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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,..-,-
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19 'JI{ ,A.D.
'-~.." _ C, 'nL~fl~_ DJlJ1..,
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Prothonotary
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Essis & Sons,
Inc.
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Clemons & Sons, Inc.
:-fo.
94-2361_Civil Term
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May 05, 1994
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Complaint & Notice
Clemons 6. Sons
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4 Sheffield Drive, Dillsburg, PA
b:t=.:u:~:o
James Clerrons, CMner
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True and Attested
c::py ci =: :l::~-..,I
Ccmplaint & Notice
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James ClellOns
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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~~
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. IN THE COURT OF COMMON PLEAS OF
.
. CUMBERLAND COUNTY, PENNSYLVANIA
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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 $3,124, plus court costs, being an amount requiring
compulsory arbitration.
i~]
Resp 's '~ted,
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~ r~stoPher~ Houston, Esqu re
Attorney for Plaintiff
Broujos, Gilroy & Houston, P.C.
4 North Hanover Street
Carlisle, PA 17013
717 - 243-4574
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Horrllbu'll. Po, 17109
Phone 645-4248
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Phone 697-41423 Pho,," 263-5772
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THIS OROfR 1$ ONl Y FOR THf WORK 5 ATED AaOYE. ANV CHANGES, ADDITIONS. OR OIL ETtONS WHICH ARE
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'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,
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APR 19 '94 15:49 C~IS 717-7bb-8277
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Certified Mail
RAturn R.cetn~ R.aueg~Qd
April 19, 1994
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Jim Cl_8n.
CLEKENS , SONS, INC.
. Sheffield Drive
Dill.burg, PA 1701g
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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.
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Deborah Hyers Welsh
2850 Ford Farm Road
Mechaniosburg, PA 17055
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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
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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
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A 17019
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.
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~~
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