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Home My WebLink About06-2194 Christopher E. Rice, Esquire MARTS ON DEARDORFF WILLIAMS & OTTO I.D. 90916 10 East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Plaintiff RONALD 1. STOUDT, individually and d/b/a STOUDT CONSTRUCTION and TONI FAILOR, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA Plaintiffs : NO. 06 - d Iq'f CIVIL TERM v. JOHN LEVENDA, in his official capacity as Constable, and WESTERN SURETY COMPANY, Defendants 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 orrelief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LA WYER 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 MAYBE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 F\FILES\DAT AFrLElGeneral\CulTe/ltll 16] I ,Scorn Created: ]{IS/06 4,ORPM Revised: ]/]0/06 2:24PM RONALD 1. STOUDT, individually and d/b/a STOUDT CONSTRUCTION and TONI FAILOR, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs :NO.06- CIVIL TERM v. JOHN LEVENDA, in his official capacity as Constable, and WESTERN SURETY COMPANY, Defendants COMPLAINT I. Plaintiffs, Ronald 1. Stoudt, individually and d/b/a Stoudt Construction, and Toni Failor, are adult individuals with an address of 57 Mountain View Terrace, Newville, Pennsylvania. 2. Defendant John Levenda is an adult individual and a Pennsy Ivania Constable with an address at 1803 Walnut Street, Camp Hill, Pennsylvania 17011. 3. Defendant Western Surety Company is a South Dakota surety company with an address of 319 South Cotean Street, Pierre, South Dakota 57501. COUNT I - Plaintiffs v. Defendant John Levenda 4. Paragraphs 1-3 are incorporated by reference as iffully set forth below. 5. It is believed, and therefore averred, that Defendant is a certified Constable in Cumberland County. 6. On or about December 28,2005, Diane Yeager and Owen D. Fuller filed a civil Complaint in Magisterial District Court No. 09-2-0 I, under District Justice Paula P. Correal, against Stoudt Construction and Toni and Ronald Stoudt in the amount of$8,000.00. A true and correct copy of the Complaint is attached hereto as Exhibit "A." 7. On or about January 1,2006, Defendant Levendaallegedly personally served Ronald Stoudt at 2:35 p.m. at 57 Mountain View Terrace, Newville, Pennsylvania. A true and correct copy of the service of process is attached hereto as Exhibit "B." 8. Under Magisterial District Justice Pa. Rule 308, Service Upon Individuals, Defendant Levenda stated in the service of process that he performed Rule 308.1 by personally serving Plaintiff Ronald. 9. Thereafter, Defendant Levenda filed a service of process verifYing that he personally served Plaintiff Ronald. It is believed, and therefore averred, that Defendant Levenda signed the service of process in the bottom right hand comer stating that the information provided by him was true and correct. See Exhibit "B." 10. Plaintiff Ronald was never personally served with the Complaint as indicated on the service of process and as required by law. 11. Thereafter, a hearing was set for February 13,2006, before District Justice Correal and ajudgmentrendered against Plaintiffs in the amountof$8, 155.05. A true and correct copy of the Notice of Judgment is attached hereto as Exhibit "C." 12. Plaintiffs allege that Defendant Levenda fraudulently made a false return of process, and therefore, is liable for the damages resulting therefrom. Plaintiffs have incurred damages in the amount of $8,155.05, along with attorney fees in the amount of$500.00, and costs of sui, and will sustain additional damages all in an attempt to appeal the judgment entered against them as set forth above. 13. Defendant Levenda has violated 13 P .S. ~9 for making a false return and failing to justly and faithfully discharge the duties of his office of Constable. WHEREFORE, Plaintiff demands compensation from Defendant in the amount of$8, 155.05, plus costs, interest, attorney fees and any other relief that the court deems appropriate. COUNT II - Plaintiffs v. Defendant Western Surety COIDuanv 14. Paragraphs 1-13 are incorporated as iffully set forth below. 15. Defendant Western insured Defendant Levenda through a Bond. A true and correct copy of the Bond is attached hereto as Exhibit "D." 16. As the insurer of Defendant Levenda, Defendant Western is liable to Plaintiffs for the damages in the maximum amount under the bond. WHEREFORE, Plaintiff demands compensation from Defendant in the amount of the bond, plus costs, interest, and any other reliefthat the court deems appropriate. MARTSON DEARDORFF WILLIAMS & OTTO By C!--i? i}vt... (. f'? Christopher E. Rice, Esquire Attorney 1.D. No. 90916 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: J- 0.0- I'" Attorneys for Plaintiffs EXHIBIT A ,~MMONWEAL TH OF PENNSYLVANIA ---....---..._-t CIVIL COMPLAINT COUNTY OF: CUMBERLAND Magisterial District Number: 09-2-01 PLAINTIFF: I NAME and ADDRE:SS District Justice Name: Hon. PAULA P. CORREAL Add'.." 1 COURTHOUSE SQUARE CARLISLE, PA 17013 Diane Yeager/Owen D. Fuller P. O. Box 7 Edinburg, VA 22824 I L vs. ~ T"ophon., (717)240-6564 DEFENDANT: I NAME and ADDRESS Stoudt Construction Toni/Ronald Stoudt 57 Mountain View Terrace Newville, PA 17241 I L ---.J Docket No.: Date Filed: CV-570-05 12/28/05 ~.A.~_ ~~ TOTAL $ 155.05 DATE PAID / / / / 12/28/05 FILING COSTS SERVING COSTS AMOUNT $ 110.50 44.55 $ TO THE DEFENDANT: The above named plalntiff(s) asks judgment against you for S 8000 00 together with costs upon the following claim (Civil fines must include citation of the statute or ordinance violated): Ronald Stoudt. of Stoudt Construction, was paid $9.000.00 to buiid a 30x30 footers and foundation walls for a garage at 43 F St. in Carlisle. $4000.00 was paid on 11-26-05. $5,000 approx 2 weeks later. All work stopped on approx 12- 16-05 because they wanted more money (amount varied with every contact). Stoudts say they have done $7,000 worth of work to date (very questionable) but refuse to continue working without us paying them more. The work they have done is very poor work and not as stated on the contract. I, Diane Yeaaer verify that the facts set forth in this complaint are true and correct to the best of my knowledge, information, and belief. This statement is made subject to the penalties of Section 4904 of the Crimes Code (18 PA. C.S.1i 4904) related to unsworn falsification to authorities. (Signature of Plaintiff or Authorized Agent) Plaintiff's Attorney: Address: Telephone: (717) IF YOU INTEND TO ENTER A DEFENSE TO THIS COMPLAINT, NOTIFY THIS OFFICE IMMEDIATELY AT THE ABOVE TELEPHONE NUMBER. YOU MUST APPEAR AT THE HEARING AND PRESENT YOUR DEFENSE. UNLESS YOU DO, JUDGMENT WILL BE ENTERED AGAINST YOU BY DEFAULT. If you have a claim against the plaintiff which is within district justice jurisdiction and which you intend to assert at the hearing, you must file it on a complaint form at this office at least five (5) days before the date set for the hearing. If you have a claim against the plaintiff which is not within district justice jurisdiction, you may request information from this office as to the procedures you may follow. If you are disabled and require assistance, please contact the Magisterial District office at the address above. AOPC 308A (12-1-98) EXHIBIT B 1.7013-0000 Ii I SERVICE OF PROCESS II: I PLAINTIFF, ___ ! I- Nil'"'''''''''''''''' fDL\JIIBYEMBJl/OWBII II !'VLLD. P 0 BOxll'li Ii BJ)DBtJ'&QI,l VA 228240 L I VS. OEfENDANT: . ; 'NAMt: ",'~i$$ADORCSG fSTOlIDT co'.,UtJCTIOB'" BT AL.. 5'7 JlOmE. VIEW 11Pv.....S ~BftUL1iliA 17241 -, /~~ COMMQNWEALT~ OF PENNSYL.VANIA COUN~ OF: CUDImT,AJI]) Mao.0t6.t.r.k1 , 09-2-01 MDJ NaU\I~- \"1M .I'AVLA P. COQIPU. Add'", 1. COUJI.TJlOUSB SQ CARLISLE, PA. .J '"1.",,,,," ('71.7) 340-65640 -, PAULA. P CO:JlllBAL . 1 C01J1TJ10US:I SQ Docket NO'.; <:::'(+0000570-05 CUL:rSLI:, PA. U013-0000 Date Filed: I !t:i/28/05 I , ' I , Served upon ST01mT, oWIIIIDI.S, 'l'OIII/ROJIALEI , by handing a copy of Describe Documont(s): (Per""n 10 be Served) I j CZVIL COJIPLUJn' --l .. on III' If I, ILl ~,I De I~~ J+ (R81i1tloi1l'IPI.mr., I d-:~Sf? . ,M..at (Time) II I, _. I, OW 14..., e r {-("i!- .e.4J . (lO",",'lon)~" \' For LandlordlTenant complaints: -- , Since none 01 the above found, served oy posting a copy of the complaint nsrCUOUSIY on the premises on , at ' I. I. . M.. (Dole) Tilier I f S +ol<d-r C:rVIL ACD DU.XJIQ BOTICS to /2 0' I:.I(! (I'Cl'1Ol'\ Actual'y Sm,,~') ,II/{)b I I (DatA) . at 5'7 /l. /11- at (Ltlc<\lk\n} Miles Traveled: ~o .-- 'J '. (Sigiulh.ii.) Iii (Print NC.1I1:IO ana -l'itlo) ! I nATBPRI>>TBD:12/29/0S 1:54:24 PJI I' II : ,11 :WOJ~ l2:80 9002-lT-N~r Aore 624-04 2/2'd 0S8lE172L tL: 01 EXHIBIT C AOPC.315-OS DA'.rB PIt.ullT6U: 2/14/06 10:53:44 AX .; " ~'",. ~.Di51.NI:l.: .;,' 09-2-01 MOJ Nolme: I-Icn. PJU7LI, P. (.'01111....1. _N~; 2260SPRZRQ KP 8UXTB '3 CAJtt.~.LB. PA To"""",,,": (711): '218-5250 11013-0000 I ''1017.D'r CO.SftUCTl:OJI 57 KOtIft~ Vl:BIf '.rQ1Ill.~ "-'ILLE, IPA 17241 , I .~IS~~~~rF"t YO~ 1ttAT: (i] Judgment was entered for: (Name) [i]JUdgment was entered against: (Name) NOTICE OF JUDGMENTITRANSCAIPl · CIVIL CASE . PLAINTIFF: ..... on" ADORESS Iou.. TB,,""/OIID D nLLD. 10802:7 BDDl817RG., n 22824 l- VS. DEFENDANT: NAME and -IDOAESS 'i'l'01JD'f COIISft17C'1'l:OJI" ft n. 57 JlOUIft'ADI Vl:BIf 'fW1t. ,,.. ..wy~LLB, PA 17241 l- Docket No.: CV-0000S70-05 Date Filed: 12/28/05 . - .0.. pr....,....r.. n.,...w, "'.~/"'" ft WftI'.T.... in the amount of $ .~..., ^-__.,_, ~ /al'nl'ay.ft 2/1::1/01: . '0:11 1111 on: o Defendants are jointly and severally liable. . 0 Damages will be assessed on: o This case dismissed without prejudice. O Amount of Judgment Subject to Attachment/42 Pa.C.S. ~ 8127 $ O Portion of Judgment for physical damages arising out of residential lease $ (Date of Judgment) (Date & Time) Amount of Judgment $ '.000.00. Judgment Costs $ 155.05 Interest on Judgment $ .00 Attorney Fees $ .00 Total $ 8.155.05 Post Judgment Credits $ Post Judgment Costs $ --~~ Certified Judgment Totltl $ ANY PARTY HAS THE AIGHT TO APPEAL WITHIN so DAYS AFTER THE ENTRY OF JUDGMENT BY FlUNG A NOlICE OF APPEAL WITH THE PROTHONOTARYICLERK OF THE COURT OF COMMON P~$. CIVIL DM8ION. YOU ."" ':'MIJ~lNCIlVBFA~ OF THIS-NOTICE OF JVDGMENTflllIlNSCl'lIPTFORlltwmrvouR No-TICI!'OF ;r,PPE;tL~ c . .. . EXCEPT AS OTl'lERWlSE PROVIDED IN TME RULES OF CIVIL PROCEDURE FOR MAGIS1'1EIIIAL DIITRICT JUDGES, "' THE JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS. ALL FURTHER PROCESS MUST COME FROM TItE COURT OF COMMON PLEAS AND NO FURTl'IER PROCESS MAY lIE ISSUED BY THE MAGISl1iRIAcL DlSTIlICT JUDGE. UNLESS THE JUDGMENT 18 ENTERED IN THE COURT OF COMMON PLEAS. ANYONE INTERESTED IN THE JUDGMENT MA Y FILE A RI!QlJEST FOR ENTRY OF SA TlSFAcnON WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PA YS IN FULl, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. .. r---~'..' LaD~4~Date::~./i~~~" ,~agiSl8Q~IDiSt~~~JqdQ~" '< '~q~?';'_.~:~IlI~}f\~I;!~~:~iaifU~~~(fcor;~Ct,copy tif'th$;e~~Onh~ .prC)Ceedings cOntajni~g.tbe j1J<l,9m~~t,'. ~'""",,:,,,:".'." ",., ", .. ,r c.. ,:," "", ""< '.: ,'.. ' ,,' " .'. . " . .'~ '.;j;;,i:~" ". ,oal~ . "', ",Magistelial{)istridJ\.Id9El EXHIBIT D COl',STABLE BOND FOR:\1 CCMBERLA~1) COUJ'\TY Carlisle, Pelll1sylvania IC"iO\V ALL MEJ'\ BY THESE PRESE1\TS: That I, J,,~., P (oe..)" of Cumberland County, am held and firmly bound unto the Commonwealth of Pelll1sylvania in the penal sum of twenty-five hundred dollars ($2500.00) lawful money of the United States, to be paid to the said Commonwealth, for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators jointly and severally firmly by these presents. Sealed with our seals and dated this 2'1 day of Dr,,,,,, \,.U" 200:; Whereas, Jc~.., p. Lu~...J" was duly appointed Constable of C"",(' H;/! from the first Monday of January, 2004 ,to the first Monday ofJ anuary, 20 I 0 ,for a period of six years. Now the condition of this obligation is such, that if the above bounden ~ball ?=;=, i..l ',." r--; ""'==- for and during his term of office or until he is legally discharged therefrom, :ju~IY:al'1d faitlr1i1lly --".., 0 u m 'kpos-&\. upo~im \,-~~j/ ,J.4.. n .::;; ""-lo _.~ ~ P;4.e~.J" discharge the duties of the office of Constable for C"'""'r 1-l: U ~y as Constable, then this obligation to be null and void, else to be in full force and virtue. N .r= , l j,-. ...., ".". ...... .l.' - :-~.. "'..- - __ ~ i' (:' ~~ If" .:; Witness ;(JJ~ (j ~~ Wi ess J '1:.) , ~ A . mey in Fact ,--",. (".",",('ANy Witness Constable ~ And no,,' this?-'O' "' day of ^ - JI'_ ;~ e ~, approved by the Court. ~. Bonds and Sureties CO!\;ST..I\BLE BO,,'D TO 13:::: FILED I1\ CLERK OF COMM01\ PLEAS COeRT VERIFICATION The foregoing Complaint is based upon information which has been gathered by our counsel in the preparation of the lawsuit. The language of the document is that of counsel and not our own. We have read the document and to the extent that it is based upon information which we have given to counsel, it is true and correctto the best of our knowledge, information and belief. To the extent that the content of the document is that of counsel, we have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities, which provides that if we make knowingly false averments, we may be subject to criminal penalties. .W,,9 r~ Ronald 1. Stoudt TO~~~ L ~~~ ........ -J ~ ~ ~ ~ \.....i ~ ~ 0'\ (j. . ) Vi c;,t , " .j! .l"''''' ~. 'I::: l-' f1AR 1....(, ( , , 2606 \Q) " , - ....~ ...,) ~" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RONALD J. STOUDT, individually and d/b/a STOUDT CONSTRUCTION and TONI FAILOR, Plaintiffs v. JOHN LEVENDA, in his official capacity as Constable, and WESTERN SURETY COMPANY, Defendants CIVIL DIVISION CASE NUMBER: 06-2194 ISSUE NUMBER: PLEADING: PRAECIPE FOR APPEARANCE CODE AND CLASSIFICATION: FILED ON BEHALF OF: JOHN LEVENDA, Defendant. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa, ID# 34329 CIPRIANI & WERNER, P .C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17011 (717) 975-9600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CNIL DIVISION RONALD J. STOUDT, individually and d/b/a ) CASE NO: 06-2194 STOUDT CONSTRUCTION and TONI ) FAILOR, ) ) Plaintiffs ) ) v. ) ) JOHN LEVENDA, in his official capacity as ) Constable, and WESTERN SURETY ) COMPANY, ) ) Defendants ) PRAECIPE FOR APPEARANCE TO: PROTHONOTARY OF CUMBERLAND COUNTY Kindly enter my appearance on behalf of the Defendant, JOHN LEVENDA, in the above-captioned matter. Respectfully submitted, CIPRIANI & WERNER, P.C. BY: DE Co sel for the Defendant, JOHN LEVENDA A JURY TRIAL IS DEMANDED .~ CERTIFICATE OF SERVICE That counsel for the Defendant, JOHN LEVENDA, hereby certifies that a true and correct copy of its PRAECIPE FOR APPEARANCE has been served on all counsel of record, by first class mail, postage pre-paid, according to the Pennsylvania Rules of Civil Procedure, on the /~ day of ~ ,2006. Christopher Rice, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, P A 17013 Western Surety Company 319 South Cotean Street Pierre, SD 57501 Respectfully submitted, CIPRIANI & WERNER, P.C. BY: D Co sel for the Defendant, JOHN LEVENDA (") C :.:~ ......., = = CT" ::It ::P> -< o ., -I ::r:..,., n'F -orn -0 CJ ~~1 ~~ ':3(') ;'~5rn ~ ~ -< en " ::x N ... N W SHERIFF'S RETURN - REGULAR CASE NO: 2006-02194 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND STOUDT RONALD J ETC VS LEVENDA JOHN ET AL RONALD HOOVER , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon LEVENDA JOHN IN OFFICIAL CAPACITY-CONSTABLE the DEFENDANT , at 1530:00 HOURS, on the 2nd day of May , 2006 at 1803 WALNUT STREET CAMP HILL, PA 17011 by handing to JOHN LEVENDA a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Postage Surcharge So Answers: 18.00 39.60 .39 10.00 .00 67.99 rfAC:--/<:~ R. Thomas Kline day of 05/03/2006 MDW&O By: ~S-)L/ Deputy Sheriff if;.:vJA{' (1 . Sworn and subscribe~ before me this A.D. Prothonotary . Christopher E. Rice, Esquire MARTS ON DEARDORFF WILLIAMS & OTTO I.D. 90916 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff RONALD J. STOUDT, individually and d/b/a STOUDT CONSTRUCTION and TONI FAILOR, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA Plaintiffs : NO. 06 - 2194 CIVIL TERM v. JOHN LEVENDA, in his official capacity as Constable, and WESTERN SURETY COMPANY, Defendants AFFIDAVIT OF SERVICE OF COMPLAINT COMMONWEALTH OF PENNSYLVANIA ) : SS. COUNTY OF CUMBERLAND ) I hereby certifY that a copy of the Complaint in the above captioned matter was mailed to Western Surety Company, 319 South Cotean Street, Pierre, SD 57501, on April 20, 2006, by certified mail, return receipt requested. Attached is the Post Office return receipt signed and dated April 25, 2006. MARTS ON DEARDORFF WILLIAMS & OTTO BYC-t. 4L <; tZ-- Christopher E. Rice, Esquire AttorneyIDNo.90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Sworn to and subscribed before me this.i26~ay of July, 2006 ~)~,Q~ Not Pubhc C MONW ALTH OF PENNSYLVANIA Notarial Seal Mary M. Price, Notary Public Carlisle Boro. Cumberland County My Commission Expires Aug. 18. 2007 Member. Pennsylvania Association of Notaries .. , . CorrlpIoM n.ma 1, 2, end 3. Htto complele Item 4 If FIMlrtcIIId DeIlwry Ia deIInod. . Prtnt your _ end ~ an tIIe__ 10 that Oft <<*I r8llm tile ClftI to you. . AIlIICh IhIto ClftI to tile bIIck of the ITI8lIp/ece; or on the frDnt If lIpllC8 permfta. 1. ArtIcle Add. II T d ~. ,',' '.,'1..: ~ '0/'1 ~ n. S'{)5-1S7J/ \.f~) 3. -"JWIe gc....;::- o ecp.. Mol o RoIum RocoIpI lor Mo....I.._ 00.0.0. 2.__ ~--.... P8 FcIIIIl 8811, F...., 11I04 7004 1350 D~03 72a~ 4127 Dcw..-c PaUn ~ ... lII-M~114O i I'- I1J .-'I :r u S PO~!ill SP'VtC,' CER1IFIED MAIL BECLlI' I (Domestic M;;ul Only, No Insurance Coverage ProlluJed) 00 00 I1J I'- pQEi !i;ol C I A L US EIIf,3/ IT1 l:J l:J o Retum RecIept Fee {Enclorsoment R........, t:J ReItr\ctecI Delivery Fee LIl (En<joroemont_> IT1 .-'I Postage $ Cerlified Fee $1.1lS $3.70 " -'_eaFees $ $8.82 \ :r l:J . l:J I'- " , j l 1 ." "'.' i= 11. ... \ :> ., ) )- 1:; ~-:: =?-~ ~:~) ~; C)::5 '>- ;-:+(j) _)2 :'- ,'-, PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. ~--------------------------------------------------------------------------.----------------------------------------- CAPTION OF CASE (entire caption must be stated infull) RONALD J. STOUIJr, Individually and d/b/a STOUDT CONSTRUCTION and TONI FAILOR (Plaintiff) vs. JOHN LEVENDA, in his official capacity as Constable, and WESTERN SURETY COMPANY (Defendant) No. 2194 2006 Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections of Defendant, Western Surety Company, to Plaintiffs' Complaint 2. Identify counsel who will argue cases: (a) for plaintiff: Christopher E. Rice, Esquire (Name and Address) Ten East High Street, Carlisle, PA 17013 (b) for defendant: Mark R. Zogby, Esquire (Name and Address) 1011 Mumma Road, Suite 201, Lemoyne, PA 17043 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: September 6, 2006 Mark R. Zogby, Esquire Print your name Date: 1J)/ /~ I I Western Surety Company Attorney for '".) ,~. '-',', . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION RONALD J. STOUDT, individually and d/b/a STOUDT CONSTRUCTION and TONI FAILOR, Plaintiffs v. JOHN LEVENDA, in his official capacity as Constable, and WESTERN SURETY COMPANY, Defendants TO: RONALD 1. STOUDT, STOUDT CONSTRUCTION AND TONI F AlLOR CASE NUMBER: 06-2194 ISSUE NUMBER: PLEADING: PRELIMINARY OBJECTIONS OF DEFENDANT, WESTERN SURETY COMPANY TO PLAINTIFFS' COMPLAINT CODE AND CLASSIFICATION: FILED ON BEHALF OF: WESTERN SURETY COMPANY, Defendant. COUNSEL OF RECORD: MARK R. ZOGBY, ESQUIRE Pa. ID# 84032 CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lernoyne,PA 17011 (717) 975-9600 , 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION RONALD J. STOUDT, individually and d/b/a ) CASE NO: 06-2194 STOUDT CONSTRUCTION and TONI ) FAILOR, ) ) Plaintiffs ) ) v. ) ) JOHN LEVENDA, in his official capacity as ) Constable, and WESTERN SURETY ) COMPANY, ) ) Derendan~ ) PRELIMINARY OBJECTIONS OF DEFENDANT. WESTERN SURETY COMPANY TO PLAINTIFFS' COMPLAINT AND NOW, comes Defendant, Western Surety Company ("Western"), by and through its counsel, Cipriani & Werner, and hereby files the following Preliminary Objections. A. PRELIMINARY OBJECTION TO PLAINTIFF'S COMPLAINT IN THE NATURE OF A DEMURRER PURSUANT TO PA.R.C.P. l028(b)(4) 1. On or about April 10, 2006, Plaintiffs filed a Complaint against John Levenda, in his official capacity as Constable ("Mr. Levenda"), and Western alleging damages as a result of improper service of a District Justice Complaint in the matter of Diane Yealler/Owen D. Fuller v. Stoudt Construction and TonVRonald Stoudt, Docket No. CV-570-05 ("underlying matter"). A true and correct copy of Plaintiffs' Complaint is attached hereto as Exhibit "A." , 2. Thereafter, Mr. Levenda filed a timely Answer with New Matter to Plaintiffs' Complaint. A true and correct copy of Mr. Levenda's Answer with New Matter is attached hereto as Exhibit "B." 3. Western now brings these Preliminary Objections to Plaintiffs' Complaint. 4. In their Complaint, Plaintiffs bring a claim against Western Surety Company for the actions of Mr. Levenda as follows: 15. Defendant Western insured Defendant Levenda through a Bond. A true and correct copy of the Bond is attached hereto as Exhibit "D." 16. As insurer of Defendant Levenda, Defendant Western is liable to Plaintiffs for the damages in the maximum amount under the bond. Wherefore, Plaintiff demands compensation from Defendant in the amount of the bond, plus costs, interest, and any other relief that the court deems appropriate. Plaintiffs' Complaint~15-16. 5. Western is not the insurer of Mr. Levenda. 6. Notwithstanding, the general rule in Pennsylvania is that direct actions against insurance companies are not allowed. Commonwealth Deoartment of General Services v. Celli- Flvnn, 115 Pa.Cmwlth. 494, 498 (1988), citing Soires v. Hanover Fire Insurance Co.. 364 Pa.52, 70 A.2d 828 (1950). 7. Western provides surety for the bond required by Mr. Levenda in his official capacity as a Pennsylvania State Constable pursuant to 13 P.S. ~9. 8. Plaintiffs failed to plead that they obtained judgment against Mr. Levenda. 9. Plaintiffs failed to plead that they used reasonable diligence to collect their alleged damages from Mr. Levenda. 10. Plaintiffs failed to plead that Mr. Levenda was insolvent, absconded or for any other reason it became impractical to collect their alleged damages from Mr. Levenda by legal process. 11. 13 P.S. g87 provides as follows: Any constable who has or may hereafter give security agreeably to law for the faithful performance of the duties of his office, and afterwards on neglecting or refusing to perform such duties shall have judgment entered against him for such neglect or refusal and on being prosecuted for the recovery of such judgment becomes insolvent, abandons his country, or from any other reason it becomes impracticable for such judgment or judgments to be recovered from such constable as aforesaid; or where a constable makes such default and abandons his country before judgments are has against him, then, and in such cases only, the justice before whom the judgment or judgments stand unpaid shall be and is hereby authorized and empowered to issue a scire facias, and proceed against such bail for the recovery of judgments had aforesaid, in the manner that constables are now suable; saving only the right of appeal to such sureties. 12. One does not have a right of action against a constable's surety until after he has used reasonable diligence to collect his damages from the principal by legal process. Commonwealth ex reI. HUflhes v. Marvland Casualtv Co.. 167 Pa.Super. 101,104, 74 A.2d 683, 685 (1950), citing Kirkoatrick v. White. 29 Pa, 176 (1857). 13. The longstanding rule in Pennsylvania is that a Plaintiff cannot sue a constable and his surety in the same action. !!!:. at 685. 14. Plaintiffs' cause of action against Western will not arise unless and until they obtain a judgment against Mr. Levenda and are able to show that after reasonable diligence they were unable to collect said judgment from Mr. Levenda through legal process. 15. Mr. Levenda is contesting Plaintiffs' claims against him and no judgment has been entered against Mr. Levenda. 16. The conditions precedent to Plaintiffs' potential cause of action against Western have not accrued. 17. Any cause of action Plaintiffs might have against Western in the future, which is specifically denied, has not accrued. 18. Plaintiffs have failed to allege sufficient facts to support a cause action against Western. WHEREFORE, Western Surety Company respectfully requests that a demurrer be sustained to Plaintiffs' Complaint and dismiss Plaintiffs' Complaint against it. BY: M R. Zogby, e ttorney 1.0. 32 1011 Mumma Road, Suite 201 Lemoyne, P A 17043 (717) 975-9600 Counsel for Defendants Date: ~ I d oil VERIFICATION I hereby affmn that the following facts are correct: Western Surety Company is a Defendant in the foregoing action. The attached Preliminary Objections to Plaintiffs' Complaint are based upon information, which I have furnished to my counsel and information, which has been gathered by my counsel in preparation for this lawsuit. The language of the Preliminary Objections to Plaintiffs' Complaint is that of counsel and not of me. I have read the Preliminary Objections to Plaintiffs' Complaint and to the extent that the Preliminary Objections to Plaintiffs' Complaint is based upon information, which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the Preliminary Objections to Plaintiffs' Complaint is that of counsel, I have relied upon counsel in maldng this verification. I hereby acknowledge that the facts set forth in the aforesaid Preliminary Objections to Plaintiffs' Complaint is made subject to the penalties of 18 Pa.C.S. 4904, relating to unsworn falsification to authorities. Dated: :? -I ~O &:> '7({V epresentative of Western Surety EXHIBIT A 65/08/2006 13:57 7172557257 . NASHOF PAGE 02 c Christopher E. Rice, Esquire MARTSON DEARDORFF WILLIAMS 8< OTTO I.D. 90916 10 East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Plaintiff RONALD J. STOUDT, individually and d/b/a STOUDT CONSTRUCTION and TONI FAILOR, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA Plaintiffs : NO 06 -d (qf' CML TERM v. JOHN LEVENDA, in his official capacity as Constable, and WESTERN SURETY COMPANY. Defendants NOTICe You have been sued in cow1. 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 cas<: may proceed without you and ajudgment 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 Plaintiffs. You may lose money or property or other righ~ important to you. YOU SHOULD T AI<.ErHIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOr HA YEAtA WYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HI.R1NG A LAWYER. IF YOU CANNOT AfFORD TO HIRE A LAWYER, TInS OFFICE MAYBE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCmS THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE: lFIUE qoPV FROM RECO.mberland County Bar Association III TI~WllII1CII, I here WIll.. 1It''' 32 South Bedford Street .~ .... of said . ~~ I;'" Carlisle, PA 17013 ~(jft (717)249-3166 05/08/2006 13:57 . 7172557257 t l~.sHOF PAG~ 1~3 f':\fn.E.!\DA7.'\1IJ.f\~!\t:urnnl\116' I_~,eora C.I'Uled: 31\~106 ":{I~f'M R....;tor.I::ln~1;:L4s,.f RONALD J. STOUDT, individually and d/b/a STOUDT CONSTRUCTION and TONI FAILOR. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : NO. 06 - CIVIL TERM v. JOHN LEVENDA. in his official capacity as Constable, and WESTERN SURETY COM]> ANY, Defendants COMPLAIN] 1. Plaintiffs, Ronald J. Stoudt, individually and dfhIaStoudt Construction, and Toni Failor, arc adult individuals with an address of 57 Mountain View Terrace. Newville, Pennsylvania. 2. Defendant John Levenda is lUl adult individual and aPelUlsylvania Constable with an address at 1803 Walnut Street, Camp Hill, Pennsylvl1llia 17011. 3. DefendlUlt Western Surety Company is a South Dakota sw:ety company with an address of319 South CotelUl Street, Pierre, South Dakota 57501. CQ~T I. PllIintltTs v. Defendant John Levenda 4. Paragraphs 1-3 arc incorporated by reference as iffuIly set forth below. 5. It is believed, and therefore averred, that Defendant is a certified Constable in Cwnberland County . 6. On or about December28,2005, Diane Yeager andOwenD. Fuller filed a civil Complllint in Magisterial District Court No. 09-2-01, under District Justice Paula P. Correal, against Stoudt COllstructionand Toni and Ronald Stoudt in the amountof$8,OOO.OO. A true and correct copy of the Complaint is attached hereto as Exhibit "A." 7. On or about January 1,2006, Defendant Levenda allegedly personally served Ronald Stoudt at 2 :35 p.m. at 57 MounUlin Vh::w Terrace, Newville, PelUlsylvania. A true and correct copy of the service of process is attached hereto as Exhibit "B." 05/08/2005 13:57 . 7172557257 t~I~SHOF PAGE 214 8. Under Magisterial DistriclJustice Pa. Rule 308, Service Upon Individuals, Defendant Levenda stated in the service of process that he perfonned Rule 308.1 by personally serving Plaintiff Ronald. 9. Therc:after, Defendant Levc:nda filed II service of process verifyiog that he personally served Plaintiff Ronald. It is believed, and therefore averred, that Defendant Levenda signed the service of process in the bottom right hand comer stating that the infonnation provided by him was true and correct. See Exhibit "B." 10- PlaintiffRol1ll1d was never personally served with the Complaint as indicated on the 5Cl'Vice of process and as required by law. 11. Thereafter, a hearing was set for Febrnll.\Y 13,2006, before DistrictJustice Correal and ajudgmentrendered against Plaintiffs in the amount 0[$8, 155.05. A true and correct copy of the Notice of Judgment is attached hereto as Exhibit "C." 12. :Plaintiffs allege that Defendant Levenda fraudulently made a false returo of process, and therefore, is liable for the damages resulting therefrom, Plaintiffs have inCUll'ed damages in the amount of $8,155.05, along withattomey fees in the amount of$500.00, and costs of sui, and mil sustain additional damages all in an attempt to appeal the judgment entered against them as :let forth above. 13. Defendant Levendahas violated 13 P.S. S9 formaking a false retum and failingtojustly and faithfully discharge the dutie~ of his office of Constable. WHEREFORE, Plaintiffdemands compensation from Defendant in.the amount of$8, J 55.05, plus costs, interest, attorney fees and lIIlY9ther relief that the court. deems appropriate. COUNT n . Plaintiffs v, Defendant Western Suretv COIDDanv 14. Paragraphs 1-13 are incorporated as if fully set forth below 15. Defendant Western insured Defendant Levenda through a Bond. A true and correct copY of the Bond is attached hereto as Exhibit "D." 05/08/2006 13:57 . 7172557257 NASf-i:JF PI;GE 05 16. As the insurer of Defendant Levenda, Defendaut Western is liable to Plaintiffs for the damages in the maximum amount under the bond. WHEREFORE, Plaintiffdemands compensation from Defendant in the amount of the bond, phl~ costs, interest, and any other relief that the court deems appropriate. MARTSON DEARDORFf WILLIAMS & OTTO By ~.j..r?- (, f'? Christopher E, Rice, Esquire Attorney 1.0. No. 90916 10 East Hiih Street Carlisle, PA 17013 (717) 243-3341 Date: J- ~() - ~ rp Attorneys for Plaintiffs 05/08/2005 13:57 . 7172557257 H:~S!-C': PAGE 05 EXHIBIT A B?/B6/2066 13:57 71 72557257 r~ASHOF PAGE 87 .,.....-JSDMMONWEAL TH OF PENNS'h. w ANIA COUNTY OF: CUMBERI AND '--"'''"-'''''-,1 CIVIL COMPLAINT MlglMerlal Diatrk:c NumbeI'~ 09-2-01 PLAINTIFF, r NAllIE al'ld ADDRESS D~c.t .JU4tiCHI Htun.: Hon. Diane Yeager/Owen D. Fuller P. O. Box 7 Edinburg, VA 22824 I PAULA P. CORREAL Add...., 1 COURTHOUSE SQUARE CARLISLE, PA 17013 T._..: (717)240-6564 L VS. -1 I -.J Ooc"-l No.; CV.570-05 Dot. Flied: 12/28/05 . AMOUNT DATE PAID FILING COSTS $ 110.50 I I SiiflVlNG COSTS $ 44.55 I I TOTAl. $ 155.05 12/28/05 TO TI-iE DEFENDANT: The above named P/B1nlifl(al.'" Judgment against you for S 8110O.00 loglIIher with costs upon tile follClWlng Claim (Civil fines musllncloda cillllion of the st.tule Of' ordln8ll.,. violated): Ronald Stoudt, of Stoudt Conatruction, was paid $9.000.00 to build a 30x30 footers and foundation walls for a 98-regc at 43 F St. in Carlisle. $4oo0.0Q was paid on 11.26-05, $5,000 approx 2 weeks later. All work stopped on approx 12. 16-05 because they wanted more money (amount varied with every contact). Stoudts say they have done $7,000 worth of work to date (very qUe$tionable) but refuse to continue working without uS paying them more. The work they have done is very poor work and not as stated on the contract. I, DIane V__r verffy lJ\at the fa"'. ..t fortf1ln IJ\ls complaint are tnJe and corred to the b.at of my knOWledge, lnformatlOll, and belief. This stetement Is made subject to the penalti.. of $eclion 41104 of the Crimes Coc\e (18 PA. C.S. S 4004) related to unswom fal./fl.-tlon to authorftles. . , \IiiiMiun Of Plalnuff ar Author1nd A~"t) Plaintiff'. Attomey: Telllphono: (717) Addr...: II' YOU INTEND TO ENTER A DEFENse TO THIS COMI'I.AINT, NOTIFY THIS OffiCE IMMEDIATeLV AT THE ABOVE TELEI'HONe NUMBER. VOU MUST APPEAR AT THi HEARING AND PRESiNT YOUR DEFENSE. UNLESS VOU DO, JUDGMENT WILL BE ENTeRED AGAINST YOU BY DEFAUI.T. If you have a claim against the plaintiff which is within di6lrict JUStice jurisdiction and which you intend to assert at the hearing, you must file it on a COmplaint form at this offIce at least flYe (5) days before the date set for the hearing. If you havII a claim "9"ln8t Ihll plaintiff which is not within district justice Jurisdiction, you may ,eCluest information from this offICe as to the procedures you may follow. If you are disabled and requIre ..,&tanca, 1".... contaot the Magistarial District offic. at the add.....s abQV8. AOPC 308A (12.1.Q8) 05/08/2005 13:57 7172557257 t--ii1.SHOF PAGE i:J8 EXHIBIT B 05/08/2005 13:57 , 71725.57257 Nt-6HOF PAGE e.3 17013-0000 II I SERVICE OF PROCeSS PLAINTIFI';..: II L ( . _........E.. liluu~/OIfD J) nLlaD .. 0 IJOZII~ ij JIl)DJI~"I't V1 2212' L .;. I I. . VS O~fNDnn'~ " ~ l. .l'WC_.6' a..rwt...t"CR'G5 fi'1'OUJ)T~.'IJll1C'l%OIf" ft at.. 51 JIO'(JIIft\m VI" r"."'1 I ,~~ COMM9NW,EALT~ OF Ji'eNNSYL.VANIA COUNTY OF! ~_T ~!"' MaI.l)IJl. Nr~', -. 09-2-01 MO.!NalIU!' ~ -PAULI. .,. C<I...u. -.., t ClOft'l'llOVA SO c:.a.u.XSLB, 1'.1. r.....".w 1717) 3-10."601 ...J ., 'AULA P. 1 COOK'l'II0178 CAJUiI8LJ: ....f''' . ; 'A 17:241 CO...~ L . : I. I fJQ DOCket No-.: ft"OOOO570-05 . ..1. 110U-OOOO Date Filed: /28/05 .", . , , .' I1'ODII'1' I ........... , 'IOrn/lIDlWoD ; ~ handing a copy ...J . Sorvell upon O~SOflbl Oocumol'll(~): CZVtL C!CtIIKAUI'r . CIVlL At!ft IbWlUlG ~ZCB Of (P_n III IlO Strved) on ,II In h " (OMIt) ,at. to R~(.~I s+c...d-r- (!'e""'n...~!letv""l at S"7' c..v.t4.., e r (~( ~ ll"".,.",) H'r For LandlordIT enant <<Implalnls; ." I $11108 n<ltl\l of 1M abov$ found, HIVed by posting a copy of the QomPI~! : . ICuouSIy on !he premises on .. <:\1 ; I. I . M.. (~~) ;' fret . f' I I. I , (LllGfltlon) Miles Traveled: ~o " I . {Si""atlll~ : Ii 1.1. (/>tin. NGt\\o 1jni:I-liutij . I' I' D~ZI '~~:1a/29/o5 115,.2'" . ,!: r. '. r: * I .wn I / .......,..". .............. .... "_'_ ... AOPC 624-04 ;.,;'J ifOSltl>S<. H.: 01 05/08/2005 13:57 , '. 7172557257 ch~SHCF F'AG': 10 EXHIBIT C . 05/08/2005 13:57 . 7172'557257 r'~AE;HCF" F'A(;it.. lj. AO.PC31;.05 .D. Pb.d'fIDs 2:/14/0' 10 .53 :t. _. .... .. -.- ...-- ,-, COMMONWEALTH OF PENNSYLVANIA , C~UNTY OF: -.,'t.lUIft ""0.""...., . 01-2.01 "',""',"-' ." /" ,NOTICE OF JUOGMENTITRANSCAIP 'Pt.A\f'rlFF, CIVIL CA~"'.'.Dl>I'lE. fDUIII na.-/rMa D PIlLLD '010%1 D:tDnAiJ., va 22.2t 1- VS. DEFENDANT; _ "",,omI," fil'OVDl ~.hlJC7I~" ft AXo. 57 .IIO~ADI nn .,.....M! ftIInLIJI, 'A 172U L OwketNo.; "-0000570-05 .....a.._ Date FI~: 12/2./05 ~ MD.l/'lWtle: 1-fcrI. .~ P. COlJ..~ -,.; 22ft ...I.DIG lID au:r.... It euIoJ:lLIi. ... i r._, (717 l, '21'-5210 17013-0000 , '!'a1JD'r ~OII 57 JIOa'I'....VUW nail." a..\olLU,JA 17"1 nu IS TO NOm YOU TtfAT: - .....:...~~t ...~. .'- (iJ Judgmllnl well fnt.rtd !or; (N'~) [iJ Judgment was enteft(l aglljnol~ (Name) e. M.U~~ftP 1''''''''' , .....~,,,,.... " ......"'~--. .,...~- &P"'f ---r ~,.",...,.ft in the amount 01 $ . Hilll ftlll on: (Dale of Judgment)" 2/'111/11" o Olflllldante are jointly and severally "able. '0 Oemeges will be asl4llSllcl on; (Date & Time) " .' . o ThIs (;laM dillmls:l8d without prejudice. ' , Amount of JIIClQtMnl JudgrMlll ColIS Interest on JuOgrnenl Attorney Fees Total S $ $ $ $ O Amount of JUdgment Subject to AItaohmenll42 PlI.C.S. 18121 $ o Portion of JUilgmenl /Qr p1\ysl~ damages arllling out of residential Ieae $ Poet Judgmoml CreQils $ POst Judgment Costs $ e.rtrNld J..qnlent Toea! $ ..NY I'.\IITf HAS THlllIGtITlO AJIPtiAI. wmIH 10 CIA.,. An1lIt T1fl! ENTRY OF oIIlllQMD/r In' AUIIG A NCmCI OF ."CAt. WITH TIlE '1'IOTMtlNOTARYJC\.EIlI( OF TIlE 00UIlT OF OOIllMO/il "lEAl. Cl'llL IlI'mION. YOU , ""'. ,"." ;>MIJ*".I/WCIItIllItAJXI"V OF' THlJ'HOTICE OF JOOO....".fIlUlMlC...HOM W1TH1'OIIIII'4O'I1CI'Of' ~-" '.-. ~ ,. " ., ncen AI cmERWIIE P..oftIlID III TI1E III.lLd 01' CIYR. ~'"' FOR ll'IACII$'IEIIAl ",...eT .tUllCb, lI' "tHE JUOO...iHT HOI.DER eUlC'FS 1"0 eNTeR TllE "IJClGMeNf IN TIt\! COUIIT Of' ~ON I'l.IAS, 4l.L FIJImlElIlI'AOC<<" MWT COM' ~M TlIIE COUI'IT (If COMMOroI PLUS AND NO /'URTllEfI PIlOCl'tI IlIA., III! lSlIueD IV llili M"CIlITIMo\L DlllTIIICT JIJOG/f. , . UIILEH THI JUOGMINT IIINTlIlIO IN THE COURT 0# COMMON PLIft., AHVONI< Irn-EllnTeD IN TI1E JUDCIM&NT MA V I'ILE A RIQUIIT FOJiI ~NlI'IY OF tAl1Il"ACTlON WITH THe MAG/STIIlIAL tlf$TlllCT JUOGIIF lM! J~MEHT oUTOR rA Y'lIH 1'ULL, Illin"UiS, OR OTHEIlWlS! COMPlIES WITH THE JUPOMEHT. ;.~ '~. /i:'....,. ::' "'j1<-.:t). ,.....--~'O ,.' ..,. .:. .;,::.... -:.'~;'.:,!.~DallJ '.,.rn'~ ~~~~,. ,M~~~at~~~.J.q~ge>:. '.,.-r'ilf j;,tij~il:Y'Jf\aClfliif~i";.'I~'~;r-i!O~ . prill';'r.. 'of:lh6" "'ta/nin 'ilia inel'l""" ~:':~}><~;"'./:'?-": "~,:e.';''-;: ,..~~y ....... ....~:. '.. '. .p~.~.: .~g;., J~":'~~,,: "'1""" .'", ''-''J,~t, .". ..' ".., . '. '. ..... ....MaQISIOnaf.D/8tijct:J~e ,.~-\,,"'~ .~.",~., ...,",, '.' ~ ,. '.' .. . " '. ':"'.,"".,. ..,.,,' ."..... . ,,":. .' 05/08/2005 13:57 71 72557257 NASHIJC" PAGE 1.2 EXHIBIT D ~5!G8!29G5 13~57 7172557257 r ~,6,SHOF PAGE 13 CO~STABLE D01"iD FORl:I Cl;NU3ERLA!\L> COFNTY Carlisle, Pennsylvania K..>-.:OW ALL ME~ BY THESE PRESE;-"-TS: Thatl, J~~.. 1'. (He...)" of CUIl1berland County, am held and finnly bound unto the Commonwealth of Pennsylvania in the penal sum of twenty-five h\lIldred dollars (52500.00) lawful money of the L'nited States, to be paid to the ~lI;d Commonwealth, for which payment well and truly to be made, we bind ourselves, our heirs, executors and lIdministrators jointly and severally finnly by these presents. Sealed with our seals and dated this 2'1 day of D~<.......I,.....- 20"'; , . Whereas. .)o~.. P. Lt~~".I~ was duly appointed Constable of C"""f tt ;'/1 from the first Monday of January, 2004. to the first Monday of January, 2010 , for a period of six years. c-:> - ... ~ J -'.. ~ 01,.. Pi; ~ e ~,JA ...ball '.::..:;!:..;..,;=;' (, ~ :.,:~ r-., ===- for and during )tis tenn of office or until he is legally discharged therefrom, ilf~Y ~d faifh'1'hlly S:::'"" - m ~osil up~ ::..... ..,. '\.".Ii ...... ,......, ..' .. as Constable, then this obligation to be null and void, else to be in full force and. virlue. N . .r; Now the condition of this obligation is such, that if the above bounden discharge the duties of the office of Constable for c.""" }l; U i ~ ~,:.:;.,--"Z.,,? ~ J (?1'~l"t..', ./~./ .._ L' d ("',; Witness '--' 4-h'l~ e ~~~ 17~ ~ . ~ ^ AA, tlnJoF Witness' d!- A mey in Fact Constable ~ And now this~ da~'of ~ t ltppro\ed by the Cou.-t, ~. Bonds and Sureties CO~ST.A.BLE BOlo.'D TO BE FILED L" CLERK OF COMMO:\' PLEAS COL"RT O~!e8!2006 ~3:57 7172557257 ~ ~ASHOF' PAG!::: :4 VERIFICA nON 1 he foregoing Complaint is based upon infonnation which has been gathered by OUI coWJ.Se1 in the preparation of the lawsuit. The language of the document is that of eounsel and not our 0"1<11. We have read the document and to the extent that it is based upon infonnation which we have given to counsel, it is true and correct to the best of OUI knowledge, infonnation and belief To the extent thatthe conwn! of the document is that of counsel, we have relied upon cOW1sel in making this verification. This statement and verification are made subject to the penalties of J 8 Pa. C.S. Section 4904 relating to WlSWOtn falsification to authorities, which provides that if we make knowingly false avenncnts, We may be subject to criminal penalties. .iLAoW.r~ Ronald 1. Stoudt (1m~'~ Toni Fltilor EXHIBIT B IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RONALD J. STOUDT, individually and d/b/a STOUDT CONSTRUCTION and TONI FAILOR, Plaintiffs v. JOHN LEVENDA, in his official capacity as Constable, and WESTERN SURETY COMPANY, Defendants TO: RONALD J, STOUDT, STOUDT CONSTRUCTION AND TONI FAILOR YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED ANSWER WITH NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HE~~9J!tlR A DEF AUL UDGMENT MAY BE &Z~~" . CIVIL DIVISION CASE NUMBER: 06-2194 ISSUE NUMBER: PLEADING: ANSWER WITH NEW MATTER OF DEFENDANT, JOHN LEVENDA TO PLAINTIFFS' COMPLAINT CODE AND CLASSIFICATION: FILED ON BEHALF OF: JOHN LEVENDA, Defendant. COUNSEL OF RECORD: MARK R. ZOGBY, ESQUIRE Pa. ID# 84032 CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PAl 70 11 (717) 975-9600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION RONALD J. STOUDT, individually and d/b/a ) CASE NO: 06-2194 STOUDT CONSTRUCTION and TONI ) FAILOR, ) ) Plaintiffs ) ) v. ) ) JOHN LEVENDA, in his official capacity as ) Constable, and WESTERN SURETY ) COMPANY, ) ) Defendants ) ANSWER WITH NEW MATTER OF DEFENDANT. JOHN LEVENDA TO PLAINTIFFS' COMPLAINT AND NOW, comes Defendant, JOHN LEVENDA ("Mr. Levenda"), by and through his counsel, Cipriani & Werner, and hereby files the following Answer with New Matter to Plaintiffs' Complaint. I. Denied. After reasonable investigation, Mr. Levenda is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph I of Plaintiffs' Complaint and the same are therefore denied. 2. Admitted. 3. Denied. Mr. Levenda is advised by counsel and therefore avers that the allegations contained in paragraph 3 pertain to a party other than Mr. Levenda and therefore, no answer is required. . COUNT I PLAINTIFF v. DEFENDANT. JOHN LEVENDA 4. Denied. Mr. Levenda hereby incorporates paragraphs 1 - 3 as though the same were fully set forth herein at length. 5. Admitted. 6. Admitted. 7. Admitted in part. Denied in part. It is admitted that Mr. Levenda properly served Plaintiffs, at or around 2:35 p.m., on or about January 1, 2006, at 57 Mountain View Terrace, Newville, Pennsylvania. It is specifically denied that Plaintiffs were either never served or improperly served on January 1, 2006. To the contrary, Mr. Levenda arrived at Plaintiffs' residence located at 57 Mountain View Terrace, Newville, Pennsylvania on January I, 2006 and witnessed evidence of individuals on the premises. Mr. Levenda knocked on the Plaintiffs' door a number of times, but no one answered. Mr. Levenda then attached the Complaint to the Plaintiffs' front door and advised at a sufficient volume to be audible by the individuals present inside the residence that he was a Pennsylvania State Constable, that he was serving a Complaint and that the same was affixed to the front door. By way of further answer, the Service of Process form speaks for itself, Plaintiffs' characterizations of said form are specifically denied. 8. Denied. Mr. Levenda is advised by counsel and therefore avers that the allegations contained in paragraph 8 of Plaintiffs' Complaint state conclusions of law to which no answer is required. By way of further answer, the Service of Process form speaks for itself, Plaintiffs' characterizations of said form are specifically denied. 9. Admitted in part. Denied in part. It is admitted that Mr. Levenda signed the Service of Process form and presented the same to District Justice Correal. By way of further answer, the Service of Process form speaks for itself, Plaintiffs' characterizations of said form are specifically denied. 10. Denied. Mr. Levenda is advised by counsel and therefore avers that the allegations contained in paragraph 10 of Plaintiffs' Complaint state conclusions oflaw to which no answer is required. To the extent a further answer is required, it is specifically denied that Plaintiffs' were never served on January I, 2006. To the contrary, Mr. Levenda arrived at Plaintiffs' residence located at 57 Mountain View Terrace, Newville, Pennsylvania on January I, 2006 and witnessed evidence of individuals on the premises. Mr. Levenda knocked on the Plaintiffs' door a number of times, but no one answered. Mr. Levenda then attached the Complaint to the Plaintiffs' front door and advised at a sufficient volume to be audible by the individuals present inside the residence that he was a Pennsylvania State Constable, that he was serving a Complaint and that the same was affixed to the front door. By way of further answer, the Service of Process form speaks for itself, Plaintiffs' characterizations of said form are specifically denied. II. Admitted. 12. Denied. Mr. Levenda is advised by counsel and therefore avers that the allegations contained in paragraph 12 of Plaintiffs' Complaint state conclusions of law to which no answer is required. To the extent a further answer is required, it is specifically denied that Mr. Levenda made any misrepresentations to District Justice Correal with regard to service on Plaintiffs. It is further specifically denied that Plaintiffs have sustained any damage. To the contrary, Plaintiffs timely filed an appeal de novo in the Court of Common Pleas of Cumberland County to District Justice Correal's February 13, 2006 judgment. Once an appeal de novo from the judgment of a district justice is perfected said judgment is nullified. See Pa.R. C.P.M.D.J. . 1007 and Independent Technical Services v. Campo' Express. Inc.. 812 A.2d 1238 (Pa.Super. 2002). As the February 13, 2006 judgment against Plaintiffs no longer exists, the amount of the judgment is not recoverable as damages in the instant case. Plaintiffs' rights have been preserved and they will have an opportunity to defend the underlying matter on its merits. By way of further answer, it is specifically denied that Plaintiffs will incur any additional costs, attorneys' fees or damages in the defense of the underlying matter that would not have been incurred otherwise. 13. Denied. Mr. Levenda is advised by counsel and therefore avers that the allegations contained in paragraph ]3 of Plaintiffs' Complaint state conclusions of law to which no answer is required. By way of further answer, Mr. Levenda hereby incorporates his answers to paragraphs] -12 as though the same were fully set forth herein at length. WHEREFORE, Defendant, John Levenda, demands judgment in his favor and against Plaintiffs, without costs. COUNT II - PLAINTIFF v. DEFENDANT. WESTERN SURETY COMPANY ]4. Denied. Mr. Levenda hereby incorporates his answers to paragraphs] - 13 as though the same were fully set forth herein at length. ] 5. Denied. Mr. Levenda is advised by counsel and therefore avers that the allegations contained in paragraph 15 pertain to a party other than Mr. Levenda and therefore no answer is required. 16. Denied. Mr. Levenda is advised by counsel and therefore avers that the allegations contained in paragraph 16 pertain to a party other than Mr. Levenda and therefore no answer is required. WHEREFORE, Defendant, John Levenda demands judgment in his favor and against Plaintiffs, without costs. NEW MATTER 17. Plaintiffs' claims may be barred by the applicable statute oflimitations. 18. Plaintiffs' alleged injuries and damages, if any, which are specifically denied, may have been caused, either in whole or in part by the acts or omissions of third parties other than Mr. Levenda. 19. Discovery may reveal that Plaintiffs' claims may be barred, in whole or in part, by one or more affirmative defenses set forth in Pa.R.C.P. 1030, which are incorporated herein by reference including, but not limited to, collateral estoppel, res judicata, release or immunity from suit. 20. On or about January I, 2006, Mr. Levenda traveled to Plaintiffs' residence located at 57 Mountain View Terrace, Newville, Pennsylvania to serve a Complaint filed by Diane Yeager and Owen D. Fuller against Plaintiffs in Magisterial District Court No 09-2-01, District Justice Paula P. Correal. 21. Upon arrival Mr. Levenda witnessed two (2) vehicles present at Plaintiffs' residence. 22. Mr. Levenda knocked on the front door of Plaintiffs' residence, but received no answer. 23. Mr. Levenda questioned neighbors as to whether the Plaintiffs were present at their residence at that time and the neighbors indicated that they saw the Plaintiffs at their residence shortly before Mr. Levenda arrived. The neighbors also confirmed that the two (2) . vehicles present at the Plaintiffs' residence were the only two (2) vehicles that were identified with Plaintiffs' residence. 24. Upon returning from questioning the neighbors, Mr. Levenda heard a male voice and adult footsteps coming from inside the Plaintiffs' residence. Mr. Levenda also witnessed movement inside the Plaintiffs' residence. 25. Mr. Levenda knocked on the front door of Plaintiffs' residence once again and once again received no answer. 26. Mr. Levenda then attached the Complaint to the Plaintiffs' front door and advised at a sufficient volume to be audible by the individuals present inside the residence that he was a Pennsylvania State Constable, that he was serving a Complaint and that the same had been affixed to the front door. 27. Mr. Levenda then submitted a Service of Process form to the offices of District Justice Correal along with a Constable Fee Sheet, which indicated that Plaintiffs' refused to open the door. A true and correct copy of the Constable Fee Sheet is attached hereto as Exhibit "A." 28. Following Plaintiffs' failure to appear at the scheduled hearing before District Justice Correal, a judgment in the amount of$8,155.05 was entered against them on February 13, 2006. 29. On or about March 13, 2006, Plaintiffs filed a timely Notice of Appeal to District Justice Correal's February 13, 2006 judgment in the Court of Common Pleas of Cumberland County. 30. An appeal to the Court of Common Pleas from the judgment of a District Justice is de novo. Pa.R.C.P.M.D.J. 1007. 31. Once an appeal de novo from the judgment of a district justice is perfected said judgment is nullified. See Independent Technical Services v. Campo' Express, Inc.. 812 A.2d 1238 (Pa.Super. 2002). 32. Now that Plaintiffs' have timely appealed District Justice Correal's February 13, 2006 judgment, said judgment no longer exists. 33. Plaintiffs cannot make a claim for damages for a judgment that no longer exists. 34. By letter dated June 19, 2006, Mr. Levenda proposed, without admitting and/or suggesting liability on his part, a resolution to the instant matter by having the parties to the underlying matter agree to voluntarily dismiss the pending action in the Court of Common Pleas and re-file said action in Magisterial District Court No 09-2-01. Mr. Levenda would then reimburse the filing fees for the Court of Common Pleas and for Magisterial District Court No 09-2-01. The parties to the underlying matter would also agree that neither party would be prejudiced by the initial matter filed on December 28, 2005 and neither party could utilize or mention any aspect of the initial matter filed on December 28, 2005 during the pendency of the re-filed matter. At true and correct copy of counsel's June 19,2006 letter is attached hereto as Exhibit "B." 35. This proposal would have placed each party in the position they would have been on December 28, 2005, without out of pocket expense and/or controversy concerning service and/or notice. 36. By letter dated July 26, 2006, Plaintiffs rejected this offer and indicated that they are unwilling to return to District Justice Correal "for various reasons." A true and correct copy of counsel's July 26,2006 letter is attached hereto as Exhibit "C." . 37. The gravamen of Plaintiffs' Complaint in the instant matter is that they alleged they sustained damages because they were unable to litigate the underlying matter before District Justice Correal and are now forced to litigate this matter in the Court of Common Pleas. 38. When presented with a proposal to bring the underlying matter back before District Justice Correal by stipulation, Plaintiffs refused to do so and voluntarily chose to continue to litigate the underlying matter in the Court of Common Pleas. 39. The Plaintiffs had an opportunity to mitigate their alleged damages, if any, which are specifically denied, and failed to do so. WHEREFORE, Defendant demands judgment in his favor and against Plaintiffs, without costs. Respectfully submitted, BY: MARK R. Z , ESQUIRE Counsel for the Defendants A JURY TRIAL IS DEMANDED . VERIFICATION I hereby affirm that the following facts are correct: I am a Defendant in the foregoing action. The attached Answer with New Matter is based upon information which I have furnished to my counsel and information which has been gathered by my counsel in preparation for this lawsuit. The language of the Answer with New Matter is that of counsel and not of me. I have read the Answer with New Matter and to the extent that the Answer with New Matter is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the Answer with New Matter is that of counsel, I have relied upon counsel in making this verification. I hereby acknowledge that the facts set forth in the aforesaid Answer with New Matter is made subject to the penalties of 18 Pa.C.S. 4904 relating to unsworn falsification to authorities. Dated: 7/3/ /06 ~0 hn Levenda c_______ . EXHIBIT A . r '::':.l '.;1 :; ~r: -'Or:: [,. ,z' .; Q,- >- , II'i ,..,.. \-1,..c> '~~"T...t:;~- [~~ c:.:..: ..,#, :""-0 0 [r,,:;;" ,- ._,-;: ~:J~j~~ ,..,.1, ......., ~ ",Z:r-,J:C-.u <C~::--.* r::,u :;,,~ I'') ....., c: e:.., 'r.';::~ r:" Z ~, " u \ v'l '':.) , ~ \'-7 \ , ::,1 "-.j I ~t ~ ') ~I --~~ <...J f.rJ ::l ~ ,.., \\IV V dr cr: )~I <1" 21 .::2 ....l) .c~, ~\ I ~a "l-~ ~ -~{ -J ,~ ,::{ ~ 8 Z ;"1 f-iJ <C Vj ,-' o ~ ;3 Z 0J '-'.I 0:: ~l< (J W (:) Q < ~ 1 1 (:) f1-l ;z: 0::1 ~ ~ Ie-< ~ ~ c' ,j ;,J.J ~ f-< -< ..?; 0 (_~'1 " \ f!:.) '--' J 0 I ~JJ 2: 0J Z r1J V $ ~ ~ ~ W -1 f--, ~ ~. f-< 0 t v 000000090'0''::':::' 00'00000,-,,1/>000 v1 I,) ~- v.; v--; v-; ,..-) 0 C'i 0 v:,-,~ _ r- {A iA f;I} r;:.A r.A ~A 6A- rfJ ~ 7;;::1 (A ;:...-, \,' c::- ':) ~ ';'1 ~-.., v) ,-" "f ~~i C"; ~~ "~ '-J; i,.'; (I~ ;-~:./'- '- ;A t" ,..J o G .-'" ,~ ;..- ;5 I', /, r"', 'J,',' ....-1 C/J Q....1 Q [,1'j 6~ <~ :;' ~~ ~O::f-< ~ozd '.Li -< i:'::' z e ~ -< "" '" Cf.. ' , ., , p;.l 0 W p.) A (:) 0:: ~" " c2 :-: f-<>~f-<20 ~<ZZO~a ~~ ZOC>~dp.)~Z~W~<7 G ~~ ~~ ~ ~ ~ ~ ~ ~ ~ SJ ~ ~ _' I,: :i(/J~-~-<~t/)~l:QCC~ ~(.:::~~;..-; , ~ t-" 0 0 >~ U-I ~ :::J ,> "" ,~ e'I II ' .,. ~U<vvQcr:~~U~0~~ ~ 1111 ill I 1:{'t'i~~\-1d I. I I I I I I ,j I J"'! ... 'I .,<1 ,0., : ~.L :." L:.r.: Inl I,........,~, EXHIBIT B - CIPRIANI & WERNER t, PR(iFLS~~rOf;:L,L CCP!'i:))).(.,7; Dennl~ I' Cdlen Jr DenlllS ,I, B01ll.:111 " Lev.'isL y..!olfgang JaSon K Bur:1~ '" MarkR.7.ogby Paul A C~GClamanl '" Stephen H. Hams ATTORNEYS AT LAW Philadelphia Office: Suite]]} 482 NOlTlslown Road BIlle.: Ucll, I'A J\)4~2-2352 Telephone (610) 5()f.()lllO Suite 201 lOll Mumma Road Lemoync, Pennsylvania 17043.114) David 11, RadcldT (l[COLII1S<:] WW\'i,C-WI,A \V,COlll Pittsburgh Oflic{': Slli:e 700 650 Washmgton Road l'inshurgh, PA 15228 Telephone (o~12) 563-2500 ":-elephont (7] 7) 975.9600 Fax (717) 975.]846 J]al A Kestler or Counsel Scranton Ofrin~; Suite 210 Oppenheim Building 409 L:;ckawarna Avenue Scral1!on. PA 195C13-20S,) Telephone (S70) 347-0600 '" AlsoadmJtted InNJ Aba admll(ed In DC 6: :...J B(J~rd C~nirled Cl\'il Tnal Ad\'OCi.ite \A!ri!l.'r's E-maii: :vJZogby@c.v.lawcom June 19,2006 Christopher RIce, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PAl 7013 Michael O. Palem10, Esquire Rominger & Whare 155 South Hanover Street Carlisle, P A 17013 RE: Ronald Stoudt v. John Levenrla Claim No.: I] 9484 Our File No: 1 0"3.]7) iOE Dear Mr. Rice and Mr. Palelmo: Please allow this letter to memorialize my proposal to resolve the above referenced matter. As you both know, the matter involving my client, Constable John Levenda, arose out of the service of a District Justice Complaint upon Ronald J. Stoudt, Stoudt Construction and Toni Failor in the matter of Diane YeaJ!er/Owen D. Fuller v. Stoudt COllstructioll alld TOIli/Ronald Stoudt, Docket No. CV-570-05. , Page Two Although Mr Rice's clients alleged that they were Improperly served with the District Justice Complaint and subsequently failed to appear for the hearing before District Justice Correal, a timely appeal was taken from District Justice Correal's Judb'111ent. The rights of 1'.1r. Rice's clients have therefore been fully preserved, Additionally, due to the de novo nature of an appeal from a District Justice Judgment, the Judgment entered against 1'.1r. Rice's clients is now Void, Nonetheless, Mr Rice has taken the position that his clients will still suffer damage in the fon11 of additional attorney's fee and costs, which will be incurred during the litigation before a compulsory arbitration panel, Without admitting liability on the part of I,lr Levenda, I respectfully propose the following resolution to the action against 1'.1r. Levenda, Both parties in the underlying matter agree to withdraw the appeal filed in the Court of Common Pleas of Cumberland County and subsequently re-file this matter with District Justice CorreaL Mr. Levenda will reimburse the filing fee of the appeal to Mr. Rice's clients and the fee of re-filing the Complaint with District Justice Correal to 1'.1r Palernlo's clients, I have confirmed with the Cumberland County Prothonotary and District Justice Correal's Office that these fees are $55,25 and $122.00, respectively. In addition, both parties further agree that the underlying matter will proceed "de novo" before District Justice CorreaL In other words, neither party shall be prejudiced by anything that occurred prior to the re-filing of the Complaint with District Justice COITeal and neither party shall mention or otherwise attempt to utilize what occurred prior to re- filing the District Justice Complaint during the pendency of the underlying litigation. This proposal should be beneficial to both parties in that it places the underlying litigation back at "square one." Both parties will have the benefit of litigating this matter in their intended venue, District Justice Court, and neither party will be prejudiced by anything that has occurred in the past. Additionally, neither party would incur out of pocket expense for filing fees incuITed to restore this matter to District Justice Court. Please review this proposal with your respective clients and advise if it is ac(:eptable. Should either of you have any questions regarding the issues raised above, please do not hesitate to contact me. Very truly yours, Mark R. Zogby MRZ/peb . . EXHIBIT C . ' ~ MDW&.O 1?"JORMATIDt,; . AlJvlcr. Anv( WACY A'rrULNEYS &. CU,jTxSLi.LOtS !~T LA\.\ WILL.IAM F MARTSON Jom,; B. FUWU~R III CARL C RJSCjf DAVID A. Fn?SlMO~~ Cliid~,i Udkh L KiU", JE",'N]~ER L. SJ'FARS l-ilLLARY A. DEAn J\11CHAEl. J. ('CJLLll\;S 10 BAST HIGH STREU CA RLlSLE, PEi\~SYI.,V,V';l.'\ J 7{Jl3 D"r,ld.}\...I>.hliUhl! Tn.ErHONF: FACSlIl'lILr INTEHNET OJ?) 24.~~~34-1 (7171 '43-1 X,(: lVW'>'\.ii:iJ\Vo,(.om THOMAS J.\\'JL,J.lAM~* lvo V. (}no II[ GECiRtil; B. FALLER .1R,* '-n'i~)([l Ct'R.l'I"JEU ('[I'll TlllAL ~I'ECI^Lls'r July 26, 2006 Mark R. Zogby, Esquire CIPRIANI & WERNER ! (1 I ! Mumma Road, Suite 20! Lemoyne, PA 17403 RE: Ronald J. Stoudt v. John Levenda and Western Surety Company No. 06-2] 94, Cumberland County Court of Common Pleas Our File No, 1163U Dear Mark: I am writing in response to your letter dated June 19,2006, After discussing this matter with my client, he is unwilling to return to District Justice Correal for various reasons. Unless you are willing to present a different offer, I will have to request that you answer our Complaint immediately, I attempted to contact Attorney Michael Palermo about this matter, but he has not returned my call so I do not know his position. Please feel free to contact me upon receipt of this letter, In do not hear from you, please provide an Answer to our Complaint no later than August 4, 2006_ Very truly yours, MARTSON DEARDORFF WILLIAMS & OTTO V~~r_'~ Christopher E. Rice CERlmmp cc: R, J. Stoudt F,\I'ILES\U.J,,)AFILE\(jenc,all.cur,emII1631.'i1l1Z ]NFORMAT10N . AnVlCE . AnVOCAC"r' SM ." .. CERTIFICATE OF SERVICE That counsel for the Defendant, JOHN LEVENDA, hereby certifies that a true and correct copy of its ANSWER WITH NEW MATTER OF DEFENDANT, JOHN LEVENDA TO PLAINTIFFS' COMPLAINT has been served on all counsel of record, by first ?rss mail, postage re-pai~, according to the Pennsylvania Rules of Civil Procedure, on the 1 day of r , 2006. Christopher Rice, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 Respectfully submitted, CIPRIANr.~RNER, P.C. //',/ /// 7 / BY: . . . CERTIFICATE OF SERVICE That counsel for the Defendant, WESTERN SURETY COMPANY, hereby certifies that a true and correct copy of its PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLANT has been served on all counsel of record, by first clai~ail, postage pr~ding to the Pennsylvania Rules of Civil Procedure, on the day of , 2006. . Christopher Rice, Esquire Mattson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 Respectfully submitted, ~....., ~._i f...:,. f IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION RONALD J. STOUDT, individually and d/b/a STOUDT CONSTRUCTION and TONI FAILOR, Plaintiffs v. JOHN LEVENDA, in his official capacity as Constable, and WESTERN SURETY COMPANY, Defendants TO: RONALD J. STOUDT, STOUDT CONSTRUCTION AND TONI FAILOR CASE NUMBER: 06-2194 ISSUE NUMBER: PLEADING: ANSWER WITH NEW MATTER OF DEFENDANT, JOHN LEVENDA TO PLAINTIFFS' COMPLAINT CODE AND CLASSIFICATION: FILED ON BEHALF OF: JOHN LEVENDA, Defendant. COUNSEL OF RECORD: MARK R. ZOGBY, ESQUIRE Pa. ID# 84032 CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lemoyne, PA 17011 (717) 975-9600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION RONALD J. STOUDT, individually and d/b/a ) CASE NO: 06-2194 STOUDT CONSTRUCTION and TONI ) FAILOR, ) ) Plaintiffs ) ) v. ) ) JOHN LEVENDA, in his official capacity as ) Constable, and WESTERN SURETY ) COMPANY, ) ) Derendants ) ANSWER WITH NEW MATTER OF DEFENDANT. JOHN LEVENDA TO PLAINTIFFS' COMPLAINT AND NOW, comes Defendant, JOHN LEVENDA ("Mr. Levenda"), by and through his counsel, Cipriani & Werner, and hereby files the following Answer with New Matter to Plaintiffs' Complaint. 1. Denied. After reasonable investigation, Mr. Levenda is without knowledge or infonnation sufficient to fonn a belief as to the truth of the avennents contained in paragraph 1 of Plaintiffs' Complaint and the same are therefore denied. 2. Admitted. 3. Denied. Mr. Levenda is advised by counsel and therefore avers that the allegations contained in paragraph 3 pertain to a party other than Mr. Levenda and therefore, no answer is required. COUNT I - PLAINTIFF v. DEFENDANT. JOHN LEVENDA 4. Denied. Mr. Levenda hereby incorporates paragraphs 1 - 3 as though the same were fully set forth herein at length. 5. Admitted. 6. Admitted. 7. Admitted in part. Denied in part. It is admitted that Mr. Levenda properly served Plaintiffs, at or around 2:35 p.m., on or about January 1, 2006, at 57 Mountain View Terrace, Newville, Pennsylvania. It is specifically denied that Plaintiffs were either never served or improperly served on January 1, 2006. To the contrary, Mr. Levenda arrived at Plaintiffs' residence located at 57 Mountain View Terrace, Newville, Pennsylvania on January 1, 2006 and witnessed evidence of individuals on the premises. Mr. Levenda knocked on the Plaintiffs' door a number of times, but no one answered. Mr. Levenda then attached the Complaint to the Plaintiffs' front door and advised at a sufficient volume to be audible by the individuals present inside the residence that he was a Pennsylvania State Constable, that he was serving a Complaint and that the same was affixed to the front door. By way of further answer, the Service of Process form speaks for itself, Plaintiffs' characterizations of said form are specifically denied. 8. Denied. Mr. Levenda is advised by counsel and therefore avers that the allegations contained in paragraph 8 of Plaintiffs' Complaint state conclusions of law to which no answer is required. By way of further answer, the Service of Process form speaks for itself, Plaintiffs' characterizations of said form are specifically denied. 9. Admitted in part. Denied in part. It is admitted that Mr. Levenda signed the Service of Process form and presented the same to District Justice Correal. By way of further answer, the Service of Process form speaks for itself, Plaintiffs' characterizations of said form are specifically denied. 10. Denied. Mr. Levenda is advised by counsel and therefore avers that the allegations contained in paragraph 10 of Plaintiffs' Complaint state conclusions of law to which no answer is required. To the extent a further answer is required, it is specifically denied that Plaintiffs' were never served on January I, 2006. To the contrary, Mr. Levenda arrived at Plaintiffs' residence located at 57 Mountain View Terrace, Newville, Pennsylvania on January I, 2006 and witnessed evidence of individuals on the premises. Mr. Levenda knocked on the Plaintiffs' door a number of times, but no one answered. Mr. Levenda then attached the Complaint to the Plaintiffs' front door and advised at a sufficient volume to be audible by the individuals present inside the residence that he was a Pennsylvania State Constable, that he was serving a Complaint and that the same was affixed to the front door. By way of further answer, the Service of Process form speaks for itself, Plaintiffs' characterizations of said form are specifically denied. II. Admitted. 12. Denied. Mr. Levenda is advised by counsel and therefore avers that the allegations contained in paragraph 12 of Plaintiffs' Complaint state conclusions of law to which no answer is required. To the extent a further answer is required, it is specifically denied that Mr. Levenda made any misrepresentations to District Justice Correal with regard to service on Plaintiffs. It is further specifically denied that Plaintiffs have sustained any damage. To the contrary, Plaintiffs timely filed an appeal de novo in the Court of Common Pleas of Cumberland County to District Justice Correal's February 13, 2006 judgment. Once an appeal de novo from the judgment of a district justice is perfected said judgment is nullified. See Pa.R.C.P.M.D.J. 1007 and IndeDendent Technical Services v. CamDo' ExDress. Inc.. 812 A.2d 1238 (Pa.Super. 2002). As the February 13,2006 judgment against Plaintiffs no longer exists, the amount of the judgment is not recoverable as damages in the instant case. Plaintiffs' rights have been preserved and they will have an opportunity to defend the underlying matter on its merits. By way of further answer, it is specifically denied that Plaintiffs will incur any additional costs, attorneys' fees or damages in the defense of the underlying matter that would not have been incurred otherwise. 13. Denied. Mr. Levenda is advised by counsel and therefore avers that the allegations contained in paragraph 13 of Plaintiffs' Complaint state conclusions of law to which no answer is required. By way of further answer, Mr. Levenda hereby incorporates his answers to paragraphs 1-12 as though the same were fully set forth herein at length. WHEREFORE, Defendant, John Levenda, demands judgment in his favor and against Plaintiffs, without costs. COUNT II - PLAINTIFF v. DEFENDANT. WESTERN SURETY COMPANY 14. Denied. Mr. Levenda hereby incorporates his answers to paragraphs 1 - 13 as though the same were fully set forth herein at length. 15. Denied. Mr. Levenda is advised by counsel and therefore avers that the allegations contained in paragraph 15 pertain to a party other than Mr. Levenda and therefore no answer is required. 16. Denied. Mr. Levenda is advised by counsel and therefore avers that the allegations contained in paragraph 16 pertain to a party other than Mr. Levenda and therefore no answer is required. WHEREFORE, Defendant, John Levenda demands judgment in his favor and against Plaintiffs, without costs. NEW MATTER 17. Plaintiffs' claims may be barred by the applicable statute oflimitations. 18. Plaintiffs' alleged injuries and damages, if any, which are specifically denied, may have been caused, either in whole or in part by the acts or omissions of third parties other than Mr. Levenda. 19. Discovery may reveal that Plaintiffs' claims may be barred, in whole or in part, by one or more affirmative defenses set forth in Pa.R.C.P. 1030, which are incorporated herein by reference including, but not limited to, collateral estoppel, res judicata, release or immunity from suit. 20. On or about January 1, 2006, Mr. Levenda traveled to Plaintiffs' residence located at 57 Mountain View Terrace, Newville, Pennsylvania to serve a Complaint filed by Diane Yeager and Owen D. Fuller against Plaintiffs in Magisterial District Court No 09-2-01, District JusticePaulaP.Correal. 21. Upon arrival Mr. Levenda witnessed two (2) vehicles present at Plaintiffs' residence. 22. Mr. Levenda knocked on the front door of Plaintiffs' residence, but received no answer. 23. Mr. Levenda questioned neighbors as to whether the Plaintiffs were present at their residence at that time and the neighbors indicated that they saw the Plaintiffs at their residence shortly before Mr. Levenda arrived. The neighbors also confirmed that the two (2) vehicles present at the Plaintiffs' residence were the only two (2) vehicles that were identified with Plaintiffs' residence. 24. Upon returning from questioning the neighbors, Mr. Levenda heard a male voice and adult footsteps coming from inside the Plaintiffs' residence. Mr. Levenda also witnessed movement inside the Plaintiffs' residence. 25. Mr. Levenda knocked on the front door of Plaintiffs' residence once again and once again received no answer. 26. Mr. Levenda then attached the Complaint to the Plaintiffs' front door and advised at a sufficient volume to be audible by the individuals present inside the residence that he was a Pennsylvania State Constable, that he was serving a Complaint and that the same had been affixed to the front door. 27. Mr. Levenda then submitted a Service of Process form to the offices of District Justice Correal along with a Constable Fee Sheet, which indicated that Plaintiffs' refused to open the door. A true and correct copy of the Constable Fee Sheet is attached hereto as Exhibit "A." 28. Following Plaintiffs' failure to appear at the scheduled hearing before District Justice Correal, a judgment in the amount of$8,155.05 was entered against them on February 13, 2006. 29. On or about March 13,2006, Plaintiffs filed a timely Notice of Appeal to District Justice Correal's February 13, 2006 judgment in the Court of Common Pleas of Cumberland County. 30. An appeal to the Court of Common Pleas from the judgment of a District Justice is de novo. Pa.R.C.P.M.D.J. 1007. 31. Once an appeal de novo from the judgment of a district justice is perfected said judgment is nullified. See IndeDendent Technical Services v. CamDo' ExDress. Inc.. 812 A.2d 1238 (Pa.Super. 2002). 32. Now that Plaintiffs' have timely appealed District Justice Correal's February 13, 2006 judgment, said judgment no longer exists. 33. Plaintiffs cannot make a claim for damages for a judgment that no longer exists. 34. By letter dated June 19, 2006, Mr. Levenda proposed, without admitting and/or suggesting liability on his part, a resolution to the instant matter by having the parties to the underlying matter agree to voluntarily dismiss the pending action in the Court of Common Pleas and re-file said action in Magisterial District Court No 09-2-01. Mr. Levenda would then reimburse the filing fees for the Court of Common Pleas and for Magisterial District Court No 09-2-01. The parties to the underlying matter would also agree that neither party would be prejudiced by the initial matter filed on December 28, 2005 and neither party could utilize or mention any aspect of the initial matter filed on December 28, 2005 during the pendency of the re-filed matter. At true and correct copy of counsel's June 19,2006 letter is attached hereto as Exhibit "B." 35. This proposal would have placed each party in the position they would have been on December 28, 2005, without out of pocket expense and/or controversy concerning service and/or notice. 36. By letter dated July 26, 2006, Plaintiffs rejected this offer and indicated that they are unwilling to return to District Justice Correal "for various reasons." A true and correct copy of counsel's July 26, 2006 letter is attached hereto as Exhibit "C." 37. The gravamen of Plaintiffs' Complaint in the instant matter is that they alleged they sustained damages because they were unable to litigate the underlying matter before District Justice Correal and are now forced to litigate this matter in the Court of Common Pleas. 38. When presented with a proposal to bring the underlying matter back before District Justice Correal by stipulation, Plaintiffs refused to do so and voluntarily chose to continue to litigate the underlying matter in the Court of Common Pleas. 39. The Plaintiffs had an opportunity to mitigate their alleged damages, if any, which are specifically denied, and failed to do so. WHEREFORE, Defendant demands judgment in his favor and against Plaintiffs, without costs. Respectfully submitted, BY: A JURY TRIAL IS DEMANDED VERIFICATION I hereby affirm that the following facts are correct: I am a Defendant in the foregoing action. The attached Answer with New Matter is based upon information which I have furnished to my counsel and information which has been gathered by my counsel in preparation for this lawsuit. The language of the Answer with New Matter is that of counsel and not of me. I have read the Answer with New Matter and to the extent that the Answer with New Matter is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the Answer with New Matter is that of counsel, I have relied upon counsel in making this verification. I hereby acknowledge that the facts set forth in the aforesaid Answer with New Matter is made subject to the penalties of 18 Pa.C.S. 4904 relating to unsworn falsification to authorities. Dated: 7/?' /06 c;!i:-- 6 ~ EXHIBIT A "" "" ~ 'jj g f/J "Itf., {- ~ 0-- I.ll .....z...,.__~-.e> ~~"".Q:~~ a;.:;;" ~ ~ \of ~ ,"0..)0',:' w.-1~~~:tt ,.l z' ,\::l ~~o. ~u ~o""e:<t-'i n ~ t!"~ 12': <.. o (.) V \~~ ~ 'v) \ ':' 'i 'It __C t~ p ~~ ~ -5 \j u:l o C{. <C ,;:C: ...U '. l 'r' Z <C 52 ~ ~ \.>l Cl e: ~ [-D r' <C r-- Vl Vl u:l ~ Cl ~ l ~ 3 .~ u:l ':;: o ~. n ~ ~ w;l VJ ~ r.) u:l z Q ~ fa ...1 u:l b - ,..... \-' ..:. ~, S z __ ? 0 OV" if, ;:0 Q Vl '..i ~ o~ Q ,.t1 .~." ~o <1: Q '/J;"- ;:: . ~ _ if),...) ? iX.\-, ~.ozo '::;3 - \5"'''' el~~~",~..6 ~11 ~~~,.~O <<~~~o~ ~0 4 ~~OP~~~~~~<~~~Z ~Q o~~~~<ww~~~~~ ~t~- tW 2U~~~dO~~~<~~' ~t-o r.f),..>pa:l~ ,.....N~\...;' ? U ~ 00 .... ~::::>? e: 0 "" S ',0 ~ r' ,,:' \ \ \'Y\"\ CC\~{C\1~fi \ t'"1'l ~\'/" 00000000 C> 0 Co co 0 c::;. 0 ~l \ ".\ 00000000001,",0000""0 '1 I I v)v)~~v)""'';OMOIr',o;;;;"j,''';~..J \::-J _. ~ ~ r- ,:'i ,<;' ViI {A "" fA "" {A "" {A fA fA <A "" "" 'n ,0"> ,A"<O '.' Q ~ ~ u 2 III ~ 0. i C; . ',::.;c;~'>. i T i .4C\\-1c;\1t,1 c , \, (. "\' ,~ --~, ; , .1, ". 'Jj f~:' ". \ EXHIBIT B CIPRIANI & WERNER A PROFESS10NAL CORPORATlOh' Denni~ p, Cullen IT. Dennis J. Bonetti * Lewis L 'v\'olfgang Jason K. Bums '" Mark R. Zogby Paul A. Cacciamani '" Stephen R. Harris ATTORNEYS AT LAW Philadelphia Office: Suite 11] 482 NornSlov..'n Road Blue Bel!, PA 19422-2352 Telephone (610) 567-0700 Suite 201 1011 Mumma Road Lemoyne, Pennsylvania 17043.-1145 DaVld II. Radcliff OfCOUllSel www.C-WLAW.com Pittsburgh Office: Sui\e 700 650 Washington Road Pittsburgh, PA ] 5228 Telephone (412) 563-2500 Telephone (7] 7) 975.9600 F", (717) 975.)846 Hal A. Kestler Of Counsel Scrantun Oflice: Suite 210 Oppenheim Building 409 Lackawanna Avenue Scranton, PA 18503-2059 Telephone (570) 347-0600 '" AlsoadmittedinNJ t Also admitted in D,C & ~J . Board Certified Civil Trial Advoca\e Writer's E-mail: MZogby@c-wlaw.com June 19,2006 Christopher Rice, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PA 17013 Michael O. Palermo, Esquire Rominger & Whare 155 South Hanover Street Carlisle, PA 17013 RE: Ronald Stoudt v, John Levenda Claim No,: l19484 Our File No,: l053-17120H Dear Mr. Rice and Mr, Palermo: Please allow this letter to memorialize my proposal to resolve the above referenced matter. As you both know, the matter involving my client, Constable John Levenda, arose out of the service of a District Justice Complaint upon Ronald J. Stoudt, Stoudt Construction and Toni Failor in the matter of Diane Yeal!er/Owen D. Fuller v. Stoudt COllstruction and TOlli/Ronald Stoudt, Docket No, CV-570-05, Page Two Although Mr. Rice's clients alleged that they were improperly scrvcd with the District Justice Complaint and subsequently failed to appear for the hearing before District Justice Correal, a timely appeal was taken from District Justice Correal's Jud!,'l11ent. The rights of Mr, Rice's clients have therefore been fully preserved, Additionally, due to the de novo nature of an appeal from a District Justice Judgment, the Judgment entered against Mr. Rice's clients is now void, Nonetheless, Mr. Rice has taken the position that his clients will still suffer damage in the form of additional attorney's fee and costs, which will be incurred during the litigation before a compulsory arbitration panel. Without admitting liability on the part of Mr. Levenda, I respectfully propose the following resolution to the action against Mr. Levenda, Both parties in the underlying matter agree to withdraw the appeal filed in the Court of Common Pleas of Cumberland County and subsequently re-file this matter with District Justice Correal. Mr, Levenda will reimburse the filing fee of the appeal to Mr. Rice's clients and the fee ofre-filing the Complaint with District Justice Correal to Mr, Palermo's clients, I have confirmed with the Cumberland County Prothonotary and District Justice Correal's Office that these fees are $55,25 and $ I 22.00, respectively. In addition, both parties further agree that the underlying matter will proceed "de novo" before District Justice Correal. In other words, neither party shall be prejudiced by anything that occurred prior to the re-filing of the Complaint with District Justice Correal and neither party shall mention or otherwise attempt to utilize what occurred prior to re- filing the District Justice Complaint during the pendency of the underlying litigation. This proposal should be beneficial to both parties in that it places the underlying litigation back at "square one," Both parties will have the benefit of litigating this matter in their intended venue, District Justice Court, and neither party will be prejudiced by anything that has occurred in the past. Additionally, neither party would incur out of pocket expense for filing fees incurred to restore this matter to District Justice Court, Please review this proposal with your respective clients and advise if it is acceptable. Should either of you have any questions regarding the issues raised above, please do not hesitate to contact me. Very truly yours, Mark R, Zogby MRZ/peb EXHIBIT C MQW&:6 TELEPHONE FACSIMILE INTERNET (717) 243-3341 (717) 243.1850 ww\\.mdwo,com ATTORNEYS & COUNSELLORS AT LAW WILLIAM F. MARTSON CARL C. RiSCH JOHN B. FOWLER In DAVlD A. FrrZSIMONS DANIEL K. DrARDORFf CHRiSTOPHER E. RiCE THOMAS 1. WILLIAMS. JENNIFER L SPEARS IVQ V. OTIa III HILLARY A. DEAN GEORGE B. FALLER JR. * MICHAEL J. COLUNS "BOARD CERTIFIED CIVil. TRIAl. SPECIALIST 10 EAST HIGH STREET CARLISLE, PENNSYLVANIA 17013 July 26,2006 Mark R. Zogby, Esquire CIPRIANI & WERNER ! O! 1 Mumma Road, Suite 201 Lemoyne, P A 17403 RE: Ronald J. Stoudt v, John Levenda and Western Surety Company No, 06-2194, Cumberland County Court of Common Pleas Our File No, 11631.5 Dear Mark: I am writing in response to your letter dated June 19,2006. After discussing this matter with my client, he is unwilling to return to District Justice Correal for various reasons. Unless you are willing to present a different offer, I will have to request that you answer our Complaint immediately. 1 attempted to contact Attorney Michael Palermo about this matter, but he has not returned my call so I do not know his position. Please feel free to contact me upon receipt of this letter. If! do not hear from you, please provide an Answer to our Complaint no later than August 4, 2006, Very truly yours, MARTSON DEARDORFF WILLIAMS & OTTO ~ -'rf..- l. ~ Christopher E, Rice CERJmmp cc: R. J, Stoudt \:,\FILES\D.'\1'AFlLE\General\Currel1t\11631 5.mz INFORMATION' AOVICE . ADVOCACY 8M CERTIFICATE OF SERVICE That counsel for the Defendant, JOHN LEVENDA, hereby certifies that a true and correct copy of its ANSWER WITH NEW MATTER OF DEFENDANT, JOHN LEVENDA TO PLAINTIFFS' COMPLAINT has been served on all counsel of record, by first ~ss mail, postage re-paip, according to the Pennsylvania Rules of Civil Procedure, on the 1 day of 't , 2006. Christopher Rice, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, P A 17013 Respectfully submitted, BY: \~ ..':'> 1-" r~; -, ". IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION RONALD J. STOUDT, individually and d/b/a STOUDT CONSTRUCTION and TONI FAILOR, CASE NUMBER: 06-2194 ISSUE NUMBER: Plaintiffs PLEADING: v. PRAECIPE TO SETTLE, DISCONTINUE JOHN LEVENDA, in his official capacity and END as Constable, and WESTERN SURETY COMPANY, Defendants CODE AND CLASSIFICATION: FILED ON BEHALF OF: JOHN LEVENDA, Defendant. COUNSEL OF RECORD: DENNIS J. BONETTI, ESQUIRE Pa, ID# 34329 MARK R. ZOGBY, ESQUIRE Pa. ID# R4032 CIPRIANI & WERNER, P.C. 1011 Mumma Road, Suite 201 Lemoyne, P A 17011 (717) 975-9600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CNIL DIVISION RONALD J. STOUDT, individually and d/b/a ) CASE NO: 06-2194 STOUDT CONSTRUCTION and TONI ) FAILOR, ) ) Plaintiffs ) ) v. ) ) JOHN LEVENDA, in his official capacity as ) Constable, and WESTERN SURETY ) COMPANY, ) ) Defendants ) PRAECIPE TO SETTLE. DISCONTINUE AND END TO: PROTHONOTARY OF CUMBERLAND COUNTY Kindly mark the above-captioned matter settled, discontinued and ended. Respectfully submitted, MARTSON, DEARDORFF, WILLIAMS & OTTO BY: ~5.~ CHRISTOPHER RICE ESQUIRE Counsel for the Plaintiff ~ CERTIFICATE OF SERVICE That counsel for the Defendant, JOHN LEVENDA, hereby certifies that a true and correct copy of its PRAECIPE TO SETTLE, DISCONTINUE AND END has been served on all counsel of record, by first class mail, postage pre-paid, according to the Pennsylvania Rules of Civil Procedure, on the /0 day of ~ ' 2006. Christopher Rice, Esquire Martson, Deardorff, Williams & Otto Ten East High Street Carlisle, PAl 70 13 Respectfully submitted, BY: MARK R. Z Counsel for e De endant, JOHN LEVENDA ,....;, C;;::J r"'C,,~ (.s' -... C'; ~..... o -II -I -r: .." f11['::: l~ W\ C)'; u:.'