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HomeMy WebLinkAbout94-02361 VI ~ l' '" c t tJ -1 I/) ~\ '~ '. \ ) J I 1 I _I .' . SHERIFF'S RETURN COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND In the Court of Common Pleas of Cumberland County, Pennsylvnaia No. 94-2361 Civil Term Complaint in Civil Action Law and Notice Essis & Sons Inc. VS Clemons & Sons Inc. 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: Clemons & Sons Inc. but was unable to locate them in his bailiwick. He therefore deputized the sheriff of York County, Pennsylvania, to serve the within Complaint in Civil Action Law and Notice On June 6, 1994 , t.his office was in receipt of the attached return from York County, Pennsylvania. 14.00 5.00 2.00 46.24 67.24 Pd. by Atty. Sworn and subscribed to before me 6-6-94 Sheriff's Costs: Docketing Out of County Surcharge York Co. So answers: , / ' ,,/ v'::', : ',c-' ,. . /' k. T~~~AS KLINE, Sheriff this --L~ !'- _ day of l 1,..-,- I 19 'JI{ ,A.D. '-~.." _ C, 'nL~fl~_ DJlJ1.., I tJ ' , I Prothonotary , '-"q.' , I . .. . In 'rhe Court cr C.:::mmO:1 ?1=:::5 or C~:'. .:.:::~:!ti=nd c;.:;l:,~;.I'YI Psnr:syl'lc~jo . . Essis & Sons, Inc. 'is. Clemons & Sons, Inc. :-fo. 94-2361_Civil Term ---. :?_- ::-iow, May 05, 1994 :9_ !. S~.z:;:, 0:::' C~G..:..:..!.A..t.'ID CO't.~T? ?o\- co h=:--=ry ci.:ou= tb: Sc.::E of York C.:Ju::t"f :0 :"~==-":t: .:.oil( \V:::., ... .. . ., . .... -,' ,- ::,:j ~::u=::cu :~ -.,...- ~ == :=r..:.:::t ::a. :':2 at :.:: :'.~::I. __/"r?'~~ /~.4' 7 ~~.\??,:-::'''~ 1 ~ .5he..~ ::;( C:.:::::::er..;u:d C.)u::rr. ?:L. }:.. ~d2.vit or ::::::..~-- ___ ...1.-.... ::-iow, June 1 ~~ 94 8:47 I?' o'':!cc:: 't[. l=:-.-d . . ,. :::: wt.....n Complaint & Notice Clemons 6. Sons ".l:=-otl ~t 4 Sheffield Drive, Dillsburg, PA b:t=.:u:~:o James Clerrons, CMner 1 True and Attested c::py ci =: :l::~-..,I Ccmplaint & Notice ... md -!!,.;. bown :0 James ClellOns == .::::.:==:s :':!:::=i. So ~=. ~.,~"-'~~, ~;.--';; oi York c:"W1tT. ,,"- d ev oi June .' 71 .7/ ,Ilia.;> ~ ,'~?II,'- cosrs S~v'1CZ lL~ ~aI2AGE NOTARIAL SEN: uJA -v L WAlUS IV. RHINE, Nola.'Y Public York. "otk Counry. Ponr,s)'I,..nlJ My Comml~n Exfllr05IA",ch 25, 19~~ oS ------------... s . , , , .~,l~""" v . IN THE COURT OF COMMON PLEAS OF . . CUMBERLAND COUNTY, PENNSYLVANIA . . 11f - . . - . NO. ;}, 3 '" J CIVIL ~ I t'y Il-t . : . . CIVIL ACTION - LAW N 0 T I C E ESSIS & SONS, INC., Plaintiff CLEMONS & SONS, INC., Defendant 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse Carlisle, PA 17013 717 - 240-6200 . . ESSIS & SONS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA . . . . v : NO. . . CIVIL 1994 CLEMONS & SONS, INC., Defendant . . : CIVIL ACTION - LAW COMPLAINT AND NOW, comes the Plaintiff, by and through its attorneys, Broujos, Gilroy & Houston, P.C., who avers as follows: 1 The Plaintiff is Essis & Sons, Inc., a Pennsylvania corporation, with its principal place of business being located at 6220 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. 2 The Defendant is Clemons & Sons, Inc., a Pennsylvania corporation, with its principal place of business being located at 4 Sheffield Drive, Dillsburg, York County, Pennsylvania. 3 On or about November 17, 1993, the Defendant did order carpet from the Plaintiff to be custom installed at a property upon which the Defendant was doing construction work being located at 2850 Ford Farm Road, Mechanicsburg, Cumberland County, Pennsylvania, (hereinafter referred to as "the premises") with said Purchase Order bearing No. A84557, and with the total amount of said purchase order being $3,600. A copy of said purchase order is , . attached hereto and marked as Exhibit A and is incorporated herein by reference. 4 On or about November 17, 1993, the Defendant did execute a purchase order for the purchase of tile to be installed at the premises, with said Purchase Order bearing No. A84558, with the total amount of said purchase order being in the amount of $5,100. A copy of said purchase order is attached hereto and marked as Exhibit a and is incorporated herein by reference. 5 On or about December 12, 1993, the Defendant did place an order from the Plaintiff for the installation of carpet in the premises, with said purchase order bearing No. A84571 and being in the amount of $3,059. A copy of said purchase order is attached hereto and marked as Exhibit C and is incorporated herein by reference. 6 On or about December 17, 1993, the Defendant did place an order with the Plaintiff for the purchase of marble for the premises with said purchase order bearing No. A84574 and being in the amount of $1,245. A copy of said purchase order is marked as Exhibit 0 and is attached hereto and is incorporated herein by reference. 7 The items purchases by the Defendant, as referenced in Exhibits a, C, and D, have been installed in the premises as per the purchase , . orders to the satisfaction of the owners of the premises, being Brad Bollinger and Deborah Welsh(hereinafter referred to as "the owners"), except for three minor corrections which Plaintiff will correct. Attached hereto and marked as Exhibit E is a copy of said correspondence from the property owner which is incorporated herein by reference. B The letter from the owners, being Exhibit E, authorized the Defendant to pay to Plaintiff the total sums due and owing to Plaintiff for all items installed at the premises, being the items ordered by Defendant and referenced as Exhibits B, C, and D. 9 The carpet ordered by the Defendant, as reflected in the purchase order attached as Exhibit A, is currently at the Plaintiff's place of business and has been cut and is ready for installation. 10 On or about April 15, 1994, the Defendant notified Plaintiff that it was no longer interested in purchasing the carpet as reflected in the purchase order as referenced in Exhibit A. 11 The carpet ordered by the Defendant, as reflected in the purchase order attached as Exhibit A, has been custom cut and fitted as per the Defendant's specifications and is no longer suitable for sale by the Plaintiff. , . COUHT I - BREACH OF CONTRACT 12 Paragraphs 1 through 11 are incorporated herein by reference. 13 The Defendant has ordered from the Plaintiff various carpet, tile, and marble, as reflected in Exhibits B, C, and 0, which have been installed at the premises at the direction of the Defendant. 14 The owners of the premises, being satisfied with the Plaintiff's products and installation, have authorized payment to Plaintiff for the total sums due and owing to Plaintiff by the Defendant. 15 The purchase orders as reflected in Exhibits B, C, and D were included in a statement for charges due to Plaintiff by Defendant. A copy of said statement is attached hereto and marked as Exhibit F and is incorporated herein by reference. 16 Included in Exhibit F is a statement that a one and one-half per cent service charge would be added to all accounts over ten days old. 17 The payment due date for the tile purchased in Exhibit B was November 3D, 1993. , ' 18 The payment due date for the carpet purchased in Exhibit C was December 21, 1993. 19 The payment due date for the marble purchased in Exhibit D was January 25, 1994. 20 Despite repeated requests from Plaintiff to Defendant to pay on said purchase orders, Defendant has and continues to refuse to pay Plaintiff the total sums due and owing. 21 The total sum due and owing on Purchase Orders reflected in Exhibits B, C, and 0, including finance charges to April 21, 1994, is $9,990.33. WHEREFORE, Plaintiff seeks judgment against Defendant for the total sum of $9,990.33 plus finance charges and court costs, being an amount requiring compulsory arbitration. COUNT II - ANTICIPATORY BREACH 22 Paragraphs 1 through 11 are incorporated herein by reference. 23 The purchase order submitted by the Defendant, as reflected in Exhibit A, had been pre-cut as per specifications for a customized , . installation in the premises and cannot be used for any other purposes. 24 The Defendant advised the Plaintiff by letter dated April 15, 1994, that he was going to be procuring carpet elsewhere and would not be purchasing the carpet previously ordered, as reflected on Exhibit A. Attached hereto and marked as Exhibit G is a copy of the letter from the Defendant to Plaintiff, which is incorporated herein by reference. 25 Plaintiff was ready, willing and able to proceed and install the carpet referenced in Exhibit A but only after assurances had been made to Plaintiff by Defendant that payment would be made to Plaintiff for the purchases of carpet, marble, and tile as reflected in Exhibits B, C, and D. 26 Defendant has given no assurances to Plaintiff that payment would be rendered for the purchases as reflected in Exhibits B, C, and D. 27 The statements made by the Defendant in Exhibit G indicated that the Defendant was not going to perform his contractual duties and pay Plaintiff for the carpet previously ordered by Defendant. , . , . , 28 Defendant's action in notifying the Plaintiff that carpet would be purchased elsewhere is an anticipatory repudiation of the contract. 29 Due to the fact that the carpet referenced in Exhibit A was custom fitted to the premises, the Plaintiff will be unable to resell this product and the Plaintiff is entitled to the full price of the product, including lost profit, in the amount of $3,124, which is the price of the purchase order less installation charges. 30 As a result of Defendant's anticipatory repudiation of the contract, Plaintiff has incurred damages of $3,124. WHEREFORE, Plaintiff seeks judgment against the Defendant in the amount of $3,124, plus court costs, being an amount requiring compulsory arbitration. i~] Resp 's '~ted, I ~ r~stoPher~ Houston, Esqu re Attorney for Plaintiff Broujos, Gilroy & Houston, P.C. 4 North Hanover Street Carlisle, PA 17013 717 - 243-4574 ~ i.'0J" . .-.- - .. '." ~fU'"".''' . INC. .~ FURNITURE CLEANINO MOTH PRooFINO CLEANINO ~~/REPAIRINO ,tf.~t" STORAOE .... -.. o. H.rrllburg Store D 4637 Jonlatown RGed Horrllbu'll. Po, 17109 Phone 645-4248 ORIENTAL CARPET AND RUG SALES Camp Hili Star. Chambenburg Slor. D 6220CarU...Piko D1612L,nc:olnwovEol1 Machanlcllburg, Po, 17055 Chamberlburg, Po, 17201 Phone 697-41423 Pho,," 263-5772 NAME ..1 r e:n..; j' T J-c' ADDRESS )e:>/ :~BE'" DONE' .. " -:-r ':- t:? ~ - C,Jo.,.J ~ II!> J..-> 'u ,...., ..~:. .,. '_i._o :e.. .... .~ ..._.'0".. ~,i.. ..""'.... -10 -::;tr"'"'O .- ~:- ..-. ..."- 9 "'-:", ?~&.;;,~ll."..:~;;. . .~,+ovi"~~~~. -- -.~":' ...... ..-. .. ".-" o. __ .... -" J- THIS OROfR 1$ ONl Y FOR THf WORK 5 ATED AaOYE. ANV CHANGES, ADDITIONS. OR OIL ETtONS WHICH ARE p.,oT sP[ClflCAlLY STATED ON nus rORM WiLl LutlEWIS( ffflCT A CHANGE OF PRICE, SIGNATURE or THIS '0104'-1 CONSTITUl[S AN AGRUMUH TO rAV BV THE SIGNER TO ISSIS. SONS. INC. THl AMOUNT suno PLUS AN\' APPLICABlf sun. LOCAL AND FEDERAL 'AlUS FOR WORK SHOWN .IOVE, X ~~ATUR(Y\' (Q 0 ~ ~ P~~~E ~ OHICiIN,\L EXHIBIT I ,\ - it,..... ._ .- .~ --- .........., ... "".......... _.., ,.... _.w, . ;o~-. .. , ~r4'I-''''''''''''''''-: ,"",,' " . . ':'=-..-_Y_" __ . INC. .~ /./.-4-1" .4URHITlJRE Cl.EAHINO ..... ," H."llIKIr,Sco" OR'ENT1!..oS~~!.ET AND RUG S~~burg:2~.J' MOTH:::: D 4637 Jo_ownRood rv!enOC.II...'ih D 151~LlncoInWayEoot ... Har,ftburG.P8.17108 IC=:J MecMnlclbutg.'..170&6 Ct..."A.-4h.Irg.'..17201 ....:.::PU~I'AlRlNG 'hone 54~~48 'hone e1I7ol14:n 'hone 2lI:J-lI7n ~:" 1T0llA1II NAME DAn v /7. ADDRESS C L ~PI.J,J. 04- .r P#J! OF WORK TO IE' ...... :...~..... .- !"i~ -- - .J_. ,.: , . .1..... Uo'A!lL - ,- ..7 S/PO pO l.,..,.., p,.... ~ " :.--- 'HIS OttD!" '1 O_\''' ,,,. 'H' won.. ITATlD ...IOYl ....., t:N&fifGI& ADO"""'I, 0lIlI D. 1111~S WWI(t04 MI ~, JP(CI"CAU., sr.tlD Of\l ""I '0"" WIll LlIU".U '''Iet... CMAIIGI 0' ""CI. ..e.....'''''r 01 THIS 'ON" C[)fIS'"uru ..... an"n......' TO PAY 'V TMI SMi..11llI TD lal,1 101I1. '1iIIC. 'HI .YOU'" ".UD pun .....y ""'Lie..... SrArl. LOCA.. AIiIlO 'fUII'''1. '.III'OR ..0"" IHOW'f "10\'1. V'~'URIC OOANVNA--'" ~ PLEASE, SIGN ORIGINAL . EXHIBIT J B .. fI, .. ,', ,.: ;, - -... ~.~_. ....",-,'" -. ....i.~~.: Vt'"...."'...... ~ .~ - -- ft,........ . INC. .~ fURNITURE Cl.lAHINQ MOTH rROOfINO CLlAHINO RlPAlIIINCI 1T000ACII ORIENTAL CARPET AND RUG SALES .... -. " H,"ltburg S,or. Cerno Hili Store C~bura Slor. D 4637Janet1ownR~ ~ enoc.u...'Ik. D 1&1:lL.lncolnWrteact HII,hlbur..P..17108 ~ "edwdctbufg.'..llCWliS CMli.6-6.lrg.'..17201 Pho.. &4~-42.a Pho.. 81119423 Pho.. 2lIJ-li112 ...--. +-~ OI-J/ DA NAME ADDRESS /;-l.. \b /1.U BI.UU:' ~ J )0/ ICIIIPTID.r.OP DONE MF - , of fAJ, 1-7-1 o IV. " I',. . l ....:;:;:., . t-.... J ....... .~.... ",~..,,~.. ,~ - . ,," -.-.. ...~....1.'~'~. ..... .. -. 'HIS D"OI" IS a'n't .",. TH' W()IItIt 't..rro .10Vl .....,. tHAlifCIS ADDitIONS. GIll Dflf'IOfrfI ",,"CM ...,. lIfOf PfCl'ICAU'I' SUuD Off fillS 10.... WIll LIIt'''tS. ,UlCl A eM,,"CI 01 "UCI. llco,.UURr 01 THIS 'ON" C'Of'Wsu'uH, AN _(,""Y'N' '0 ....... IY 'HI SICO..... to flSIS. JOfllIS. IIlfC THI .YOUNt ST"TlD 'L'" ..,.., ""LICAIlI ""U. lOCAL ....U "U'IIIA, ,,,.U'()lIlI WO". IMf)'IIN AIOVI. ,X AUTHORIZED S10NA1Uftl ~ PLEASE SIGN UHlulN^l CU:;TUMLIl'S COpy -- EXHIBIT I c . ,.'" ~ . ....-f':",..'r:..-. '~"..~-''''''.Y.... ....,..,""'.... . _-...A-___-,.-.-....--. . .~ INC. ORIENTAL CARPET AND RUG SALES ... .... ." H",llburg StOt. c.mp HMI Stor, C~g 5''''. O _7 Jonot'own Rood 0 41220 Cwnllo P;O. 0 \&12 Lincoln Wrt EM! H."hbu'l. Pe. 1710g Mectwnk1butO. 'e. 17Ofi;S Ct_.4- ilIWrv. 'e. '7201 Plio.. &441..2.., PIlo..&OHM23 pho..:ze:Jo&7n PURNITURE CLEANING MOTH I'ROOFlNG CLEANING REPAIRING ITORAOl! NAME ADDRESS .......... , ., ;;if. i ,,-- '.. t : #. . :.-:! I:~::'~ "",,, . '-...--. ... -:.:.~ " " 'HII ()fila'" IS ONI." ,t)It ,", won.. 1''''10 Atovl AN" t.M&ttG., AOOITK)llII.OfII O,,"'~S ","ICM"" NO' II'tCI"C.l.U't IU.TlP ~ 'illS ro".. WiLl UClwfll "IIC' .. C.......GI Of ""CI. .,(,N"'Ut'1 01 '"" 'ow.. co "'uns AN ..C;""",,,, '0 PA't ,,, 'NI '",,"'A TO lUll. tlJ'lf1 l..c. 'HI AWOU'" I1AflO Plll\..", "'lIC"'U "AU. LOCA\ ANU "U'MAL ,.." fOR WO". \HO'IIlf"rlI AIOVI. x ~ PLEASE SIGN \ OIlIGINAL CU5TU~lLW~ CUI'Y EXHIBIT I IJ APR 19 '94 15:49 C~IS 717-7bb-8277 1'.1 10:~~ . . , Certified Mail RAturn R.cetn~ R.aueg~Qd April 19, 1994 o Jim Cl_8n. CLEKENS , SONS, INC. . Sheffield Drive Dill.burg, PA 1701g D.ar Jill: " t;, , l; 1\ ~ ,- r "i' You have advi.ed that you will not relea.. money to Essi. , Son. until we advi.e you regarding the acceptability of the =arble work in the master bedroom of our home. Plea.e acoept this letter as confirmation that we met with Ea.i. , Son. on Friday, April 15, 1994 to inspect the marble work performed by Es.i. , Sons and We find such work acceptable with the following exceptional 1. Shower floor tile must be replaced. 2. One tile in shower ceiling is to be reqrouted. 3. E.sis i. to buff the tile floor once the room is completed. 1 Ba.ed on the above, you are instructed to immediately release the fund. owed to z8.is. LtZ.J""l~t ..I Deborah Hyers Welsh 2850 Ford Farm Road Mechaniosburg, PA 17055 " EXHIBIT I E _.1 d_~~';' " ", . J , , , t, .' ;. ',.;,'''' ~-' , ,-.... . - -. ~ i Jj S 6. tI ; iij!J 111 Is!&~ ~~I .. .. rll! . J! J' J ~ If J; H J J I I I j I I J J llel eo.nr '008& -.1 llcI ." (, " , " : ...;~~~.~:..:. ..... ;..." , ~i..... ..,. tD .......... ' tilrad. ..". !lor., -. J fallJ: .:' ,l.'OIlU .'.Add._ :'}..O- f~~ J I f .. I lOaIr It PWlJl f I 1 *_.11.:___ .r ! .,t. , . )" ~ ..,..."' .~.-.. - '~_._.... . ~ " - .......-. .~ ,.. . .-.---'-.- --,-.. Statement Essls & Sons 6220 Carlisle Pike Mech!lnlcsburg, PA 17055 697.9423 Date: F~hrl1:!1ry 1. 1 QQd Name: Clemons & SOns, Inc. 4 Sheffield Drive Dillsburq, PA 17019 *****"1JALANCE IDE BY l"UlICUI\RY 10, 1994****** Dale Order 1# Amount Paid Balance Due 12-21-9 A84751 $3,059.00 IN OJ:; TOTAL OOE $9,949.96 Remarks: '!'HANK YOU! A 1 'IJ'Ml H,vlce chl'lle will be Iddod 10 In IccounlS over 10 dlys old EXHIBIT I F "1 ' . I I I I I I I I I I I I , I I I , I 1 1 I I ./ 4-15-94 Hr. Joe Essis v Hr, Larry Wr ight Re: Brad Hollinger / Deb Welsh Job Dear Sirs: It has been several weeks since Bob a~d Kevin spent one day working on repairs @ the Hollinger residence. To date, only one item on my list of 8 repairs has been completed, and that one is repair of the uneven edge along the front edge of the Hot tub marble work. Now in addition to the original list of 8 items to be repaired are the horrible scraping and sanding marks your workers left on the South shower wall and on almost the entire shower floor, and loose and ungrouted marble on the shower ceiling, Unless you make arrangements with me by 5:30 pm tonight, at my place of business, to complete the repairs in a timely manner, I will immediately hire another company to complete the repairs. I have had expert flooring people examine the marble work and the cost to repair is difficult to estimate and will have to be done on a T & H basis. I will also hold Essis & Sons, Inc. responsible for any liquidated damages assessed to Clemons & Sons Constr. by Brad Hollinger/Deb Welsh because of your failure to complete the marble work. Larry Wright was at all times entirely aware of the liquidated damages clause that I was working with on this job. Since you are refusing to install carpet in the Hollinger residence per work order No. A 84557, I will be forced to order other carpet to complete the job, unless you make satisfactory arrangements with me by 5:30 pm tonight at my place of business, to have the above mentioned carpet installed in the Hollinger residence. I suggest you contact me at my telephone number or in writing regarding completion of and payment for marble/ carpet work at the Hollinger residence instead of continually calling Brad and Deb at their place of work since your work orders were made with Clemons and Sons Constr., and not with the Hollingers, Cordially, ~C~o~~ cc. Brad Hollinger, Deb Welsh EXHIBIT Clemons & Sons Constr. PO Box I A 17019 G t. . . I verify that the statements 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. ESSIS & SONS, INC. By210J~ P h~~ i...~7. , . r... " ~.. _ .~_' ':,:i~~:~~-;_-';~:- i1:'~~t:~hr t:,~. ..'-~:L" ~'r:-":J" j_,t't;~~~tt,~~.~:,\~.,.,;../". .~ ,...."c .;....,<_;:;;.;,,_,;.i.;~..jI(l;;.__..~)\Aif%'\';iHT\~,;}Ij(.,~*-~~I:~A..i-"l'f'~r~~~~~.'> .... (0 . HAY 'I 2 26 PIt '9~ . . "F' ,":' fief. ""I":' I ~, "tOk(,r.'.t1Y ~ "'. ' ~ 'f.. \,. f) o.j U II rY . :..' ~ "'''1, ,'!,',II. viafJ C~, qf(po /. C(7S7 (3) ;2 </ 33 . . .~ _....--_...,.,._..,..-~.-...~'-._.._'...._..__.__.,,_.. -,~"",,,,,,,-, \ L/ r) SV j L; ~ J~ iii"".".' ':~,t.' , ,,<>,,' . ...... '''' ''--- . -.- -------.- -~ .---- - . ~- ~ , - ,fl':;' 1'..:'''___-' -- ---:---~ i I I I ,'"