolute and said Petitioner, Elizabeth J. Saylor, Esquire is granted leave to withdraw as counsel. BY THE COURT, cc: Achard S. Friedman, Es avid B. Burkey V ?Uzso a..; OZ '8, WV O£ RON 9001 014140-0314 DAVID B. BURKEY Plaintiff VS. C & C ROOFING, Defendant TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-1389 CIVIL ACTION - LAW Please mark the above captioned action settled and discontinued. Date: k5 cj-) Jam H. Turner, Esquire TURNER AND O'CONNELL 4415 North Front Street Harrisburg, PA 17110 (717) 232-4551 Attorney for plaintiff r Date: 1?r 0 Richard S. Friedman, Esquire FRIEDMAN & KING 600 North 2nd Street, 5th Floor PO Box 984 Harrisburg, PA 17108 717/236-8000 Attorney for defendant ? 0 ?