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Home My WebLink About02-2862JOHN F. WALTER EXCAVATING, INC. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA VS. FUNK BROS., INC. and DAVID A. FUNK, SR., President Defendants Civil Court No. NOTICE You have been sued in court, ffyou 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 FOR BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 1-800-990-9180 or (717) 249-3166 LANCASTER COUNTY BAR ASSOCIATION 28 EAST ORANGE STREET LANCASTER, PA 17602 (717) 393-0737 JOHN F. WALTER EXCAVATING, INC. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA VS. FUNK BROS., INC. and DAVID A. FUNK, SR., President Defendants Civil Court No. TO THE HONORABLE JUDGES OF SAID COURT: COMPLAINT AND NOW, this 12th day of June, 2002, comes John F. Walter Excavating, Inc., by and through its attorneys, Abom and Kutulakis, L.L.P., and files this Complaint as follows: COUNT I: BREACH OF CONTRACT 1. Plaintiff, John F. Walter Excavating, Inc., is a Pennsylvania corporation with its principal place of business at Post Office Box 175, Newville, Cumberland County, Pennsylvania, 17241. 2. Defendant, Funk Bros., Inc., is a Pennsylvania corporation with its principal place of business at 3642 Blue Rock Road, Lancaster, Lancaster County, PA 17603 and mailing address at Post Office Box 80, Washington Boro, Lancaster County, Pennsylvania, 17582. 3. Defendant, David Funk, is President of defendant, Funk Bros., Inc., with his place of business at Post Office Box 80, Washington Boro, Lancaster County, Pennsylvania, 17582. 4. John F. Walter Excavating, Inc. (I-Iereinat~er referred to as Plaintiff and/or Subcontractor) entered into an contract to do certain excavation work for Funk Bros., Inc. (Hereinat~er Defendant and/or Contractor). 5. The terms of this contract provided that the Contractor would reimburse the Subcontractor for the time and materials the Subcontractor provided. The total number of excavation hours performed by the subcontractor and rates billed per hour follow: (a) 577 hours and 45 minutes of excavation time billed at $120.00 per hour. (b) 1 hour billed of equipment moving time at $150.00 per hour. (c) 3 hours or labor on contractor's equipment billed at $30.00 per hour. 6. Plaintiff, Subcontractor performed all excavation work requested to be done by the defendant, Contractor without deficiency. 7. The time and materials accrued and utilized by the Subcontractor during its performance of work for the Contractor amounted to a total of Sixty-Nine Thousand, Five Hundred and Seventy Dollars ($69,570.00). Subcontractor's balance sheet is attached as "Exhibit A" and is incorporated by reference. 8. Defendant did make payments to the Plaintiff. As evidenced in Exhibit A, on or about August 7, 2001, the Defendm~t made one payment of Twenty One Thousand, Two Hundred and Forty Dollars ($21,240.00) and another payment of One Thousand Dollars ($1,000.00) was made on or about February 12, 2002. 9. Defendant failed to make any other payments and on March 28, 2002, a demand letter was mailed to Defendant requesting acknowledgment and payment of the debt owed to the Plaintiff in the amotmt of Fifty-Two Thousand, Five Hundred Sixty Nine Dollars and Sixty Cents ($52,569.60). This demand letter is attached as "Exhibit B" and is incorporated by reference. 10. In response to Plaintiff's demand letter, Defendant forwarded a proposed payment plan to satisfy the remainder of the unpaid debt. The proposed payment plan is attached as "Exhibit C" and is incorporated by reference. 11. The Defendant made its first scheduled payment of Seven Thousand, Five Hundred Dollars ($7,500:00) on or about April 17, 2002. A copy of the check satisfying the April 17, 2002, scheduled payment is attached as "Exhibit D" and is incorporated by reference. 12. The Defendant has not made its promised payment of Five Thousand Dollars ($5,000.00), which was due on April 30, 2002. 13. The Defendant has not made its promised payment ofTen Thousand Dollars ($10,000.00), which was due on May 15, 2002. 14. To date, the Plaintiff has only received a total of Twenty-Nine Thousand, Seven Hundred and Forty Dollars ($29,740.00) in satisfaction of the $69,570.00 accrued debt. 15. An outstanding balance in the amount of Thirty Nine Thousand, Eight Hundred and Thirty Dollars ($39,830.00) stills remains due and payable by the Defendant to the Plaintiff. WHEREFORE, the Plaintiff respectfully demands judgment against the Defendant in the amount of $39,830.00, plus interest and costs on the grounds that Defendant has failed to pay for time and materials performed and provided. COUNT II: PENALTIES AND ATTORNEY FEES PURSUANT TO 73 P.S. § 512 16. Paragraphs one (1) through fifteen (15) are incorporated by reference. 17. 73 P.S. §§ 501-516 is known as the Contractor and Subcontractor Payment Act. 18. Subcontractor has fully performed in accordance with the terms of the contract between the Subcontractor and Contractor. 19. Subcontractor submitted its final bill after full completion of work under the contract. 20. The Plaintiff has performed all excavation work as requested by the Contractor without deficiency. 21. The Contractor has wrongfully withheld substantial sums of money due and payable to the Plaintiff. 22. The Plaintiff was never notified of any deficiency in work that would justify the Contractor withholding payment pursuant to 73 P.S. § 511. 23. As evidenced by Exhibits B and C, the Defendant has acknowledged its debt to the Plaintiff, did not contest the debt, and continues to wrongfully withhold amounts due and payable to the Plaintiff. 24. The Contractor and Subcontractor Payment Act, 73 P.S. § 512 entitles Subcontractor to a penalty in an amount equal to 1% per month of the amount wrongfully withheld. 25. The Contractor and Subcontractor Payment Act, 73 P.S. § 507(d) entitles Subcontractor to the collection of interest at a rate of 1% per month of any balance owing to Subcontractor more than seven days past due. 26. The Contractor and Subcontractor Payment Act, 73 P.S. § 512(b) sets forth that the substantially prevailing party in any proceeding to recover any payment under said act shall be awarded a reasonable attorney fee, together with expenses. WHEREFORE, In addition to the judgment amount requested above, the Plaintiff respectfully requests that this Honorable Court order the Defendant to pay: (a) 1% per month interest of the amount wrongfully withheld; (b) 1% per month penalty of the amount wrongfully withheld; and (c) reasonable attorney fees, together with expenses associated with this action. ABOM & KUTULAKIS, L.L.P. Jasotti P. Kutulakis Attbmey for Plaintiff Attorney ID# 80411 8 South Hanover Street; Suite 204 Carlisle, PA 17013 (717) 249-0900 JOHN F. WALTER EXCAVATING, 1NC. Plaintiff VS. FUNK BROS., INC. and DAVID FUNK, President Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Civil Court No. VERIFICATION I have read the foregoing Complaint and hereby swear that all averments and amounts requested are true and correct. Date: ture Printed Name Title 05/19/2001 05/26/2001 05/31/2001 06/04/2001 06/16/2001 06/26/2001 06/30/2001 07/07/2001 07/14/2001 07/21/2001 TOTAL FUNK BROTHERS RACHMAR BUILDERS JOB IN HARRISBURG PA BIIIIn(~ Amount Check# Amount $2,130.00 $3,660.00 $6,000.00 $9,450,00 $10,440.00 $9,840.00 $10,110.00 $8,640.00 $4,320.00 $4,980.00 $69,570.00 Date 06/07/2001 8895 $21,240.00 02/12/2002 9646 $1,000.00 04/26/2002 9928 $7,500.00 TOTAL PAID $29,740.00 EXHIBIT A UTI. ILAKI$ ATTOP~NEYS AT LAW March 28, 2002 David Funk, President Funk Brothers P. O. Box 80 Washington Borough, PA 17582 Re: Walter Excavating v. Funk Brothers (1L~chmar Builders Job) Our File No.: 02-045 Dear Mr. Funk: As I indicated in my March 19, 2002, correspondence, our office represents Walter Excavating, Inc. Your company has an outstanding balance due since spring 2001, in the ,amount of $52, 569.60. You assured me in our telephone conversation last week that you would be acquiring means to make prompt payment to Walter Excavating, Inc. and would contact me before the close of business today, Wednesday, Mmch 27, 2002. I have not received any contact from you since last week. Although Walters truly wish to reach an amicable resolution to this matter and have repeatedly attempted to work with Funk Brothers, they have become increasingly frustrated. Kindly have your legal counsel review the Contractor and Subcontract Payment Act, 73 P.S. ~512, which provides that a court shall award, in addition to other damages and interest due, a penalty of 1% per month, as well ,as re~tsonahle attorneys fees. I believe that 73 P.S. [512 applies to this situation ,md will be advising Walters' Excawxting, Inc. to seek Im additional $5,000.00 in penalty as well ~ts our legal fees of' 1/3 the imaount recovered ($20,000.00). Kindly contact me immediately upon receipt of this letter to discuss this matter and to make ,arrangements for immediate payment. Very truly yours, ABOM & .KLrTU. L,4 KI$, LLP. utolakis JPK/bhs cc: Brian Walters 8 SOUTH HANOVEKSTIUiE% SUITE 204 CAm.lSLf, PA 17013 (717) 249-0900 F^x(717) 249-3344 106W,~LNUT STK~ET H,uuusnulm, PA 17101 (717) 232-9511 EXHIBIT B EXCAVATING & PAVING CONTRACTOR P.O BOX 80, WASHINGTON 8ORO, Pa 17582 Office (717) 872-5437 INC. Fax (717)871-9402 /~>~¢/~ 12/~,~ EXHIBIT C 0 _q .o 123 EXHIBIT D HARTMAN UNDERHILL & BRUBAKER LLP Kevin M. French, Esquire Attorney I.D. No. 47589 221 East Chesmut Street Lancaster, PA 17602 (717) 299-7254 Attorneys for ORIGINAL JOHN F. WALTER EXCAVATING, INC., : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA FUNK BROS., INC., and DAVID A. FUNK, SR., President, Defendants · No. 02-2862 Civil PRAECIPE TO THE PROTHONOTARY: Please enter the appearance ofKevin M. French, Esquire, and Hartman Underhill & Brubaker LLP on behalf of Defendants, Funk Bros., Inc. and David A. Funk, Sr., in the above-captioned matter. HARTMAN UNDERHILL & BRUBAKER LLP Kevin M. French Attorney I.D. #47589 Attorneys for Defendant 221 East Chestnut Street Lancaster, PA 17602 (717) 299-7254 00254826.1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am this day serving the foregoing document upon the persons and in the manner indicated below. Service by first class mail and addressed as follows: Jason P. Kutulakis, Esquire Abom& Kutulakis, L.L.P. 8 South Hanover Street, Suite 204 Carlisle, PA 17013 HARTMAN UNDERHILL & BRUBAKER LLP Date: By:~~''~ ~ Kevin M. French Attorney I.D. #47589 Attorneys for Defendant 221 East Chestnut Street Lancaster, PA 17602 (717) 299-7254 00254826.1 SHERIFF'S RETURN CASE NO: 2002-02862 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WALTER JOHN F EXCAVATING INC VS FUNK BROS INC ET AL - OUT OF COUNTY R. Thomas Kline duly sworn according to law, says, that he made and inquiry for the within named DEFENDANT FUNK BROS INC but was unable to locate Them in his bailiwick. deputized the sheriff of LANCASTER County, serve the within COMPLAINT & NOTICE , Sheriff or Deputy Sheriff who being a diligent search and , to wit: He therefore Pennsylvania, to On June 28th , 2002 , this office was in receipt of the attached return from LANCASTER Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Lancaster Co 49.33 .00 86.33 06/28/2002 ABOM & KUTULAKIS R'. Thomas Kt~ne Sheriff of Cumberland County Sworn and subscribed to before me this '~ day of~ , ! ~0~ A.D. ' ' Prothonota~ ' SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2002-02862 P COMMONWEALTH OF PENNSYLV~2qIA: COUNTY OF CUMBERLAND WALTER JOHN F EXCAVATING INC VS FUNK BROS INC ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: FUNK DAVID ASR but was unable to locate Him in his bailiwick. deputized the sheriff of LANCASTER County, serve the within COMPLAINT & NOTICE He therefore Pennsylvania, to On June 28th , 2002 , this office was in receipt of the attached return from LANCASTER Sheriff,s Costs: Docketing Out of County Surcharge 6.00 .00 10.00 .00 .00 16.00 06/28/2002 ABOM & KUTULAKIS So answe~ ~ /~ R. ~ Thomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this ~ day o~/~ ~ A.D. I~ .... P~ofho~6tary 2 OF 2 SHERIFF'S OFFIC 50 NORTH DUKE STREET, P.O. BOX 83480, LANCASTER, PENNSYLVANIA 17608-3480 · (717) 299-8200 SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT OF RETURN t. PLAINTIFF/S/ John F. Walter Excavating, Inc. 3 DEFENDANT/S/ Funk Bros, Inc. et al SERVE 5 NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC, TO BE SERVED Funk Bros, Inc. 6. ADDRESS (Street or RFP, Apartment NO., City, Boro. Twp. State and ZIP Code) 2 COURT NUMBER 02-2862 civil 4 TYPE OF WRIT OR COMPLAINT Cob?l ~ i n~t AT 3642 Blue Rock Road Lancaster, PA 17603 7. INDICATE UNUSUAL SERVICE; a~DEPUT~ZE [] OTHER C~nberlano Now, June 13 20 02 Lanuc~ I.~£ , I, SHERIFF O~-~ ...... ;:-.~ COUNTY, PA., do ~erel;l.y, deputize the Sheriff of County to execute this ~return thereog,a~ding to law. This deputation being made at the request and risk of the plaintiff. ~ ..~:~J~,-)~ ~'-/'~.~'~ ~_ .: 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: Cumberland NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within wrg may leave same without a watchman, in custody of whomever is found in possession, affer notifying person oevy or attachment, without liability on the part of such deputy or the shedff to any plaintiff herein for any loss, destruction or removal of any such property before shedff's sale thereof· 9. SIGNATURE of ATTORNEY or other ORIGINATOR 10. TELEPHONE NUMBER 11. DATE JASON KUTULAKIS (717) 249-0900 6/12/02 12. SEND NOTICE OF SERVICE COPY TO NAME AND Ac. DRE;,S BELOW: (This area must be completed If notice is to be mailed). CUMBERLAND CO SHERIFF'S OFFICE SPA~ ~LOW ~ ~ O~ ~ERIFF ONLy "DO ~ ~ ~i nw ~UNE 13. I acknowledge receipt oI the writ ~ NAME of Authorized Lb"SO Deputy or Clerk 14. Date Received 15. Expiration/Hearing dale orcomplaintasindicatedabove. A~'3~1F..?q~F.. W~T.q~t31~' 71"/--9qR_'~.C~O 6/17/02 7/12/02 16. [, hereb¥_C~i ir Y. and RE3'I~IRN that I {~ have persgn9 y served, ~h~ave legal evidence of sen/ice as shown n ~Remarks", [~ have executed as shown in memarKs ,tnewrltorcomplalntdeScrlbedon he I1dv~ua~c~mpany~c~rp~rati~I1~etc~'attheaddresssh~wnab~ve~r~ntheindividua'c~m~a~y~c~r- potation, etc., at the address inserted below by handing a TRUE and A3'rEBTED COPY thereof 17. [] I hereby certify and return a NOT FOUND because I am unable to locate the individual, company, corporation, etc, named above· (See remarks below) 18 Name and title of individual served (if not shown above) (Rel.~ationship to Defendant) I 19. ~No~ce 20 Addressofwhereserved(dompleteonlyifdifferentthanshownabove)(Stree orRFO,ApartmentNo.,Ci~y,Eoro,Twp 21.Date of Sewice 22 Time State and Zip Code) _~_M_ · . [,o~,-2o-o2 23 ATTEMPTS oD~e~ M'le, O~;. Date M,I®. D®p. Int. Date Mile. Dap. Int. Date MIlaa ~).p. tnt. Date Mlle. Oep. Int. ce ~Jos[s 25. Service Costs 26. Notary Cert. 27. Mileage/Postage/N.F. 28. Total Costs 29. COST DI~E OR NEFUND 31. AFFIRM~,~.subscribed to before me this O~ / ~ 34. dayof ----'~/~k-~ ~ . 4 ~ . 20 ~_~.~ SHERIFF'S OFFIC 50 NORTH DUKE STREET, P.O. BOX 83480, LANCASTER, PENNSYLVANIA 17608-3480 · (717) 299-8~00 · SHERIFF SERVICE PROCESS RECEIPT, and AFFIDAVIT OF RETURN ! PLAINTIFF/S/ 2 COURT NUMBER John F. Walter Excavating, Inc. 02-2862 civil 3 DEFENDANT/S/ TYPE OF WRIT OR COMPLAINT Funk Bros, Inc. et al Cu~i,l~nt SERVE { 5 NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC., TO BE SERVED David A. Funk 6. ADDRESS (Slreet or RFD, Apartment No., City, Boro, Twp., State and Z~P Code) AT 3642 Blue Rock Road Lancaster, PA 17603 7~. INDICATE UNUSUAL SERVICE: J~DEPUTIZE l~ OTHER Ct~berland NOW. ~ 20 ..~, I, SHERIFF O-~ .~I~B~. COUNTY, PA., do_13e~,~yj~eputize the Sheriff of · . MoMmy to execute this Wr~ turn the eof g _t°__l_aw. Th's deputat,on bemg made at the request and risk of the plaintiff. · . s.~C,AL ,NSTRUCT,ONS OR OTNEB ,NPORMAT,ON THAT W,LL ASS,ST ,N EXPEG,T, NG SERV,CE: CUMBERLAND CO NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N,B. WAIVEN OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under 9. SIGNATURE of ATTORNEY or other ORIGINATOR JASQN KUTULAKIS (717) 249-0900 6/12/02 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This ares must be comRleted if notice is to be mailed). ABOM & KUTULAKIS CUMBERLAND CO SHERIFF' S OFFICE orcomplaintasindicatedabove. ~ -~'~N'ETTE WALTON 717-295-3609 7~1~.~)~"-"-" .... 16.1.~hereby._C.~HI-Y. andRETU~N hat ..t~avepers~ngllysen/ed,[~havelegalev!denceofserviceasshownin~Remarks" [~haveexecutedasshownin ~ rea~oar~K :t ~ t ~a~ ~h ~ ta~rdCr eOs~ I~nlas~ e~e ~eClrol bwebdy°~a tnhd~l~ dal~ Rd ~ ~1 ~ ~ ~ ~ ~i at the address shown above or on the individual, company, cDr- 18 Name and title of individual served (if not shown above) (Relationship to Defendant) State and Zip Code) se~eo(comp~eteonlyffdffferen hanshownabove)(StreetorRFD,Apa~mentNo.,City, Boro,Twp. ate of Sewic~ 22 Time 30. REMARKS: O