HomeMy WebLinkAbout06-6999
COMMONWERtfH OF PENNSYLVANIA
COURT OF COMMON PLEAS
NOTICE OF APPEAL
JUDICIAL DISTRICT
FROM
DISTRICT JUSTICE JUDGMENT
COMMON PLEAS No. 06-6999 CIVIL
Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the
date and in the case mentioned below.
NOTICE OF APPEAL
NAME OF APPELlANT
Cumberland Hardscapes
ADDRess OF APPELlANT
21 Highland Avenue
MAG. OIS1. NQ OR NAME OF OJ.
DATE OF ./UDGMENT
11/20/06
ClAIM NO
IN THE CASE OF (Plaintiff J
09-3-01/Harold E. Bender
STATE zp CODE
17257
cv ~ 0000219-06
IT 19
This block will be signed ONLY when this notation is required under Po. R.CP 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.
Signature of Prothonotary or Deputy
If appel/ant 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.
(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 ENTER RULE TO FILE COMPLAINT AND RULE TO FILE
PRAECIPE, To ""-. e ~ l!t'iVPA
Enter rule upon
"
fVJl L L I:? 1l....
Name of appellee( s)
. appellee(s).
, appe/lee(s), to file a complaint in this appeal
~~~--
Signature of appellant or his attorney or agent
(Common Pleas No.
RULE: To
06-6999 CIVIL
81f~N /;>/1 hi) I.L~&.
(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 persona' 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.
~ D~~~_Of:;o:ndeW_-by~.~-~}~tJ )t,M~~_
.
COURT FILE TO BE FILED WITH PROTHONOTARY
AOPC 312-84
.-
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(T.his proof of service MUST BE FILED WITHIN TEN (10) DA YS AFTER filing the notice of appeal. Check applicable boxes)
PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT
cOUMONWEAL TH OF PENNSYLVANIA
COUNTY OF ;n
AFFIDAVIT: I hereby swear or affirm than served
" -
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o a copy of the NQU1;eQ.f. Appea~, Cpmrl19n Pleas No: .-, ' upon the District Justice designated therein on
(date of service) .19_. 0 by personal service 0 by (certified) (registered) mail, sender's
receipt attached hereto, and upon the appellee, (name) , on
,19 (l by personal service 0 by (certified) (registered) mail, sender's receipt attached hereto.
o and further that I served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appellee(s) towhom
the Rule was addressed on ' 19~ 0 by personal service 0 by (certified) (registered)
mail, sender's receipt attached h'ereto.
SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME
THIS DAY OF ,19_
Signature of affiant
Signature of official before whom affidavit was made
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THIS IS TO NOTIFY YOU THAT:
Judgment: PaR PLAJ:IITZPI' (Date of Judgment)
~ Judgment was entered for: (Name) .ZLLBR, BRDDA
[!] Judgment was entered against: (Name) ctJDlnt~1IQ) JlUDSCUBS
in the amount of $ 8,784. 7~
o Defendants are jointly and severally liable.
o Damages will be assessed on Date & Time
o This case dismissed without prejudice.
/
C<Th1MONWEAL TH OF PENNSYL V ANJA
COUNTY OF: CUllBQLUm
Mag. Dist No.:
09-3-01
MDJ Name: Hon_
IlAROLD B. BDDBR
Address: 35 1f ORAllGB ST
SHZPPBlfSBURQ, PA
Telephone: (717) 532-7676 17257-0361
CUIIB~LAlm IlAltDSCAPBS
21 HZcmx.um AVB
C/O BUlB SIIZTB:
SHZPPBlfSBORQ, PA 17257
NOTICE OF JUDGMENTrrRANSCRIPT
CIVIL CASE
PLAINTIFF:
fiZLLBR, BRDDA
122 QZLBBRT JU)
SHZPPBlfSBORQ, PA
L
NAME and ADDRESS
-,
17257
..J
VS.
DEFENDANT: NAME and ADDRESS
fCmmnLAlm JlUDSCUBS -,
21 Hzmrr.~ AVE
C/O BUlB SIIZTB:
l!IHZPPBlfSBURQ, PA 17257 ..J
Docket No.: CV-0000219-06 ....
Date Filed: 11/07 /06 '.,~
CROSS COMPLAINT 001
11/20/06
Amount of Judgment $ 8,000.00
Judgment Costs $ 8.50
Interest on Judgment $ .00
Attorney Fees $ 776.25
Total $ 8,784.75
Post Judgment Credits $
Post Judgment Costs $
---------
------------
Certified Judgment Total $
o Amount of Judgment Subject to Attachment/42 Pa.C.S. ~ 8127
$
o Portion of Judgment for physical damages arising out of
residential lease $
ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE
OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU
MUST INCLUDE A COpy OF THIS NOTICE OF JUDGMENTITRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL.
EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES. IF THE
JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST
COME FROM THE COURT OF COMMON PLEAS AND NO FURTlfER PROCESS MAYBE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE.
UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS. ANYONE INTERESTED IN THE JUDGMENT MAY FILE
A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL,
SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT.
/f ~tJ ....6& Date J Magisterial District Judge
I certify that this is a true and correct copy of the record of the proceedings containing the judgment.
Date
My commission expires first Monday of January, 2012
AOPC 315-06
, Magisterial District Judge
SEAL
DATB PRZIITBD: 11/20/06 10:20:00 AM
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CdMMONWEAL TH OF PENNSYLVANIA
COUNTY OF: CUllBnLAJm
Mag. Dist. No.:
NOTICE OF JUDGMENTITRANSCRIPT
CIVIL CASE
09-3-01
PLAINTIFF: NAME and ADDRESS
'CmmIntLUD IWlDSCAPI:S
21 Bzmn.-'JIJ) AVB
SBZPPBRSBURQ, PA 17257
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MDJ Name: Hon.
1lAR0LD 1:. BBllDBR.
Address: 35 " OUJIQI: S'1"
SBZPPBRSB1JJt.Q, PA
Telephone: (717) 532-7676 17257-0361
DEFENDANT:
'iZLLBR., BRDDA
122 CilZLBBR.T JU)
SBZPPBRSB1JJt.CiI, PA
L
Docket No.: CV-0000219-06
Date Filed: 10/20/06
VS.
...J
NAME and ADDRESS
I
17257
CUJlBIntLUD IWlDSCAPBS
21 BZQJILUI]) AVB
SBZPPBRBB1JJt.Q, PA 17257
THIS IS TO NOTIFY YOU THAT: MZLLD, BRDDA
Judgment: DZSIIZSSBD "/0 PUJUDZCJ: (Date of Judgment)
o Judgment was entered for: (Name)
o Judgment was entered against: (Name)
in the amount of $
o Defendants are jointly and severally liable.
o Damages will be assessed on Date & Time
.Ii] This case dismissed without prejudice.
...J
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DBP 001
Amount of Judgment $ .00
Judgment Costs $ .00
Interest on Judgment $ .00
Attorney Fees $ .00
Total $ .00
Post Judgment Credits $
Post Judgment Costs $
------------
------------
Certified Judgment Total $
o Amount of Judgment Subject to Attachment/42 Pa.C.S. ~ 8127
$
o Portion of Judgment for physical damages arising out of
residential/ease $
ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NonCE
OF APPEAL WITH THE PROTHONOTARYICLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU
MUST INCLUDE A COpy OF THIS NonCE OF JUDGMENTITRANSCRIPT FORM WITH YOUR NonCE OF APPEAL.
EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE
JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST
COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAYBE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE.
UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE
A REQUEST FOR ENTRY OF SATISFAcnON WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL,
SETTlES, OR OTHERWISE COMPLIES WITH THE JUDGMENT.
- tJ-tf& Date #~ ~ ~ ,MagisterialDistrictJudge
I certify that this is a true and correct copy of the record of the proceedings containing the jUdgment.
Date
, Magisterial District Judge
My commission expires first Monday of January, 2012
AOPC 315.06
SEAL
DATB PRZB'1"BD: 11/20/06 10:18:00 AN
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PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT
COMMONWEALTH OF PENNSYLVANIA
(This proof of servioeMUST 85 FtLED WITHIN TEN (10) DA YS AFTER filing the notice of appeal. Check applicable boxes)
COUNTY OF
Cumbffrlann
; ss
AFFIDAVIT: I hereby swear or affirm that I served
~ a copy of the Notice of Appeal, Common Pleas No. 06 -6 9 9 9 , upon the District Justice designated therein on
(date of service) Dec. 6, 200919_. 0 by personal service ~ by (certified) (qils1leJeJll) mail, sender's
receipt attached hereto, and upon the appellee, (name) Br~n Ii t'l Mi 1 1 p r , on
Dec. 6, 200919 nby personal service ~ by (certified)i!Xgtx~ mail, sender's receip~ attached hereto.
ill and further that I served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appellee(s) to whom
the Rule was addressed on December 6, 2006 ,19-----=> 0 by personal service fia~Y (cer" ) (~fti~~glj
mail, sender's receipt attached hereto. - I 0
/
SWORN JA!FJ~MED) AND SUBSCRIBEDBEFORE ME "
THIS ~ DAY OFM.rl1YtWJr, 1XJ,Dlk; · t
Title of otticial
My commission expires on
,19_.
ceo r.: ti;O;:!y~~:~~;:;'~~ '"(;;~:. ,~~Z'~~.--l
Jennifer S_' Uncisay, Notary Pui:AIC I
Carlisle Bora. Cumberland County \
, My Commission E:~pires Nov. 29. Z007. i
Member, Pe!lnsy~vania ll..s~OCtat\on 0: Notane;)
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~'TH Of PENNSYLVANIA
Of ~OMMON PLEAS
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NOTICE OF APPEAL
FROM
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JUDICIAL DISTRICT
DISTRICT JUSTICE JUDGMENT
COMMON PLEAS No. 06-6999 CIVIL
NOTICE OF APPEAL
,-
Notice is giwn that the appellant has filed in the above-Court of Common Pleas an appeal from the judgment rendered by the District Justice on the
date and in the case mentioned beIoYt
[;,. ,,"{ '~jj< .. <qf:.il< '. < ~
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IP CODE
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NAME OF APPElLANT
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OF APPElLANT
21 .1g1a1.... Ayeaae
DAn: OF JUDGMENT
11/20/06
OAIM
N THE CASE OF (Plairtiff )
CV ~ 0000219-86
L119
This block win be signed ONLY when this ll()tation is required under Po. R.CP JP. No.
loo8B.
ThiS Notice of Appeal. when received by the District Justice. will operate as a
SUPERSEDE'AS' to the judgment 'fQr possession .in this case.
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.
Signature of Prothonotary or Deputy
. PRAECIPE TO:tN'fIR.RU~t TO FILE COM~,~!f~,'~~)~~ FILE
(This sect#Orl .of toon to be used ONLY when appellant was DEFENDANT (see Pa. R.C.pjP' 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 /2 "
Uf<I5N];>A fVI L L t: r:<-..
Enter rule upon I . appellee(s), to file a com~ in this oppeaI
Name of appellee(s) ~
(Common Pleas No. ) within twenty (20) days after sI~f ruJ, or~?Ji ry . eRt of non ~
06-6999 CIVIL ~1" i
t3 If ~ N l:> II HI ILL /::- f< Signature of appellant or his attorney or agent
, appellee(s).
RULE: To
Nane of appellee( s)
(1) You a~notifite.d 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 ruI&: \Jpon ~ by personal service or by certified or registered mail.
(2) If you do note. a complaint within this time, a JUDGMENT Of NON PROS Will BE ENTERED AGAINST YOu.
DEe 6
Date:
(3) The date of service of this rule if service was by mail is the date of mailing.
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CUMBERLAND HARDSCAPES, INC.,
Plaintiff
v.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
NO. 2006-6999 CIVIL TERM
CIVIL ACTION-LAW
ROY MILLER and BRENDA MILLER,
husband and wife,
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 an 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. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION
ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MA Y BE ABLE
TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, Pennsylvania 17013
(717) 249-3166
v.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, P A
NO. 2006-6999 CIVIL TERM
CIVIL ACTION-LAW
CUMBERLAND HARDSCAPES, INC.,
Plaintiff
ROY MILLER and BRENDA MILLER,
husband and wife,
Defendants.
COMPLAINT
NOW, comes Plaintiff, Cumberland Hardscapes, Inc. ("Cumberland"), by and through its
attorneys, O'BRIEN, BARIC & SCHERER, and files the within Complaint and, in support
thereof, sets forth the following:
1. Cumberland is a Pennsylvania corporation with its principal place of business
located at 21 Highland Avenue, Shippensburg, Cumberland County, Pennsylvania 17257.
2. Defendants are adult individuals with a residence address of 122 Gilbert Road,
Shippensburg, Cumberland County, Pennsylvania. Defendants are the record owners of 122
Gilbert Road, Shippensburg, Pennsylvania 17257.
3. Cumberland provides construction services and material for stamped concrete,
concrete flatwork, retaining walls, patios, walkways and driveways and landscape services.
4. Brenda Miller requested that Cumberland come to her residence at 122 Gilbert
Road to develop a quote to supply labor and material to construct a 4 x 5 entrance stoop,
sidewalk, an 18 ft. diameter concrete pad and a retaining wall.
5. Cumberland reviewed the proposed scope of work with Brenda Miller and
supplied Miller with a quotation. A true and correct copy of the Quotation is attached hereto as
Exhibit "A" and is incorporated by reference.
6. The Defendants paid Cumberland $4,518.00 as requested in the Quotation.
7. Cumberland provided Brenda Miller with samples of the colored concrete which
Cumberland proposed to install. The samples were reviewed and approved by Brenda Miller
prior to construction.
8. During construction, Brenda Miller requested Cumberland to change the retaining
wall which had been built by Cumberland. Cumberland tore down the existing retaining wall
and rebuilt a second wall at Miller's request. The cost for labor and material to rebuild the
retaining wall was $640.00. An invoice for this additional work was provided to Brenda Miller.
A true and correct copy ofthis invoice for the retaining wall is attached hereto as Exhibit "B" and
is incorporated by reference.
9. The poured concrete was stained and sealed by Cumberland after Brenda Miller
approved the stain color. At the conclusion of staining, Brenda Miller informed Cumberland that
she was satisfied with the color and composition of the concrete.
1 O. In June of 2006, the Defendants were provided with a bill for the remaining
balance due under the Quotation, being $4,007.00. A true and correct copy of this bill is attached
hereto as Exhibit "C" and is incorporated by reference.
COUNT -I BREACH OF CONTRACT
CUMBERLAND HARDSCAPES, INC. v. ROY and BRENDA MILLER
11. Plaintiff incorporates by reference paragraphs one through ten as though set forth
at length.
12. Despite demand therefore, Defendants have failed and refused to pay the amount
due Cumberland, $4,647.00.
13. Defendants have breached the contract by failing and refusing to pay the amount
due and owing.
14. As a direct and proximate result of Defendants' breach, Cumberland has incurred
damages of $4,647.00.
15. All conditions precedent to recovery have been fulfilled.
WHEREFORE, Plaintiff requests that judgment be entered in its favor and against
Defendants for the sum of $4,647.00 plus costs and expenses.
David A. Baric, Esquire
J.D. 44853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
Attorney for Plaintiff
dab.dirflitigationfcum berland hard sea pes/com plaint. pld
VERIFlCA nON
I verify that the statements made in the foregoing Complaint are true and correct to the
best of my knowledge, information and belief. This verification is signed by David A. Baric,
Esquire, Attorney for Plaintiff and is based upon the statements provided by Plaintiff, as well as
documents reviewed by the undersigned as attorney for Plaintiff. This verification will be
substituted and ratified by a verification signed by the Plaintiff who is presently unavailable to
sign said verification. I undersigned that false statements herein are made subject to penalties of
18 Pa.C.S. 94904, relating to unsworn falsifications to authorities. ~ ~
David A. Baric, Esquire
Dated: December 21, 2006
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. CUMBERLAND HARDSCAPES
StMiped CotK._ e eona_1II6IwIr e _............ elWlos, ....,. & Ah...va · LMdK.. s.....
DATE July 20, 2006 .
21 Highland Ave.
Shlppenlburg. PA 17257
Mobile Phone (717) 729-5775
E-mal: iIfDOcumbedBIdwdscapes.c:om
Bill to:
Brenda Miller
122 Gilbert Rd.
Shippensburg, PA 17257
Comments or speciIIIlnstnIctIona:
Please make checks payable to CumberlalKI HardscaIle6
Please send payment by August 4 to:
Curnbertand Hardscapes. 21 tfaghfand Ave., 8hippensburg, PA 1n57
RATE AIIOUNT TOTAL
SUpply labor m instill waI
June 20: 2 worIcIn. 8 hrs. eech $320.00
June 21: 2 work8r5 . 8 hrs. eech - $320.00
TOTAL S640.oo $640.00
.'
If you have any questions concerning this invoice contact Wayne Smith: 717-729-5n5
EXHIBIT "B"
Cumberland Hardscapes
Cuntberland HarcIscapes
21 Higbllad A-.
Shippensbura. PA 17257
(717) 729-ST1S
Statement
r~STA~:rrJ
TO
Brenda Miller
122 Gilbert Rd.
Shippcnsburg. PA 17257
I AMO~::01 anOSED I
:..--...c Pli;~a$t: ddach lOp p4'!J1ion ~tnd rt.lufl1 \,ilh YOlli" paymellL :>:::
Date . -", Adiviy Amount OPEN AMOUNT
07/200006 IDvoicc #11121: Due 0&'0412006. 8,525.00 4,007.00
- 071'2012OO6 SuppIy....4: mabiallUJlPlIt b: 4x s ""*'- stoop.
sidewaJIc 4: 1 - 18ft. m- ........ CODCIdit.... AD coaar.te to be AshIer Slate
pettaD with color. R~" at botkD ofNsm-ent aalrlDCC. = SS,52S.00
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CURRENT 1-30 DAYS 31-60 DAYS 61-90 DAYS 90+ DAYS AMOUNT
DUE PAST DUE PAST DUE PAST DUE PAST DUE DUE
---
$0.00 $4,007.00 $0.00 $0.00 $0.00 $4,007.00.
PIase III8ft dIa:b payIIlIe ID c-IlcrIIIId ~... ......1D....wn:.1iAed above.
EXHIBIT "e"
. ' ...
CERTIFICATE OF SERVICE
I hereby certify that on December 21, 2006, I, Jennifer S. Lindsay, secretary to David A.
Baric, Esquire of O'Brien, Baric & Scherer, did serve a copy of the Complaint, by first class U.S.
mail, postage prepaid, to the party listed below, as follows:
Jerry A. Weigle, Esquire
Weigle and Associates
126 East King Street
Shippensburg, Pennsylvania 17257
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CUMBERLAND HARDSCAPES, INC.
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 2006-6999 CIVIL TERM
ROY MILLER and BRENDA MILLER,
Defendants
CIVIL ACTION - LAW
NOTICE TO PLEAD
To: Cumberland Hardscapes, Inc.
c/o David A. Baric, Esquire
You are hereby notified to file a written response to the enclosed
New Matter and Counterclaim within twenty (20) days from service hereof or a default
judgment may be entered against you.
WEIGLE & ASSOCIATES, P.C.
Date:
I -,- 07
0,
eigle, Esquire
omey r Defendants
J.D. No. 01624
126 East King Street
Shippensburg, Pennsylvania 17257
(717) 532-7388
WEIGLE & ASSOCIATES. RC - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG. PA 17257-1397
CUMBERLAND HARDSCAPES, INC.
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 2006-6999 CML TERM
ROY MILLER and BRENDA MILLER,
Defendants
CML ACTION - LAW
ANSWER TO COMPLAINT CONTAINING NEW MATTER AND
COUNTERCLAIM
AND NOW come the Defendants, Roy Miller and Brenda Miller, husband and wife,
through their counsel, Jerry A. Weigle, Esquire, who answer the Complaint as follows:
1.
Denied as Stated.
Defendant is without sufficient information to form a belief as to the legal form or
organization of the Plaintiff. The principal place of business of the Plaintiff is admitted.
2.
Admitted
3.
Admitted
4.
Admitted.
By way of further answer, the concrete work contracted for by Brenda Miller was to
be of a certain color and was to contain an agreed upon stamped pattern.
5.
Admitted
6.
Admitted
WEIGLE & ASSOCIATES. P_c. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG. PA 17257-1397
7.
Admitted in Part and Denied in Part.
It is admitted that picture samples of colored concrete were submitted to Defendant,
Brenda Miller, and approved. By way of further answer, actual concrete samples which were
subsequently presented to Brenda Miller were never approved by her and strict proofto the
contrary is demanded at trial.
8.
Denied as Stated.
In addition to the stamped concrete work contracted for which was briefly described
in Paragraph 4 of the Complaint, Defendant contracted for a retaining wall at an additional
cost of $640.00
9.
Denied.
The Color contracted for was not the color received, nor was the color received
approved by either of the Defendants and strict proof to the contrary is demanded at trial. By
way of further answer, the color received is now faded from the concrete because the color
was not properly added to the concrete mix that was used.
10.
Admitted
11.
Admitted in Part and Denied in Part.
Defendants' answers to Paragraphs 1-10 of the Complaint are incorporated herein by
reference thereto.
12.
Admitted.
By way of further answer, the Plaintiff's work was not performed in a workmanlike
manner and will have to be completely tom out and redone; hence there is no obligation to
pay the balance due under the contract upon which suit has been brought.
13.
Denied.
Defendants' answer to Paragraph 12 of the Complaint is incorporated herein by
reference thereto.
WEIGLE & ASSOCIATES, P.C. - ATTORNEYS AT L.AW - 126 EAST KING STREET - SHIPPENSBURG. PA 17257-1397
14.
Denied.
Plaintiff has incurred no damage (balance of agreed upon contract price) because
Plaintiff has not fulfilled its.obligations.under the contract entered into and strict proof to the
contrary is demanded at trial.
15.
Denied.
Defendants' answer to Paragraphs 12-14 of the Complaint are incorporated herein by
reference thereto.
WHEREFORE, Defendants request that judgment be entered in their favor and against the
Plaintiff plus costs, reasonable legal fees and expenses.
NEW MATTER
16.
Paragraphs 1-15 of Defendants' answer are incorporated herein as though set forth in
full.
17.
During the summer of 2006, Defendant, Brenda Miller contracted with Plaintiff for a
concrete stoop, sidewalk and stamped concrete patio as per agreed upon dimensions set forth
in Plaintiffs exhibit #A.
18.
Plaintiff represented to Defendants that they were experienced in the area of stamped
concrete construction which was not the case. The concrete contracted for was to be in an
AsWer slate pattern stamped into the concrete. Said concrete was to be green in color with a
dark grey release as per samples, descriptions and pictures shown to the Defendant, Brenda
Miller.
19.
During construction, the concrete hardened too quickly and the concrete pattern
became distorted, smudged, and cracked in places.
20.
Plaintiff's subsequent attempts to correct their defective work were not successful,
and the finished concrete work is far below acceptable standards in the concrete construction
business in the area.
WEIGLE & ASSOCIATES. P.C - ATTORNEVS AT LAW - 126 EAST KING STREET - SHIPPENSBURG. PA 17257-1397
21.
The color (green) contracted for by Defendant, Brenda Miller, was not the color
received (brownish color) and the material used by Plaintiff to correct the color in the
concrete was not proper or within acceptable standards in the industry.
22.
Since installation in July, 2006, the color in the Defendants' concrete sidewalk and
patio installed by the Plaintiff has already faded when the color is to remain in the concrete
permanently.
23.
The only remedy to now correct the Plaintiffs faulty work is to tear out all of the
concrete work previously installed and to repour new concrete which is mixed, colored and
patterned correctly.
24.
Defendant's efforts to settle the case by Plaintiff s keeping Defendant, Brenda
Miller's previous payment of $4518.00 for the retaining wall work and Defendant starting
over again with a different contractor were rebuffed by the Plaintiff.
25.
Defendant, Brenda Miller, received judgment in her favor on Plaintiff s original
Complaint :filed against her in Magisterial District Court #09-3-01 and upon her
Counterclaim from which Plaintiff s Appeal was taken.
WEIGLE & ASSOCIATES, RC - ATTORNEYS AT LAW - 126 EAST KING STREET -SHIPPENSBURG, PA 17257-1397
COUNTERCLAIM
Paragraphs 1-26 of Defendants' Answer and New Matter are incorporated herein as
though set forth in full.
26.
Plaintiff has broken its contract with the Defendant by failing to install the sidewalk
and patio area agreed upon originally, and in a workmanlike manner in accordance with
industry standard in the area in the following respects:
(a) The color delivered was not the color agreed upon as per the samples, pictures,
booklets, other literature and representations made by the Defendant. (b) The color
was not added to the cement properly thereby causing it to fade within only five
months of installation. ( c) The quality of workmanship is below industry standard in
the area in that distortion, cracks and patches are clearly evident throughout the
cement work project.
27.
It will now cost the Defendants seven thousand ($7,000.00) dollars to have Plaintiffs
concrete work taken out and removed and an additional eleven thousand ($11,000.00) dollars
to redo the concrete work originally contracted for with the Plaintiff herein. A copy of
Defendants' written estimate to have Plaintiffs work removed and redone is attached hereto
made a part hereof and marked Defendants' Exhibit A.
WHEREFORE, Defendants request that judgment be entered in their favor against
the Plaintiff in the amount of eighteen thousand ($18,000.00) dollars together with interest at
the legal rate, court costs and reasonable legal fees and such other relief as the Court may
deem proper.
A. . Ie, Esquire ,
EIGLE & ASSOCIATES, P.FJ
126 East King Street V
Shippensburg, P A 17257
(717) 532-7388
(Attorney for Defendants)
WEIGLE & ASSOCIATES, P.c. - ATTORNEYS AT LAW - 126 EAST KING STREET - SHIPPENSBURG, PA 17257-1397
,Od.30, 2005 1 c: 22AM
I~O. 2536 P. 1
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ARMPRIESTER CONCRETE & CONSTRlJCTION
3040 ACORi'! LANE, R.EDLION~ P A. 17356 (717) 417-1051
10/30/06
This estimate is for the removal of stamped concrete
for Roy Miller at 122 Gilbert Road, Shippensburg. In the
amount of $7000.00.
This estimate is for AshIer Slate stamped concrete for
Roy Miller at 122 Gilbert Road, Shippensburg. With Slate
Green color and Dark Grey release. In the amount of
$11000.00.
Total cost $18000.00
Thank: you,
Steve and Macey
Annpriester
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EXHIBIT A
VERIFICATION
I verify that the statements made in the foregoing Answer to Complaint Containing 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 authorities.
Dated:
;j?;}1
,
/JIAJ
WEIGLE & ASSOCIATES. P.c. - ATTORNEVS AT LAW - 126 EAST KING STREET - SHIPPENSBURG. PA 17257-1397
VERIFICATION
I verify that the statements made in the foregoing Answer to Complaint Containing 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 authorities.
Dated:
III ft7
f
~
BRENDA MILLER
WEIGLE & ASSOCIATES, P.c. - ATTORNEYS AT LAW - 126 EAST KING STREET - sHIPPENsBURG, PA 17257-1397
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CUMBERLAND RARDSCAPES, INC.,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, P A
v.
NO. 2006-6999 CIVIL TERM
ROY MmLER and BRENDA MILLER,
husband and wife,
CIVIL ACTION-LAW
Defendants.
PRAECIPE TO ATTACH SUBSTITUTE VERIFICATION
Please attach the following Substitute Verification to the Complaint filed in this matter on
December 21,2007.
Respectfully submitted,
O'BRIEN, BARIC & SCRE
~eJJc:;1
Date:
1/;1/01
I
David A. Baric, Esquire
J.D. #44853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
Attorney for Plaintiff
dab.dirllitigation/cumberlandhardscapes/su bsdtuteverifica don. pra
VERIFICATION
I, Wayne Smith, verify that the statements made in the foregoing Complaint are true and
correct to the best of my knowledge, information and belief.
I hereby ratify the verification previously supplied by my attorney, David A. Baric, Esquire
and execute this verification as a substituted verification.
I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.
~4904 relating to unsworn falsifications to authorities.
Date:
/-/~-'7
~~/
Wayne mith
,
..
II
CERTIFICATE OF SERVICE
I hereby certify that on January R, 2007, I, David A. Baric, Esquire of O'Brien, Baric
& Scherer, did serve a copy of the Praecipe To Attach Substitute Verification, by first class U.S,
mail, postage prepaid, to the party listed below, as follows:
Jerry A. Weigle, Esquire
Weigle & Associates, P.C.
126 East King Street
Shippensburg, Pennsylvania 17257
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David A. Baric, Esquire
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CUMBERLAND HARDSCAPES, INC.
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 2006-6999 CIVIL TERM
ROY MILLER and BRENDA MILLER,
Defendants
CIVIL ACTION - LAW
ANSWER TO NEW MATTER TO COUNTERCLAIM
AND NOW come the Defendants, Roy Miller and Brenda Miller, husband and wife,
by and through their Attorneys, Weigle & Associates, P.C., who file the within Answer to
New Matter to Counterclaim and, in support thereof set forth the following::
28. Defendants incorporate by reference paragraphs one through 27 of this Answer to the
Complaint, New Matter and Counterclaim as though set forth at length herein.
29.
Denied.
This is a conclusion of law which requires no further written response.
30.
Denied as Stated.
Defendant, Brenda Miller at no time consented to the work as performed by the
Plaintiff, and strict proof to the contrary is demanded at trial. By way of further answer,
Plaintiff's representatives appeared on one occasion to make the color of the concrete right,
and informed Defendant, Brenda Miller that the color she wanted and was promised now was
not possible, to which she replied with an "ok" and a shrug as she walked away. Defendant,
Roy Miller, later communicated with Plaintiff the same day that the color was not acceptable
and that the quality of the work was still not acceptable and was assured that everything
including the color, would be made right.
31.
Denied.
Defendant's previous answer to the Complaint, New Matter, Counterclaim and
Answers to New Matter to Counterclaim (Paragraphs 1-30) are incorporated herein by
reference thereto.
WEIGLE & ASSOCIATES, P.c. - ATTORNEYS AT LAW - 126 EAST KING STREET - sHIPPENsBURG, PA 17257-1397
~
32.
Denied
Defendant's previous answers to the Complaint, New Matter, Counterclaim and
Answers to New Matter to Counterclaim (Paragraphs 1-31) are incorporated herein by
reference thereto.
33.
Denied.
Defendant's previous answers to the Complaint, New Matter, Counterclaim and
Answers to New Matter to Counterclaim (Paragraphs 1-32) are incorporated herein by
reference thereto. By way of further answer, the "work" had already been ineptly completed
before the conversation with Brenda Miller took place.
34.
Denied.
This is a conclusion oflaw which requires no further written response.
35.
Denied.
Defendant's previous answer to the Complaint, New Matter, Counterclaim
and Answers to New Matter to Counterclaim (Paragraphs 1-34) are incorporated herein by
reference thereto. By way of further answer, the ''work'' had already been ineptly completed
before the conversation with Brenda Miller took place.
WHEREFORE, Defendants request that judgment be entered in their favor on
Plaintiff's Complaint and upon Defendants' Counterclaim together with interest at the legal
rate, court costs and reasonable legal fees and such other relief as the Court may deem
proper.
WEIGLE & ASSOCIATES, P
BY:
I
/
WEIGLE & ASSOCIATES. P.c. - ATTORNEYS AT LAW - 126 EAST KING STREET - sHIPPENsBURG, PA 17257-1397
VERIFICATION
I verify that the statements made in the foregoing Answer to New Matter to 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 authorities. .
Dated:
;2a::J r
f~ /llddu
Roy Mi
WEIGLE & ASSOCIATES, RC. - ATTORNEYS AT LAW - 126 EAST KING STREET - sHIPPENsBURG, PA 17257-1397
,,,,
VERIFICATION
I verify that the statements made in the foregoing Answer to New Matter to 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 authorities.
Dated: r 11.. .:p, C;:>O 7
~
Brenda Miller
WEIGLE & ASSOCIATES, p.c. - ATTORNEYS AT LAW - 126 EAST KING STREET - sHIPPENsBURG, PA 17257-1397
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CUMBERLAND HARDSCAPES, INC.
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 2006-6999 CIVIL TERM
ROY MILLER and BRENDA MILLER,
Defendants
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
AND NOW, this c;?/Jd day of ~ 2007, I, Patricia A. Frey, hereby certify
that I have this day served the following person w' a copy of the foregoing document, by
depositing same in the United States Mail, First Class, ostage Prepaid, addressed as follows:
Mr. and Mrs. Roy Miller
122 Gilbert Road
Shippensburg, P A 17257
David A. Baric, Esquire
O'Brien, Baric and Shearer
19 West South Street
Carlisle, P A 17013
WEIGLE & ASSOCIATES, P.C.
pL~F~ A fd
Legal Assistant
126 East King Street
Shippensburg, P A 17257
Telephone: (717)532-7388
WEIGLE & ASSOCIATES, RC. - ATTORNEYS AT LAW - 126 EAST KING STREET - sHIPPENsBURG. PA 17257-1397
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