Loading...
HomeMy WebLinkAbout94-03080 c V 111 '" I I I ~ I ~ d 2 () (Y) - ! , .~ ..--O:J . ............~ . ~, . '-l~ r \>0 t c.t .r~ -~~~ ~r " u ~ ,--- _ IoJ - "" \>.0 .J -II Ii ", r: Ii ,'1,... I.': .. . .. , ,f = . -<. '* .. . ", ~ ~ ":i .. - .~~ N \-. a '" " . , , .... " V, ,.t', ~ ., . .., " " , t' .' ,h ... ~.J , ,t:.J:; .1_ ,. .. Jl . r """ .~ u:> .c. ~ J" ~~ PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FilE COMPLAINT ("11,1/ f,'.' fI' ',' Ii/ 1111 ( \Ui /iN 11\" i'l) ;)A, '-; M ;'j ff' ""'1' !lit! liC'/'Ct' 01 appenl Cl1ecll applicable bo),('sJ COMMONWIAlIIlOf PENN'" VANIA COUNTY Of_u - _._: It AFFIDAVIT: 'L.... I, f<" ,-r ;;11.( "I d. ,! I ',"~.f'd II 'I, ,j Ii, f; '.1 i rPI~"';! (, 'Ii::"~j P!OIl\ Ii " lQ r.o" r'.. ; I'd 1",.,1""" find "1,"11 Ij,," nl,lf i!t'f' i'1-ii!!!'1 , UpOll tho Dl\jlicl JUllir;.u do,lunnlnd therein on ;. .~t:lllll H" 'H.t' 1-1 by I.u<rhfiod) ItOYI'hHf~dJ moll, u!lldor's ._~____ __. nn [:oj 1'< '-'.11 ".. l:~' !(fr~;fiprl) (t':"l.l,!lered) IPHil. u;onder's fWHlpl nlhl{l",d hprelo IJ' .j i ,I" 'l\,,! ~I' . oj q~. I.' I," td f;l!- ; r.' . ,. \,:Il'i",;1)'1.) hti ;iLu~'e N,.littJ of Appenl .Ipon !hr' .,r:polletJI\) Ie) .,~'"j'll !i', P f' ,";,'i (,..I'lrl"~,,d Iri > II) ,1"1 if, peUlJilUI UH~i(l_' '- 1 Ly (tertlfindllluJ'ltr.lOd) f.Hld, "'!";"'''~ If'I' '1IIllt!,nhl':,t hu(,I.~ 5WORN (Mf!\(!/.IPj r..rm !,tln~)cJ.:lBlU UUI)f,1 ,~11 IHIS_______.IIAll)t" I~ -.---.-.~..~------....-........---. SJonIUe 01 afflen, ~lIa'Ule 01 1;;;/cia;"1, " ,: ""..,..u,/.,."Il'I'a""d'l ;;;/(1 (); offlcIO;----- ..,._.___ _'-__'_4'_'_'__'__ My (omminlol1 Npitr!~ nlL.- ,\Y__, ) - .-~_.. ,,~ . . 11:; > - ..0 o . - c nJ n. 0 . ii .Jl ~E r: ... tl m CO ~ .. U"I "::!E o.!O o U. IT" "'"'0 ~.E ~ IT" o.~ ~ ~ ~ .-'I .- :" ... B't ~ 00: I'- III III - C t N a:(J~~'t2 ~I!I -.. " \'- '0- +J -, ~ j" " ,~ ,,.,, ,- I" '1':\' - " - , '(S ~ Ps r.GB~i~&AsSGGIATE .r ~ if . . <, > " .r ~ , , . . .. , l',. . ',. lh , - (I> .- 1" ~\ .: ,:::!? ill~ . ,-'. I" , .. '.' ,. ...., ,-.<~.. .........' ....~' ~'" \." ...;.... (' ...._~'- .' , 1::.- .<. .\ .... .' ~ '\- ~~ '\.. . ," ?,. '!" ,t.. " ~ ~\' '<' '"', " '-..:J (" - \, ~. %'~u 0;' N l1 :t - '" JJo~~n ~ ~~~:;;!!. ~ ~ ~ ~ ;''S ...a ~_~a.~ -~n'o ..0 - 0 =-... t.n a " QJ 101 1lI!t _. ..... 3 Ql - .'" ~ . o v , , . c ::~ ,.n ~~ . J " " " , ;.; , " ,I .. ~ . . -..,.... -'l"'._J ': So (' " ' ~- t,..:..:'~ \.' " , \,:, IU .,J " "- ,~ .. ~i.~-v,~'''<k:i'''.,-;.;, 'I"""'" "~.' '.".~'~'''-- ~--~..... - .,- . '\:1 -'......__< ,.' .., PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FilE COMPLAINT (Thls/J (:of I" :,l'n'/LC f.~i!.t; Ii' i If II. 1','/fl,I'} /1\'1 I ~ '. , " 11 ,';w /lllt/H,l 01 tlppenl C/mr.k appl,CIIV/fJ boxes) ":Cr'-10NWfAlTH OF PINNIYI VA"'^ ( G ~ I , COUNTY 01,_._ ._1 WI 'nil ...1 '.. AFFIDAVIT: I I..." I" ',.." ,,' '1"H,d j il. ,j I' , j ~Yfl?y "I'" ""';1 It) 1<( - Sc-'j'c.'! c: 't-' l 7i-r"""" r' '. 'I': dll' C'" h'fl JU~li, (! UU~lOIli.J'"d ,herein on (J Ii, I. -+' ~ l}..\l. .j.ltI!lJ) (u ill'~lJ.l, !tnde,', , Vlfl11'7 /"r~'t"l- t'lt'l9"l1 {..I'I'J'I"'Z. _. , _.._ ,on )1---1 y \, !" ,\ i I .' l; ';,nd 'P/idm'!, Itt(elpl IJllnrl-Nt hPlfllo I] q, 'Pi ,111.,. li( ,'" 'Cl."i1);'1i. Iy 1,;.,...1 1_1 fJlld t, d! '" 1!, d I ".1 ,i',: . ,ill, t J t II'~ v.hli'l! ".,'. L,II, ,'1\. ,!oj'!'l f, i i'I,.!'".I,f ". ""1' " , \, ,n,!" n ct ^!JPcol Cpl1l\ Ihe upPdllou(.} 10 i i 1;('I~LI\.\ 'I}t\':Ij' i_Illy illHllfind) I''''glllnrr.rl) I 'lItul, M'lllhH'.. tllll!'pl 0"",1'''0 bf>II;I" ~WORtl (/'t-fI'~IIC) AN!! ~ljflSCPIBW TI'ldWl_IJAYl" __~',dcC \, 1,(, [~;;,U\ j',:U H llLlJ) ~". pft\,flclC" h,I~..t: ..'.\." ,"I;I",r 1'..,', "'I' IIHO~I hi/ ,\ i 10> (1-'.. ~' '.\ I:"~. ~6:~' UfltO'a IUJnI Hili rIOlih:ioi- ---- My co,"ml"lo" ullplle' 011._ H___. _ ___~__ .., /9___, tlQ~1Iinl Sui Tracy L leh/llao, Notary Public Cmhllo BolO, Comborlaod Counly M~ Commission E.pif..Mn\' 16, lODe . ._~_.. , , I.i "-. l~"" " ...... 'Gij .... 11:; '1.) ~. ..Jl . c ~ nJ ll- 0 lit. .JJ li'e \ r: ~ . -- "' IV .' U1 ..~ 8: '" IT' o f).- ~"O ,,- " " ~ u ~ ~ .. IT' c.9!~ .: M ._ ~ ~ ' ~ c-- Q) . .. a: \ I'- U ;; g t Gl ~ ... o 0", N a: z. ()-- ., \'. , , r.' ~'1\ I ... '. ,j' .. I --l </I \ - -_.- ~ "- .\ " " f''"''...-.e.1...... . JUI'"h.4'4". '..- "I~ " .~~! ':.:,: ,~ ,',.< Ii ~~~ t:~ ~.;~~;' N 1,",,- 111 :l 3";a. n " .J . ~~rSiCD t--t ~ ~ Qi - -0' ..a to. .;. ~ [... ~~~'O ..a 5" 0 ;:a.. 111 ;; ~ e!, UJ 3 i; - ~ 'fi r:-" g ~ IU III 0 ~ ~~ ~:'. I' '\ ..... </I Ja OUJ,..Srl .",'"" 1lJ11I'''''..t''\jf Illilt..ft~llfJt..:- ~f)I1.M"" - 1ft',"') j.' ,,. .''- UN, va'...... T , lIlt I),t "'. ~-..--" 1,lijllllf'.....' 'w ~ ..... J "jlt r. .. . I ,..)r,j' ,":lot .. '.,~'i flllh)',I\,..U '. ~III . ......, . '",'" .f ~ \' .. . ~~ ",...' -. h. ' Rl FI on ffj IlJ:; ".1:: II mllOl';\.' . III' i';;.:........>>ra~JI->,\f,,:,,.,,..I;_4-.,.,..,,-----_._.,...,-~ ~"f .. ',"'fill PROOF OF SERVICE OF NOTlCF. OF APPEAL MID RULE TO FILE COMPLAINT (1hiSJ.'C(I'I,I;j!{\/u1 t.'d,',i Il!/lilt. 1':liI/o") 111'f ,'It ',',1; 'I :m' II{1rIU! 01 HJ>poRI. CIJecll apl'llcnlJle boJeesJ Cll'...atlWIAlIIt OF PlNlnYlVA"'^ / cOUllrtoF_~' >>1 ~ 'n"'.,IY AFFIDAVIT: 'iI.,,, \., '..' " .. "., 'I,J IJ" I',"'" I", , "~''/t:1 "'. " " C:r"l?Y ""V11~1 '/ '" 'I"~. 1'( - ,J{';'j'(." C 't-I --rt-I'''''''- ; , ".- 'I' I"" ,-, I'" I Jl"l!' t! JO&lync:t+J(f IhmAI" on (J , l I ,1, t _ )A. lA' ,'hltOII} {u 11 f"'lClll. tender', Vl""'7fr~r1.t't'I9/1'" -t1"''Z.~ _ ~___..,__,oo _ 'Ii )4' I ~ I " I w: "1Ii1 'I-'",Jl"'~ If.'(l!lp' l)ltorl,..d h"Iolo. I] 1l1.II I I'll:' 1',.1 i ., . ~ )j, j. .,11- '-, i 1": oj , . 1'1 .. ,.-,1 . f' t ,1. "e t.! ^FllCol '.fJt'1l \l",!il uppul\ou{a) to i 1 i 'fW':"" ,I~n 'I ,.11 II}' (IPlltlied) {1I--'gilt(1red) , I \/,1;,..,,' ,.", 1'..1,. o'," ,j J-, 'lUlll, M.t\fl.~r'-.: !lH'-"f1II'''o1.II,'~11't'"'lq ~Wt)Rtl (""fI~,~,' G! AN!.> ,1'11:'( ~'!\IIJ Tl"dClLl__IlAI ,., ,~~',d.:... \, I ':i[\l1,~lj\ ,',;d A ll!...Ul ~It}lli ~ltJchtl h,I,..10 ..... '" il'f, i.. / 1.,1' J ,f,., 1l1l()~1 MI I ~ r;.- i/iMor.lticio1l'-- . . My (Ommlnlon Ulo.pit e~ OIL , IY tlolOliol Soal Tracy L l.e'1fI131l, Nolary Pobllc CnrhGIa Boro. Co",b.~and Counly lAy ConlmlulOn E.pl!nl.lnj 16, lOge # HENRY THISSEN, plaintiff I IN THE COURT OF COMMON PLEAS OF I CUMBERLAND COUNTY, PENNSYLVANIA I vs. CIVIL ACTION - LAW NO. 94-3080 CIVIL TERM HOBART SALES & SERVICE and RANDY PENTZ and JOANN PENTZ, Defendants NOTICE 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 defense 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 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. Cumberland county Court Administrator Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 (717) 240-6200 or 697-0371 . vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HENRY W. THISSEN, plaintiff HOBART SALES , SERVICE and RANDY PENTZ and JOANN PENTZ, Defendant NO. 94-3080 CIVIL TERM COMPLAINT COUNT ON! 1. Plaintiff is Henry W. Thissen, Jr" an adult individual who resides at 2174 Ritner Highway, Shippensburg, Pennsylvania. That address is in the village of stoughstown in Cumberland County, 2. Defendants Randy Pentz and Joann Pentz are adult individuals whose last known address is 730 pine Road, Carlisle, Pennsylvania. 3. On or about 3/15/94 Defendants sold to Plaintiff and agreed to install at his residence in Stoughstown a heating and air conditioning system which included 100,000 BTV furnace and 3 1/2 ton air conditioning system. The agreed upon price did not include a chimney, because Defendants represented to plaintiff that the system they proposed to install did not require a masonry chimney, but merely a PVC pipe to provide for exhaust. 4. Defendants delivered the equipment for the heating and air conditioning system, but refused to install it. 5. Plaintiff paid Defendant for the heating and air conditioning equipment. 1 6. Plaintiff was able to have the heating and air conditioning system by others for no additional labor cost above what he had agreed to pay Defendants, except as described below. 7. Defendants' representations that no chimney would be needed were false in that the system which they supplied did in fact require a masonry chimney. 8. Plaintiff incurred additional costs in the amount of $413.00 for materials and labor to install a masonry chimney. WHEREFORE, Plaintiff demands judgment against Defendants in the amount of $413,00, together with interest from 3/15/94, costs of suit, and such additional relief as the court deems appropriate, COUNT TWO 9. Paragraph one of this Complaint is hereby reaverred and incorporated by reference. 10. Defendant is Hobart Sales & Service, a business engaged in selling, installing, and servicing heating and air conditioning systems. Defendant's last known address is 2917 Wayne Street, Harrisburg, Dauphin county, Pennsylvania. 11. On or about 3/15/94 Defendant, by and through its agent, servant, or employee, Randy Pentz, sold to Plaintiff and agreed to install at Plaintiff's residence at Stoughstown a heating and air conditioning system which included a 100,000 BTU furnace and 3 1/2 ton air conditioning system, The agreed upon price did not include a chimney, because Defendant represented to 2 Plaintiff that the proposed system did not require a masonry chimney, but merely a PVC pipe to provide for exhaust, 12, Defendant delivered the equipment for the heating and air conditioning system, but refused to install it. 13. Plaintiff paid Defendant for the heating and air conditioning equipment. 14. Plaintiff was able to have the heating and air conditioning system by others for no additional labor cost above what he had agreed to pay Defendant, except as described below. 15. Defendant's representation that no chimney would be needed were false in that the system it supplied did in fact require a masonry chimney. 16, Plaintiff incurred additional costs in the amount of $413.00 for materials and labor to install a masonry chimney. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $413,00, together with interest from 4/19/94, costs of suit, and such additional relief as the Court deems appropriate. This matter is subject to compulsory arbitration. I verify that the facts set forth in this Complaint are true and correct to the best of my knowledge, information and belief. I acknowledge that any false statements herein are made subject to the penalties of 18 Pa,C.S. S 4904 relating to unsworn falsification to authorities, DATE - 3 Hobart concemlng the heating and cooling system. There was no contract with the Defendant Randy Pentz and certainly no contract or privity of contract with the Defendant Hobart. (d) The Defendant Randy Pentz never agreed to Install the heating and cooling system. The Defendant Randy Pentz specifically advised the Plaintiff that he did not have the time to do this. The Plaintiff advised Mr, Pentz that he had heating and cooling experience and that he would either Install It himself, or hire someone else to do so. Mr. Pentz did tell him that If he ran Into trouble he could call Mr, Pentz and Mr. Pentz would try to help him out. There was never any discussion of any compensation for any such help, none was Intended and none was paid even though Mr, Pentz did visit the site once or twice to see how things were going and discuss the duct work with the Plaintiff, which also was Plaintiff's sole responsibility. (e) The Plaintiff "purchased" the heating and cooling system from the Defendant Randy Pentz for the exact amount of money Mr. Pentz paid the wholesale supplier. Mr. Pentz made no profit on the "sale" nor Inter .ded to make a profit on the "sale". There was no consideration for any alleged contract. The only "agreed upon prlce" was the reimbursement of Mr. Pentz for the cost of the heating and cooling system. (f) After the Defendant Randy Pentz had ordered the heating and cooling system for the Plaintiff, Mr. Pentz had occasion to visit the construction site to see how progress was being made. There was a discussion regarding where to put duct work as the Plaintiff was having difficulty finding room for It. A chimney was In the process of being removed for reasons unknown to Mr. Pentz. Mr. Pentz then suggested that the Plaintiff could use that space for duct work and Install a power ventilator on the fumace. Indeed that could have been done. This was simply advice by a friend who had dropped by and was provided without consideration. (g) The heating and cooling system was actually purchased from a wholesale supply company called Pierce Phelps. The Defendant Hobart does not make, sell, service, or Install heating and cooling systems. Hobart sells equipment to restaurants, Including refrigeration equipment. Since Hobart purchased other types of equipment from Pierce Phelps, the Defendant was able to do a favor for his former friend and purchase his heating and cooling unit from that supplier. The Plaintiff was aware of all of these facts before the equipment was even purchased. 4. Admllled In Part and Denied In Part. It Is admllled that the Defendant Randy Pentz delivered certain heating and cooling equipment. The other Defendants had no part In the "transaction" or acquisition of the equipment. The averments of paragraph 3(d) of this Answer are Incorporated herein by reference thereto. For the reasons set forth therein, the Defendant Randy Pentz never agreed to or Intended to Install the heating and cooling system. 5. Admllled In part Denied In part. The Plaintiff did reimburse the Defendant Randy Pentz for the purchase price of the heating and cooling equipment. There was no agreement with, nor any financial transaction between, the Plaintiff and either the Defendant JoAnn Pentz or the Defendant Hobart. The Plaintiff then became dissatisfied and the Defendant Randy Pentz, gratuitously agreed to refund the Plaintiffs money and accept the return of the equipment, which was done. 6, Denied. The heating and cooling system purchased through the Defendant Randy Pentz was returned to Mr. Pentz. Plaintiff evidently then purchased and Installed a different heating and cooling system. There was no agreement to Install any heating or cooling system, nor any agreement for any price. The averments of paragraphs 3(d) and 4 of this Answer are Incorporated herein by reference thereto. 7. Denied. Defendants Hobart and JoAnn Pentz had no contact with the Plaintiff. Defendant Randy Pentz did not make any representations concerning the system which was ultimately Installed, and does not even know what type of system It is. The averments of paragraph 3(f) of this Answer are Incorporated herein by reference thereto. 8, Denied. After reasonable Investigation, Plaintiffs are without knowledge or Information sufficient to form a belief as to the truth of these averments and the Information concerning these averments Is within knowledge and control of the Plaintiff. Strict proof at trial Is demanded, equipment from Pierce Phelps, the Defendant was able to do a favor for his former friend and purchase his heating and cooling unit from that supplier. The Plaintiff was aware of all of these facts before the equipment was even purchased. 4. Admitted In Part and Denied In Part. Ills admitted that the Defendant Randy Pentz delivered certain heating and cooling equipment. The other Defendants had no part In thd'transactlon''or acquisition of the equipment. The averments of paragraph 3(d) of this Answer are Incorporated herein by reference thereto, For the reasons set forth therein, the Defendant Randy Pentz never agreed to or Intended to Install the heating and cooling system. 5, Admitted in part Denied In part. The Plaintiff did reimburse the Defendant Randy Pentz for the purchase price of the heating and cooling equipment. There was no agreement with, nor any financial transaction between, the Plaintiff and either the Defendant JoAnn Pentz or the Defendant Hobart. The Plaintiff then became dissatisfied and the Defendant Randy Pentz, gratuitously agreed to refund the Plaintiffs money and accept the return of the equipment, which was done. 6, Denied. The heating and cooling system purchased through the Defendant Randy Pentz was returned to Mr, Pentz. Plaintiff evidently then purchased and Installed a different heating and cooling system. There was no agreement to Install any heating or cooling system, nor any agreement for any price. The avennents of paragraphs 3(d) and 4 of this Answer are Incorporated herein by reference thereto. 7. Denied. Defendants Hobart and JoAnn Pentz had no contact with the Plaintiff. Defendant Randy Pentz did not make any representations concerning the system which was ultimately Installed, and does not even know what type of system It ,~. The avennents of paragraph 3(1) of this Answer are Incorporated herein by reference thereto. B. Denied. After reasonable Investigation, Plalntills are without knowledge or Information sufficient to form a belief as to the truth of these avennents and the information concerning these averments Is within knowledge and control of the Plaintiff. Strict proof at trial Is demanded. WHEREFORE, the Defendants Randy Pentz and JoAnn Pentz pray Your Honorable Court for a judgment In their favor and against the Plaintiff, together with their costs and counsel fees. COUNT TWO 9. The averments of paragraphs one (1) through eight (8) of this Answer are Incorporated herein by reference thereto as If fully set forth herein. 10. Admitted In Part Denied In Part. Mr. Pentz works for Hobart Food Equipment Sales & Service, referred to In this Answer and Counterclaim as "Hobart." Hobart Is In the restaurant equipment supply business. It does not sell, Install or service space heating or air conditioning systems to residential, business, restaurant, or other customers. The averments of this paragraph of the Plaintiff's Complaint are denied except that the address of Hobart Is correctly set forth therein. 11. Denied. For the reasons set forth In this Answer, the Defendant Randy Pentz Is not an agent, servant, or employee of the Defendant for purposes of heating or air conditioning systems. The said Randy Pentz Is a service employee of Hobart. He services restaurant refrigeration and other equipment. The averments of paragraphs one (1) through ten (10) of this Answer are Incorporated herein by reference thereto. Hobart would never enter Into an agreement for the sale of heating or air conditioning equipment, much less a chimney. 12. Denied. For the reasons set forth In paragraphs one (1) through eleven (11) of this Answer, which are Incorporated herein by refemnce thereto, the averments of this paragraph are denied, 13. Admitted In Part and Denied In Part for the reasons set forth In paragraph five (5) of this this Answer, which are Incorporated herein by reference thereto. 14. Denied for the reasons set forth In paragraph six (6) of this this Answer, which are Incorporated herein by reference thereto, 15. Denied for the reasons set forth In paragraph seven (7) of this this Answer, which are Incorporated herein by reference thereto. 16, Denied for the reasons set forth In paragraph eight (8) of this this Answer, which are Incorporated herein by reference thereto. WHEREFORE, the Defendants Randy Pentz and JoAnn Pentz pray Your Honorable Court for a judgment In their favor and against the Plaintiff, together with their costs and counsel fees. NEW MATTER 17. The averments of paragraphs one (1) through sixteen (16) of this Answer are Incorporated herein by reference thereto as if fully set forth herein. 18. For the reasons set forth In the aforementioned Answer, there was no sale or purchase but simply a reimbursement of Defendant Randy Pentz for the purchase price of certain heating and cooling equipment and, therefore, there was no contract due to a lack of and failure of consideration. 19. For the reasons set forth In the aforementioned Answer, there was no agreement or contract for the provision of Installation services, nor for the provision of heating or cooling equipment, however If there was such an agreement It would be unenforceable as In violation of the statute of frauds. 20. The conduct of the Plaintiff In commencing or otherwise maintaining the within action, with knowledge that It Is merltless and solely for the purpose of harassing the Defendants Into paying Plaintiff funds to which he Is not entitled, was arbitrary, vexatious or In bad faith entitling the Defendants to reasonable counsel fees pursuant to 42 Pa,C,S,A. ~2503(9), 21. The conduct of the Plaintiff in maintaining the within action, with knowledge that It Is merltless and solely for the purpose of harassing the Defendants HENRY W, THISSEN, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 94-3080 HOBART SALES & SERVICE and RANDY PENTZ and JOANN PENTZ Defendant CIVIL ACTION - LAW ANSWER COUNT ONE 1-2, Admitted J, The Defendant, Hobart Sales & Service, after reasonable inVestigation, is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph J of the Complaint. 4. Denied in part. On the contrary, Defendant, Hobart Sales & Service bel ieves that the Defendant, Randy Pentz, delivered said equipment to the Plaintiff. The Defendant, Hobart Sales & Service, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the balance of the averments contained in paragraph 4 of the Complaint. 5. The Defendant, Hobart Sales & Service, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 5 of the Complaint, 6. The Defendant, Hobart Sales & Service, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 6 of the Complaint, 7, The Defendant, Hobal-t Sales & Service, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 7 of the Complaint, 8. The Defendant, Hobart Sales & Service, after reasonable investigation, is without knowledge or information sufficient to (arm a belief as to the truth of the averments contained in paragraph 8 of the Complaint. COUNT TWO 9. Defendant, Hobal-t Sales & Service answers to paragraphs one (1) through (8) of this Answer are incol-porated herein by reference thereto as if fully set forth herein. 10. Admitted in part and denied in part. It is admitted that the Defendant, Hobart Sales & Service's address is correct, It is denied that the Defendant, Hobart Sales & Service, is engaged in selling, installing, and servicing heating and air conditioning systems. On the contrary, the Defendant, Hobart Sales & Service, is in the restaurant equipment supply business. It does not sell, install or service space heating or air conditioning systems to residential, business, restaurant, or other customers. By way of further answer, the designation, Hobart Sales and Service is the fictitious name of a Pennsylvania business corporation known as R,W. Wallace Inc. 11. Admitted in part and denied in part. It is admitted that the Defendant, Randy Pentz, is and, at all times pertinent to the causes of action asserted by the Plaintiff herein, was an employee of the Defendant, Hobart Sales & Service. It is denied that the Defendant, Randy Pentz is, or at any time, was authorized to act or was, at any time pertinent to the causes or action asserted herein by the Plaintiff, acting on behalf of the Defendant, Hobart Sales & Service or within the scope of his authority as an employee, servant or agent of the Defendant, Hobart Sales & Service. The Defendant, Hobart Sales & Service, after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 3 of the Complaint. 12. Admitted in part and denied in part, Defendant, Hobart Sales & Service believes that the Defendant, Randy Pentz, delivered said equipment to the Plaintiff, It is denied that the Defendant, Randy Pentz is, or at any time was, authorized to act or was at any time pertinent to the causes or action asserted herein by the Plaintiff acting on behalf of the Plaintiff or within the scope of his authority as an employee, servant or agent of the Defendant, Hobart Sales & Service, The Defendant, Hobart Sales & Service , after reasonable investigation, is without knowledge or information sufficient to form a belief as to the truth of the balance of the averments contained in paragraph 12 of the Complaint. 13. Denied. On the contrary, the Defendant, Randy Pentz paid the Defendant, Hobart Sales & Service the amount shown on the invoice attached hereto as Exhibit "A". By way of further answer, Defendant, Hobart Sales & Service, hereby inco1'porates by reference herein paragraph 11 of this Answer. The Defendant, Hobart Sales & Service, after reasonable investigation, is without knowledge 01' information sufficient to form a belief as to the truth of the balance of the averments contained in parag1'aph 13 of the Complaint. 14. Defendant, Hobart Sales & Sel'vice, hereby incorporates by reference herein paragl'aph 11 of this Answel'. The Defendant, Hobart Sales & Service, aftel' reasonable investigation, is without knowledge or infonnation sufficif'nt to fOl'm a belief as to the truth of the balance of the averments contained in paragraph 14 of the complaint. 15. Defendant, Hobart Sales & Service hereby incol'porates by reference herein pal'agl'aph 11 of this Answer'. The D.~fendant, Hobart Sales & Serv ice, afler l'easonable invest igat ion, is without knowledge or information sufficient to fonll a belief as to the truth of the balance of the aveunents contained in pal'agraph 15 of the Complaint. 16. The Defendant, Hobart Sales & Service, after reasonable investigation, is without knowledge or infol'mat ion suf ficient to form a belief as to the truth of the averments contained in paragraph 16 of the Complaint, Wherefore, the Defendant, Hobart Sales and Service, l'espectfully requests that Count Two of the complaint be dismissed with costs of suit, NEW MATTER 17, The Defendant, Hobart Sales & Service, hereby incorporates by reference all of tlm averments of fact contained in answer to paragraphs one (1) through sixteen (16) of the complaint as if textually set forth in full. 18, The Defendant, Randy Pentz, is and, at all times pertinent to the causes of act ion set forth herein by the Plaint iff, was employed as a service technician for the Defendant, Hobart Sales & Service, 19. The Defendant, Hobart Sales & Service, is a pennsylvania business corporation engaged in the business of selling and servicing l'estaurant equipment under the fictitious name of Hobart Sales & Service. 20. On or about Mal'ch, 22, 1994, the Defendant, Randy Pentz, requested permission to use the Defendant, Hobal't Sales & Service's wholesale number to purchase heatin9 and cooling equipment from one of Defendant, HOViUt Sal es & Service's wholesale Buppl iers, Peirce- Phelps,Inc. 21. At the time of Ba id requeBL, DefendanL, HobarL Sales & Service, believed Lhat the flaid DetendanL deflired La pUJ'chase such equipment [or his penJOnal use. 22. Wi th the exprelHl pellllission ol llC!fC!ndant, Hobart Sales & Ser-vice, Defendant, Randy Pentz, Oldered cl1l'tain heating and coolin.) /equipment directly fnJm naid lluppli'!J'. Attached her'C!to, markC!d .>xhibit "Exhibit "1\" in a tllle and ':OITC!ct copy at an invoic.-! from Peirce- Phelps, Inc. dilted March 24, 1994, Hot lng such cooling and heating equipment purchilsed by naid Defendant, 23. At no time pertinent to the caunefl of' action stated herein by the Plaint if f, did Defendilnt, Handy Pent z, lwve express or implied authority to purchane nuch equipment on behalf of Defendant, Hobal't Salen " Service, nor wafl such equ ipment purchased on behalf of Defendant, Hobart Salen " Service. 25. Def'endant, Handy Pent?, ilccepted delivery of such equipment directly fl'om Peirce-Phelps, Inc. on or about March 24, 1994. At no time pertinent to the causes of action set forth herein by the Plaintiff wan Defendant, Handy Pentz authodzed to act on behal f of Defendant, Hobal't Sales " Service in accepting del i very of such equipment. 26. On or about, March 24, 1994, Defendant, Handy Pentz fully reimbursed Defendant, Hobart Sales & Service, for the purchase of such equipment which had been billed to Defendant, Hobart Sales & Service. 27. Defendant, Hobart Sales & Service, had no verbal or written contact or communication with the Plaintiff until after the dispute arose between Defendant, Handy Pentz and the Plaintiff. 28. Defendant, Hobart Sales & Service, believes and avers that the Plaintiff was informed by the Defendant, Randy Pentz, that he intended to purchase said equipment from Peirce-Phelps, Inc, by using Defendant, Hobart Sales & Service'n wholesale supply number. 29. Defendant, Hobart Sales & Service, believes and avers that the Plaintiff knew, at all times pertinent to the causes of action set forth herein by the Plaintiff that Defendant, Randy Pentz was acting on his own behalf, independently of Defendant, Hobart Sales & Service, except to the extent that said Defendant was using Defendant, Hobart Sales & Service wholesale number to save the Plaintiff some cost of the equipmer.t, 30, The Plaintiff knew, at all times relevant to the causes of action set forth herein by the Plaintiff, that the Defendant, Hobart Sales " Sel'vice, was not in the business of supplying heating and cooling equipment for residential purposes. 31. At all times pertinent to the causes of action set forth herein, the Plaintiff knew that Defendant, Randy Pentz made delivery of naid equipment to the Plaintiff in his individual capacity and not as an agent or employee of Defendant, Hobart Sales " Service, 32. At no times pertinent to the causes of action set forth herein, did Hobart Sales and Service, know of any of the terms of any agreements or understandi ngs between Defendant, Randy Pentz and the Plaintiff l'egarrUng the sale or installation of Baid equipment by Defendant, Randy Pentz, or of any repl'eflentat ionfl made by Defendant, Randy Pentz, concerning the need or lack of need for a masonry chimney to acconnnodate said equipment, 33. For the reasons Bet forth in paragraphs 1 through 32 of Defendant, Hobart sales & Service, Answer and New Matter, Defendant, Randy Pentz is alone liable to the Plaint if f on the causes of action asserted by the Plaintiff. 34. Alternatively, Defendant, Randy Pentz is liable over to Defendant, Hobart Sales & Service, on the causes of action asserted by the Plaintiff. Wherefore, the Defendant, lIobart Sales and Service, respect fully request judgement against the Defendants, Randy and JoAnn Pentz. COUNTERCLAIM Hobart Sales & Service v, Henry W. Thissen 35. The averments of fact contained in paragraphs 1 through 34 are incorporated herein by reference as if textually set forth herein in full. 36. For the reasons set forth in Defendant, Hobart Sales & Service's New Mattel', the Plaintiff knew, at all times pertinent to the causes of action set forth herein, that Defendant, Randy Pentz, was acting on his own behalf and not in his capacity as an employee, agent or representative of Defendant, Hobart Sales & Service, and not within the express, implied or apparent scope of his authority as an employee or agent of Defendant, Hobart Sales & Service, 37, For the reasons set forth in Defendant, Hobart Sales & Service's New Matter, the conduct of the Plaintiff in commencing or otherwise maintaining this action against Defendant, Hobart Sales & Service, with knowledge and reason to believe that the action had no merit and solely for the purpose of harassing the Defendant, Hobart Sales & Sel'vice, into paying money to the Plaintiff to which the Plaintiff was not entitled, was, and is, arbitrary, vexatious and in bad faith, thus entitling Defendant, Hobart Sales & Service to reasonable counsel fees pursuant to 42 Pa.C.S,A.Section 2503(9). 38. For the same reasons set forth in paragraph 37, Pia inti f f' s conduct is, and was, obdurate and vexat ious conduct thus entitling Defendant, lIobart Sales & Service, to reasonable counsel fees pursuDnt to 42Pa,C.S,A.Section 2503(7). 39. Defendant, Hobart Sales & Service, has retained the law firm of Jeffrey A. Keiter J.D. to defend Defendant, Hobart Sales & Service, in this action and has and will in the futUl'e incur substantial necessary counsel fees and expenses, of the alleged invoice to the copy of its Answer served upon Plaintiff. 23. After reasonable investigation, Plaintiff lacks knowledge or information sufficient to form a response to the allegations of Paragraph 23. Such allegations are therefore denied, and proof thereof, if relevant, is demanded. 24. After reasonable investigation, Plaintiff lacks knowledge or information sufficient to form a response to the allegations of Paragraph 24, Such allegations are therefore denied, and proof thereof, if relevant, is demanded. 25. After reasonable investigation, Plaintiff lacks knowledge or information sufficient to form a response to the allegations of Paragraph 25. Such allegations are therefore denied, and proof thereof, if relevant, is demanded. 26 After reasonable investigation, Plaintiff lacks knowledge or information sufficient to form a response to the allegations of Paragraph 26 Such allegations are therefore denied, and proof thereof, if relevant, is demanded. 27. Denied as stated. Defendant Hobart Sales and Service, on or about 3/15/94, issued a "Shop Repair Order," naming Plaintiff as the customer, and listing the base equipment for the heating, ventilation and air conditioning system in question, together with prices for the various component parts. A true and correct copy of that document is entitled hereto as Exhibit A, 28. Denied as stated. Plaintiff knows only that Hobart Sales and Service, sold him the equipment in question, 2 29. Denied as stated, Plaintiff knows only that Randy Pentz worked for Hobart Sales and Service, and that Hobart Sales and Service sold him the equipment in question. 30. Denied as stated. Plaintiff knew only that Hobart Salee and Service, at least in this instance, sold and agreed to install, a heating, ventilation, and air conditioning system. 31. Denied as stated. Plaintiff had no knowledge of the capacity in which Randy Penlz was acting with respect to Hobart Sales and service. 32. After reasonable investigation, Plaintiff lacks knowledge or information sufficient to form a response to the allegations of Paragraph 32. Such allegations are therefore denied, and proof thereof, if relevant, is demanded. 33, The allegations of Paragraph 33 are conclusions of law which require no response. 34. The allegations of Paragraph 34 are conclusions of law which require no response, 35, No response required, 36. Denied as stated. Plaintiff had no knowledge extent of Randy Pentz's authority as a Hobart Sales and employee, 37. The allegations of Paragraph 37 are conclusions of law which require no response. 38, The allegations of Paragraph 38 are conclusions of law which require no response, 39. Admitted in part and denied in part. Plaintiff admits that Jeffrey A, Keiter, J.D., has filed an Answer on behalf of of the Service 3 Hobart Sales and service. After reasonable investigation, plaintiff lacks knowledge or information sufficient to form a response to the remaining allegations of paragraph 39. Such allegations are therefore denied, and proof thereof, if relevant is demanded, AFFIDAVIT I verify that the facts set forth in the foregoing Reply to New Matter are true and correct to the best of my knowledge, information and belief, I acknowledge that any false statements herein are made subject to the penalty of 18 Pa.e,s. section 4901 relating to unsworn falsification to authorities. DATE I ~/~/~~ 4 ~ " vs, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HENRY THISSEN, Plaintiff HOBART SALES & SERVICE and RANDY PENTZ and JOANN PENTZ, Defendants No, 94-3080 CIVIL TERM PLAINTIFF'S RBPLY TO NBW MATTER AND COUNTBRCLAIM ASSBRTED BY DEFBNDANTS RANDY PENTZ AND JOANN PENTZ 17, No response required. 18. The allegations of Paragraph 18 are conclusions of law which require no response. 19. The allegations of Paragraph 19 are conclusions of law which require no response. 20, The allegations of Paragraph 20 are conclusions of law which require no response, 21- The allegations of Paragraph 21 are conclusions of law which require no response. 22. Admitted in part and denied in part, Plaintiff admits that an attorney with the firm of Frey and Tiley has appeared and filed an Answer on behalf of Defendants Randy and Joann Pentz. After reasonable investigation, Plaintiff lacks knowledge or information sufficient to form a response to the remaining allegations of Paragraph 22, Such allegations are therefore denied, and proof thereof, if relevant, is demanded. 23. Plaintiff reavers and incorporates by reference his responses to Paragraphs 18 through 22. 5