HomeMy WebLinkAbout06-4071?- 2
COMMONWEALTH OF PENNSYLVANIA NOTICE OF APPEAL
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
JUDICIAL DISTRICT
9TH
FROM
DISTRICT JUSTICE JUDGMENT
COMMON PLEAS No.
I 1 '06 - 1ID i 1 c04
NOTICE OF APPEAL
Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the Dis-
trict Justice on the date and in the case mentioned below.
NAME OF APPELLANT
LB Smith Inc.
MAG. DIST. NO. OR NAME OF D.J.
09-1-01 Charles A. Clement, Jr.
ADDRESS OF APPELLANT CITY STATE ZIP CODE
2010 State Road Camp Hill Pennsylvania 17011
Runk II, Larry J. LB Smith, Inc.
6/20/2006 Bill's Me hanical & Welding) vs.
CLAIM NO. CV YEAR CV00000217-06 SIGNATURE OF APPELLANT OR HIS ORNEV OR AGENT
LT YEAR
This block will be signed ONLY when this notation is required under PA.
R.C.P.J.P. No. 1008B.
This notice of Appeal, when received by the District Justice, will operate as
A SUPERSEDEAS to the Judgment for possession in this case.
0 or
If appellant was Claimant (see PA R.C.P.J.P.
No. 1001(6)) in action before district Justice, he
MUST FILE A COMPLAINT within twenty (20)
days after filing his NOTICE of APPEAL.
PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE
(This section of form to be used ONLY when appellant was DEFENDANT (see PA R.C.P.J.P. No. 1001(7) in action before District Justice.
IF NOT USED, detach from copy of notice of appeal to be served upon appellee.
PRAECIPE: To Prothonotary
Enter rule upon Larry J. Runk, II appellee(s), to file a complaint in this appeal
A Narneorappellee(s)
(Common Pleas No. 11071 (toA) within twenty (20) days after service of ulr suffer ntry of j mept'of non pros.
Signature or appellant or his attorney or agent
RULE: To Larry J. Runk, II appellee(s)
Name or appellee(s)
(1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty(20) days
after the date of service of this rule upon you by personal service or by certified or registered mail.
(2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU
UPON PRAECIPE.
(3) The date of service of this rule if service was by mail is the date of the mailing.
Date:. 7- Is-OL , Year 2006
White - Prothonotary Copy
Green - Court File Copy
Yellow - Appelant's Copy
Pink - Appellee Copy
Gold - D. J. Copy
K.
Signature o tllonot or Deputy
Proth. - 76
J?
PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT
(This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing the notice of appeal. Check applicable boxes)
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF ; as
AFFIDAVIT: I hereby swear or affirm that I served
? a copy of the Notice of Appeal, Common Pleas No. , upon the District Justice designated therein on
(date of service) , year , ?by personal service ?by (certified) (registered) mail, sender's
receipt attached hereto, and upon the appellee, (name , on
, year , ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto.
?'and further that I served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appelfws) to
whom the Rule was addressed on , year , ? by personal service ?by (certified) (registered)
mail, sender's receipt attached hereto.
SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME
THIS DAY OF , YEAR
Sgaalure of official before wean of ava was made
TMe of official
My commission expires on , year
Spnalore of Afaanr
"
QT .fit
-
7p ?T1 lJ _ r. ,.,.
SIC * ?U'
to _, 00
}? ?; z
ri
d'
ro ?
? s
P
r?
e
COMMONWEALTH OF PEAYLVANIA
COUNTY OF: CQNBRRLAND
Meg. Ust. No.
09-1-01
MDJ NMe' Hon
CHARLES.A. CLffi9T,.JR
400: BRIDGE•.$T
OLbE' T01111iE . CONIdOl1$ =BbITB 3.
LB SMITH INC
2001 STATE ROAD
CAN HILL', PA 17011
ItIA$I$_T;.PN9T1Fh?YAU,THAT-,
{i~9;i 'STATE $Vl??7:,..::
2
CAI[' HII,L?'; PA 7a11'
L J
Docket No.: CV-0000217-06
Date Filed: 5/15/06
® Judgment was entered for: (Name) RTTNL TT , T -1212y r
Judgment was entered against: (Name) z>3 31[ZTH r>dre
in the amount of $ n2k _ De on: (Date of Judgment) 8120/ D6 _
0 Defendants are jointly and sieveraliy liable (Rate Time)
Damages will be aSBessed on Judoent
This case, dismissed wjthout prejuice. FAttorn 77
$ 5, 025. D0
Amount of Judgment Subject to
Attachment/42 Pa.C.S. § 8127 $ Post Judgment Credits $
Post Judgment Costs $
Portion of Judgment for physical -------_-
damages arising out of residential
lease $ Certified Judgment Total $
AN,f k?,Afl FY'{'IAS iR [i1GFlT YO APPEi QNFTHIN 3f1 DICYS A TER THE ENTAl t9F JUbOMENT BY FILING'A.NOTICE ,
OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS; CIVIL DIVISION. YOtl
MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENTITRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL,
EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF. CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE
JUDGEMENT. HOLDER ELECTS TO ENTER THE JUDGMENT INTHE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST
COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAYBE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE
UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERF47944N THE JUDGMENT MAY FILE
-A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF 1?E'JUISy?MOT DEBTOR PAYS IN FULL, .
SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT.
t
cett fy tha4 this is a true and correct copy of the record
Date
My commission expires first Monday of January, 2008 .
AOPC 315-05 DATE PRINTED: 6/20/06
?6I
9:49:06 AN
gg1rIgJ.ho judgment`
SEAL
co" }'er CIA IM'
Or
COURT OF COMMON PLEAS
9th Judicial District, County Of Cumberland
FROM
MAGISTERIAL DISTRICT JUDGE JUDGMENT
I I COMMON PLEAS No. O`-qO l 61111L
NOTICE OF APPEAL
Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the Magisterial District
Judge on the date and in the case referenced below.
WdaE OF MDJ
NAMOFAPPEUAW MO. UST. W. Laa J. Runk, II 09-1-01 Charles A. Clement, Jr.
lal CODE
snn >._ nlnrlh street Carlisle PA 17013
II
CV-217-06
James hones, ik"torney for Appellant
R.C.P.D.J. No. 10088.
This Notice of Appeal, when received by the Magisterial District Judge, will before a Magisterial District Judge, A COMPLAINT MUST BE FILED
operate as a SUPERSEDEAS to the judgment for possession in this case. within twenty
(20) days after filing the NOTICE of APPEAL.
Sq,MmdPM wwMrywDW*
PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE
(This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before Magisterial DisMct
Judge. IF NOT USED, detach from copy of notice of appeal to be served upon appellee.
PRAECIPE: To Prothonotary
Enter rule upon
Name of appellee(a)
NOTICE OF APPEAL
appellee(s), to file a complaint in this appeal
(Common Pleas No. ) within twenty (20) days after service of rule or suffer entry of judgment of non pros.
Signature of appellant or attorney or agent
RULE: To , appellee(s)
Name a es
(1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service
of this rule upon you by personal service or by certified or registered mail.
(2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAYBE ENTERED AGAINST YOU.
(3) The date of service of this rule If service was by mail is the date of the mailing.
Date:.20
Signature or Prothonotary or Deputy
YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENTITRANSCRIPT FORM WITH THIS NOTICE OF APPEAL.
AOPC 312-05
I P.
N
r -%
M,, Mal N
09-1-01
nwdr+am, ?a
CSARLES A. CLENEET, JR.
A001R' : 400 BRIDGE ST
C LDE TONES COISLO O -SUITE 3
low CMMZRLAW, PA
Telephmm 717) 774-5969 17070
ATTOR>l;EY DEr PRIVATE :
JAI[ES K. JONES, ESQ
500E SORTS STREET
CARLISLE, PA 17013-3019
o
NOTICE OFJ'UUDLGCASE /TRANSCRIPT
PLAINTIFF/JUDGMECNT DESTaH:
rLB SNITS IEC k antl MDNF.SS -1
2001 STATE ROAD
CAN KILL, PA 17011
L
V?r(S?p.DEFENDANT/JUDGMENT Op?r??NM@1gRix ES3
rRun II, LARRY J.
500 E- TORTE ST.
BILL'S EECRMCAL E NLtDG
LCARLISLE, PA 17013
Docket No.: CY-0 00 0217-0 6
Date Filed: 6/04/06
CROSS COMPLAINT 001 Idt
THIS IS 10 NOTIFY YOU THAT:
Jud Iment:
?t Jud Iment was entered for: (Name) T.n nwT'Pr Tw-
FZ Jud Iment was entered against: (Name) Farr TT! .1.44Y T
in tt a amount of S a, nsg no on:
COMMON WEALTH OF PENNSYLVANIA
COUNTY DF: CUMERLAttm
C Deb -ndants are jointly and severally liable.
Dar ages will be assessed on:
C Thi: case dismissed without prejudice.
Arm unt of Judgment Subject to
Atta :hment/42 Pa.C.S. § 8127 $
Pord m of Judgment for physical
C dam ges arising out of residential
leas) $
ANY PART 'HAS THE RIGHT To APPEAL-WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE
OF APPEAL i 11TH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU
MUST INCLU IE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH-YOUR NOTICE OF APPEAL.
EXCEPT A . OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE
JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST
COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE.MAGISTERIAL DISTRICT JUDGE .
_ Date
.. AEOUEST OR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL,
SETTLES. OF OTHERWISE COMPLIES WITH THE JUDGMENT.'
JUN 2 t 2006 o n
UNLESS TI IE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTEF? "1£DUN TAE JUDGMENT MAY FILE
I ce city tt at this is a true and correct copy of the record of the proceedings
Date
My ccmlT ssion expires first Monday of January, 2008 .
ACPC 31F-(5 DATE PRINTED:
T,T'd 99000b2:01
6/20/06 9:49:57 AE
(Date of Judgment) - e/se/ee
(Date 8 Time)
Total
of Judgment
nt Costs
on Judgment
Fees
Post Judgment Credits $
Post Judgment Costs $
Certified Judgment Total $
ial'".District Judge
to"judgment,
,tv?tljct Judge
SEAL
:NDbd dSb:EO 9002-81--irfj.
PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT
(This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.)
COMMONWEALTH OF PENNSYLVANIA
COUNTYOF Cumberland ;ss
AFFIDAVIT: I hereby (swear) (affirm) that I served
® a copy of the Notice of Appeal, Common Pleas No.06- , upon the Magisterial District Judge designated therein on
WT
(date of service) 77 /?o , 20 06 ? by personal service R by (certified) (OWN mail,
U9 SA,?w
sender's receipt attached hereto, and upon the appellee, (name) _, on
7120,2009 ? by personal serviceM
sender's receipt attached hereto.
54 AND SUBSCRIBED BEFORE ME
(SWOT
THIS^^1 '' DAY OFppL r. yj 200,0
Signat of official beforeom affidavit was made
by (certified) (segictere0 mail,
Si ture of of nt
?
?"R'r ? r i P 9
3 C
li ;
'1 S A' ih
{ f
^
??''nn
Tide of official
My commission expires on _, 20
AOPC 312A- 05
m
Servicc,
CERTIFIED MAIL R
E(--LiF i
?II (Domestic
Ln
4A L USE
ru Fbbw s r
m ce?naaF69 $2.40 00
o ?-
0•' (FjWoMxwMFUgOIMd) $0.00 :' rk
O TOWPoew4p&Fa $ 14,64 /2 6 .
Lr7
M 71)
C3 LB
_mith,..?nc--.
S ......... .................... •......
...
_
_
X
; 200p State
POB Road
A
O
Na
o Po9Ox
W
?4'`a<w Camp Hill, PA 17011
.r?
p141[1) MAIL REC A-W!
Cc
Ln
C' AL US E Off
rU ,_.- ..__.
M C fflgd Fee $2.40 ' •-, `? .
°
° ?sao n n.yw ea $1.83 8e h
°
m HeshfCWd DgWWFM
(FntlwwmaMRedmOd)
$0.00
° Tow P~ a FN $ $4.64 d'07/20
Ln
° 0 MDJ Charles A. Clement, Jr
-•
?»i>two;-4t?0--•Erir?g?-•SCY'e??C-_.....----- __.....
M Fo s" no. 1d...T awns...Commons...-....S-te. ...3._
'aw-
Cumberland, PA 17070
C> ?'
(... ?
- C__ -il
?
T_ -?-,
r, -nn,
-
_. _,?
1
r ti
LARRY J. RUNK, II : IN THE COURT OF COMMON PLEAS OF
d/b/a BILL'S MECHANICAL AND : CUMBERLAND COUNTY, PENNSYLVANIA
WELDING COMPANY,
Plaintiff NO. 06-4071 CIVIL
VS. : CIVIL ACTION -LAW
L. B. SMITH, INC., JURY TRIAL DEMANDED
Defendant
NOTICE
You have been sued in court. If you wish to defend against the claims set
forth in the following pages, you must take action within twenty (20) days after
this complaint and notice are served, by entering a written appearance personally
or by attorney and filing in writing with the court your defenses or objections to the
claims set forth against you. You are warned that if you fail to do so the case may
proceed without you and a judgment may be entered against you by the court
without further notice for any money claimed in the complaint or for any other
claim or relief requested by the plaintiff. You may lose money or property or other
rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF
YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE
SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH
INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY
BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES
THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A
REDUCED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, PA 17013
717-249-3166
LARRY J. RUNK, II IN THE COURT OF COMMON PLEAS OF
d/b/a BILL'S MECHANICAL AND CUMBERLAND COUNTY, PENNSYLVANIA
WELDING COMPANY,
Plaintiff NO. 06-4071 CIVIL
VS. : CIVIL ACTION -LAW
L. B. SMITH, INC., JURY TRIAL DEMANDED
Defendant
COMPLAINT
1. Plaintiff Larry J. Runk, II is an adult resident of Pennsylvania doing business as
Bill's Mechanical and Welding Company with an address of 500 E. North Street, Carlisle, PA
17013.
2. Defendant L. B. Smith, Inc. is a corporation with an address 2010 State Road,
Camp Hill, PA 17011.
3. On or about January 13, 2004, Plaintiff entered into an agreement with Defendant
in Lower Allen Township, Cumberland County, Pennsylvania whereby Plaintiff would purchase
pieces of equipment held for sale by Defendant. A copy of the list of items purchased is attached
hereto as Exhibit 1.
4. On said day, Plaintiff paid in full $9,075.00 for the equipment.
5. Several days later, Plaintiff removed some of the items from Defendant's location
but was unable to remove all of the equipment purchased at that time.
6. Several days later, Plaintiff contacted Defendant's representative to make
arrangements to obtain the remaining equipment.
7. At that time, Defendant's representative refused Plaintiff access to the location
thereby denying Plaintiff access to the equipment previously purchased and paid for.
8. Despite repeated demands to release this equipment, Defendant refuses to permit
Plaintiff to obtain the remaining equipment.
9. The remaining equipment consists of the following: a) ironworker dies; b) drill
press; c) Clark forklift; d) 36 vertical band saw; and e) blue bolt cab.
10. Defendant's denial of access to this equipment has caused a loss to Plaintiff in an
amount equal to the amount paid by Plaintiff for this equipment
11. Defendant's denial of access to this equipment has caused a loss to Plaintiff in an
amount equal to the fair market value of said equipment.
WHEREFORE, Plaintiff requests this Court to °nter an order for damages in excess of
$25,000.00 in favor of Plaintiff and against Defendant.
Respectfully submitted,
;es K. Jones, E q&Or' PA 39031
Attorney for Pl tiff
7 Irvine Row
Carlisle, PA 17013-3019
(717) 240-0296
I verify that the statements made in this Complaint are true and correct. I understand that
false statements herein are made subject the penalties of 18 Pa.C.S. § 4904, relating to unworn
falsification to authorities.
Lary J. Runk,
'30
CONSTRUCTION AND QUARRY
EQUIPMENT SALES, SERVICE,
PARTS AND RENTAL
PSO WORKSHEET
Customer:
Address:
Slip To:
Dace.
Order By:
Phone N
P.O. ? :
Ship Via:
W/O M : Employee N
Model: S/N: Equipment: Customer N :
Qty. Part Number Description Repl. P/N Bin Sell List Cost
411 oo
Tro..l w r Qd
t re 00
r { ' +- OD
Je 1 I A 000.
cue S ?tj
o.
Levef Be op E?
s So.
t?f ?s
84- ab, of to01
/ae o `?
/a f- a
S 0 0 le-
A e
.? o 20
/
I
.
C?(
4 NG 5J
?
j
/
r
`m
A (-Q.4d i z ?e
gb '5p- .5 1 n
),
crD
//
C (a wt /J S 41 W °B
EXHIBIT
N
Z? ?.v' ?'
.,_? ?
?// •='? ?
Y? ?O
.? ?-?
?_. ? ?
?
D?.
N fTI
O
O
LARRY J. RUNK, II IN THE COURT OF COMMON PLEAS OF
d/b/a BILL'S MECHANICAL AND, CUMBERLAND COUNTY, PENNSYLVANIA
WELDING COMPANY,
Plaintiff
CIVIL ACTION - LAW
V.
L.B. SMITH, INC. No. 06-4071
Defendant
NOTICE TO PLEAD
To: Plaintiff Larry J. Runk, 11
c/o James K. Jones, Esquire
The Law Offices of James K. Jones, Esquire
7 Irvine Row
Carlisle, PA 17013-3019
YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE
ENCLOSED NEW MATTER & COUNTERCLAIM WITHIN TWENTY (20) DAYS FROM
SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU.
Respectfully submitted,
RHOADS & SINON LLP
By: ---
Dean F. Piermattei
Stephanie E. DiVittore
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for L.B. Smith, Inc.
VERIFICATION
Dean F. Piermattei, Esq., Attorney for L.B. Smith, Inc., deposes and says, based on
discussions with L.B. Smith, Inc., and subject to the penalties of 18 Pa. C.S. §4904 relating to
unsworn falsification to authorities, that he makes this verification by its authority and that the
facts set forth in the Answer, New Matter & Counterclaim are true and correct to the best of his
knowledge, information and belief.
Dater/ Dean F. Piermattei, Esq.
Dean F. Piermattei, Esquire
Attorney I.D. No. 53847
Stephanie E. DiVittore, Esquire
Attorney I.D. No. 85906
RHOADS & SINON LLP
One South Market Square, 12th Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for L.B. Smith, Inc.
LARRY J. RUNK, H
d/b/a BILL'S MECHANICAL AND
WELDING COMPANY,
Plaintiff
V.
L.B. SMITH, INC.
n P, 16 wAt-
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No. 06-4071
Defendant
ANSWER, NEW MATTER & COUNTERCLAIM OF L.B. SMITH, INC.
NOW COMES L.B. Smith, Inc. ("L.B. Smith"), through its attorneys, Rhoads & Sinon
LLP, and files the following Answer and New Matter stating as follows:
1. Admitted based on information and belief.
2. Admitted.
3. Admitted.
4. Admitted.
5. Denied. After reasonable investigation, L.B. Smith is without information
sufficient to form a belief as to the truth or falsity of the allegations of Paragraph 5 and the same
are therefore denied.
619962.1
6. Admitted in part, denied in part. It is admitted that several days after Plaintiff
removed some items from L.B. Smith, Plaintiff contacted L.B. Smith regarding remaining
equipment. It is specifically denied that the remaining equipment was in L.B. Smith's
possession. By way of further response, at the time Plaintiff initially arrived to partially retrieve
the items purchased, at least one of his employees, representatives, assistants or agents
misappropriated various tools belonging to L.B. Smith, Inc. the value of which is in excess of
$5,000.00 and was equal to or exceeded the value of the equipment to be retrieved by the
Plaintiff.
7. Admitted in part. It is admitted that Plaintiff was refused access to the location to
retrieve the remaining equipment. By way of further answer, Plaintiff was refused access for the
reasons set forth in paragraph 6 above. Upon Plaintiffs immediate departure from the initial
visit to acquire equipment, Plaintiff was contacted and informed of the missing items. Plaintiff
acknowledged that he would work to retrieve the items from Mr. Bockman, the individual
working on behalf of the Plaintiff to initially load some of the equipment.
8. Admitted in part. It is admitted that Defendant has refused to allow Plaintiff to
retrieve any of the remaining items for the reasons set forth above and in the New Matter and
Counterclaim.
9. Denied. After reasonable investigation, L.B. Smith is without information
sufficient to form a belief as to the truth or falsity of the allegations of Paragraph 9 and the same
are therefore denied.
10. Denied. The allegations of this Paragraph are legal conclusions to which no
response is required. To the extent a response is deemed appropriate, the same are denied.
-2-
11. Denied. The allegations of this Paragraph are legal conclusions to which no
response is required. To the extent a response is deemed appropriate, the same are denied.
NEW MATTER
12. Any damages sustained by the Plaintiff were as a direct result of Plaintiff's own
acts or omissions and/or as a result of the acts or omissions of third parties, including Plaintiff's
agent(s) or conditions which were beyond the control of L.B. Smith.
13. There is no causal connection between the damages sought by Plaintiff and any
conduct or omission by L.B. Smith.
14. Plaintiff's Complaint fails to state a cause of action upon which any relief may be
granted.
15. Plaintiff's claims are barred by waiver.
16. Plaintiff's claims are barred by estoppel.
17. Plaintiff's claims are barred by payment or offset.
18. Plaintiff's claims are barred by the statute of frauds.
19. Plaintiff's claims are barred by laches.
20. Plaintiff's claims are barred by the statute of limitations.
21. Plaintiff has not suffered any damages in this matter and to the extent that
Plaintiff can prove that it has suffered damages, it is solely as a result of its own actions or in-
actions or the actions or in-actions of third parties.
WHEREFORE, Defendant L.B. Smith, Inc. respectfully request that this Court enter
judgment in its favor and against Plaintiff Larry J. Runk, II d/b/a Bill's Mechanical & Welding
-3-
Company and further request that this Court award Defendant its costs, including attorneys' fees
incurred in defending this claim and any other relief allowed by law.
COUNTERCLAIM
22. L.B. Smith incorporates herein by reference paragraphs 1 through 21 above.
23. Pursuant to the terms of the parties' agreement, Plaintiff agreed to purchase
equipment from L.B. Smith in exchange for payment in the amount of $9,075. As part of the
agreement, Plaintiff agreed that he would remove the equipment he purchased from L.B. Smith's
equipment yard.
24. At the time Plaintiff arrived to pick up the equipment, he and his agents obtained
several pieces of the equipment he agreed to purchase.
25. In addition, however, at the time Plaintiff and his employees, representatives
and/or agents arrived to retrieve the equipment, Plaintiff, his employees, representatives and/or
agents misappropriated and improperly removed various tools and equipment belonging on the
property.
COUNTI
(Conversion)
26. L.B. Smith incorporated herein by reference Paragraphs 1 through 25 above.
27. All individuals accompanying Plaintiff to the L.B. Smith property to retrieve the
equipment he purchased from L.B. Smith constituted employees, representatives and/or agents of
Plaintiff.
-4-
28. The individuals accompanying Plaintiff to the L.B. Smith to retrieve the
equipment Plaintiff purchased from L.B. Smith were acting under the control, or at the direction,
of Plaintiff.
29. Plaintiff, his employees, representatives and/or agents, without privilege or L.B.
Smith's consent, have converted tools and equipment on L.B. Smith's property for their own use.
30. Plaintiff, his employees, representatives and/or agents, have failed to pay L.B.
Smith any compensation for either the use or conversion of the tools and equipment.
31. Plaintiff is liable to L.B. Smith for . frauds, deceits, concealments,
misrepresentations, torts, negligent acts and other malfeasance of his employees, representatives
and agents improperly removing items belonging to L.B. Smith, Inc. even though Plaintiff did
not justify, participate in, or know of such conduct.
32. L.B. Smith incurred damages as a result of the unlawful conversion of property
set forth above.
33. Because of Plaintiff's representatives misappropriation, the District Justice
entered a judgment in favor of L.B. Smith, Inc. in the amount of $5,025.00, while at the same
time entering a judgment for the same amount in favor of the Plaintiff (which was roughly the
damage amount being claimed by the Plaintiff at the District Justice level) which is consistent
with L.B. Smith Inc.'s theory of offset.
WHEREFORE Defendant L.B. Smith, Inc. demands judgment in its favor and against
Plaintiff Larry J. Runk H d/b/a Bill's Mechanical & Welding Company in an amount in excess of
$5,000 together with interest, costs, attorneys' fee and any other relief this Court deems appropriate.
-5-
COUNTII
(Unjust Enrichment)
34. L.B. Smith incorporates herein by reference Paragraphs 1 through 33 above.
35. The reasonable value of the equipment and tools removed by Plaintiff, his
representatives, employees and/or agents from the L.B. Smith property is in excess of $5,000.
36. Plaintiff, his representatives, employees and/or agents have used and benefited
from the equipment and tools, and Plaintiff has wrongfully refused to pay L.B. Smith for the use
and benefit of these tools and equipment.
37. As a direct and proximate cause of such unjust enrichment, L.B. Smith has
sustained damages in the amount in excess of $5,000.00.
38. Injustice will result if recovery is denied.
WHEREFORE Defendant L.B. Smith, Inc. demands judgment in its favor and against
Plaintiff Larry J. Runk II d/b/a Bill's Mechanical & Welding Company in' an amount in excess of
$5,000 together with interest, costs, attorneys' fee and any other relief this Court deems appropriate.
Respectfully submitted,
RHOADS & SINONtLP
By: kAw F- hDean F. Piermattei
Stephanie E. DiVittote
One South Market Square
P. O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for L.B. Smith, Inc.
-6-
CERTIFICATE OF SERVICE
I hereby certify that on this -1? day of September, 2006, a true and correct copy of
the foregoing Answer, New Matter & Counterclaim of L.B. Smith, Inc. was served by means of
United States mail, first class, postage prepaid, upon the following:
James K. Jones, Esquire
The Law Offices of James K. Jones, Esquire
7 Irvine Row
Carlisle, PA 17013-3019
cc;
Dean F. Piermattei, Esquire
Attorney I.D. No. 53847
Stephanie E. DiVittore, Esquire
Attorney I.D. No. 85906
RHOADS & SINON LLP
One South Market Square, 12th Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for L.B. Smith, Inc.
LARRY J. RUNK, II IN THE COURT OF COMMON PLEAS OF
d/b/a BILL'S MECHANICAL AND CUMBERLAND COUNTY, PENNSYLVANIA
WELDING COMPANY,
Plaintiff
CIVIL ACTION - LAW
V.
L.B. SMITH, INC. No. 06-4071
Defendant
PRAECIPE TO SUBSTITUTE VERIFICATION
TO: THE PROTHONOTARY
Kindly substitute the attached Verification for the Attorney Verification attached to the
Answer, New Matter & Counterclaim of defendant L.B. Smith, Inc., which was originally filed on
September 8, 2006.
Respectfully submitted,
RHOADS & SINON LLP
P
De-gi-F. P altei, Esquire
St "e E. DiVittore, Esquire
On outh Market Square, 12th Fl.
. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Defendant
621801.1
CERTIFICATE OF SERVICE
I hereby certify that on this 104 day of September, 2006, a true and correct copy of the
foregoing Praecipe to Substitute Verification was served by means of United States mail, first
class, postage prepaid, upon the following:
James K. Jones, Esquire
The Law Offices of James K. Jones, Esquire
7 Irvine Row
Carlisle, PA 17013-3019
618085.1
VERIFICATION
Richard E. Jordan, III, deposes and says, subject to the penalties of 18 Pa. C.S. §4904
relating to unworn falsification to authorities, that he is an employee of L.B. Smith, Inc., that he
makes this verification by its authority and that the facts set forth in the Answer, New Matter &
Counterclaim are true and correct to the best of his knowledge, info on and belief.
!CJN1?X?- ??-?-
Date Richard E. Jordan, III
LARRY J. RUNK, II
d/b/a BILL'S MECHANICAL AND
WELDING COMPANY,
Plaintiff
VS.
L. B. SMITH, INC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 06-4071 CIVIL
CIVIL ACTION -LAW
JURY TRIAL DEMANDED
PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER
AND COUNTERCLAIM
NEW MATTER
12. Denied. Plaintiff denies that any damages sustained were a direct result of their
acts or omissions and/or a result of the acts or omissions of third parties as L. B. Smith has
withheld the funds at issue.
13. This allegation is a legal conclusion and therefore requires no response. To the
extend a response is necessary, Plaintiff denies that there is no cause or connection between the
damages sought and the conduct or omission by L. B. Smith as L.B. Smith has withheld the
funds at issue.
14. This allegation is a legal conclusion and therefore requires no response. To the
extend a response is necessary, Plaintiff denies that the complaint fails to state a cause of action
upon which relief may be granted.
15. This allegation is a legal conclusion and therefore requires no response. To the
extend a response is necessary, Plaintiff denies that Plaintiff's claims are barred by waiver.
16. This allegation is a legal conclusion and therefore requires no response. To the
extend a response is necessary, Plaintiff denies that Plaintiff's claims are barred by estopple.
17. This allegation is a legal conclusion and therefore requires no response. To the
extend a response is necessary, Plaintiff denies that Plaintiff's claims are barred by payment or
offset.
18. This allegation is a legal conclusion and therefore requires no response. To the
extend a response is necessary, Plaintiff denies that Plaintiff's claims are barred by the statute of
frauds.
19. This allegation is a legal conclusion and therefore requires no response. To the
extend a response is necessary, Plaintiff denies that Plaintiff's claims are denied by latches.
20. This allegation is a legal conclusion and therefore requires no response. To the
extend a response is necessary, Plaintiff denies that Plaintiff's claims are barred by the statute of
limitations.
21. Denied. Plaintiff denies that Plaintiff has not suffered any damages in this matter
and further denies that if damages can be proven, it is solely as a result of Plaintiff's actions or
inactions or the actions or inactions of third parties.
WHEREFORE, Plaintiff requests this Court to enter judgment in his favor and against
Defendant.
COUNTERCLAIM
22. This paragraph requires no response.
23. Admitted.
24. Admitted. However, Plaintiff admits to only one agent present at the time.
25. Denied. Plaintiff denies that he, his employees, representatives and/or agents
misappropriated or improperly removed various tools and equipment belonging on the property.
COUNT ONE
26. This allegation requires no response.
27. Admitted to the extent that there was one individual accompanying Plaintiff to the
L. B. Smith property to retrieve the equipment to be purchased from L. B. Smith.
28. Admitted to the extent that there was one individual accompanying Plaintiff to L.
B. Smith to retrieve the equipment Plaintiff purchased from L. B. Smith.
29. This allegation is a legal conclusion and therefore requires no response. To the
extend a response is necessary, Plaintiff denies that Plaintiff, his employees, representatives
and/or agents, without privilege or L. B. Smith consent, converted tools and equipment on L. B.
Smith's property for their own use.
30. Admitted in part and denied in part. Plaintiff admits that Plaintiff, his employees,
representatives and/or agents have failed to pay L. B. Smith any compensation. Plaintiff denies
that Plaintiff, his employees, representatives and/or agents have used or converted tools and
equipment.
31. This allegation is a legal conclusion and therefore requires no response. To the
extend a response is necessary, Plaintiff denies that Plaintiff is liable to L. B. Smith for frauds,
deceits, concealments, misrepresentations, torts, negligent acts and other malfeasances of his
employees, representatives and agents improperly remo,% ing items belonging to L. B. Smith, Inc.
32. Denied. Plaintiff denies that L. B. Smith incurred damages as a result of the
unlawful conversion of property set forth above as said unlawful conversion did not occur.
33. Denied. Plaintiff denies that the two judgments are consistent with L. B. Smith,
Inc.'s theory of offset as the reasoning behind the Magisterial District Justice's decision is not
known to the parties. Plaintiff further denies that the entering of the same judgment by the
r '
Magisterial District Justice is consistent with the theory of offset as the prior decision is
irrelevant to the matter before the Court at this time.
WHEREFORE, Plaintiff requests this Court to enter judgment in its favor and against
Defendant.
COUNT TWO
34. No answer is required to this allegation.
35. After reasonable investigation, party is without knowledge or information
sufficient to form a belief as to the truth of this averment and therefore demands strict proof at
trial.
36. This allegation is a legal conclusion and therefore requires no response. To the
extent a response is necessary, Plaintiff denies that Plaintiff, his representatives, employees
and/or agent have used or benefited from the equipment and tools. Plaintiff further denies that
he has wrongfully refused to pay L. B. Smith for the use and benefit of these tools and
equipment.
37. Denied. Plaintiff denies that L. B. Smith has sustained damages in the amount in
excess of $5,000.00.
38. Denied. Plaintiff denies that injustice will result if recovery is denied.
WHEREFORE, Plaintiff requests this Court to enter judgment in his favor and against
Defendant.
Respectfull -? submitted,
Jam . Jones, squir
A omey for Plaintiff
7 Irvine Row
Carlisle, PA 17013-3019
(717) 240-0296
I verify that the statements made in this reply to New Matter and Counterclaim are true
and correct. I understand that false statements herein are made subject to the penalties of 18
Pa.C.S. §4904, relating to unsworn falsification to authoriti
Larry J. Runk, 11
r
`?'
C?
? v
?
_„
d ?
?
? t? "'
(s ? '??
?
?
fit/ 1._ .'+'
?'1..') .
.?-%{
'T ?:
. . '..:.K
,.
.
`' c ?
?, (?y )
Curtis R. Long
Prothonotary
office of the protbonotarp
Cumberfattb Countp
Renee K. Simpson
Deputy Prothonotary
John E. Slike
Solicitor
._n -'16 / 1 _CVIL TERM
ORDER OF TERMINATION OF COURT CASES
AND NOW THIS 28TH DAY OF OCTOBER, 2009, AFTER MAILING NOTICE OF
INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE
CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA
R C P 230.2.
BY THE COURT,
CURTIS R. LONG
PROTHONOTARY
One Courthouse Square • Carlisle, Pennsylvania 17013 - (717) 240-6195 • Fax (717) 240-6573