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Home My WebLink About07-0168BRYAN LUX, t/d/b/a BRICKLIN LANDSCAPE SERVICES, PLAINTIFF V. CARLISLE SPORTS EMPORIUM INC, DEFENDANT IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY, PENNSYLVANIA No. ?c u L ? . CIVIL ACTION - LAW NOTICE TO DEFEND 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 17013-3387 TELEPHONE NO. (717) 249-3166 EN LA CORTE DE ALEGATOS COMUN DEL CONDADO DE CUMBERLAND, PENNSYLVANIA DIVISION CIVIL NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias to plazo al partir de la fecha de la demanda y la notification. Usted debe presenter una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defenses o sus objeciones a las demandas en contra de sus persona. Sea avisado que si usted no se defiende, la corte tomatara medidas y puede entrar una orden contra usted sin previo aviso o notification y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGER TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. SI USTED NO PUEDE PAGARLE A UN ABOGADO, ESTA OFICINA PUEDE PROVEERE INFORMACION ACERCA AGENCIAS QUE PUEDAN OFRECER SERVICIOS LEGAL A PERSONAS ELIGIBLE AQ UN HONORARIO REDUCIDO A GRATIS. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013-3387 TELEPHONE NO. (717) 249-3166 % I BRYAN LUX, t/d/b/a BRICKLIN IN THE COURT OF COMMON PLEAS LANDSCAPE SERVICES, IN CUMBERLAND COUNTY, PLAINTIFF PENNSYLVANIA V. CARLISLE SPORTS EMPORIUM NO. 07- 16 P Cti? TZ INC, DEFENDANT CIVIL ACTION - LAW COMPLAINT AND NOW this -5-day of January 2007, comes the Plaintiff by and through his attorney Diveglia and Kaylor, P.C., who files the following Complaint on his behalf and Plaintiff avers in support thereof as follows: 1. The Plaintiff is an adult individual and is the owner/ operator of Bricklin Landscape Services located at 275 Cumberland Parkway #307, Mechanicsburg, Cumberland County Pennsylvania 17055. 2. The Defendant, a business corporation located at 29 South Middlesex Road, Carlisle, Cumberland County Pennsylvania 17013. 3. On about April 12, 2006, Plaintiff and Defendant entered into a contractual relationship for landscaping services to the Defendant's premises including weekly mowing of all turf areas, planted bed areas, mulching as well as cleanup for a total price of $20,238.00, a copy of the proposal and signed agreement is attached hereto as Exhibit # 1. 4. Throughout the course of the summer of 2006, in addition to the maintenance contract the parties entered into oral agreements for additional work including but not limited to removing dead trees and planting of trees as well as sprinkler head work. The contract price for the dead tree removal and planting being $399.63 and the sprinkler work being $795.27. 5. Throughout the summer and fall of 2006 the Defendant was periodically billed for services rendered for the maintenance under the written contract and the services rendered under the oral contracts. A copy which is enclosed is Exhibit #2. 6. Despite the agreements between the parties and the appropriate billings, Defendant has failed to pay the amounts due and currently there is a balance due under the various contracts $8,309.80 all of which remained unpaid, together with continuing interest. 7. The failure on the part of the Defendant to make payment is without justification, reason or cause and the balance is therefore due and owing together with interest and costs. WHEREFORE, Plaintiff demands judgement against the Defendant for the sum of $8,309.80 together with interest and costs. Respectfully submitted, DIVEGLIA & KAYLOR, P.C. Date: 1 11"-2 By: ArchieV. Diveglia, Es? Attorney I.D. #17140 Two Lincoln Way West New Oxford, PA 17350 (717) 624-2500 Attorney for Plaintiff EXHIBIT #I BRICKLIN LANDSCAPE l SERVICES Complete Maintenance & Design Services for Residential, Commercial & Industrial Settings Dear Keith, Enclosed is a complete and comprehensive landscape maintenance proposal for Your facility. I have developed a maintenance schedule accomplish and routine that I feel will accomplish the goal and end results I feel you desire. While every plan is n feel that this plan is one that will reflect the image your facilrt of perfect, I as being time and cost sensitive. Y wants to portrait, as well The maintenance proposal will include the weekly mowing of all turf areas as well as the maintaining of the grass area along main access road as we discussed. ' will also include one initial mowing along back Perimeter This of the areas back to prevent vegetation encroachment of property to "bush hog" some throughout the This will be done several times growing season to achieve our appearance goals. i All beds and turf areas will have a spring clean up conducted, so as to remove an downed limbs, leaves, trash and related debris, Y The miniature golf area will be cleaned out thoroughly, with all turf and bed areas being cleaned. j Mulching of all currently mulched areas as well as any newly added areas wi 1 also be included in this. We will use remi l P um quality bark mulch; owner/manager may J. choose from samples. All beds will be redefined with machine edger, to enhance overa appearance. All planted beds will be treated with a pre ll -emergence prior to mulchin throughout season; beds will be maintained in a ` gas well as maintenance operations, as well as, regularly throughout ed free manner with 7_g bed Performed in any areas that are deemed necessary. season- Spot treatments will be.? All trees and shrubs will be maintained and pruned at the season with 2 -3 o proper intervals throughout Aerations being performed on all shrubs t / "Bleeders" will be maintained regularly alon , Perennials, trees, etc, < _.c g with bed maintenance operations. S l 1, 275 Cumberland Parkway #307 • Mechanicsburg, PA 17055 • phone 717- Westminster S/C, Suite 363 • Westminster, MD 21157 • 2"3666 • Fax 717-432-4621 Phone 410-346-6955 • bricklinservices@aol.com zd ESb9-9?E-Oib-i sa igejg smopeew Ruepue2al d00:11 an or ...... f BRICKLIN LANDSCAPE 2 . SERVICES Complete Maintenance & Design Services for Residential, Commercial & I ndustnal Settings in Fertilizer and pre-emergence for crabgrass and broadleaf weeds will be performed early spring to prevent dandelions and broadleaf weeds etc. Mini golf course areas and front entrance turf areas, high traffic and high visibility areas will be treated for weed control throughout season, with return visits to any area deemed necessary. These hi h visibility areas will also be fertilized to Promote strop turf root g g growth while enhancing turf appearance throughout the season. Application will be performed in late Aril to early may, June/July, Sept/Oct, and winter application p with 50% nitrogen in mid/late Nov. to carry turf through the winter. ` Fall clean up will be performed in all turf areas, as well as parkin areas, g along with all planted bed areas with repeat visits in areas deemed necessary. All trees and shrubs will be fertilized 2 times throughout the season to ensure proper nutrients for root development and systemic growth. All shrubs and trees will be treated on an as needed basis for bagwo . as needed. This contract also inclu es weekly - biwee site inspections by myself or urpose o another qualified crew leader. P inspection will be to monitor more closel plant material to ensure their health and vigor. An y fertilizer/herbicides/anti-fungal treatments will be noted and areas that require additional taken to prevent any further insect, i.e. bagworms/a hids/fun corrective action will be , P gases, etc. Management will be notified of such operations at least 24 hours prior to any area to be treated. ?c ?-4 Spring and summer flowers will be planted i ? in sign areas, bed areas throughout miniature golf course, as well as any newly planted bed areas that may Be onias, tunias, salvia, etc. Along with winter khale, mums ' Y be added. ?.??,.. in fall. Plantings will be ? y maintained throughout the year to ensure proper growth and maximize "curb ap 1j? This Program's very thorough in nature, T feel this will provide you with the best cost to value for you facility. While very intensive in nature it will allow for flexibility and fast pro active responses in situations that may the plant material and be able to make more rapid adjustments l also allow us to monitor in any maintenance areas 275 Cumberland Parkway #307 • Mechanicsburg, PA 17055 • ? Westminster S/C, Suite 363 • Phone 717-432-3666 • Fax 717-432-4621 Westminster, MD 21157 • Phone 410-346-6955 • bricklinservicescaol.com E'd ESb9-9?E-OTC-T sa ige4S smopeaW Ruepua2al d IO=Ii 9n or ...... f BRICKLIN ` LAN )SCAPE 3 11 SERVICES Complete Maintenance & Design Services for Residential, Commereial & Industrial Settings That we feel are necessary to achieve your overall facilities maintenance and landscape There is also a supplemental part to this contract which addresses some of the other site maintenance and landscape requirements. This will some referred to initial maintenance agreement. This part B of can be package together with the initial maintenance agreement or you may choose to leave it separate and deal with each item as budget allows. Part B: Supplemental Landscape Installations and Maintenance Part B of this agreement is designed to full fill other sit e requirements beyond normal and routine maintenance the aspects. It will address existing needs as well as some additional changes to th e existing landscape to further enhance Your facili a ties overall ppearance. This will be an all inclusive price ba i s s to further simplify management of costs. This will allow you to know exactly what will b d e one and for what price . `'j ' 1) Removal and repair of a ximate ly 18 posts:' a li sp t rail fe_ a con round the faciy'gn and y P° d fe or uns Purpose1 be replacedc==? ??for appearance ,_ - is also includeo?setti ng and com . any _at -lase but still f PFg an} CC . e post. ' 2) The removal and re l a1"f a _ ny oose brJok in the boarder_swrounding the y miniature ==? r urse. All to --- - ? ? _`aitd unsafe b i l °...--:. " - r e be remove d, clteci, anddre--set. Any b or in damaged- ii r l ep aced wit for _say` f , concerns r 3) The removal and r v ? -- eP n t any su ? p in and around areas in miniat _ area. Posts wi ` - eplaced to match e? n es as e- They will ed out where able ms`s cone 275 Cumberland Parkway X307 • Mechanicsburg, PA 17055 • Phone 717-432-3666 • Fax 717-432-4621 Westminster, MD 21157 • Phone 410-346-6955 • bricklinservicescfr .d E8?b9-9?E-0 T?b- T sa aol.com i gejS smopeaW R,Jepu8981 d T n : T r or, .. _ -- _ BRICKLIN 4 ' LANDSCAPE SERVICES Complete Maintenance & Design Services for Residential, Commercial & Indus ' trial Settings r 4) Miratur 971?qw, emoy dead trn several s - approx...?_Jby area,, ?f Ha shrrab _ a' ;' eat''I"'? maplyoger rmini °. aswell as birch tre i;cu 5) Reset and.z az ?? f-1 6V-weff% P k, m fron. t are mo ? rail road ? s that ° se_ All wil t using S ar, ` # 6) Create new entrance beds at both entrance and exit areas. New beds would t.. also be installed in areas along walkway approach to miniature golf areas. These new bed areas, approximately 7 in total, would also be planted with Daylily and Seasonal Flowers all will be mulched and pre emergence applied. Dwarf variety Azaleas and Rhododendrons will be used along with r Ornamental Grasses to provide color and texture throughout seasons. 7) Install top soil along entire pathway areas where herbicide was sprayed last C 6? year. Miniature golf areas as well as mini track and J ? pavilion area Area will be a?,s? {+ seeded and mulched along with starter fertilizer. Also a several turf areas within '- miniature golf area will be renovated and new turf established. ri 1' 8) Remove and re install new plant material by entrance sign, i.e. remove Dwar f ' Albertan Japonicas, etc. Use Ornamental Grasses, Hollies, Lilies, Azaleas,' etc. Total Cost Of This $6,694.00 Part C 9) Install and plant areas along roadway as discussed using approximately 18-21 24-36" spread Laurels, Rhodes, Azaleas, etc- Along with pocket plantings of Astilbee and Daylilies. Different varieties will be used to achieve color throughout season. Areas around plantings will have soil added and mulched when finished. Approximately 7 pockets of plant material throughout. (56-65 plants additional; total of 78-85 plants) Total Cost Of This Package $3,171.00 275 Cumberland Parkway #307 • Mechanicsburg, PA 17055 • Phone 717-432- 3666 Westminster S/C, Suite 363 • Westminster, MD 21157 • Phone 410-346-6955 - brit • Fax vices aol.c 717-432-4621 s • d ncklinservcesColom E8ir9-9irE-OTC-T saigegS smopeaW Ruepua2aj C110:11 9? q T nni- f RICKLIN L-.ANDSCA,PE 5 SERVICES Complete Maintenance & Design Services for Residential, Commercial & Industrial Settings Total Cost Part A Acceptance Of Prsal $20,238.00 (Multi Facility Discount -2.5% $19,732.78) ,- Total Cost Part B $ 6,694.00 Total Cost Part c $ 3,171.00 Print Name Address Phone Number(s) Ly... ?k Eight Equal Payments of $2,466.60 Signature Date 3 a? oG Bricklin Landscape Services Date 275 Cumberland Parkway #307 • Mechanicsburg, PA 17055 • Phone 717-432-3666 • Fax 717-432-4621 Westminster -S/C, Suite 363 • Westminster, MD 211,57 • Phone 410-346- vices aol 9 • d 6955 • bricklinservce?aol.c om E8i.9-9bE-OTi,-T selgegS smopea W Ruepua2a1 d T 0= T T 90 9t nou BRICKLIN LANDSCAPE SERVICES Complete Maintenance & Design Service, ,f or Residential, Commercial & Indu strial Settings Price Sheet vc?cri lion Price Per Number of O erations Total Cost Lam Maintenance N/A 26 Contract Pricing Planted Bed Maintenance N/A Included in Mulching TContract Pricing Mulching N/A Early Spring and Contract Pricing Around Seasonal Flowers To Freshen U Area. Tree and Shrub Maintenance N/A Two y Contract Pricing Spring Clean-up I N/A One T Contract Pricing Fall Clean-up N/A 1 to 2 Contract Pricing Maintenance Contract Price TOTAL $20,238.00 *•Pieasc initial and date next to each application that you want, then sign and date acne ofih or partialoontract. ynseV Kell Print Name /a D!o C ignatu 9 Date % • Kidd le Ad (13 a,SB ;?'' dress - "/75i/ Phone Numb(qs) ?1? l? -PA 1013 k-. Partial Complete Initial Partial or Complete Contract "Fuel surcharge may apply due to volatile market. Either a 2% or $10.00 late fee will apply to past due invoices. 275 Cumberland Parkway #307 • Mechanicsburg, PA 17055 • Phone 717-432-3666 • Westminster S/C, Suite 363 • Westminster, MD 21157 • Phone 410-346-6955 • bn' Fax 717-432-4621 ckhnservicesaaol.com Gd EBb9-9bE-OTb-T sa TgegS smopeal„I Rjepu828l dzo = T I 90 9T A0W EXHIBIT #2 p f leu, Lkf 275 Cumberland Parkway #307 S,WM Mechanicsburg, Pa. 17055 Bill To SPorts Emporium 29 South Middlesex Rd. Carlisle, Pa 17013 P.O. No. Terms Quantity Description Sales Tax mount will be charged and billed accordingly E Date Invoice # Past Due Balance Finance Charges on Overdue Balance Payments m will occur until he ust accobtemRECEIVED by the due date or an interruption in se result in a delinquent t is up to date. Any additional Work done be rvices cause of the 11/6/2006 646 Project Rate Amount 6,083.24 6,083.24 2.00% 121.66 0.00 0.00 5.00%, 0.00 2.0.0 Fines Charge Wit! Be Added To All Past Due Balances Legendary Meadows Stables 1-410-346-6483 p.2 Invoice Due on receipt Total $6,204.90 yov 16 06 10:54p Legendary Meadows Stables 1-410-346-6483 • p.3 ? APE 275 Cumberland Parkway #307 Invoice M CM Mechanicsburg, Pa. 17055 Date Invoice # E11/6/2006 647 Hill To Sports Emporium 29 South Middlesex Rd. Carlisle, Pa. 17013 P.O. No. I Terms Quantity Description Lawn Maintenance 27th cut 10/19106 extra cut lawn Maintenance 28th cut 11103/06 extra cut `sss Payment(s) must be RECEIVED by the due date Oran interruption in services Will occur until the account is up to date. result in a Any additional work done because of the delinquent account Sales Tax will be charged and billed accordingly Rate Project Amount q455.00 455.00 455.00 455.00 0.00 0.00 5.00%1 0.00 I A 2.0% Finance Charge Wi!! Be Added To All Past Due Balances Due on receipt Total $910.00 Nov 16 06 10:54p Legendary Meadows Stables 1-410-346-6483 p.4 NO Invoice JA WIVE 275 Cumberland Parkway #307 ?GA?LCL Mechanicsburg, Pa. 17055 Date Invoice # E10/212006 603 Bill To Sports Emporium 29 South Middlesex Rd. Carlisle, Pa 17013 P.O. No. I Terms Quantity Description tRcmmoval of dead specimen trees and planting five new trees supplied by owner. Install ees, peat, and fertili?ar. Services on 4/10/06 x i A 2.0% Finance Charge Will Be Added To All Past Due Balances Due on receipt Rate Total Project Amount 399.63 399.63 5.00% 0.00 $399.63 16 06 10:55P Legendary Meadows Stables BID IARVE 275 Cumberland Parkway #307 WE Mechanicsburg, Pa. 17055 1-410-346-6483 p,5 Invoice Date Invoice# 10/2/2006 605 P.O. No. Terms Project Due on receipt Quantity Description Turn on/evaluate and mark all heads and zones. Bleed system and note heads and Rate Amount water lines to fix. 3 hrs 4/6/06 85.50 85.50 Install heads that were broken. 4 pop-up articula ting. Install new rotary head by fence li ne/fix water line that was broken from fence post that installed. by i ? 228.00 228.00 ma n shut o$ replace 4" elbow/sleeves and fittings/set timer a nd system 8 hr ss 4/12/06 4 Sprinkler Heads 4 Fittings 16.85 67.40'1' I 1•Iockey Puck Head 0.85 3.40T 1 3/4" PVC 10' section 22.95 22.95T 1 Fitting/Caps/etc. 2.95 2.95T 1 4" elbow/female connector Straight Coupler 2. 2.60T 8 Sprinkler Line Aprox. 8" 95 11 .95 ] 1.95T 1.5 Fix and replace head and adjust twdreset system 1.20 . 1 Fitting 28.50 2 75 42.75 1 Head 0.85 0.85'1' 'trace down teak and pressure test/bleed zones. Fix sprinkler head/ cep and fix le k i 16.85 1 . 5T a n line. 8/22/06 242.25 2 2 242.25 1 Replace articulating head 1 Replace Line 22.95 22.95T 2 Fittings 3.60 3.60T Reset five heads and adjust/replace pop-up head and fix drip line. Reset zones and adjust install two new heads 8 5 h 1.70 0 00 3.40'1' . . rs 1 Pop-up Head . 0.00 I Fitting 16.85 16.85T Drip Line Connector 0.85 0.85T Sales Tax 1.20 1.20T 5.00% 9.37 A 2.00/9 Finance Charge will Be Added To All Past Due Balances Total $795.27 ;rj n _,? ?i y ?.' w? ? 6 BOYLE LAW OFFICES DENNIS E. BOYLE, ESQUIRE Supreme Court I.D. No. 49618 1525 Cedar Cliff Drive Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email: debo ly &dennisboylelaw.com BRYAN LUX t/d/b/a BRICKLIN LANDSCAPE SERVICES, Plaintiff V. CARLISLE SPORTS EMPORIUM INC., Defendant Counsel For: Carlisle Sports Emporium, Inc. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-168 CIVIL TERM CIVIL ACTION -LAW DEFENDANT'S ANSWER WITH NEW MATTER AND COUNTERCLAIM AND NOW comes the Defendant, Carlisle Sports Emporium, Inc., by and through his counsel, Dennis E. Boyle, Esquire, and submits the following answers to Plaintiffs Complaint as follows: 1. Plaintiff is without sufficient knowledge as to form a belief as to the truth of the averment. 2. Admitted. 3. Admitted in part and denied in part. It is admitted that the Plaintiff and Defendant entered into a contractual relationship for landscaping services. It is denied that the total contractual amount is $20,238.00. It is further denied that Plaintiff performed all actions necessary to receive A payment under the contract. Specifically, Plaintiff failed to properly remove weeds and take actions required of him under the contract. 4. Denied. It is specifically denied the Plaintiff completed its required performance under the contract. 5. Admitted in part and denied in part. It is admitted that the Plaintiff periodically billed the Defendant throughout the summer and fall of 2006. It is denied that Plaintiff was entitled tp payment for services rendered or that the amounts on said invoices were correct. 6. Denied. Defendant has paid to the Plaintiff six out of the eight payments agreed to in the contract in the amount of $2,466.60 each, for a total amount paid of $15,801.55. By way of further answer, see Defendant's Answer to Paragraph 4 and 5 above. 7. Denied. See Defendant's Answer to Paragraph 3, 4 and 5 above. WHEREFORE, the Defendant requests this Honorable Court enter judgment in its favor and against the Plaintiff. NEW MATTER 1. Plaintiffs claim for a fuel surcharge is not supported by any contract, is arbitrary and unreasonable and is therefore not a proper measure of damage. 2. Plaintiff failed to clean and weed areas on the property which Plaintiff had a contractual duty to clean and weed. 3. Plaintiff otherwise failed to clean and weed areas in the mini-golf area, as required by the contract. 2 4. The Plaintiff failed to perform landscaping services as required by the contract. 5. Defendants incurred labor costs of $1,500 to complete landscaping services that the Plaintiff was required to perform under the contract. 6. Defendant lost income in the amount of $20,000 for the Plaintiffs failure to perform as required under the contact. COUNTER-CLAIM 7. Paragraph 1-6 of New Matter are incorporated herein by reference WHEREFORE, Defendant, Carlisle Sports Emporium, Inc., demands judgment in its favor and against Plaintiff, Bryan Lux t/d/b/a Bricklin Landscape Services in the amount of $22,500.00 plus the costs of Court. BOYLE LAW OFFICES Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 1525 Cedar Cliff Drive Camp Hill, PA 17101 Telephone: (717) 737-2430 Facsimile: (717) 737-2452 Email: deboylendennisboylelaw.com Counsel For: Carlisle Sports Emporium, Inc. Dated: February 12, 2007 3 CERTIFICATE OF SERVICE I hereby certify that on the date written below, a true and correct copy of the foregoing Defendant's Answer with New Matter and Counterclaim was served by United States First Class Mail, postage pre-paid, upon those person(s) listed below: Archie V. Diveglia, Esquire Diveglia & Kaylor, P.C. Two Lincoln Way West New Oxford, PA 17350 Amanda Snyd ara 4gal Dated: February 12, 2007 4 ? o 4 r^ Y J cn 1t A- BRYAN LUX, t/d/b/a BRICKLIN LANDSCAPE SERVICES, PLAINTIFF V. IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY, PENNSYLVANIA NO. O?-168 CARLISLE SPORTS EMPORIUM INC, DEFENDANT CIVIL ACTION - LAW PLAINTIFF'S REPLY TO NEW MATTER AND COUNTERCLAIM 09 AND NOW this day of February 2007, comes the Plaintiff by and through his counsel Diveglia and Kaylor, P.C., who files the following Reply to New Matter. 1. Denied. The surcharge was part of contractual agreement and was clearly noted on invoices. Thus, they are a proper measure of damages. 2-3. Denied. Plaintiff did, in fact, clear the weeds and went beyond it's contractual duties to provide weed control. There were numerous discussions in regard to weed control from the Plaintiff to Defendant. 4. Denied. Plaintiff has clearly and faithfully performed it's landscaping services as required under the contract. 5. Denied. It is denied Defendant has incurred additional labor cost 1? s• and strict proof is demanded at trial. 6. Denied. It is denied that Defendant lost any income as a result of Plaintiff's performance of it's contractual obligations. It is further alleged that Defendant is without any factual basis to make such a claim for loss of income. Strict proof is demanded at trial. 7. Denied. The counterclaim is denied for reasons set forth in paragraphs 1-6 above. WHEREFORE, Plaintiff Bryan Lux t/d/b/a Bricklin Landscape Services, seeks judgment in his favor and against the Defendant, Carlisle Sports Emporium Inc. Respectfully submitted, DIVEGLIA & KAYLOR, P.C. Date: '?, ? 22 --0"? By: Archie V. Diveglia, Itsqui Attorney I.D. # 17140 Two Lincoln Way West New Oxford, PA 1735 (717) 624-2500 Attorney for Plaintiff I C. r^ VERIFICATION The foregoing Reply to New Matter is based upon the information which has been gathered by my counsel in the preparation of the lawsuit. I have read the Reply to New Matter to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of Pa.C.S. §4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. O ,: P,4.7. Date Z'X Bryan Lux, t/ /b/a Bricklin Landscape Services I W BRYAN LUX, t/d/b/a BRICKLIN LANDSCAPE SERVICES, PLAINTIFF V. CARLISLE SPORTS EMPORIUM INC, . DEFENDANT IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-168 CIVIL ACTION - LAW CERTIFICATE OF SERVICE AND NOW, this ?2-of March, 2007, I, Archie V. Diveglia, for Diveglia 8v Kaylor, P.C., hereby certify that a copy of the foregoing PLAINTIFF'S REPLY TO NEW MATTER was served first class U.S. mail postage prepaid and addressed to the following: Carlisle Sports Emporium, Inc. c/o Dennis E. Boyle, Esquire 1525 Cedar Cliff Drive Camp Hill, PA 17011-7707 Date:?7-&'0'7 DIVEGLIA & KAYLOR, P, Archie V. Iiveglia, E q Attorney I.D. # 1714 Two Lincoln Way West New Oxford, PA 17350 (717) 624-2500 Attorney of Plaintiff C`:? ? ? ?. ? -ri - ---t ?> -=?- 1'".k P a? s , -rt ?; 1 _ . . j - _ ? , c ?' ... ,. _? . ? .'? ^{ ., ,,? SHERIFF'S RETURN - REGULAR CASE NO: 2007-00168 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LUX BRYAN TDBA BRICKLIN LANDSC VS CARLISLE SPORTS EMPORIUM INC JESSICA HERMANSEN Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon CARLISLE SPORTS EMPORIUM INC the DEFENDANT , at 1451:00 HOURS, on the 11th day of January 2007 at 29 SOUTH MIDDLESEX ROAD CARLISLE, PA 17013 by handing to KEITH PLASTERER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 Service 4.40 Postage .39 Surcharge 10.00 R. Thomas Kline .00 / 32.79 ? 01/12/2007 fl? DIVEGLIA & KAYLOR ?Sworn and Subscibed to aa By: A%WA before me this day Dep y Sheriff of A.D. 4 BRYAN LUX, t/d/b/a BRICKLIN IN THE COURT OF COMMON PLEAS LANDSCAPE SERVICES, IN CUMBERLAND COUNTY, PLAINTIFF PENNSYLVANIA V. : NO. 07-168 CARLISLE SPORTS EMPORIUM INC, DEFENDANT CIVIL ACTION - LAW PETITION TO WITHDRAW AS COUNSEL AND NOW this Kn day of April 2007, comes Diveglia and Kaylor, P.C., by and through Archie V. Diveglia, who presents the following Petition as set forth by Pa R.C.P. 1012 (b) (2) and (d) (1) and avers in support thereof as follows: 1. Petitioner, Archie V. Diveglia, is an attorney who has entered his appearance on behalf of Plaintiff and filed a Complaint on his behalf against the Defendant, Carlisle Sports Emporium, Inc. 2. The Plaintiff in this action is, Bryan Lux, who resides at 1755 Baltimore Street, Dillsburg, PA 17019. 3. The Defendant in this action is Carlisle Sports Emporium, Inc., 29 South Middlesex Road, Carlisle, PA 17013, who is represented by Dennis E. Boyle, Esquire, 1525 Cedar Cliff Drive, Camp Hill, PA 17011-7707. 4. The current procedure status of this action is that the Plaintiff has filed his Complaint on January 9, 2007 and the Defendant has filed it's answer on February 13, 2007. No further matters are pending in this action. 5. Serious differences have arisen between Plaintiff and your Petitioner in this matter that leaves your Petitioner no choice but to Petition to withdrawal as counsel pursuant to Rule 1012. 6. Your Petitioner has requested Plaintiff to consent to the withdrawal, but he has not responded. WHEREFORE, Petitioner requests the Court to issue a rule upon Plaintiff, Bryan Lux, as to why your Petitioner should not be allowed to withdraw from the above captioned case. DIVEGLIA 8v KAYLOR, P -Q. Date: I-2 -al By: Arco V. Diveglia, 3sq Attorney I.D. #17140 Two Lincoln Way West New Oxford, PA 17350 (717) 624-2500 Attorney for Plaintiff BRYAN LUX, t/d/b/a BRICKLIN LANDSCAPE SERVICES, PLAINTIFF V. CARLISLE SPORTS EMPORIUM INC, DEFENDANT IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-168 CIVIL ACTION - LAW CERTIFICATE OF SERVICE AND NOW, this 2-1j-0day of April, 2007, I, Archie V. Diveglia, for Diveglia 8v Kaylor, P.C., hereby certify that a copy of the foregoing PETITION TO WITHDRAW AS COUNSEL was served first class U.S. mail postage prepaid and addressed to the following: Mr. Bryan Lux 1755 Baltimore Street Dillsburg, PA 17019 Dennis E. Boyle, Esquire, 1525 Cedar Cliff Drive Camp Hill, PA 17011-7707 Date: (? " ?--01 DIVEGLIA & KAYLOR, P.C. By: Attorney I. D. # 17 Two Lincoln Way New Oxford, PA 17350 (717) 624-2500 Attorney for Plaintiff i? .._?1 ..-{ 4 : -? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL 14AO07 RULE 1312-1. The Petition for Appointment of Arbitrators shall be substantially in the following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT. _ f `kr-.4 L-Q x 7LVW b? ?j 6444 ? e- , counsel fort a plainti sfLrrdan in the above action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of the plaintiff in the action is $ 6 q. to !ze'- -? W ?'? ,,,izs?- ? Lo5T5 The counterclaim of the defendant in the action is aA,'4;? tu3 C ? TCC,? The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: L9,t,-j,t,'S e5? 03c)yI-e_ CS9y;r? ya 'e- l// WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, ORDER OF COURT r`Yt-, C. 4 ur Sc, AND NOW, , 19 , in consideration of the foregoing petition, Esq., Esq., and , Esq., are appointed arbitrators in the above captioned action (or actions) as prayed for. By the Court, P.J. .D W d Sb ? r cJ 0 b BRYAN LUX, t/d/b/a BRICKLIN ' LANDSCAPE SERVICES, PLAINTIFF V. CARLISLE SPORTS EMPORIUM, INC., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-0168 CIVIL CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 16th day of April, 2007, upon consideration of the Petition to Withdraw as Counsel filed by the Petitioner, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Plaintiff to show cause why the Petitioner should not be granted permission to withdraw as counsel of record; 2. The Plaintiff will file an answer on or before May 7, 2007; 3. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Petitioner shall be granted upon the Court's receipt of a Motion requesting Rule be made Absolute. If the Plaintiff files an answer to this Rule to Show Cause, and the answer raises disputed issues of material fact, an evidentiary hearing will then be scheduled. The Prothonotary is directed to forward said Answer to this Court. By the Court, *?Ix -? AA M. L. Ebert, Jr., J. Archie V. Diveglia, Esquire Petitioner Bryan Lux, Plaintiff Dennis E. Boyle, Esquire Attorney for Defendant bas t,ti?'i? ;'?.i d v. ?; } a`,e?„ a s ?, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL, 1AA007 RULE 1312-1. The Petition for Appointment of Arbitrators shall be substantially in the following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: ?yL „/ Ly X 1-/ 1A 8y, ;_j 4&1 e _, counsel fort a pin the above action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of the plaintiff in the action is $! .Ud %...9d 7 -?- w `T%_ :?re05 : 5 The counterclaim of the defendant in the action is aA' ?Q n etu3 The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, ?-? C- 2-_ may , c Z__v Se ORDER OF COURT 0,a, j ?2q , in consideration of the AND NOW, foregoing petition- 0 J44;hr Esq., / 46'? '?&? - Esq., and , Esq., are appointed arbitrators in the above captioned action (or actions) prayed for. B he Court, 'f - P.J. (1oP'e5 ?o5'6 t1 ? , ? 'C`am A? t? O ? 'c7 rt t?A s BRYAN LUX t/d/b/a BRICKLIN, LANDSCAPE SERVICES, PLAINTIFF V. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CARLISLE SPORTS EMPORIUM, INC., DEFENDANT : 07-168 CIVIL TERM ORDER OF COURT AND NOW, this 4th day of May, 2007, the appointment of William A. Duncan, Esquire, as chairman on the Board of Arbitrators in the above- captioned case, IS VACATED. George B. Faller, Jr., Esquire, is appointed in his place. By the Court, Edgar B. Bayley, J. ,Zeorge B. Faller, Jr., Esquire Court Administrator :sal cD 0 20 BRYAN LUX, t/d/b/a BRICKLIN LANDSCAPE SERVICES, PLAINTIFF V. IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-168 CARLISLE SPORTS EMPORIUM INC, DEFENDANT CIVIL ACTION - LAW ORDER AND NOW this y day of June 2007, upon Motion of Diveglia and Kaylor, P.C., to Withdrawal as Counsel pursuant to Rule to Show cause dated April 16, 2007, and with no response being filed, it is hereby Ordered that Diveglia and Kaylor, P.C., are permitted to withdrawal from any further representation of Plaintiff in this matter. BY THE COURT Arlo ?Z =Z Wd + - Nnr LODZ ?l!'dlCtti?;.? 3l-!.1 jo 301:1-#r-?Mllj T BRYAN LUX, t/d/b/a BRICKLIN LANDSCAPE SERVICES, PLAINTIFF V. CARLISLE SPORTS EMPORIUM INC, DEFENDANT IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-168 CIVIL ACTION - LAW MOTION TO MAKE RULE ABSOLUTE AND NOW this I da of June 2007, comes your Petitioner, Diveglia and Kaylor, P.C., who files the following Motion to Make Rule Absolute. 1. Petitioner is counsel of record in the above matter, and on April 3, 2007, filed a Motion to Withdrawal as Counsel. 2. A rule was issued by your Honorable Court dated April 16, 2007, in which Defendant had 21 days to show cause why Petitioner should not be allow to withdraw. This rule was filed upon the Defendant by letter sent April 17, 2007. (See attached Rule) 3. More than twenty-one days has passed and no response has ever been received by this counsel or filed with the court as to why counsel should not be permitted to withdraw from the case. r 11 4. Pursuant to the Order of April 16, 2007, your Petitioner requests to be allowed to withdraw as counsel in the above captioned matter. Respectfully submitted, DIVEGLIA-O.J?AYLOR, P.C. Date: - I -41 By: Archlie'(Aiveglia, E q Attorney I.D. # 1714 Two Lincoln Way W st New Oxford, PA 17350 (717) 624-2500 Attorney for Plaintiff BRYAN LUX, t/d/b/a BRICKLIN LANDSCAPE SERVICES, PLAINTIFF V. CARLISLE SPORTS EMPORIUM, INC., DEFENDANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-0168 CIVIL CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 16th day of April, 2007, upon consideration of the Petition to Withdraw as Counsel filed by the Petitioner, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Plaintiff to show cause why the Petitioner should not be granted permission to withdraw as counsel of record; 2. The Plaintiff will file an answer on or before May 7, 2007; 3. If no answer to the Rule to Show cause Is filed by the required date, the relief requested by Petitioner shall be granted upon the Court's receipt of a Motion requesting Rule be made Absolute. If the Plaintiff files an answer to this Rule to Show Cause, and the answer raises disputed issues of material fact, an evidentiary hearing will then be scheduled. The Prothonotary Is directed to forward said Answer to this Court. By the Court, '\?\ t AA M. L. Ebert, Jr., J. Archie V. Diveglia, Esquire Petitioner Bryan Lux, Plaintiff Dennis E. Boyle, Esquire Attorney for Defendant bas rRUE COPY FROM HECOND ? Tit?tllrionywlleroot, ? hens lotto aet rrry hitAo W g of um court 9 ca", PC n by no/)- 'A vo 2 ?Y M? BRYAN LUX, t/d/b/a BRICKLIN LANDSCAPE SERVICES, PLAINTIFF V. CARLISLE SPORTS EMPORIUM INC, DEFENDANT IN THE COURT OF COMMON PLEAS IN CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-168 CIVIL ACTION - LAW CERTIFICATE OF SERVICE AND NOW, this -[! day of June, 2007, I, Archie V. Diveglia, for Diveglia & Kaylor, P.C., hereby certify that a copy of the foregoing MOTION TO MAKE RULE ABSOLUTE was served first class U.S. mail postage prepaid and addressed to the following: Bryan &, Debbie Lux 1755 Baltimore Street Dillsburg, PA 17019 Dennis Boyle, Esquire 1525 Cedar Cliff Drive Camp Hill, PA 17011 Date: _6 DIVEGLIA & KAYLOR, P.C. By: Arch'M V/. Divegli , Esq Attorney I. D. # 1.7140 Two Lincoln Wa Wekt New Oxford, PA 17350 (717) 624-2500 Attorney for Plaintiff Bryan Lux, t/d/b/a Bricklin Landscape Services Plaintiff Carlisle Sports Emporium, Inc. Defendant In The Court of Common Pleas of Cumberland County, Pennsylvania No. 07 - 168 Civil Action - Law. Oath We do solemnly swear (or affirm) that we will support, obey and defend the Cc States and the Constitution of this Commonwealth and that we will discharge tl with fidelity. igna e? Signature Signa a George B. Faller, Jr., Esq. Sean Shultz, Esquire Name (Chairman) Name Martson Law Offices Law Firm Knight & Associates, P.C. Law Firm 10 East High Street Address Carlisle, PA 17013 City, zip 11 Roadway Drive Address Carlisle, PA 17013 City, zip ituti on of the United uties a bur office Sus#n J. Smith, Esquire Name Reager & Adler, P.C. Law Firm 2331 Market Street Address Camp Hill, PA 17011 City, Zip # 110108 4 11183 ?a3ao Award We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for de are awarded, they shall be separately stated.) I rl u o r d 1.4 i a of a W ?i WQ -f E) 0. . Arbitrator, dissents. (Insert name if applicable.) Date of Hearing: September 12, 2007 J` ,. ? (Chairman) ,i Date of Award: September 12, 2007 k?,f,1 PIM0 Notice Gf Entry cf A ward Now, the 18 day of A&pf , 20 , at _3_,57 , f .M., the above award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. r"' -ators' co ;:ne sation to be paid upon appeal: S 3Sa , Od By: rothonotary Deputy C3 Q `' . co v --c pis 9 f r BOYLE & WENGER DENNIS E. BOYLE, ESQUIRE Supreme Court I.D. No. 49618 1525 Cedar Cliff Drive Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email: deboylekdennisboylelaw.com BRYAN LUX t/d/b/a BRICKLIN LANDSCAPE SERVICES, Plaintiff V. CARLISLE SPORTS EMPORIUM INC., Defendant Counsel For: Carlisle Sports Emporium, Inc. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-168 CIVIL TERM CIVIL ACTION -LAW NOTICE OF APPEAL FROM AWARD OF BOARD OF ARBITRATORS TO THE PROTHONOTARY: Notice is given that Carlisle Sports Emporium Inc., appeals from the award of the board of arbitrators entered in this case on September 18, 2007. A jury trial is demanded X . I hereby certify that (1) the compensation of the arbitrators has been paid, or (2) application has been made for permission to proceed in forma pauperis. BOYLE & WENGER Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 1525 Cedar Cliff Drive Camp Hill, PA 17101 Telephone: (717) 737-2430 Facsimile: (717) 737-2452 Email: deboyle(&dennisboylelaw.com Counsel For: Appellant Dated: October 19, 2007 2 s CERTIFICATE OF SERVICE I hereby certify that on the date written below, a true and correct copy of the foregoing Arbitration Appeal was served by United States First Class Mail, postage pre-paid, upon those person(s) listed below: Bryan Lux 1755 Baltimore Street Dillsburg, PA 17019 Gina Durso, Paralegal Dated: October ? t, 2007 3 ?wh V C c- .r r' Y A-I