HomeMy WebLinkAbout95-02333
,
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COU:: .":, PENNSYLVANIA
NO. 95-2333 CIVIL TERM
CIVIL ACTION - LAW
IN ASSUMPSIT
R & R EXCAVATING,
Plaintiff
JOEL WHITMIRE,
Defendant
PRAECIPE
TO THE PROTHONOTARY:
You are hereby directed to withdraw the appeal filed by
Defendant Joel Whitmire on May 1, 1995 in the above captioned
action.
Respectfully submitted,
SODUS & VERNEY
(."' ({ ~}~:L
Daniel J. sddu~, Esquire
I , D, No . G 311 4
7 Irvine RO'.:
Carlisle, PA 17013
717/243-9190
Attorney for
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The Honorable Harold E. Sheely
David Baric, Esquire
Christopher Houston, Esquire
Horace Johnson, Esquire
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R&R EXCAVATING, I IN THE COURT OF COMMON PLEAS OF
Plaintiff I CUMBERLAND COUNTY, PENNSYLVANIA
I
v I CIVIL ACTION - LAW
I
JOEL WHITMIRE, NO. 95-2333 CIVIL TERM
Defendant
. IN ASSUMPSIT
.
RULE 1312-1. The Petition for Appointment of Arbitrators shall be
substantially in the following form:
PETITION FOR APPOINTMENT OF ARBITRATORS
TO THE HONORABLE, THE JUDGES OF SAID COURT I
Christopher C. Houston, Esquire, counsel for the Plaintiff in the
above action (or actions), respectfully represents that:
1. The above-captioned action is at issue.
2. The claim of the Plaintiff in the action is $1,912.72.
The counterclaim of the Defendant in this action is
$6,300.
The following attorneys are interested in the case as counselor
are otherwise disqualified to sit as arbitrators I Christopher C.
Houston, Esquire, Daniel J. Sodus, Esquire, and David A. Baric,
Esquire.
WHEREFORE, your petitioner prays your Honorable Court to appoint
three (3) arbitrators to whom the case shall be submitted.
~
sPfj
Chr stopher C. Houston, Esqu re
Attorney for Plaintiff
Broujos, Gilroy & Houston, P.C.
4 North Hanover Street
Carlisle, PA 17013
717 - 243-4574
ORDER OF COURT
AND NOW, 'I'" /,/"/,,.,1. /'" , 199-1-, inconsideration of the
foregoing petition, /.,"/1,' ,1";/:\"'\/1 Esquire, /I..p-.,//
l'.-:'ILL,' / , Esquire, and {.t.(f,/,_ 11,',6 / /\,;/ ,
Esquire, are appointed arbitrators in the above-captioned action as
prayed for.
By fh~ Court,
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R&R EXCAVATING, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
:
v . 95-2333 CIVIL TERM
.
.
.
JOEL WHITMIRE, . CIVIL ACTION - LAW
.
Defendant .
.
: IN ASSUMPSIT
ORDER OF COURT
AND NOW, this
day of July, 1995, upon a Petition to Make Rule
Upon Bethlee Whitmire, Administratrix of the Estate of Joel 1.
Whitmire, Absolute, no timely answer to the Rule issued upon
Bethlee Whitmire, Administratrix of the Estate of Joel 1. Whitmire,
having been filed, the Rule previously issued on June 2, 1995, is
hereby made absolute and it is hereby ordered and directed that
Bethlee Whitmire, Administratrix of the Estate of Joel 1. Whitmire,
be substituted as a party defendant in the above-captioned action
in place and instead of Joel Whitmire.
By the Court,
J.
R&R EXCAVATING, I IN TilE COURT OF COMMON PLEAS OF
Plaintiff I CUMBERLAND COUNTY, PENNSYLVANIA
I
v I 95-2333 CIVIL TERM
I
JOEL WHITMIRE, I CIVIL ACTION - LAW
Defendant I
I IN ASSUMPSIT
ACCEPTANCE OF SERVICE
I accept service of the Rule on behalf of Beth1ee Whitmire,
Administratrix of the Estate of Joel I. Whitmire, and certify that
I am authorized to do so.
~/~~.
David A. Baric, Esquire
O'Brien, Baric & Scherer
17 West South Street
Carlisle, PA 17013
717 - 249-6873
Datel (,/~ /r,c-'
.
EXHIBIT
I -tB
R&R,PIV7, 11,9~/r.v,7/14,9~
R&R EXCAVATING, : IN TilE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
v 95-2333 CIVIL TERM
.
.
JOEL WIIITMIRE, CIVIL ACTION - LAW
Defendant
: IN ASSUMPSIT
PETITION TO MAKE RULE UPON
BET-BLEE WHITMIRE, ADMINISTRATRIX OF
THE ESTATE OF JOEL I. WHITMIRE. ABSOLUTE
AND NOW, comes the Petitioner, R&R Excavating, who avers as
follows:
1
The Petitioner is R&R Excavating, the above-captioned Plaintiff.
2
The Respondent is Beth1ee Whitmire, Administratrix of the Estate of
Joel I. Whitmire.
3
During the pendency of the above-captioned proceeding, the above-
captioned Defendant, Joel Whitmire, died after which the Register
of Wills of Cumberland County, Pennsylvania, issued Letters of
Administration to Bethlee Whitmire for the Estate of Joel I.
Whitmire, the deceased Defendant, at 1995-00412.
4
On June 2, 1995, the Petitioner filed a Praecipe for Rule upon
Bethlee Whitmire, Administratrix of the Estate of Joel I. Whitmire,
to show cause why she should not be substituted as a Defendant in
place of Joel Whitmire and a rule was issued on June 2, 1995,
R&R.Anll7.11.SS
R&R EXCAVATING, IN TilE COURT OF COMMON PLEAS OF
Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA
.
v 95-2333 CIVIL TERM
JOEL WHITMIRE, CIVIL ACTION - LAW
Defendant .
.
. IN ASSUMPSIT
.
ANSWER TO COUNTERCLAI"
AND NOW, comes the Plaintiff, R&R Excavating, by and through their
attorneys, Broujos, Gilroy & Houston, P.C., who answer as followSI
13
Paragraphs 1 through 12 of Plaintiff's Complaint are incorporated
herein by reference.
14
Denied.
It is specifically denied that the Defendant and the
Plaintiff entered into an agreement on or about August 1993 to
build a roadway and install slate over the roadway and provide
adequate drainage ditches. By way of further answer, the Defendant
wanted an existing roadway widened to a building that lies to the
rear of his property.
15
After reasonable investigation, the Plaintiff is without knowledge
or information sufficient to form a belief as to the truth of the
averments,
By way of further answer, the Plaintiff's records
reveal a payment of $485 for the services rendered. Other records
were lost on the Plaintiff's computer for this time period in 1993.
JA
16
Denied. By way of further answer, Plaintiff performed its work in
a workmanlike manner and performed all services requested.
17
Denied. It is specifically denied that the avermsnts of Paragraph
17 set forth the entire agreement between the parties. The parties
entered into an agreement on or about December of 1993 to prepare
a site behind an existing dwelling for a trailer that the Defendant
had purchased and prepare a driveway which would allow the trailer
to be moved from Ridge Road to its permanent site; furthermore, the
Plaintiff was requested to move the trailer from Ridge Road to its
permanent location. Plaintiff was requested to move a large
holding tank and, finally, the Plaintiff was requested to push some
trees to prepare a shooting range.
18
Denied. By way of further an~wer, the Plaintiff performed all of
its work in a workmanlike fashion and performed all services
requested of it.
19
After reasonable investigation, the Plaintiff is without knowledge
and information sufficient to form a belief as to the truth of the
allegations of Paragraph 19 and they are, therefore, denied.
WHEREFORE, the Plaintiff requests this Honorable Court to enter
judgment in its favor on Defendant's Counterclaim.
- '
R & R EXCAVATING,
Plaintiff
v.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
95-2333 CIVIL TERM
JOEL WHITMIRE,
Defendant
CIVIL ACTION - LAW
IN ASSUMPSIT
ANSWER
AND NOW, comes the Defendant, Joel Whitmire, by and through
his attorney, Daniel J. Sodus, Esquire, who avers as follows:
1. Defendant is without sufficient information to admit or
deny,
2, Admitted.
4. Defendant admits subparagraph "C". Defendant admits he
owns real property and maintains a residence at 945 Ridge Road, Mt.
Holly Springs, Cumberland County, Pennsylvania. Defendant denies
all other averments.
5. Denied
6. Defendant admits subparagraph "c" only to the extent that
concerns the work to be per formed.
Defendant denies all other
averments.
7. Denied.
B. Denied.
9. Denied.
10. Denied.
11, Denied.
12. Denied.
WHEREFORE, Defendant respectfully requests this Honorable
Court to enter judgement in its favor and against Plaintiff by
denying Plaintiff's claim against the Defendant and by awarding
Defendant attorney's fees and Court costs.
COllNTERCLAIM
13. Paragraphs - 12 above are incorporated herein by
reference as fully as if set forth below.
14. On ot' about August, 1993, Defendant and Plaintiff entered
into an agreement whereby Plaintiff would build a roadway and
install slate over the roadway and provide adequate drainage
ditches.
15. Defendant prepaid Plaintiff $2,300.00 for the
installation of a roadway.
16. Plaintiff was negligent in the performance of his work
and has failed to perform the services in several material
respects.
17. Defendant and Plaintiff entered into an agreement on or
about December 1, 1993, whereby Plaintiff would excavate an area
and construct a firing range on Defendant's premises.
18. Plaintiff was negligent in the performance of his work
and has failed to perform the service in several material respects.
19. Defendant has obtained estimates of $6,300.00 for work
unperformed and for remedial work necessitated by Plaintiff's
unworkmanlike performance.
services for him at his residence and real property own~d by him
and located at 945 Ridge Road, Ht. Holly Springs, Cumberland
County, Pennsylvania (hereinafter "the premises"), which were as
follows I
A. Excavation of a site on the premises for a mobile home;
B. Regrading of portions of an existing driveway so that the
mobile home could be moved from Ridge Road to its permanent site on
the premiees; and
C. Hove the mobile home from a drop point on Ridge Road to it3
permanent location.
5
It wae agreed to between the partiee that the work to be performed
by the Plaintiff would be charged at Plaintiff's customary hourly
rate for labor and equipment with payment to be made upon
completion of the services rendered upon the same terms of payment
as the parties had followed when Plaintiff had previously performed
work for the Defendant, which had included interest to be charged
at the rate of 1 and one-half per cent (1.5%) per month on any
payments that are thirty (30) days late.
6
During the time period of December 2 through December 31, 1993, the
Plaintiff did, pursuant to the agreed upon terms, perform the
following eervices:
A. Excavated a site upon which the mobile home could be placed;
B. Regraded portions of the driveway; and
C. Moved the mobile home from Ridge Road to its permanent
location.
7
During the time period of December 2, 1993 to on or about December
31, 1993, the Plaintiff was requested to perform the following
additional services upon the same payment terms as previously
agreed to between the parties:
A. The Defendant had requested that the Plaintiff move a large
holding tank from one location on the premises to another;
B. The Plaintiff was requested to prepare a shooting range by
pushing trees and other debris to make a clearing; and
C. The Plaintiff was requested to divert water from a spring.
8
Pursuant to the Defendant's request, the Plaintiff did perform the
additional services, as specified in Paragraph 7 above.
9
The Plaintiff performed all contracted for services in a good and
workmanlike manner in compliance with the Defendant's directions.
10
Upon Plaintiff's completion of the services payment was to be made
to the Plaintiff for the hourly charges for services rendered,
which totalled $1,485. Attached hereto and marked as Exhibit A and
incorporated herein by reference is a copy of an invoice for the
services rendered.
COMMONWIAI'N O' PINNnlVANIA
coun O. COMMON PLlAS
(( I"II~L'" I. ',,-i ,1 )
JUDICIAL 01111 leT
NOTICE OF APPEAL
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DISTRICT JUSTICE JUDGMENT
cOIftIMJ~_~IIASt4.~_q!i -__633 3 ()J}d~
NOTICE OF APPEAL
-~---~----_.~..~--~-,,- -. --- -_. -_.-.--
Notice i. gi_ lhat the appellant ha. flied in the above Court of Common Plea. on appeal from the judgment rendered by the Di.trict JUllice or, lhe
dote and in the COle mentioned below.
~LANT
Joel Whitmire
AOOIu~ Of AmLlANt
9115 nidg'!..I~_<!..~'.!-?_~_??2u_ '~--_ _. fl!cdLQJ..1L ;JP!'!ll1Q1 I'A-
Ot4n: Of AJ:lGMI.NT . t-l ,t. (.~ \.JI' /n.."..,,/ f(.ll-,fn."Wlti
?('llv'~'1l. I'r'! .;- H & n Excavatill/S '" Joel l,hitmiro
UAIM NO --.~----- - ~ffjt~,;;;m:\Nro.liSIJR:iiN(y~til
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CV 11' 00003/15-94 /; u
LT 19 ___ _ ____, '"
Thi. block will be oigned ONLY when Ihi. notation i. required under Po. R,CP.J.P, No
l00S8.
This Notice of Appeal, when received by the District Justice. will operate os 0
SUPERSEDEAS to the judgment lor poue.1ion in thi. co.e.
Dav
" Coot
17065
-----Sl[JfJ.lttlflJ of "ot/}oflol,JlY Of Ol'P(Jty
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II appellant was CLAIMANT (see Pa, RC,P.J.P, No.
1001 (6) in action before District Justice, he MUST
FtLE A COMPLAtNT within twenty (20) days alter
filing his NOTICE of APPEAL.
(This sec/Ion aI/ann /0 bo used ONL,Y wl'{)fJ a~Jella"/ was DEFENOIiNT (sea Pel HCP.JP. No, /00/(7) 1/1 action 00(0(0 Distric/ Jus/ice.
IF NOT USED, da/ach from cCllY o( /lo/lca 01 appa.lf/o bo served WOO appallro),
PRAECIPE TO ENTER RULE TO fiLE COMPLAINT AND RULE TO fiLE
PRAECIPE, To Prothonotary
Enter rule upon n & H
EXlli1 va tilllT. _ , oppellee{.), to lile 0 comploint In this appeoI
N.:Mn,' O/'II,,,'IIt't.y,,J
(Common Plea. No. q5"- ~3.33 c.:...J? 1i~) within twenty (20) day, olter .e,;ic-;' of rule or .uffer ent5Y 01 judgmen! 01 non proL
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~p\ltt60 01 at,Jeblt 01 Ills attorney 01 agent
RULE, To
n & n Excavntilll<
N.:~n(l oi <1I,,."',1('(5J
, oppellee(.).
(I) You ore nolifoed that 0 ,ule I. hereby entered upon you 10 me 0 complaint inthi. appeal within twenty (201 day. after the dole 01
.ervice 01 thi. rule upon you by penonol .ervice or by certified or ..gi.tered moil
(2)11 you do notlile 0 complaint within Ihi. time, 0 JUDGMENl OF NON PROS WilL DE ENTERED AGAINST YOU.
(3) The dote 01 .ervice of thi. rule If .ervice woo by moil i. the dote of moili~ .
Dole: 1~ 1_, 19>>- [(j~ JA-.t!L(. tL {/
))fuJta~ '~~
""""e or -v ~rY
AQf'C JI...,W
COURT FILE TO BE FltED WITH PI1OTHONOTARV
PROOF or SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT
(ThIS proof 01 su'''',cu MUS T lJE FtLfD WI 'JON Tr N (10) LJA },S Ar 1 f Ii t,'"IU Iflu 1I0'/{:0 of olpPIl,'1. Chock npp/lciJblO bONos)
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF._._ ,..
AFFIDAVIT: r I",wby SWl!i1r or nltirrn Ihllll ""Vl!rl
o u copy ulltw Nolteu 01 Appeal. C0l1111l011 Ph!i15 No _~______~__ , IJPIHl ttll~ Ol5trlct Justice dosignilled thorem on
(datu 0/ sorl/lco; _, 19__., 0 hy pt~'StJllIII St.H'w'ICII [] hy (ccl,tdIOd) (rC{Jlstorod) mall, sendm's
recuipl nttached hprf!1o. nnd upon Ihe nppHllet.'. /"ilmfl)_...~__._________.____._.__ . on
, 19-0 by persllnal Sl',...ICl! rJ IIV (Cllltllleft) ('eUI!;ll~lI!lj) fIlilll, sendm's receipt atlachod horeto.
o nnd further that I sorved thu null! 10 Fill! it COlllplillnl dCC(lIlIPilflYlrl!) lilt! i111UVl? Notice ul ApPt!lllupon the nppellee(s) 10 whom
tho nulu was addff!SslHt on ____~._u__'_____.______, l!L___~ 0 by pt!rsorlal spr'v'ICu 0 hy (CorllIIIJd) (reglsterod)
mall, sendor's WCt!lpl allachett tl~foto
SWORN (AFFIRMED) AND SUllSCRlllED llCFOI1E ME
THIS DAY OF_ _,19,._._
SlgniltlllP olaff/ant
SignatlJ18 of OlfICIIJ/ tit/low 1lo"l'lIl ,1"1(1",,/ ~,h 1II.lllt.
Tirfft o'oUlcral
My commi8sion expires on
.19_.
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COMMON PLEAS NOTIFICATION
P~INTIFF REQ~~~~RM
~ , R EXCAVATING
1954-C WALNUT BOTTOM RD.
CARLISLE, PA 17013
L
VB,
COMMONWEALTH OF PENNSYLVANIA
COUNlY OF: CUMBERLAND
OJ Nwnt "on
SUSAN K. DAY
229 MILL STREET, BOK 167
MT. HOLLY SPRINGS, PA
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17065
DEFENDANT:
r~IHITMIRE ,
945 RIDGE
BOK 222
~T. HOLLY SPRINGS, PA 17065
Docket No,: CV-0000345-94
DBte Flied: 12/07194
H.wE and AOOAE98
JOEL
RD.
SUSAN K. DAY
229 MILL STREET, BOX 167
HT. HOLLY SPRINGS, PA 17065
PI,.I. be advlled thel an appaal hal boon filod In the above captloned cale. Kindly UIO thll form 10 Indlclto the ra.uh.
In thle ca.., and return to the Issuing authofity (lilted abovol.
RESULT OF APPEAL
SUMMARY APPEAL
APPEAL STRICKEN. appaal h.. boon di..llow.d,
APPEAL DISCONTINUED. .pp..1 h.. b..n di.ontinu.d by .ppall.nt
DISTRICT JUSTICE DECISION UPHELD, court h.. rooch.d ..ma d.cl.lon .. origin.' dl.trlct ju.Uc. d.cl.lon.
_ dlltrlct JUltlce office II to collect remaining tinea/coltl.
APPEAL SUCCESSFUL. court h.. rooch.d d.cl.lon I.vor.bl. to d.l.nd.nt,
lull refund to balllued by diltrlct jUlllcD oHico.
partial rofund to be IlIued by dlllllct JUltice oHice.
REVISED DISTRIBUTION OF FINES AND COSTS
" dlltrlct jUltiee oHlcel.a 10 Inuo a partial rofund, pla810 Indlcato any new dlltrlbutlon In the amount(l)
of flnDI and COltl 81 a rOlult 01 tho court', doclslon.
FINE EMS
COUNTY CRT LOST CAT
STATE CRT COST JCP
STATE csn DVC
HEARING COST CVC
CCD
OTHERlpl.... .p.clfy)
CIVIL APPEAL
APPEAL STRICKEN, .pp..1 h.. bo.n dl..llowod.
APPEAL DISCONTINUED. .pp..1 h.. b..n dllContlnu.d bV .pp.lI.nt,
DISTRICT JUSTICE DECISION UPHELD, court h.. ,..chod tho ..m. docl.lon .. tho dl.lrlct!u.tlce ludgm.nt
DISTRICT JUSTICE DECISION DISMISSED, court hoo r..ch.d . d.cl.lon th.t dooo not concur wllh th. dl.t'lctlu.tlcoludgm.nt.
WRIT Of CERTlORARI
WRIT STRICKEN. .pp..1 h.. b.on dilOllowod
WRIT DISCONTINUED. writ h.. b..n dllContlnu.d bV .pp.llant
DISTRICT JUSTICE DECISION SET ASIDE, tho c... will b. r.h..rd duolo Irr.gul.rify, I.ck ollurl.dictlon, or Impropor vonu..
WAIT DISMISSED. dlltrlct jUltlcD decision was not found to be flawad, lacking jurisdiction, or having Improper v.nue.
STATEMENT OF OBJECTION (Pl.... glv.. g.n,,"'.umm"ry 01 tho 'OOUIIl)
OBJECTION DISCONTINUED. obloction has boen dlscontlnuod bV tho appallant.
OBJECTION DENIED, obloctlon ha. boon donlod bV tho Cou~ 01 Common Plo..
OBJECTION UPHELD. appollant'. objoction has boon uphold by the Court 01 Common Ploaa.
AOPC 729,94
FORM PRINTED:
5/05/95 11:46:17
a.a .'"
v.
IN TilE COURT OF COMMON PLEAS OF'
CUMBEHLAND COUNTY, PENNSYLVANIA
NO. 95-2333 CIVIL TERM
R & R EXCAVATING,
Plaintiff
JOEL WHITMIRE,
Defendant
CIVIL ACTION - LAW
IN ASSUMPSIT
PRAECIPE
TO THE PROTHONOTARY:
You are hereby directed to withdrilw the appeal filed by
Defendant Joel Whitmire on May 1, 1995 in the above captioned
action.
Respectfully submitted,
SODU:; & VERNEY
Daniel J. S d s,
I.D, No, 63114
7 Irvine Row
Carlisle, PA 17013
717/243-9190
Altorlley for Defendant
cc: The Honorable Harold E, Sheely
David Baric, Esquire
Christopher Houston, Esquire
Horace Johnson, Esquire
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