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HomeMy WebLinkAbout94-01602 - 1 ~' E. . ~. C' 'QS -:r. i J j .~ , I ~'. , ~ - WALTER N. HEINE ASSOCIATES INC., Plaintiff Defendant IN THE COURT OF COMMON PLEAS OF , CUMBERLAND COUNTY, PENNSYLVANIA . . . CIVIL ACTION - LAW . tW;/ ~ . . NO. tJ'/ - J&'~ . . IN ASSUMPSIT . JURY TRIAL DEMANDED N o T ICE VS. TINA MARSHALL, 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 for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE COURT ADMINISTRATOR CARLISLE, PA L7013 (717) 240-6200 A~Ut:~ 113 Front Street P.O. Box 358 Boiling Springs, PA 17007 (<"" '- WALTER N. HEINE ASSOCIATES INC., Plaintiff IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW VS. NO. . . TINA MARSHALL, Defendant : IN ASSUMPSIT : JURY TRIAL DEMANDED COMPLAINT AND NOW, to wit this :r ~"f?t day of March, 1994, comes the Plaintiff, WALTER N. HEINE ASSOCIATES INC., by its counsel, Anthony L. DeLuca, Esquire, and brings this its cause of action in Assumpsit, upon the following facts: 1. The Plaintiff, Walter N. Heine Associates Inc., is a Pennsylvania Corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal place of business at 101 Front Street, Boiling Springs, Cumberland County, Pennsylvania. 2. The Defendant, Tina Marshall, is an adult individual who resides at 113 Weldon Drive, York, York County, Pennsylvania l7404. 3. On or about May, 1990, the Defendant retained the professional engineering and surveying services of the Plaintiff to prepare a subdivision design and complete approval process for a twenty-five (25) acre tract of land, known as Cabin Hollow Estates, situated in Franklin Township, York County, Pennsylvania. ,',. - L~l_)..." ~'. i!_,'-,'~ ,~~t ~i'~;:. - 4. At the time that the Plaintiff was retained by the Defendant to provide the professional services referred to hereinabove, the Defendant agreed to compensate the Plaintiff for said professional services rendered at a fixed hourly rate for each professional discipline plus expenses incurred and that monthly invoices would detail the work performed each month, the terms of which were acceptable to the Defendant. 5. Thereafter, at the specific instance and request of the Defendant, the Plaintiff proceeded on site and at its office in Boiling springs, Cumberland County, Pennsylvania to prepare a sub- division design and initiate the regulatory approval process on the twenty-five (25) acre tract of land, known as Cabin Hollow Estates, situated in Franklin Township, York County, Pennsylvania. 6. plaintiff thereafter submitted bills for the services rendered and for expenses incurred from May, 1990, up to and including April, 1991, which bills totaled the sum of $15,993.36. 7. In August, 1990, the Plaintiff notified the Defendant that commencing in September, 1990 interest would be charged on the unpaid bills that were over thirty (30) days old, which interest would be calculated at the rate of 1.5% per month, compounded monthly. 8. Plaintiff avers that it is entitled to interest on the unpaid balance at the rate of 1.5% per month, compounded monthly, from September, 1990 to the present. t-'...-.,~.,-...-- , . . -. '. 9. Plaintiff avers that interest on said obligation amounts to $877.05, to the date of filing of this Complaint. 10. The fees charged for such professional services that were requested by the Defendant were the ordinary and reasonable fees for such professional services in the community, and which fees Defendant promised to pay. 11. The balance due and owing to the Plaintiff from the Defendant, is the sum of $16,870.41. 12. Although repeatedly requested to do so by the Plaintiff, the Defendant has wilfully failed and refused to pay the amount due and owing to the Plaintiff. WHEREFORE, the Plaintiff respectfully requests that this Honorable Court grant judgment against the Defendant in the amount of $16,870.41, together with costs. RESPECTFULLY REQUESTED Anthony L. D 113 Front P.O. Box 358 Boiling Springs, PA 17007 (717) 258-6844 .- .. . < ". VERIFICATION Walter N. Heine, states that he is president of Walter N. Heine Associates Inc., a pennsylvania corporation, and that the facts set forth in the foregoing Complaint are true and correct to the best of his knowledge, information and belief, and that any false statements contained herein are subject to the penalties of 18 PA c.S.A. 4904, relating to unsworn falsification to authorities. WALTER N. HEINE ASSOCIATES INC. BY: ~ /7/~ '., Walter N. Heine, president Dated: ~._/,:!,- /P~~ 6i - E N In .... - ~~ ~~ .c>- ...z "'c...::J~ .. 0- a:~U~ ,~'X'o> 0.....::::-' .~~~:;; w.Ju..r1.= ,:!l.dUI;% u..;r.i.I1..... ,- :I~ ~... ....:::> 0'" 1-1 ~~ ~..:I ..:1>- Polll :z::Z: 0:Z: ~~ o .- u>-~ c..~..:I 001 o E-tUZ C ~Co ~ OZI-l ~ U.::t is! ~:i!':: ~ :I: ~..:I I/O E-tl%ll-l III Z~> .'t _1-1020 ..' .' ~ ~i \' ~ ~ ~ ' ~~ ~~ ~~ " ~ it .... .... 'M .... e 'M III .,-i ~ .Po zu I-I:Z: ~I-I :I: III ,~ ZE-t ll:;:S ~g :iJlIl 3:~ .... e III '0 e Cl' .... Q) C . ..:I :iJ :I: ~ . III > .:: Z 1-1 E-t E-t Z 1-1 .:: ..:I ~ o U <l: U :l .... .J 8 III ~t;; ~ O..Jll! '" j ~lii!~ ..... !M ~ lil ~ r a:Qcia: Z 0 tl: cL l}; o l= '" l!l J: ",:: ~ I- g Z <l: , ~ . ',," SHERIFF'S RETURN COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND In the Court of Common Pleas of Cumberland County, Pennsy1vnaia No. 94-1602 Civil Complaint in Assumpsit and Notice Walter N. Heine Associates, Inc. VS Tina Marshall R. THOMAS KLINE, Sheriff, who being duly sworn according to law, says, that he made diligent search and inquiry for the within named defendant, to wit: Tina Marshall " but was unable to locate her in his bailiwick. He therefore deputized the sheriff of York County, Pennsylvania. to serve the within Complaint in Assumpsit and Notice On April 14, 1994 , this office was in receipt of the attached return from York County, Pennsylvania. Sheriff's Costs: Docketing Out of County Surcharge York Co. So answers: -1'/ ~k~/ R. THOMAS KLINE, Sheriff // , //:> _/g.-v I Sworn 14.00 5.00 2.00 20.118 41.48 Pd. by Atty. and subscribed to before me 4-14-94 this I,<~ day of ("....:1 19 'ty ,A.D. (1 ~/,- C, Ih<-lQ,~ <\..~, ~thonotary ,~ 'In "in€! Court or C.::mmo:1 p!s::s or C:.J:',::,.-~:ilt'!::nd c.:;w':".~'Y, ?anr:syl'lcr:io Walter N. Heine Associates, Inc. 'is. Tina Marshall ~~ q4-1~n2 CLv.i1 T~rm :!I- :Sow, AroH 04 ~9..2.!.. 1. S~~~ 0:::' C~[3::::'!'A.'lD COt.~':~, :'.0\... co 11=lly cL;:ue:: t!:.: .s=::E ai York c,u:ty :0 =:=".UC ':';41 .,V:!:. .." ...' .:.. -' " . =:s =--::U:::.c11 ",,~~.,t:P -'" - u :-= ::::u.::st ::'10 ~ ot ,-.. . == :n~:-:::%. r~~~<~~ S'a~.,:r at C::::!ler'.:ci C~u:t'J', :':1. . Affidavit or Se..-n~ :iow, April 7 o'clca ,p ~t l_,_.i !!? 94 8:30 . -- :.:: ~.;..:" Comolaint in ASSUJTIDsit & Notice ~pon Tina Marshall ~t 113 Weldon Drive, York. PA by ::u:6; :0 Tina Marshall 3. True (, Attested Comolaint in Assumusit & Notice ... c::py et ::: :2~~ '-.,1 md -~,.:- Cawa :0 Tina Marshall :::.: .::::t=:s 7 __i. ::tJ ~~ ..." "71 '.11"':' C> ,'" ~ rl' '.~ . . - - So =w=. ..f ..., _J -. ~_~~~'<>- '.k, ....-'~ f YOrk ........ ,.- ~ a "" ,-",WitT. ? 5wcc :me! r.:i:::sc:-J:d Ce:C:: 11th QY oi A ril 11/ ~/ ,f.~ COSTS :::.c..'<....rrc:::: ~1IU.~GE ~:wAVIT .s !!?~ f_ '"--l NOTARIAL SEAL , . NouuY Public '1'011I. Vork County, Pun""1Nanla My Corm1s!icn F.xf.'flJ$ ~,\"'n 2~. I~J5 --' s , IN THB COURT OP COMMON PLBAS OP CUMBBRLAND COUNTY, PBNNSYLVANIA WALTBR N, HBINB . NO. 94 1602 CIVIL TBRM . ASSOCIATBS, INC, , I Plaintiff . . I vs. I CIVIL ACTION - Assumpsit , . TINA MARSHALL, . . Defendant . Jury Trial Demanded , NOTICE TO PLEAD TO: Walter N, Heine Associates, Inc. and Anthony L. DeLuca, Esquire, Counsel of Record YOU are hereby notified to plead to the enclosed Counterclaim within twenty (20) days from service hereof or a default judgment may be entered against you. Jeffrey T, Bitzer, Bsquire Sup. Ct. 1.0. No, 37316 Jeffrey T. Bitzer Allomry 01 Law One West Market Way York, PA 17401 (717) 848.8448 . ". IN THB COURT OF COMMON PLBAS OF CUMBBRLAND COUNTY, PBNNSYLVANIA WALTBR N, HBINB ASSOCIATBS, INC., Plaintiff I NO. 94 1602 CIVIL TBRM I I I I CIVIL ACTION - Assumpsit I I I Jury Trial Demanded vs. TINA MARSHALL, Defendant AH81fBR. Hn MATTBR JUm COURTBRCLAIM AND NOW, comes the Defendant, TINA MARSHALL, by her counsel, JEFFREY T. BITZER, ESQUIRE, and files this Answer and Counterclaim and, in support thereof, avers as follows I 1. Admitted. Admitted. By way of further response, on 2. August 28, 1993, the Defendant married and is now known as Tina Garzillo. Admitted in part and denied in part. It is 3. admitted that on or about May 1990 the Defendant entered into a verbal agreement with Richard Price to prepare a subdivision and obtain approval for a 25 acre tract of land known as Cabin Hollow Estates, situated in Franklin Township, York County, Pennsylvania, At the time of the agreement, Richard Price was performing work on both an , i. -I ~ .1 ii , I! r j I ! . I' t'. I j , I.' L Jeffrey T. Bilzer AlIomoy II I.IW One West Markel Way York, PA 17401 (717) 848.8448 , . independent basis and as an agent of Walter N. Heine Associates, Inc. It was unclear whether the work to be performed was being performed independently by Price or as an agent of Walter N. Heine Associates, Inc. It is therefore denied that Defendant specifically retained the services of Plaintiff. 4. The foregoing answer to Paragraph 3 is incorporated herein by reference as if more fully set forth. It is specifically denied that Defendant agreed to compensate Plaintiff for work performed on the project. On the contrary, Defendant herself performed the wetlands study and aerial study necessary for a feasibility study of the project. Richard Price completed the feasibility study and, on the basis of that study, agreed to undertake the work on a speculative basis, being that Plaintiff would be paid from the profits of the project or, in the alternative, receive a subdivision lot in exchange for services upon completion of the project. Defendant was and is unaware of the specific relationship between Richard Price and Plaintiff on this project. Specific proof thereof is therefore demanded. Jeffrey T. Bitzer AlIome)' I. I.... One West Markel Way YorK. PA 17401 (717) 848.8448 5. Specifically denied. The foregoing averments in Paragraphs 3 and 4 are incorporated herein as if more fully set forth, By way of further response, Defendant 6, Admitted in part, denied in part, It is personally prepared preliminary drawings and conducted initial meetings pursuant to obtaining regulatory approval of the proposed subdivision. By way of further response, Defendant is without specific knowlodge regarding activities of the Plaintiff inasmuch as all of her dealings were with Richard Price, admitted Plaintiff submitted periodic statements which, pursuant to her agreement with Richard Price, Defendant regarded as status reports and not as demands for payment, continuing in her understanding that any costs were to be paid from the profits of the project or exchanged for a subdivision lot. 7. Admitted in part, denied in part, It is Jeffrey T. Bitzer Allum.y II ""W Onc West MarkcI Way York, PA 17401 (717) 848.8448 admitted that commencing August 1990, Plaintiff bogan including a late charge in statements supplied. It is specifically denied that Defendant ever agreed to pay late charges. 8, Specifically denied, On the contrary, at no time did Defendant agree to be liable for late charges inasmuch as late charges were not part of her initial agreement with Richard Price or any subsequent agreement. 9. Specifically denied, On the contrary, Defendant never agreed to pay late charges. 10. Specifically denied. See the foregoing Jeffrey T. Bitzer AlIom.)' o' l.aw One West Market Way York, I'A 17401 (717) 848.8448 , i :i 11 ,I responses. Defendant has never agreed to pay fees for services. On the contrary, fees were to be paid from profits on the project, if any. 11. Specifically denied as a conclusion of law to which no responsive pleading is required. Provided, however, should such a pleading be required, Defendant denies that there ie any balance due or owing Plaintiff. 12, Admitted, WHEREFORE, Defendant respectfully requests this Honorable Court to grant judgment in favor of Defendant and against Plaintiff, NEW MATTBR 13. Defendant and James Auxer, of Harrisburg, entered into an agreement whereby Auxer would sell to Defendant the 25 acre tract of land known as Cabin Hollow Estates in Franklin Township, York County, Pennsylvania. 14, It was a condition of sale that Defendant would purchase the subject tract only if she could obtain subdivision approval. 15. Commencing on or about May 1990, Defendant entered into discussions with one Richard Price and ultimately reached an agreement with Richard Price whereby she would perform the wetlands study and the aerial survey as necessary components of a feasibility study to be performed by Richard Price. 16. Subsequent thereto, Richard Price completed the feasibility study and, on the basis of that study, determined to proceed with preparing subdivision plans for municipal approval. 17. At all times, Defendant's agreement with one Richard Price, either as an individual or as an agent of Plaintiff, was that payment for Price's work would be paid either from the profits of the project or as an in- kind payment by the conveyance of one of the subdivision lots. Jeffrey T. Bitzer Allomey 01 I.aw One West Markel Way Yor~. I'A 17401 (717) 848.8448 18. Defendant does not recall ever entering into a written contract with Plaintiff, nor does Plaintiff's Complaint include such a contract. 19. On or about July 1990, upon receipt of a statement from Plaintiff, Defendant was advised by Richard Price, apparently acting as Plaintiff's agent, that the invoices were advisory in nature, intended to advise Defendant of the status of charges. 20. The conduct of Plaintiff or Plaintiff's agent reaffirmed Defendant's original understanding that charges would be paid from the profits of the project or exchanged for a subdivision lot. 21. At no time has Plaintiff or Plaintiff's agent, Richard Price, delivered to Defendant completed subdivision drawings. 22. At no time has Plaintiff or Plaintiff's agent, Richard Price, proceeded with seeking municipal approval of subdivision plans. 23. Subsequently, James Auxer, owner of the tract, contacted Defendant, seeking reassurances and inquiring into the status of the subdivision plans. 24. Defendant referred Auxer to Price. Auxer subsequently spoke with Plaintiff's president, Walter N. Heine, who refused to disclose the status or release the plans until such time as the outstanding invoice was paid. 25. As a result of Plaintiff's actions, Auxer sought and received from Defendant release from the real estate sales contract. 26. As a result of the failure of a condition of the real estate contract, work on the project stopped. 27. On or about June 17, 1991, Plaintiff and Defendant entered into an agreement, a copy of which is attached hereto and marked Exhibit "An. Pursuant to the Jeffrey T. Bilzer Allomey o. I.aw One Wcsl Markel Way Yor~. I'A 17401 (717) 848.8448 terms of the agreement of June 17, 1991 and in satisfaction of any outstanding sums owed Plaintiff, Defendant authorized Plaintiff to attempt to resell drawings already completed to a subsequent purchaser of Cabin Hollow Estates. 28. The agreement of June 17, 1991 further provided f'.".~'.""--'~""" ...:/~.,." .- Plaintiff with a ninety (90) day period during which it was entitled to pursue legal remedies against Defendant. Said ninety (90) day period has passed. AFFIRMATIVE DEFENSE - ACCORD AND SATISFACTION 29. The foregoing Paragraphs 13 through 28 are incorporated herein by reference thereto as if more fully set forth. 30. Prior to the filing of this action against Defendant, a bona fide dispute arose between the parties regarding the true amount owed by Defendant to Plaintiff for certain services performed by Plaintiff for Defendant. 31. Defendant entered into the agreement of June 17, ~991 at the request of Plaintiff and in satisfaction of any outstanding debt allegedly owed by Defendant to Plaintiff. 32. Such conduct on Plaintiff's part constituted a valid accord and satisfaction between the parties as to Plaintiff's above mentioned demand. AFFIRMATIVE DEFENSE - RELEASE Jeffrey T. Bilzer Allome)' It "'W One WCSI Markel Way Yor~. I'A 17401 (717) 848-8448 33. The foregoing Paragraphs 13 through 31 are incorporated herein by reference thereto as if more fully set forth herein. 34. Defendant affirmatively alleges that on June 17, 1991, Plaintiff, for good and valuable consideration, Defendant was discharged and released from any and all past, present and future liability in connection with the claim now asserted in Plaintiff's Complaint. 35. The agreement of June 17, 1991, attached hereto and marked Exhibit "A" provided in substance that Defendant authorized Plaintiff to resell the subject plans and limited Plaintiff's right to seek legal remedies against her to a ninety (90) day period. executed a written release under the terms of which AFFIRMATIVE DEFENSE - ESTOPPEL 36. The! foregoing Paragraphs 13 through 35 are incorporated herein by reference thereto as if more fully set forth herein. 37. The agreement of June 17, 1991, attached hereto and marked Exhibit "A", coupled with the failure of Plaintiff to make any additional demands subsequent to the agreement, act to estop Plaintiff from now asserting his foregoing claim. COUNTERCLAIM 38. The foregoing Paragraphs 1 through 37 are incorporated herein by reference thereto as if more fully set forth herein. Jeffrey T. Bilzer Allome)' 1\ I.aw One WCSI Markel Way Yor~. I'A 17401 (717) 848-8448 39. Plaintiff's act, by his refusal to disclose the status of the project upon inquiry from James Auxer, was in violation of the agreement between Defendant and Plaintiff and a direct cause of Defendant's inability to go forward with the purchase of the subject tract. 40. As a result of Defendant's inability to go forward with development of the subject tract, Defendant experienced lost profits in the amount of $280,000.00. WHEREFORE, Defendant prays this Honorable Court find in favor of Defendant and against Plaintiff in the amount of $280,000.00. Respectfully submitted, itzer, EsquJ.re Counsel fo Defendant One West Marketway York, PA 17401-1231 (717) 848-8448 Sup. Ct. I.D. No. 37316 Jeffrey T. Bilzer AIIOme) II I.aw One Wcsl Markel Way Yor~. I'A 17401 (717) 848-8448 t....~:.. . ...... . t ~t~t VBRIFICATION '1, TINA M. MARSHALL, verify that the statements made in the foregoing pleading are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Dated::J;: U. '!Ju. .~ TINA M. MARSHALL Jeffrey T. Bitzer Allomey II I.IW One WCSI Markel Way Yor~. PA 17401 (717) 848.8448 . - '" f.""'.h""''''.. ""11_" .. .........""'.......- ,"- WAlTfl N. 1lIr<< USfCIARS INC. 4 d ,:/J)/;J;) . '~/91 AGqEMENT Thh Agreement, made this sd~'T,.l day of ~O/JI::- , 1991, by and between Hs. Tina Mars al (hereinafter referred to as "Harshali..) and WlSltor N. Heine Associates Inc. (hereinafter referred to a8 "WNHA"). WITNESSEm: WHEREAS, HlSrshall hired WNHA in May, 1990 to prepare a subdivision design and complete the approval process for a 2S~ acre tract of land. known as Cabin Hollow Estates, situated in Franklin Township, ~ork County, pennSYlvania; and WHEREAS, Harshall agreed to compensate IfNHA for professional services rendered at an hourly rate plus expenses incurred; and WHEREAS, NHHA, pursuant to the Agreement with Harshell, proceeded to prepare a subdivision design and initiate the regulatory approval process on the 25T acre tract of land, know as Cabin Hollow Estates, situated in Franklin TownShip, YOrk County, Pennsylvania in a timely manner; and WHEREAS, NNHA has submitted bills for professional services rendered and for expenses incurred from May, 1990, up to an inClUding April, 1991, through inVoices da ted May 8, 199.1, Which total the Sum of FIFTgEN THOUSAND EIGHT HUNDRED EIGHTEEN DOLLARS AND NINETY-ONE CENTS ($15,818.91): and WHEREAS, Marshall has failed to pay WNHA for professional services rendered On her behalf and for expenses incurred by WHHA On behalf of MarShall for this project; end WHEREAS, both parties are which hilS resulted from Obligation Owed to IfNHA. desirous of reSol"ing the problem HarshlSll's flSilure to pay the NOW. THEREFORE, in considerlStion of mutual CovenlSnta and promises and intending to be legally bound hereby, the parties hereto agree as follows: 1. Marshall authorizes WHHA to attempt to locate another party who Would be Willing to aSSUme the Obligation owed by Harshall to WHHA. 2. HlIr~hall would cooperate in the dOcuments necessary to effectuate Obligation OWed by her to WNHA. execution of any the paYment of the EX\-\\~\1 \\A'I ~.~.. u ,..-. ....~~~': ,4 09: 1= 717=58390= "" ITHOIIV l. toEl.IXA ESO PAIX: 03 WAlTO No IBM ASSCCJATU INC. 3. WNHA would have a ninety (90) day period fromt he date of the execution of this Agreement in which to locate a buyer who would assume Harshall'. obligation to NNKA. 4. WNHA, during the ninety (901 day period, would still be entitled to pursue it's legal remedies against Harshall. IN WITNESS WHEREOF, the parties hereto have set forth their hands and seals. U.~}2(/?~/ Tina Harshall On this, the 171Z day of (1 . U ,1991, before me a Notary Public, personally appeare~ );"lA- L ~ v,f, known to me to be the person whose name is subscribed to this instrument, and acknowledged that she executed the same for the purposes therein contained. In witness whereof I hereunto seal. t<<:":.:.....~5c1l S/'iI1OyK.D........,~., NOI..'IYPln.c: ~ ~')olI:' T..~ _ (X1JtII/ .." r.crt'J1'\l"'!!:-I"~-:"I'f'" A'~;, :;". ~,:":A WA~TER N. HEINE ASSOCIATES INC. BYI~'-~'-/.-:::' . - -Walter N. Heine, President On this, the.JDt:i.... day of , 199 , before me a Notary Public, personally appeared .' known to me to be the person whose name is IU scr1bed to this instrument, and acknowledged that he executed the 'same for the purposes therein contained. In witness whereof I hereunto MAIlU'M Do Nfl((, NOli ~.~ CeurltY. '" "'1>' .. 1"'" MMh:l3, '"2 Jeffrey T. Bitzer Allomry II taw One West Markel Way York. PA 17401 (717) 848-8448 r-:,....,-..-".'7','. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WALTER N. HEINE I NO. 94 1602 CIVIL TERM ASSOCIATES, INC., I Plaintiff : : vs. . CIVIL ACTION - Assumpsit . : TINA MARSHALL, . . Defendant I Jury Trial Demanded CBRTIPICATB OP SBRVICB I, JEFFREY T. BITZER, ESQUIRE, certify that I have served the above captioned ARSKBR, HBK MATTBR ABD COUNTBRCLAIM by first class, United States mail, postage prepaid, upon the Plaintiff, WALTER N. HEINE ASSOCIATES, INC. by and through its counsel of record, ANTHONY L. DeLUCA, ESQUIRE, to the address listed below on .::s-~ :;/;\ I \ClCt...._1 Anthony L. DeLuca, Esquire 113 Front Street P. O. Box 358 Boiling Springs, PA 17007 Date: :::ru..L.. :;).0.1 IC\<\'L- ~ frey T. B'tzer, Es Attorney fo Defendant Sup. Ct. I.D. No. 37316 1 West Marketway York, PA 17401 (717) 848-8448 -::r en . >. lo.L.~ ~.- '.; ~~;::.., '='.r '-;'.:r _r:;'C:"wi <. :.t: ,'\ :-. ',. ,. -~ .... ....~ )~~ .,- . J t,~ y;;. .' ::t:' ..,.... ~ .., ~ - L, :::0 ...... < ..... - Z . :; U Z Ul~ ..... '" ... ~Ul .", c: Ul '... '" ::c ,..,~ w... " ,., ..... .. .. ,,"W ... I-< c: c: < 1:1 ~- "" .... <,... .. ffid Z ffi .. ..... '" '" .-!ts!il 0 . "" u.... ~ ffil::ffi !P' ~ 0,," = ~!: o~ I-< Ul ~<~ . il :a <( .. Ul Ul::C fool?::i!ll.o u::> ,.., .. < Z 0 ..... < <~o ;., e ii .- ~u > ~ 0 ..... I . z~ ~ " ::t~!:: ... = 0 t:. I:l U ..... ::l ... < >- I-<Z Z W Z .. u ~j N 0 :t: < < .." c 0 ..... :t: 0 8ffi '" I-< Ul .... U Z ~ '" < .. ~S '" ffi > '" ,.., I-<U ..... ~ ::a . > z~ 0 ..... ..... .....0 Z U I-< E f t . ~ ! , .._...."", I -" , ,..;, :t>"'" I A"~~.i. ~" ~~. " fliI..... ,_....-...... .. .", "- ", .::;.J.'"",':~f1-'-;Yi;1-":','_"-,1#7'.-"'': .' ..' WALTER N. HEINE ASSOCIATES, INC., plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 1''1- It. 0.2 C/lI'rl TPlfI/i. IN ASSUMPSIT JUR~ TRIAL DEMANDED VS. TINA MARSHALL, Defendant REPLY TO NEW MATTER AND COUNTERCLAIM AND NOW, comes the Plaintiff, Walter N. Heine Associates, Inc., by its counsel, Anthony L. DeLuca, Esquire, and files this Reply to New Matter and Counterclaim and, in support thereof, avers as follows: 13. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of this averment. 14. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of this averment. 15. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of this averment. - ,.C',H''''"''''' .~" ..~ ~~!~Wr@ .' ,. 16. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of this averment. 17. It is specifically denied that, at all time, Defendant's agreement with one Richard Price, either as an individual or as an agent of Plaintiff, was that payment for Price's work would be paid either from the profits of the project or as an inkind payment by the conveyance of one of the sUbdivision lots. By way of further Reply, billings for services rendered were sent to the Defendant for payment as the work was performed by Plaintiff. 18. Admitted in part and denied in part. It is admitted that no written contract was executed with the Plaintiff. It is specifically denied that Plaintiff's Complaint does not include such a contract. To the contrary, Plaintiff's Complaint avers the elements necessary to establish a contractual relationship with the Defendant for services rendered. 19. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of this averment. By way of further Reply, the invoices sent to Defendant were actual bills for services rendered and which were expected to be paid to the Plaintiff by Defendant. .."",-._~" .' ," 20. Denied. It is specifically denied that the conduct of Plaintiff or Plaintiff's agent reaffirmed Defendant's original understanding that charges would be paid from the profits of the project or exchange for a subdivision lot. To the contrary, the bills were for actual services rendered and payment was expected from the Defendant as the services were performed. 21. Admitted in part and denied in part. It is admitted that, at no time has Plaintiff delivered to Defendant completed subdivision drawings. By way of further Reply, the subdivision drawings had been in the process of preparation but were not completed and were not delivered because Defendant failed to make payment for the services that had been rendered. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of this averment as it applies to Richard Price. 22. Denied. It is specifically denied that, at no time has Plaintiff or Plaintiff's agent, Richard Price, proceeded with seeking municipal approval of subdivision plans. To the contrary, Plaintiff did have contact with the Township about this matter. i ."~,..'~.". 'lEL' \'C ,~"<, """ "i~j:l';'f ... _ _ ;t.- f;t;'iJ.. ._ _ _ ,F,.," ."''''_._~ '._~'; .' . 23. Denied. After reasonable investigation, plaintiff is without knowledge or information sufficient to form a belief as to the truth of this averment. 24. Admitted in part and denied in part. It is admitted that plaintiff's president, Walter N. Heine, subsequently spoke with James Auxer and it is further admitted that Plaintiff refused to release the plans until such time as the outstanding invoices were paid. It is specifically denied that plaintiff's President, Walter N. Heine, refused to disclose the status of the plans to James Auxer. By way of further Reply, after reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment that Defendant referred Auxer to Price. 25. Denied. After reasonable investigation, plaintiff is without knowledge or information sufficient to form a belief as to the truth of this averment. 26. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of this averment. .' . 27. Admitted in part and denied in part. It i. admitted that on or about June 17, 1991, plaintiff and Defendant entered into an agreement referred to as Exhibit "A". It is specifically denied that, pursuant to the terms of the agreement of June 17, 1991 and in satisfaction of any outstanding sums owed plaintiff, Defendant authorized Plaintiff to attempt to resell drawings already completed to a subsequent purchaser of Cabin Hollow Estate. By way of further Reply, the satisfaction of any outstanding sums owed Plaintiff by Defendant was contingent upon plaintiff locating another party who would be willing to assume the obligation owed by Defendant to Plaintiff. Until that contingency was satisfied, the obligation of the Defendant to the Plaintiff continued and was in full force and effect. 28. Admitted in part and denied in part. It is admitted that the agreement of June 17, 1991, provided Plaintiff with a ninety (90) day period during which it was entitled to pursue legal remedies against Defendant and that said ninety (90) day period had passed. It is specifically denied that the legal remedies of the Plaintiff were terminated at the end of the ninety (90) day period. To the contrary, Plaintiff retained the right to pursue legal remedies after the ninety (90) day period. "",'" . -_~ < co\.. ;._. ~'_+;:..~I.;'~~'" . ~,~..~.,-i\.Ni:-''::;:'';'_'''' ',!'<';"': . AFFIRMATIVE DEFENSE - ACCORD AND SATISFACTION 29. The Reply setforth in the foregoing paragraphs 13 through 28 are incorporated herein by reference as if more fully setforth. 30. Denied. It is specifically denied that, prior to the filing of this action against Defendant, a bona fide dispute arose between the , parties regarding the true amount owed by Defendant to Plaintiff for certain services performed by plaintiff for Defendant. To the contrary, the Defendant, by executing the Agreement as setforth in Defendant's Exhibit" A" , agrees with the amount claimed by the Plaintiff. 31. Denied. It is specifically denied that Defendant entered into the agreement of June 17, 1991 at the request of Plaintiff and in satisfaction of any outstanding debt allegedly owed by Defendant to Plaintiff. To the contrary, the June 17, 1991 agreement does not state that it is in full satisfaction of the debt nor does it release the Defendant from said Obligation. 32. The averment of paragraph 32 states a legal conclusion to which no response is required. To the extent that a response is required, it is specifically denied that Plaintiff's conduct .' constituted a valid accord and satisfaction between the parties as to Plaintiff's above mentioned demand. AFFIRMATIVE DEFENSE - RELEASE 33. The Reply setforth in the foregoing paragraphs 13 through 32 are incorporated herein by reference as if more fully setforth. 34. Denied. The averments of paragraph 34 state a legal conclusion to which no response is required. To the extent that a response is required, it is specifically denied that on June 17, 1991, Plaintiff, for good and valuable consideration, executed a written release under the terms of which Defendant was discharged and released from any and all past, present and future liability in connection with the claim now asserted in Plaintiff's Complaint. 35. Denied. The averments of paragraph 35 state a legal conclusion to which no response is required. To the extent that a response is required, it is specifically denied that the agreement of June 17, 1991, provided in substance that Defendant authorized Plaintiff to resell the subject plans and limited Plaintiff's right to seek legal remedies against her to a ninety (90) day period. " AFFIRMATIVE DEFENSE - ESTOPPEL 36. The Reply set forth in the foregoing paragraphs 13 through 35 are incorporated herein by reference as if more fully setforth. 37. Denied. The averments of paragraph 37 state a legal conclusion to which no response is required. To the extent that a response is required, it is specifically denied that the agreement of June 17, 1991 coupled with the failure with the alleged failure of Plaintiff to make any additional demands subsequent to the agreement, act to estop Plaintiff from now asserting its foregoing claim. To the contrary, Plaintiff attempted to contact Defendant by letter dated March 10, 1993 for payment of this obligation. A copy of said letter is attached hereto, marked as Plaintiff's Exhibit "A" and incorporated herein by reference. COUNTERCLAIM 38. The Reply set forth in the foregoing paragraphs 13 through 37 are incorporated herein by reference as if more fully setforth. 39. Denied. It is specifically denied that Plaintiff's act, by his refusal to disclose the status of the project upon inquiry from James Auxer, was in violation of the agreement between Defendant and Plaintiff and a direct cause of Defendant's inability to go forward with the purchase of the subject tract. To the contrary, Plaintiff ""'.l",<'J.:>'~~'" . ~l:..'~1hi'i!r.:""'~ " " did discuss the matter with James Auxer after the June 17, 1991 agreement. 40. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of this averment. WHEREFORE, Plaintiff respectfully requests that this Honorable Court qrant Judgment in favor of Plaintiff and against Defendant. Respectfully submitted, PA 17007 Dated: Ii::; C7 11./ P'l7 , BY- ~?'~~ ~ ~ ,<"~~ Walter N. Heine, President ...... "'-*"'._"'."'..""'.~'''''''"-# VERIFICATION Walter N. Heine, states that he is President of Walter N. Heine Associates Inc., a Pennsylvania Corporation, and that the facts contained in the foregoing Reply to New Matter and Counterclaim are true and correct to the best of his knowledge, information, and belief, and that any false statements contained herein are subject to the penalties of 18 Pa. C.S.A. 5 4904 relating to unsworn falsification to authorities. WALTER N. HEINE ASSOCIATES INC. L'" - " , . o CERTIFIED MAIL RETURN RECEIPT REQUESTED WALTER N. ftEINE ASSOCIATES INC. ENGINEERS CONSULTANTS March 10, 1993 P,O. Box 460 Boiling Springs, Pennsylvania 17007 Ms. Tina Marshall 272 West Cottage Place York, PA 17403 717-258.5114 FAX 717.258-4167 Reference: Cabin Hollow Estates Dear Ms. Marshall: , To refresh your memory of the above matter, I am enclosing a copy of the Agreement we both signed in June, 1991. Unfortunately, we have been unable to locate another developer to take over this matter from you so, therefore, must return to you for settlement of the monies due my company. I would appreciate the opportunity to meet with you so we can try to work out a mutually equitable solution to this matter. Since I am hopeful we can work something out, I suggest our initial meeting be without lawyers so we both can avoid the legal fees which would be involved. Please call me at the number listed so we can arrange a mutually convenient appointment. If I am not in the office when you call, ask for Mrs. Army, and she will set a time. I look forward to hearing from you. Sincerely, '. ~~' e... Walter N. Heine, P.E. Enclosure EXHIBIT "A" /' ,,~" :'?ii:J+"""j;";I,:'},,~..;r,!""~ ,.,,__;,;,~'><! .'." '.'-'Hi~m~, .' . CERTIFICATE OF SERVICE The undersigned does hereby certify that a true and correct copy of the foregoing document was mailed this date by depositing same in the possession of the United States Postal service by first class mail, postage prepaid, addressed to the following: Jeffrey T. Bitzer, Esquire One West Market Way York, Pennsylvania 17401 Dated:HI'i/7fY BY' ~~c~~ 113 Front street P.O. Box 358 Boiling springs, PA 17007 (717) 258-6844 r~ <' ..v= lU!') <-)< u:' , [t::L Q'" oL.' ~t; [ct' r ,--; <'I lr. r:: ..< .~.<.,~ "- ~._~ . ..., " ();.;] ....L.j - "'--" , ,- --, ......... illJ ~"- < '-5 6 II. (.) r- (1' Z III < <> rz:l..:l <l: ..:1>< .... .j.J l1.1Il .... r:: II: U z5a 'Pi III rz:l:l: ::J ~ .j.J 'tl E-tH Orz:l r:: r:: E-t< .J ~l1. 'Pi Q) ~..:I W :::t;; - III .... 0 :5 ~ ~ o ~~ ~.-l Q) CJ ~!ii ~ . CJ><< .l1. . 0 ~II: . E-t..:l rz:lCJ III rz:lrz:l .J it!ZQ~ rz.Z zz > ~ ZE-t 00 I HH ..:I Z >- Z ~ .0:: 0 rz:l ..:I 00 l5 0"- z .tJl E-tUZ E-t :I: ~ < E-t0 1="'''-0 II: 0 H III :I: CJ 0 - Z OOH III .ril III ><0 J: c(- :J OZE-t ~ ZE-t ~ ..:IZ Q U<CJ < l1.< I- ..:1< 0 II:H ril Z rilll: III rilCJ II: <l: :I:ril..:l III E-t0 < E-t!:!~ < :;1gJ Z . H ZOHOZ ~< E-t HUCJZH PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) 'ro 'IlIE PRmlOtDl'ARY OF ctloIBERLA/'D COUNl'Y Please list the following case. (Check one) ( X) for JURY trial at the next teDn of civil court. ) for trial without a jury. ----------------------------------------- CAPl'ION OF CASE: (entire caption must be stated in full) (check one) ( X) Civil Action - Law ) Appeal fran Arbitration WALTER N. HEINE ASSOCIATES INC. ) (other) (Plaintiff) vs. TINA MARSHALL The trial list will be called on 8714701 and (Defendant) Trials conmence on 9/1 0/01 Pretrials will be held on 8/22/ 0 1 (Briefs are due 5 days before pretri,als.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) vs. No. 1602 Civil Term 19 94 Indicate the attorney who will try case for the party who files this praecipe. Anthony L. DeLuca, Esquire Indicate trial counsel for other parties if knowlll Jeffrey T. Bitzer, Esquire One West Market: WAY, Vnrk, PpnnQy',,;::ani=- 1?d.n1 This case is ready for trial. Signed. a,f~,. ~ /f1 ~~~+ Print Narre. Antho~ L. De~uca, Esquire Date: A'lg_ J, 1001 Attorney for. Plaintiff ~ ti....... >- In ~ c.r; U': ". ,-- .. :::> c, 8~ uf .. (. ,... ,-.- II: ,:.... ,1;5 ., , ': -;..-~ ..0 .JCJ) ~J I .)Z ,II' ':C65 ,;:'l <'-!l ." ::;, "rJa- ,. """ a "- 0 '=' ~ II. Walter N. Heine Associates, Inc. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY. PENNSYLVANIA V Tina Marshall : NO. 94-1602 CIVIL TERM ORDER OF COURT AND NOW, October 12,2000, counsel having failed to call the above case for trial, the case is stricken from the October 30, 2000 trialtenn. Counsel is directed to relist the case when ready. By the Court, Anthony L. DeLuca, Esquire For the Plaintiff tL Jeffrey T. Bitzer, Esquire For the Defendant Cc~~c.S ~~, \~ lO -l~ -Oc Court Administrator bb [. d' ".;,:"'......., :..~,rr:... ~ f ~ - oJ .~ ..... j~ H:. PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and sutrnitted in duplicate) 'ro THE PIClliOl'Ul'ARY OF CUMBERlJ\ND COlJNl"{ Please list the following case: (Check one) ( X for JURY trial at the next teDn of civil court. for trial without a jury. ----------------------------------------- CAPTION OF CASE (entire caption must be stated in full) (check one) (X) Civil Action - Law Appeal from Arbitration Walter N. Heine Associates Inc., (other) (Plaintiff) vs. (Defendant) The trial list will be called on'l~" and Trials comrence on 9 /// /~O -I-f, Pretrials will be held on l?b.~~ (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) Tina Marshall, vs. No. 1602 Civil Term 1994 Indicate the attorney who will try case for the party who files this praecipe: Anthony L. DeLuca. Esauire Indicate trial counsel for other parties if known. Jeffrey T. Bitzer, Esquire One West Market Way. York. Pennsylvania 17401 This case is ready for trial. Signed. a~ ~ 4k~~ Print ~. Anthony L. DeLuca, Esquire Date: a./-rh~Y- y..t/JIOII Attorney for: Plaintiff i cO ~ - l-:: N st ~~ 1+9 :lC J-". 0.- ~~ ~.- ," .S (: Ui ': I ~~ e>t_ c.!l I..' :a .... t... g l3 C) U~'\"'" ~lf(_~ ~._~ <,:f " ~' .1t......:j.. f , r , ~: ll).;l/~~1'" IV, '<<'/A'/P .."A~.r6r.. ~,. jJ(.."",-u~, ~ I In the Court of Common PlellS of Cumberlund County, Pennsylvania VI. No, I"~.. .2 Civil. 19 '? ~ , lr7N", ~I'V"i<'O/lj h"'F'(JA"~ "iii t/'YO If!IlJov'CP C;;:,./Jy''''''A''PrI .rt-(o~'" 1'.....(' ;b,o'P eN , r"pYfl'f'cI'. !rot/nil tl1J,'/"" ...,..(p do,..!.", pi: A..r '\nYil'f'c::I ~ Net S'ciY,-rI':"rf'fl." /0.. ~(. -oy hIp To C u (1'" I.J' tp. 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