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Home My WebLink About94-07070 " {~'~b H:""!'~" ;'J~ l..lf.o,!,cJ' ~fJ~~jg9.i!':' . ~~i'f(> : :;." . .,' ~ l , , .',F . :6; ,.. ~~ 1& -+~ '01 . "'U: ",~ '..... ", . '.( \:,~ l.\ " . ,~, '." :,' , .~' ':. 1. \' ,: ".' ti, ':.\;- ;5 ::~,;; ::''- ,,' " , ',; ,~~ )!, :;..... qjt.,~.t. , :ii~'-'.,l"- .... I, ~} ~,\ '.. ~'.':I '. -, ,'" " ,-J' ", , _l~ .' ~ ' )'11 ( ~\. ~'" "is.:. '''',.' . ..' "'\'. , '" "-' .... ',<I ~ :t5 ~\c) f0 ~ \.. " :-<, " . ~ ~ ~ (C ~ . ;~,;;i,:~~~ '" ",," ::3 ~ ' \-J," ). y. .. g:.L:~~J~':' :;';:~~~: .... j:l.i" "'\" Y"-' "" ...:"~t~:':t:J'\~;;)~?{ '/-'-: ' 01ilSR \ ,..ty,(, t ',', ,,~~ :'r.,' 'J!; J~\~~;;~~;:' ___ ...,' . ',.. q, l. <'" "':'J ',.' I," ~::I:' :: Il 8'~' ,.'1. '~~'~'"... ) : .' 't' I.~!}j . 'I' ,,);"1''''','' . 1..,,' ~l,,"'-i< 1:, ". '.~ ",:", :!,~~;, ;\;t! \t"IC~ l " -1 :::..' 1 :\; ,rJ':. ,\.,;~ . . ,:';,' >..),..;..-:\~ ."i~'~.~:/' .. ';'., 1._L('.r"', ~,~_tl~~.~r,j \ ' .. '. 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'.;>- -'~-~!1!(;;: ;t;~1' Y; Larry Adams t/d/b/a 1 IN THE COURT OF COMMON PLEAS Adams Water Well Drilling, I OF CUMBERLAND COUNTY I contractor, I PENNSYLVANIA v. I CIVIL ACTION - LAW I John Malaszuk and I eN - 3'353 MLo T.v... Lisa K. Malaszuk, his wife, I I Owners I MECHANIC'S LIEN CLAIM To: John and Lisa K. Malaszuk 1161 Means Hollow Road Shippensburg, PA 17257 Notice is hereby given that Larry Adams t/d/b/a Adams Water Well Drilling, who resides at 1020 Newville Road, in the City of Carlisle, County of cumberland, Commonwealth of Pennsylvania has and claims a lien against John and Lisa Malaszuk, owner of the real . property hereinafter described, on said real property for the sum of $ 11,420.00, being the value and agreed price of certain labor performod and materials furnished for the improvement of said property less amount paid on May 1B, 1994. The labor was performed and the materials were furnished with the knowledge and consent, and at the request, of the owner of the hereinafter described real property. The interest of the owner in said real property, as far as is known to this lienor, is ownership in fee. The name of the persons by whom this lienor was employed and to whom he furnished such labor and materials was John Malaszuk. Lienor, a general contractor, on or about April 18, 1994, entered into an oral contract with John Malaszuk, in which contract lisnor agreed to furnish all the labor and materials for the improvement of the aforesaid property located at 1161 Means Hollow Road, in the city of Shippensburg, County of Cumberland, _)(H,.,T A commonwealth of Pennsylvania, for the sum of $12,920.00. In the performance of said contract, lienor furnished: 500 feet well casing, 700 feet well drilling, 5 gallon well drilling, 1250 gallon tank, 1 well pit, 3/4 hp pump job with tank, pipe, wire, & fitting, 2 risers, 2 - 3/4 hp 5 gallon p.m. pumper, 8 hours back & moving charge. All of the labor required to be performed by lienor under the contract has been psrformed and all the materials thereby required to be furnished by said lienor have been furnished. The agreed price of the labor performed and materials furnished under the contract is the sum of $12,920.00. The amount unpaid and owing to this lienor from the owner under the contract is $11,420.00, being $12,920.00 less $1500.00 paid on May 18, 1994. The first item of work was furnished on or about April 18, 1994. The first item of materials furnished was on or about April 18, 1994. The last item of work was performed on May 18, 1994. ' The last item of materials was furnished on May 18, 1994. The real property subject to such lien and for the improvement of which said services were performed and said materials furnished is briefly described as follows: 1161 Means Hollow Road, Shippensburg, PA 17257. Respectfully submitted, ~~e~u~ - Attorney for Contractor JUt I J 2. .J~ PM '95,11 "" IJJ I" hI , \ IY\ ~ ,..~ ':0 ....., ..1::,. - 0' , ~ l.-, :c: , ,., '~J ~ I 0._ Vz'..'-. v., '-5 0 ;~ ~ ~'~ ~~, ~ ~ N c.. .I '. -:r . .. .l,n - _J,,1"' ,,,..l' ''''''-. ~~) .', "I ,..., ; ...... , -:":1 :::J. "" I....t.,;. r'\~ ~ ", 0 ....., ~ '-" BRIEF IN SUPPORT OF PLAINTIFF'S ANSWER TO DEFENDANTS' PRELIMINARY OBJECTION TO PLAINTIFF'S COMPLAINT According to Fredericks v. Hamm, 45 D,& C.2d. 687, defendant's preliminary objection could be dismissed for failing to contain a notice to plaintiff to plead. However, our position is that plaintiff was not required to register under the Pennsylvania Fictitious Names Act, 54 Pa.C.S. Section 302, and therefore the preliminary objection should be overruled and dismissed. If the preliminary objection raises a factual question, it "becomes a 'complaint' subject to all the rules of pleading of the complaint, including the endorsement of a notice to plead and a verification of the new averments of fact, not of record.... Facts pleaded in a preliminary objection are not admitted unless the objections are properly endorsed with notice to plead and no answer filed." Fredericks, at 691. The Fictitious Names Act prohibits anyone from carrying on a business in Pennsylvania using an "assumed or fictitious name without first registering the name with the Secretary of the Commonwealth and the prothonotary of the county of his principal place of business. Failure to register precludes him from filing suit on any of his contracts until such time as he does so register. The purpose of the act is to protect those who deal with persons carrying on a business under an assumed name and to enable them to know with whom they do business," Pritz v, Leppo, 47 D.& C.2d. 261, 262. A Fictitious Name is defined as, "Any assumed or fictitious name, style or designation other than the proper name of the entity using Such name. The term includes the name of any association, general partnership, trust, syndicate, joint adventureship or similar combination or group of persons." 54 Pa.C.S. Section 302, The courts have generally held that where only the ownerts surname is uRed in the name of the business, he need not register under the act. This is especially true where the owner is the sole proprietor. Pritz, at 263. In HUGhes and Dier v. McClur6, 77 Pa. Superior Ct. 325 (1921), the firm name was ruled not assumed or fictitious and the court said that "the act is a highly penal statute which is, therefore, to be strictly construed and is not to be stretched to cover any case which is not clearly embraced by its terms." Pritz, at 263. In pritz, the defendant's preliminary objection was overruled and dismissed. The court stated that "the person who is bringing suit on the contract is the sole proprietor of the business and uses no other designation but his surname in the business name, the name of the business is a genuine one and not fictitious or assumed and he, therefore, need not register it under the Fictitious Names Act, especially since there is no allegation in the pleadings that the defendant was misled, confused or prejudiced in any way by dealing with the present plaintiff under that designation," In Pritz, the business names, "Pritz Auto Body Service" and "Pritz Auto Body & Radiator Service" were in question. The court stated that the two business names were not within the definition