Loading...
HomeMy WebLinkAbout02-1761S.A. HURLEY EXCAVATION, INC. , Plaintiff VS, PURCELL & ASSOCIATES OF DELAWARE, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NOTICE TO DEFENDANT NAMED HEREIN: YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO, THE CASE MAY PROCEED WITHOUT YOU, AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PENNSYLVANIA 17013 TELEPHONE: (717) 249-3166 S.A. HURLEY EXCAVATION, INC. , Plaintiff VS, PURCELL & ASSOCIATES OF DELAWARE, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW COMPLAINT NO. ~- fT~ / AND NOW comes the above-named Plaintiff, by its attorney, Samuel L. Andes, and makes the following Complaint in this matter: 1. The Plaintiff is S.A. Hurley Excavation, Inc. a Pennsylvania business corporation with its offices at 50 Frytown Road in Newville, Cumberland County, Pennsylvania. 2. The Defendant is Purcell & Associates of Delaware, Inc., a business corporation organized, to Plaintiff's knowledge, under the laws of the state of Delaware which maintains offices at 117 Fox Plan Road, Suite 103, Monroeville, Allegheny County, Pennsylvania. 3. At all times material to this action, Plaintiff was engaged in the business of excavation and related work. 4. In early December of 2001, Defendant was engaged in certain construction work at the New Cumberland Army Depot (hereinafter "Depot") which required it to transport contaminated soil from the Depot to a land fill near Shippensburg, Pennsylvania. 5. To complete its work under the contract described above, Defendant entered into an oral agreement with the Plaintiff for the Plaintiff to transport a portion of the contaminated soil from the Depot to the land fill during the month of December of 2001. The corporate Defendant reduced that agreement to writing and a copy of that writing is attached hereto and marked as Exhibit A. 6. In reliance upon the agreement between the parties, Plaintiff used its equipment and personnel to move and transport the contaminated soil as requested and directed by the Defendant. Plaintiff's completion of the work was delayed significantly by the Defendant failing to properly schedule the work so that Plaintiff's vehicles could be properly loaded and unloaded without unnecessary waiting time. As a result, Plaintiff's personnel and equipment was tied up far longer than necessary to compete its work under the contract and Plaintiff incurred additional expenses. 7. Despite the Defendant's interference with and obstruction of its work under the contract, Plaintiff well and truly performed its obligations under the contract. 8. Following the completion of its work for the Defendant, Plaintiff prepared and submitted its invoices for those services. Attached hereto and marked as Exhibit A is a copy of Plaintiff's invoice for the work. 9. The prices and charges set out on Plaintiff's Exhibit A are fair prices for the work done and for the waiting time and overtime charges, and for the damage to Plaintiff's vehicle in the area and at the time those charges were made. 10. In January of 2002, the Defendant made a partial payment to Plaintiff for what was due Plaintiff at that time. After applying a credit for that payment, Plaintiff is owed $5,192.00 plus interest after 31 December 2001. 11. The Defendant breached a contract between the parties by failing to properly schedule the work, by obstructing Plaintiff's work under the contract, and by failing to pay Plaintiff for the work it did. The Defendant, by its conduct, has injured Plaintiff in the amount of 95,192.00, plus interest after 31 December 2001. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $5,192.00, plus interest after 31 December 2001, plus costs of suit. Attorney for Plaintiff Supreme Court ID # 17225 525 North 1 2TM Street Lemoyne, Pa 17043 (717) 761-5361 VERIFICATION I verify that the statements made in this Complaint are true and correct. I understand that any false statements in this Complaint are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). ~'~ Steve A. Hurley, Preside~ S.A. Hurley Excavating, 1'nc. EXHIBIT A ~ pA 17241 C~t?~ 77~~ (HOME) (zt-~ T~-&S~7 (.FAX) Tnvoice Transport of soil from New Cumberland to ~VSI r~1~-Ol to- 12-18-2001 Truck # Tonnage Waiting time 835- Z2~. r~ 20 Hfs. 30 Min. 837 243, l ! 21 Hrs. 33 Min. 838" F3CL57 t I ~$. 915 184.83 I~ Hrs. 38 Min. ~ff ~ 19 ~. 20 Min. g 18 235.64 30 1,222.04- Tons i~lNrr I~RICE. 7.00 $5.00- 55.0O !-Z !-ZZOZ TOTAL 8,554.28 27.~00 6,380.00 4-54.00 $ 1S,66~.'28- SHERIFF'S RETURN - CASE NO: 2002-01761 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND S A HURLEY EXCAVATION INC VS PURCELL & ASSOCIATES OF DELAWA OUT OF COUNTY R. Thomas Kline duly sworn according to law, says, that he made a diligent and inquiry for the within named DEFENDANT , to wit: PURCELL & ASSOCIATES OF DELAWARE INC , Sheriff or Deputy Sheriff who being search and but was unable to locate Them in his bailiwick. deputized the sheriff of ALLEGHENY County, serve the within COMPLAINT & NOTICE He therefore Pennsylvania, to On May 3rd , 2002 , this office was in receipt of the attached return from ALLEGHENY Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Allegheny Co 34.75 Notary 3.00 74.75 05/03/2002 SAMUEL ANDES So answem~s: R./ Thomas Kline Sheriff of Cu~berland County Sworn and subscribed to before me this /9'-~ day of ~ A.D. Prothonotary' · ' Return this form to Ctamberland County Sheriff;s off, ice. In The CoUrt of Common Pleas of Cumberland County, Pennsylvania s,z,. ~uney ~c~ation, Inc. ~_~ S.A. HURLEY EXCAVATION, INC. , Plaintiff VS, PURCELL & ASSOCIATES OF DELAWARE, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-1761 CIVIL PRAECIPE TO THE PROTHONOTARY: Please enter judgment in favor of the Plaintiff and against the Defendant Purcell & Associates of Delaware, inc., for failure to plead and file an Answer in this matter, in the amount of $5,192.00, plus interest after 31 December 2001, plus costs of suit. I certify that the ten-day notice of default, a copy of which is attached hereto, was mailed to the Defendant and its attorney on 23 July 2002. 6 August 2002 Sa~,~el L. Andes Attorney for Plaintiff Supreme Court ID # 17225 525 North 12th Street Lemoyne, Pa 17043 (717) 761-5361 S.A. HURLEY EXCAVATION, INC. , Plaintiff VS. PURCELL & ASSOCIATES OF DELAWARE, INC., Defendant TO: Purcell & Associates of Delaware, Inc. 117 Fox Plan Road, Suite 103 Monroevi,lle, PA 15146 DATE: 23 July 2002 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-1761 CIVIL I~MPORTANT NOTICF YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 S"AMUE~ L. AN'DES (~'-t,~ ATTORNEY FOR PLAINTIFF ~"~ '] SUPREME COURT ID # 17225 525 NORTH 12TH STREET LEMOYNE, PA 17043 (717) 761-5361 5UL $ · jo,,~oql sluoluoo oq'l 'sao~su~ os ol tmou'4 op~u~ pm i~u¢.uo ,¢jo Xdoo ol i~u.tptmq ~q uodn o¢ pOA~OS 'H ~ ~ooIo,O ~; ~ l~ 'Iog' Yd '~unoD ptml.toqumo Jo ~.uoqs · ~!lu!Md oCjo >Isp ptre lsonbo; 0¢ 1~ op~m ~u!oq uopmnd,p sF.I1 'l!a~ s!ql olnooxo ol ~unoo Xuo~o~rv jo jj.uoqs oq~ oz!md.p Xqoaoq op 'Vd 'XI~OO ~~O AO RHIMHI-IS 'I' ZOOg '0I i!zd~ '~o~ ~!U~AiXSUUOd 'XlunoD pu~lJoqmnD ,Io s~*Id uommoD jo 1JnoD oq.L uI IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA S.A. HURLEY EXCAVATION, INC., Plaintiff, VS. PURCELL & ASSOCIATES OF DELAWARE INC., Defendant. CIVIL DIVISION NO.: 02-1761 Civil ORDER AND NOW, this __ day of ,2002, upon consideration of the foregoing petition, it is hereby ordered that (1) a role is issued upon the respondent to show cause why the petitioner is not entitled to the relief requested; (2) the respondent shall file an answer to the petition within days of service upon the respondent; (3) the petition shall be decided under Pa. R.C.P. No. 206.7; (4) depositions shall be completed within __ days of this date; (5) argument shall be held on in Courtroom of the County Courthouse; and (6) notice of the entry of this order shall be provided to all parties by the petitioner. (7) all proceedings in this matter are stayed. BY THE COURT: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA S.A. HURLEY EXCAVATION, INC., Plaintiff, VS. PURCELL & ASSOCIATES OF DELAWARE INC., Defendant. CIVIL DIVISION NO.: 02-1761 Civil PETITION TO OPEN A DEFAULT JUDGEMENT FILED ON BEHALF OF: Defendant. COUNSEL OF RECORD FOR THIS PARTY: Peter J. Payne, Esquire Pa. I.D.# 68902 Payne, Welsh & Klingensmith Penn Plaza, Suite 208 Turtle Creek, PA 15145 (412) 823-8100 Firm No.: 658 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA S.A. HURLEY EXCAVATION, INC., Plaintiff, VS. PURCELL & ASSOCIATES OF DELAWARE INC., Defendant. CIVIL DIVISION NO.: 02-1761 Civil PETITION TO OPEN A DEFAULT JUDGEMENT AND NOW, comes the Defendant, Purcell & Associates of Delaware Inc., by and through their attorneys, Peter J. Payne, Esquire, and Payne, Welsh & Klingensmith and files the within Petition to Open a Default Judgement and in support thereof avers as follows: 1. Defendant, Purcell & Associates of Delaware Inc. (hereinafter referred to as "Purcell") was served with a Complaint in the above captioned matter on April 18, 2002. 2. Defendant, Purcell, prior to August 6, 2002, had no counsel of record for this matter. 3. On or about August 6, 2002, Plaintiff directed the Prothonotary to enter a Judgement in Default against Defendant Purcell. 4. At that time, PlaintiWs counsel forwarded to Defendant Purcell a Notice of Judgement, Praecipe and Important Notice dated July 23, 2002. 5. The Important Notice was not forwarded to Defendant Purcell as required by the Rules of Civil Procedure on July 23, 2002, but rather was forwarded to persons other than Defendant Purcell. 6. Defendant Purcell, did not receive the Important Notice until August 9, 2002, the same day they received Notice that a Default Judgement had been entered against them. 7. The Default Judgement obtained by Plaintiff is defective because Plaintiff violated Rule 237.1 (a)(2)(ii) by not forwarding the required Notice to Defendant. WHEREFORE, Defendant, Purcell & Associates of Delaware Inc., requests this honorable Court to Open the Default Judgement and stay any proceeding to execute on said Judgement. Respectfully submitted, Payne, Welsh & Klingensmith Penn Plaza, Suite 208 Turtle Creek, PA 15145 (412) 823-8100 VERIFICATION I verify that the statements contained herein are tree and correct to the best of my knowledge, information and belief, and are made subject to the penalties of 18 Pa. Con. Stat. Ann. §4904 relating to unswom falsifications to authorities. Date: Pur(~J& Associates of Delaware Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA S.A. HURLEY EXCAVATION, INC., Plaintiff, VS. PURCELL & ASSOCIATES OF DELAWARE INC., Defendant. CIVIL DIVISION NO.: 02-1761 Civil PRAECIPE FOR LISTING CASE FOR ARGUMENT 1. Defendant's Petition to Open a Default Judgement. 2. Identify counsel who will argue case: (A) for Plaintiff address: Samuel L. Andes, 525 North 12th Street, Lemoyne, PA 17043. (B) for Defendant address: Peter J. Payne, Payne, Welsh & Klingensmith, Penn Plaza, Suite 208, Turtle Creek, PA 15145. 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Dated: ?-- ~Z~ Att~ d~~t $.A. HURLEY EXCAVATION, INC., PLAINTIFF/RESPONDENT · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA PURCELL & ASSOCIATES OF DELAWARE, INC., DEFENDANT/PETITIONER : 02-1761 CIVIL TERM ORDER OF COURT AND NOW, this 25th day of September, 2002, upon consideration of the foregoing petition, IT IS ORDERED: (1) A Rule is issued against respondent, S.A. Hurley Excavation, Inc., to show cause why the petition to open a default judgment should not be granted. (2) Respondent shall file an answer to the petition within twenty (20) days of service. (3) The petition shall be decided under Pa· Rule of Civil Procedure 206.7. (4) Any depositions shall be completed within fifty (50) days of service. (5) Briefs shall be filed by both parties in chambers not later than Monday, December 2, 2002, and argument shall be held on Tuesday, December 3, 2002, at 8:45 a.m., in Courtroom No. II of the Cumberland County Courthouse. (6) Notice of the entry of this order shall be provided to all parties by petitioner. (7) All proceedings shall stay pending further order of court. (8) This case is removed from the October 23, 2002, argument court list. Samuel L. Andes, Esquire For Plaintiff/Respondent Peter J. Payne, Esquire For Defendant/Petitioner Court Administrator :saa Plaintiff states it did so only after Defendant, through its representative, Mr. Burke, ceased responding to communications from Plaintiff's counsel intended to resolve the matter. On three separate occasions, Plaintiff's counsel advised Defendant, through Mr. Burke, that the extension of time to file an Answer had passed and set specific deadlines for Defendant to file an Answer to Plaintiff's Complaint. Attached hereto and marked as Exhibits C and D are copies of letters dated 14 March 2002 and 8 May 2002 advising Defendant, through Mr. Burke, that the extensions had passed or been withdrawn and that Defendant should file an Answer to Plaintiff's Complaint. 4. Admitted. By way of further answer, however, Plaintiff states that on 23 July 2002 Plaintiff, by its counsel, mailed to Defendant, at its address listed in the Complaint, a Notice of its default, as required by the Pennsylvania Rules of Civil Procedure. 5. Denied. The Notice was mailed to the Defendant on 23 July 2002. A courtesy copy was mailed to Mr. Burke, but a copy was mailed as well to the Defendant itself. Attached hereto and marked as Exhibit E is a copy of the Notice mailed to the Defendant, a copy of which was mailed to Mr. Burke. 6. Denied. Plaintiff has no way of knowing when Defendant received the Notice which' its attorney mailed on 23 July 2002 because that information is within the exclusive control of the Defendant, an adverse party, and so Defendants proof of this statement, to the effect it is relevant. The Rules of Civil Procedure do not require Plaintiff to prove that Defendant received a copy of the notice, only to mail it, and for that reason Plaintiff states that the averments set out in Paragraph 6 of Defendant's Petition are not relevant or material. 7. Denied. Plaintiff mailed a copy of the Notice to Defendant as required by the Rules of Civil Procedure and is entitled to the default judgment it entered. WHEREFORE, Plaintiff prays this Court to dismiss Defendant's petition to open the judgment and to permit Plaintiff to proceed with execution to enforce its judgment against the Defendant. Attorney for Plaintiff Supreme Court ID 17225 525 North 12th Street Lemoyne, PA 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). STEVE A. HURLEY President, S.A. Hurley Excavation, Inc. CERTIFICATE OF SERVICF I hereby certify that on ~0[.. '~L~ ~ 2002, I served a copy of the foregoing document upon counsel for Defendant by U.S. Mail, postage prepaid, addressed as follows: John F. Burke, III, Esquire 55 Public Square, Suite 2150 Cleveland, OH 44113-1994 Attorney for Plaintiff Supreme Court ID 17225 525 North 12th Street Lemoyne, PA 17043 (717) 761-5361 MANSOUR, GAVIN, GERLACK.& MANOS Co., L.P.A. 55 PUBLIC SQUARE SUITE 2150 CLEVELAND, OHIO 44113-1994 (216) 523-1500 John F. Burke, III FAX (216) 523-1705 e-mail: jburke~mggmlpa.com February 4, 2002 Via Facsimile No. 717-761-1435 Samuel L. Andes, Esq. 525 North Twelfth Street P.O. Box 168 Lemoyne, PA 17043 RE: Purcell & Associates Dear Mr. Andes: Please be advised that I represent Purcell & Associates of Delaware, Inc. and your letter of January 28, 2002 has been forwarded for my response. First, I would like to note that I telephoned your office on January 30, 2002 and left a message. To date I have not heard from you and that is the reason for this correspondence. The Agreement between S.A. Hurley Excavating, Inc. and Purcell was that Purcell would pay S.A. Hurley $70.00 per ton with a 20 ton per load minimum. Purcell never agreed to any payment other than $70.00 per ton. Nonetheless, when Purcell received S.A. Hurley's invoice, due to S.A. Hurley's assistance and response, he voluntarily included 26.6 hours of demurrage that he was not required to pay pursuant to any contractual agreement. Now your client is pursuing the additional payment for monies that were not agreed upon and are not owed. Please be advised that we believe that Purcell has gone above and beyond all of its duties and obligations in the. agreement between the parties and your client's claim of money owed is without merit. Purcell attempted to resolve this matter amicably, but has been met with unreasonable demands. If you have any questions, or would like to discuss this matter further, please feel free to contact me. JFB~b CC: V truly yours, J~bhn F. ke, III John R. Purcell, (Via Facsimile No. 412-380-9288) (216) 523-1500 MANSOUR, GAVIN, G~I~LACK, & .MAN0S CO., L.P.A. 55 PUBLIC SQUARE SUITE 2150 CLEVELAND, OHIO 44113-1994 FAX (216) 523-1705 John F. Burke, III e-mail: jburke~mggmlpa.com April 18, 2002 Via Facsimile No. 717-761-1435 Samuel L. Andes, Esq. 525 North Twelfth Street P.O. Box 168 Lemoyne, PA 17043 RE: Purcell & Associates Dear Mr. Andes: I am in receipt of the Complaint which you filed on behalf of S.A. Hurley Excavation, Inc. against Purcell & Associates of Delaware, Inc. I would first ask if you would consent to a thirty (30) day extension of time in which to answer the Complaint so that we can continue our discussions in attempting to work this matter out. Please let me know. In regard to the specific allegations contained in the Complaint, your Complaint cites two separate exhibit A's, one of which is the Hurley invoice; however the first exhibit A referenced in paragraph 5 is not attached. Please send me a copy. I assume that that is the document that Purcell forwarded to Hurley indicating the agreement to pay $7.00 per ton. Please note that the agreement did not indicate that Purcell would be liable for any other changes other than the $7.00 per ton agreement that the parties entered into. We further disagree with any allegations in the Complaint in regard to defendant's "interference with an obstruction of its work" or any other alleged inactions on the part of Purcell. Nonetheless, as you are aware, Purcell has already paid, in an attempt to resolve this matter, additional monies to S.A. Hurley Excavation, above and beyond the $7.00 per ton agreed to. However, in seeking to resolve this matter, I would ask that you kindly provide me with the following documents which may support your position: 1. Any papers which document the time that the Hurley trucks were in and out of both sites, with signatures from the project manager; 2. .Doc.uments which indicate the specific waiting time that you list in your invoice; Any documents which verify the loading and unloading times; and Three quotes which indicate the purported damage to the tractor and trailer that is listed in the invoice. April 18, 2002 Page Two JFB~b CC; Please be advised that my client has never received any satisfactory documentation in regard to your client's claims. I look forward to hearing from you and receiving that documentation. Very truly yours, ~~F ~rke~,' ii1~-~ /~ John R. Purcell, (Via Facsimile No. 412-380-9288) ~AMU]~L L. ATTOI~I~I~y AT LAW 14 March 2002 John F. Burke, III, Esquire Mansour, Gavin, Gerlack & Manos Co., L.P.A. 55 Public Square, Suite 2150 Cleveland, Ohio 44113-1994 RE: S.A. Hur/ey Excavating,/nc. / Purcell & Associates Dear Mr. Burke: I have discussed the above matter with my client since our correspondence. My client is adamant that it is owed an additional t~5,192.00, plus interest, because of the delay in your client's performance of its obligations under the contract. Because Purcell failed to have the material ready on a timely basis, my client incurred substantial expense in the form of waiting time, overtime payments, and the like. John Purcell personally guaranteed payment to my client and you should consider this letter our demand upon Mr. Purcell that he make payment of what the corporation owes. If we have to commence suit to enforce my client's rights, we will do so against both the corporation and Mr. Purcell, on the strength of his personal guarantee. Frankly, I think this matter should be resolved. With a little effort, we should be able to compromise the claim so that my client is made whole for the rather substantial expenses it incurred because of your client's failure to perform its obligations under the contract. If we do that, it will save both of our clients the cost, delay, and risk of litigation and allow them to get the matter settled promptly without those problems. At this point I am willing to recommend to my client that he accept 94,200.00 in full satisfaction of his claim. I do not have this authority for that settlement, but I am willing to recommend that to him if you believe your client will pay that amount to resolve the matter now. If you think we can settle the case, please let me hear from you within the next ten days. If I do not hear from you by that time, I will assume your client is not interested in negotiating and we will have to proceed with a legal remedy. Sincerely, amh CC: Steve A. Hurley Samuel L. Andes SAMUEL L. Ai~DES ATTORNEY AT LA~V 8 May 2002 John F. Burke, III, Esquire Mansour, Gavin, Gerlack & Manos Co., L.P.A. 55 Public Square, Suite 2150 Cleveland, Ohio 44113-1994 RE: S.A. Hurley Excavating. Inc. vs. Purcell & Associates of Delaware. Inc. Dear John: I write in response to your letter of 3 May 2002. The original agreement between the parties contemplated that my client would be able to load, transport, and unload the material without interruption, delay, or interference. However, when my client dispatched its trucks to the project, they were consistently delayed by your client's failure to properly manage the project. That is, at least under Pennsylvania law, a breach of the agreement and it entitles my client to damages for that breach. Thus, even if the document your client signed is deemed to be an agreement, it does not prevent my client from seeking, and I believe recovering, damages for that breach. I had hoped that you and I would be able to negotiate a settlement of this dispute without a lot of delay. If you wish to argue the fine points of the "agreement" or if you wish to mount a defense to my client's claim based upon the records you have requested, I want you to file an answer to the complaint so I will know exactly what your claims are, and what your position regarding my client's claim is. We can then try to negotiate a settlement and, if we are not successful, the case will be ready for a hearing. I gave you an extension of time to respond to my complaint by filing an answer. I now request that you file that answer by 6 June 2002 if we have not resolved the case by that time. Sincerely, amh CC: Steve A. Hurley Samuel L. Andes S.A. HURLEY EXCAVATION, INC., Plaintiff VS. PURCELL & ASSOCIATES OF DELAWARE, INC., Defendant TO: DATE: Purc.ell & Associates of Delaware, Inc. 11 7 Fox Plan Road, Suite 103 Monroeville, PA 15146 23 July 2002 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-1761 CIVIL IMPORTANT NOTICF YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE., A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND You MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IFYOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 SUPREME COURT ID # 17225 525 NORTH 12TH STREET LEMOYNE, PA 17043 (717) 761-5361 II S.A. HURLEY EXCAVATION, INC., Plaintiff VS, PURCELL & ASSOCIATES OF DELAWARE, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-1761 CIVIL TERM ORDER AND NOW this ~n~ day of ~002, upon the Motion for Continuance filed by the Defendant, to which the Plaintiff has consented, we hereby order as follows: 1. This Petition shall be decided under Pa. R.C.F'. 206.7. 2. Depositions shall be completed on or before the 10th day of January 2003. 3. Briefs shall be filed by both parties, in chambers, no later than January 30, 2003. Oral argument shall be held before the undersigned, ,commencing atS-'~ o'clock Cz .m. on ~'~¥~"'~:~A/r_ the ..~fd- day of J~.~_.~-- ~003, in Court Room 2 of the Cumberland County Courthouse in Carlisle, Pennsyl~nia. 4. All proceedings shall continue to be stayed pending further order of this court. DISTRIBUTION: Samuel L. Andes, Esquire (Attorney for Plaintiff) P.O. Box 168, Lemoyne, PA 17043 Peter J. Payne, Esquire (Attorney for Defendant) Penn Plaza, Suite 208, Turtle Creek, PA 15145 IN THE COURT OF COMMON PLEAS OF CUMBERLANT) COUNTY, PENNSYLVANIA S.A. HURLEY EXCAVATION, INC. Plaimiff, PURCELL & ASSOCiATES OF DELAWARE, INC. Defendant. JURY TRIAL DEMANDED ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ,) ) ) ) ) CIVIL DIVISION No. 02-1761 Civil PRAECIPE TO IVITHDRAW PETITION TO OPEN A DEFAULT JUDGMENT Filed on behalf of: Defendant Counsel of Record For This Pm;ty: PETER J. PAYNE, ESQUIRE PA. I.D. #68902 Payne, Welsh & Klingensmith Firm # 658 Penn Plaza, Suite 208 Turtle Creek, PA 15145 (412) 823-8100 IN THE COURT OF COMMON PLEAS OF CUMBERLAND ,COUNTY, PENNSYLVANIA S.A. HURLEY EXCAVATION, INC. Plaimiff, PURCELL & ASSOCIATES OF DELAWARE, INC. Defendant. ) ) ) ) ) ) ) ) ) ) ) ) CIVIL DIVISION No. 02-1761 Civil PRAECIPE TO WITHDRAW_ PETITION TO OPEN A DEFAULT JUDGMENT Defendant, Purcell & Associates of Delaware, Inc., respectfi:flly withdraws its Petition to Open a Default Judgment in the above-captioned matter. of Delaware, Inc. Respectfully submitted, Payne, Welsh & Klingensmith Peter J. P~'n~,~uire Pa. I.D. #68902 IN THE COURT OF COMMON PLEAS OF CUMBERLAND C, OUNTY, PENNSYLVANIA S.A. HURLEY EXCAVATION, iNC. ) ) Plaintiff, ) PURCELL & ASSOCIATES OF DELAWARE, INC. Dei~ndant. CIVIL DIVISION No. 02-1761 Civil CERTIFICATE OF SERVICE_ The undersigned hereby certifies that on the !7 day of ~*,o~.4,z ~ ,2003, a tree and correct copy of the within PRAECIPE'TO WlTHDRAWPETiTiON T©OPEN A DEFAULT JUD6MENT was forwarded via First Class U.S. Mail, postage prepaid to the following: Samuel L. Andes - 525 North Twelfth Street 'P:O. Box t68 . Lemoyne, PA 17043 ·Peter, J. :Eayn~, Esqu~e . Payne, Welsh & Klingensmith IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA S.A. HURLEY EXCAVATION, INC. Plaimiff, PURCELL & ASSOCIATES OF DELAWARE, INC. Defendant. ) ) ) ) ) ) ) CIVIL DIVISION No. 02-1761 Civil PRAECIPE TO WITHDRAW PETITION TO OPEN A DEFAULT JUDGMENT ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ,) ) ) ) ) Filed on behalf off Defendant Counsel of Record For This Party: PETER J. PAYNE, ESQUIRE PA. I.D. #68902 Payne, Welsh & Klingensrrdth Firm # 658 Penn Plaza, Suite 208 Turtle Creek, PA 15145 (412) 823-.8100 JURYTRIALDE~ED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA S.A. HURLEY EXCAVATION, INC. Plaintiff, Vo PURCELL & ASSOCIATES OF DELAWARE, INC. Defendant. ) ) ) ) ) ) ) ) ) ) ) ) CIVIL DIVISION No. 02-1761 Civil PRAE~IPE TO WITIIDRA~7 PETITION TO OPEN A DEFAULT J-UDGMENT Defendant, Purcell & Associates of Delaware, Inc., respectfully withdraws its Petition to Open a Default Judgment in the above-captioned matter. Respectfully submitted, of Delaware, Inc. Payne, Welsh & Klingensmith By: Peter J. P~,~squire Pa. I.D. #68902 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA S.A. HURLEY EXCAVATION, INC. Plaintiff, PURCELL & ASSOCIATES OF DELAWARE, INC. Defendant. ) ) ) ) ) ) ) ) ) ) ) ) CIVIL DIV]~SION No. 02-1761 Civil CERTIFICATE OF SERVICE_ The undersigned hereby certifies that onthe [7 day of '$*'%,~,,t ~., 2003, a tree and correct copy of the within PRAECIPE'TO WITHDRAWPETIT1ON TO OPEN A DEFAULT JUDGMENT was forwarded via First Class U.S. Mail, postage prepaid to the following: Samuel L. Andes ' 525 North Twelfth Street "P:O. Box t68 ~ Lemoyne, PA 17043 ·Peter. J.=Pa~y,~q e Payne, Welsh & Klingensmith