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HomeMy WebLinkAbout02-3981COMMO_____?.WEALTH OF PENNSYLVANIA COURT OF COMMON PLSAS JUDICIAL DISTRICT NOTICE OF APPEAL DISTRICT JUSTICE JUDGMENT NOTICE OF APPEAL Not/ce is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the Distr/ct Justice on the date and in the case mentioned below. 117 Fc~: PL3n ~gcr:d, Suite_ 103 i~tnr~lle ~ PA 7/25/02 ~ Co. L~. CV 12~2; ~ ~-1~2 (~1) ~ ~ ~ b~ck will be ~ ONLY ~en this ~ is required u~ P~ R.CRJP. ~ -- 1008~ Th~ ~ti~ of A~I, w~ mc~ by t~ Disk~t Just~e, will ~ as a ~PER~DEAS ~ ~ ju~t ~ pos~s~ in ~Js cese Signature of Prothonotary or Deputy 151~6 vs ~ &Associatesof~__inc ff appellant was CLAIMANT (see Pa. R.C.P.J.P. No. 1001(6) in act/an before D/strict Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. PRAEClPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of fo~rn to be used ONLY when appellant was DEFENDANT (see Pa. I~C.P.J.P. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee). PRAECIPE: To ProthanOt~ry Enter rule upon C/~trlss E. ~ Co. ~. ,,~ o~ ~/ee's) , apl:~llee(s), to file a complaint in this appeal (Comrnon Pleas N~/'5.~ -- .'~ (~/ ~i'L, ~ ["~f'/,~.within twenty (20) days after ser(~of rule ?.~ entry of ]udg~._ment of non pm~. RULE: To Charles E. Brake Co. Inc. S/gnatu~e of ~ ~,- .,~ o,' ~ Name of ame#ee~s~ , appe#ee(s). (1) You am notified that a rule is hereby entered upon you to file a com[~aint in this appecd within twenty (20) days after the date of service of this rule upon you by personal service oF by certified oF registered mail (2) If you do not file a complaint within this time. a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of mailing. AOPC312-90 COURT FILE TO BE FILED WITH PROTHONOTARY PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COt~,~PLAINT p oo o e ~ ce ?XU?T BE FlED i,?iT~ //V ~Tf,/O) DAY? Al:T}??,/,m~ ? e ~o ce of ~p~,x~al Qeck xpp/,~ab~e boxe~j OM~,~ONWEALTH OF PENNSYLV4N A COUNTY OF ; SS AFFIDAV T here}v S~PaF ) ~f~rrn h~f ~ s~r, ~ and further that ! served the Rub to Fie the ~ ~ '~ ~. - ~ -~. . ,~ a ~ n pbn~ a,~u, mpany ng the a~ove No ~ce o Appeal Jpon lhe appel ee ~) to whom F,uL a *ud dof d,. ne[:~rece } atached ~ereto, /, n Ru~; 2'0 02 11: 2~m p. 3 COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND 09 -3 -01 HAROLD E. BENDER Address! 81 WA~uT BOTTOM ROAD P.O. BOX 361 SHI PPENSBOKG, PA Te,ep~o,e: (717) 532-7676 17257-0361 ATTOKNEY FOR PIJi]]~TIFF : DAVID ROKITO 117 FOX PLAN ROAD SUITE 103 MONROEVILLE, PA 15146 NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and AODF~ESS FPURCELL & ASSOC. OF DE~AWARE ~ 117 FOX PLAN ROAD SUITE 103 ~ONROEVILLE, PA 15146 ] VS. DEFENDANT: NAME alld ADDRESs FCHARLES E. BRAKE CO. INC ~ 6540 LINCOLN WAY W. RANDALL L. B~AKE, PRES. ~T. THOMAB, PA 17252 _j Docket No,: CV-0000136-02 ] ~ Date Filed: 6/25/02 CROSS COMPLAINT 001 THIS IS TQNOTIFY YOU THAT: Judgment: [] Judgment was entered for: (Name) [] Judgment was entered against: (Name) ~OR DE~RRD~ DUN~T,T. & A~- ~F ~T.AWARR in the amount of $ .00 on: (Date of Judgment) --]Defendants are jointly and severally liable, ] Damages will be assessed on: [] This case dismissed without prejudice. Amount of Judgment Subject to ]Attachment/Act 5 of 1996 $ [] Levy is stayed for days or [] generally stayed. E~ Objection to levy has been filed and hearing will be held: (Date & Time) Amount of Judgment Judgment Costs Interest on Judgment Attorney Fees Total .00 .00 .00 .00 .00 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ Date: Place: Time: ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CiViL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. I certify that this is a true and correct copy of the record of the proceedings containing the judgment. Date , District Justice ~ug 20 02 11:27~ p.2 COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBEKLAND 09-3 '01 HAROLD E. BENDER 81 WALNUT BOTTOM ROAD P.O. BOX 361 SHIPPENSBUKG, PA ~.~*~.o~.: (717) 532-7676 17257-0361 ATTOI~NEY DEF PRIVATE DAVID ROMITO 117 FOX PLAN ROAD SUITE 103 MONROEVILLE, PA 15146 NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS 6450 LINCOLN WAY EST CHARLES E. BRAKE CO INC ~T THOMAS, PA 17252 VS. DEFENDANT: NAME and ADDRESS F-puRceLL, PRES, JOHN R 117 FOX PLAN ROAD SUITE 103, PURCELL & ASSO LMOI~OEVILLE, PA 15146 d Docket No.: CV-0000136-02 Date Filed: 5/14/02 THIS IS TO. NOTIFY YOU THAT: Judgment: ~'] Judgment was entered for: (Name) ~] Judgment was entered against: (Name) in the amount of $ 4._R&I 1D on: Defendants are jointly and severally liable. Damages will be assessed on: This case dismissed without prejudice. ~1 Amount of Judgment Subject to Attachment/Act 5 of 1996 $ Levy is stayed for__ days or [] generally stayed. (Date of Judgment) (Date & Time) Amount of Judgment $ 4,437.10 Judgment Costs $. 104. O0 Interest on Judgment $ .00 Attorney Fees $ .00 Total $ 4,541.10 Pest Judgment Credits $ Post Judgment Costs Certified Judgment Total []Objection to levy has been filed and hearing will be held: Date: Place: Time: ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS~ CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRiPT FORM WITH YOUR NOTICE OF APPEAL. ~ ~'"5-2"~o~',-Date ,,~ g ~ ,District Justice certify that this is a true and correct copy of the record of the proceedings containing the judgment. Date , District Justice My commission expires first Monday of Januarv. 2006 RFAI PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing the notice of appeal, Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA co..TYOF ......... ................................. AFFIDAVIT: t hereby swear or affirm that I served ' I'~ copy OTthe Notice of Appeal; C. bmmorrPleasNo, -737--.---"~-¢¢t -' ,-up~-the"Distdct~'ustice"desfgrratedtherein on ~ (date Ofservice) ...... tlzz. · . _, [] by persona service [~by (certified) (.v~,~,~,'""'"*~'~) mail, sender's receipt attached hereto, and upon the appellee, (name) ~1~ ~-. J~r~-¢~ C..e...~-,~... on ~. ,~_, _ Z,..~_ [] by personal servi~e I~"~y icertifi~d)~'rcG=,~,t~,;'~-~,~:~l~'~-h-~reto. [~2rand further that I served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appellee(s) to whom the Rule was addressed on ~,,I,,~ ~ ..... ~¢z.., [] by personal service [~,'/'by (certified) mail, sender's receipt attached hereto. SWORN (AFFIRmeD) AND SUBS/~RIBED BEFORE ME Signature of affiant NOTICE OF APPEAL COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS JUDICIAL DISTRICT FROM DISTRICT JUSTICE JUDGMENT NOTICE OF APPEAL Notice is given that the appdlont has filed in the above Court of Common Pleas on appeal from the judgment rendered by the District Justice on the date and iht he case ~ belo~ ADO~ESS OF AP~clJ. ANT PA 15146 ~ coo~ This block will be signed ONLY when this notation is required under Po. R.C.P. JJ). NG 1008B. This Notice of Appeal, when received by the District Justice. will operate as a SUPERSEDEAS to the judgment for possession in this cas~ Signature of Prothonotary o~ Deputy ff appellant was CLAIMANT (see Pa. R.C.P.J.P. No. 1001 (6) in action before District Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of ferrn' to,be used, ONLY when appel/ant was DEFENDANT (see Pa. R.C.P.J.R No. 1001(7) in action before District Justice. IF NOT USED, ~e,~ch from copy'of notice of appeal to be served upon appellee). PRAECIPE: To Prothonotary Enter rule upon CJ'B~I~ t3. ~ 03. ~t'l:~. , appdlee(s), to file a complaint in this apped Name of appellee(s) ~Common ,'~ NO. _,:,~ -- :_~ ? ~/ ~,'...: ["T'~wi.,~. ,,--t,. ~=0~ ~s ,,,te,..,.ice o, ,*ule or su,., on,r,*..o~ ~,~,.~-nt o, =,,ro,. (1) ¥o~ are notir-~l ~ot a rule is hereby entered ~pon you to r~ a ¢omploint in this ~ wit~ twenty (20) aWs offer the date of servieeaf'this rule Ul~on you b~ t~ or by certified or registered maiL (2) ff you do,not J this time, a JUDGMENT OF NON PROS V~ILL BE ENTERED AGAINST YOU. AOPC 312-g0 COURT FILE O=, r--I Certified Fee Return Receipt Fee rr'l (Endorsement Required' I'-1 RestrfchM De~ive~/Fee r--I (Endomement Required) r'--i TOtal Postage & Fees $0.00 $ $2.67 STEIGER, STEIGER & MEYERS ATTORNEYS At LAW 120 N. MAIN STREET MERCERSBURG. PA 17236 (717) 328-3525 IN THE COURT OF COMMON PLEAS OF THE 9TM JUDICIAL DISTRICT OF PENNSYLVANIA-CUMBERLAND COUNTY Charles E. Brake Company, Inc., Plaintiff VS. Purcell & Associates of Delaware, Inc., Defendant Civil Action No. 02-3981 Assigned to J. 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 a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claims 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 Bar Association 2 Liberty Avenue Carlisle, PA ~ ~"' Shawn D./~ers Attorney fo~he Plaintiff STEIGER, STEIGER & MEYERS ATTORNEYS AT LAW 120 N. MAIN STREET MERCERSBURG. PA 17236 IN THE COURT OF COMMON PLEAS OF THE 9TM JUDICIAL DISTRICT OF PENNSYLVANIA-CUMBERLAND COUNTY Charles E. Brake Company, Inc., Plaintiff vs. Purcell & Associates of Delaware, Inc., Defendant Civil Action No. 02-3981 Assigned to J. COMPLAINT And now comes the Plaintiff, Charles E. Brake Company, Inc., by and through its attorney, Shawn D. Meyers, Esquire, Steiger, Steiger & Meyers, who respectfully represents: 1. The Plaintiff is Charles E. Brake Company, Inc., a Pennsylvania corporation with its principal offices located at 6450 Lincoln Way West, St. Thomas, Franklin County, Pennsylvania, 17252. 2. The Defendant is Purcell & Associates of Delaware, Inc., a Delaware Corporation, with corporate offices located at 117 Fox Plan Road, Suite 103, Monroeville, Pennsylvania 15145. 3. The Plaintiff is, and was at all times during the matters set forth below, in the business of general excavation within and without Pennsylvania. 4. In the Fall of 2001, the Defendant was engaged as a contractor responsible for cleaning up and restoring sites on the New Cumberland Army Depot. 5. On or about October 29, 2001, an employee of the Defendant sent a facsimile to the Plaintiff's corporate offices advising the Plaintiff of the Defendant's need to have the Plaintiff remove non-hazardous dirt from the Defendant's work site at the New Cumberland Army Depot. A copy of the facsimile is attached hereto as Exhibit ~A" and incorporated herein by reference. STEIGER, STEIGER & MEYERS ATTORNEYS AT LAW 120 n. MAIN STREET MERCERSBURG, PA 17236 6. On or about October 30, 2001, John Hartman, Dispatch Manager for the Plaintiff, sent a facsimile to the Defendant's offices advising the Defendant that the Plaintiff would agree to haul approximately 1,000 tons of non-hazardous dirt in its dump trucks from the New Cumberland Army Depot to the WSI landfill in Shippensburg, Cumberland County, Pennsylvania at a unit price of $7.00 per ton provided Plaintiff was able to haul and dispose at least 300 tons per day and be paid $40.00 for waiting time over one-half hour. The Defendant was required to provide the plaintiff two (2) weeks notice prior to requiring the Plaintiff to start work to allow the Plaintiff time to schedule it trucks for the job. A copy of the facsimile is attached hereto as Exhibit ~B" and incorporated herein by reference. 6. The facsimile sent by the Plaintiff to the Defendant did not provide an actual start date or finish date. 7. Approximately two weeks prior to December 10, 2001, employees for the Defendant contacted the Plaintiff's employee, John Hartman and advised him to reserve trucks to begin hauling non-hazardous dirt from the New Cumberland Army Depot on December 10, 2001. 8. The Defendant was responsible for insuring that the WSI landfill had reserved sufficient capacity to accept at least three hundred (300) tons of the non-hazardous dirt from the New Cumberland Army Depot. 9. On December 10, 2001, the Plaintiff's drivers and dump trucks appeared at the New Cumberland Army Depot and began hauling non-hazardous dirt from the facility to the WSI landfill in Shippensburg, Pennsylvania. 10. The Plaintiff's trucks were denied the right to dump loads at the WSI landfill, its driver's being advised by lanfill managers that the land fill had inadequate space reserved for the non-hazardous dirt as allowed under its permit or permits issued by the Pennsylvania department of Environmental Protection. 11. The Plaintiff's employee directed the trucks loaded with the non-hazardous dirt to return to the Plaintiff's facility in St. Thomas, Pennsylvania. STEIGER, STEIGER & MEYERS ATTORNEYS AT LAW 120 N. M~IN STREEt MERCERSBURG, PA 17236 12. The Plaintiff's employee, John Hartman, advised the Defendant's employees that the WSI landfill had inadequate capacity to accept at least three hundred (300) tons of non- hazardous dirt and additional capacity would have to be obtained by the Defendant so the Plaintiff could haul at least that amount each day. 13. On December 11, 2001, the Plainitff's trucks dumped the loads of non-hazardous dirt at the Wsi landfill and returned to the New Cumberland Army Depot to resume hauling the non-hazardous dirt to the WSI landfill. 14. Once again, on December 11, 2001, the Plaintiff's trucks were denied the right to dump large portions of the non-hazardous dirt non-hazardous dirt at the WSI landfill to meet its minimum requirement of three hundred (300) tons per day. 15. On the afternoon of December 11, 2001 the Plaintiff's employee John Hartman, contacted employees of the Defendant and advised them that the landfill still did not have sufficient capacity to accept the loads being picked up and delivered by its trucks from the New Cumberland Army Depot and as a result the Plaintiff's trucks would be committed to another job on December 12, 2001 to allow the Defendant additional time to ensure that the landfill could accept the non-hazardous dirt from the Defendant's work site and avoid compelling the Plaintiff to bill the Defendant additional hauling and waiting time charges. 16. On December 14, 2001, the Plaintiff's trucks returned to the Defendant's work site but were denied the right to resume hauling the non-hazardous dirt. 17. Over the two days, December 10, 2001 and December 11, 2001, the Plaintiff's trucks hauled 575.55 tons of the non-hazardous dirt from the Defendant's work site and dumped it at the WSI landfill at the quoted fee of $7.00 per ton in the total amount of $4,028.85. A copy of the Plaintiff's invoice is attached hereto as Exhibit KC" and incorporated herein by reference. 18. The Defendant was unjustly enriched in that it wrongfully retained the services provided by the Plaintiff's employees and dump trucks which hauled 575.55 tons of non- STEIGER, STEIGER & MEYERS ATTORNEYS AT LAW 120 N, MAIN STREET MERCERSBURG, PA 17236 hazardous dirt from the Defendant's work site for which the Defendant has not paid the Plaintiff for any of the services provided. 19. Despite repeated demands for payment for the services provided, the Defendant has refused to make payment to the Plaintiff. Wherefore, the Plaintiff respectfully requests that it be awarded damages in the amount of $4,028.85.j~lus interest and court costs as maybe allowed by law. /~/'//~ ~i~eg rD~ ~s~eY-:;~ ~d ~;ers 120 North Main Street Mercersburg, PA 17236 (717) 328-3525 Pa. Sup. Ct I.D. No. 68896 StEIGER, STEIGER & MEYERS ATTORNEYS AT LAW 120 N. MAIN STREEt MERCERSBURG, PA 17236 {717} 328'3525 I, Randall L. Brake, President, Charles E. Brake Company, Inc., do state that the statements made in this Complaint are true and correct based upon my personal knowledge and/or information and belief as required under Pennsylvania Rule of Civil Procedure 1024(a). I understand that false statements made herein are subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Randall L. Brake, President Charles E. Brake, Company, Inc. SEP.- 5-02 THU 11:23 AI~ ",-.sci.}Es o~ o,~:o,~p BRAKE FAX NO, 17173695381 P, 2 es of Delawaze Inc. 117 Fox PL',n Road * Suite t03 * Monroeville. PA 412-380-9280 * Fax 4.1~-380-9288 FACSINHLE COVER SHEET ~o..._.~_~. >/.,~,-~,,,,,,~ ~: ~/~ ~.../~ TELEPHONE NO,: THIS TRANSMITTAL CONSISTS OFc~._ PAGES INCLUDING THIS COVER SHEET. IF ALL PAGES ARE NOT RECEIVED, PI.EASE CALL. CO~4ATION WILL FOLLOW VIA: FIRST CLASS MAIL NO CONIq~MATION WILL FOLLOW. OVERNIGHT DELIVERY OTHgR COMMENTS: SEP: 5-02 THU 11:24 AM BRAKE FAX NO. 17173695381 P, 3 ,'0c~,~29 O10,~:05p ~ provide a minimum of 4 twin-axle dump tm~k~ for transport of the The T&D Subcontractor shall ~oii to an approved landfill within three b~si~oss days of the Form U approval. The soil will he icadexl onto the trucks by AmDyne. The T&D Subcontn~ctor shall p~ovlde oosite perso~mel to coordinate nminifests and weight ticket paperwork during all transport activities. The area to be excavated may contain up to i5~ trash and d~bris by volume that must bc transported and disposed of by the sut~ont~acto~ along with tho soil. The T&D Subcontt'a~tor must supply ail approved containers and transport vchlcles. The T&D Subcontacto~ shall then transport the material to an al~£oved residual waste disposal facility and dispose of this material as residual waste in accordance with all applicable, taws, regulations, and 8uidance- The liquid waste will be stored onsite in a bulk stcragc tank· At thc completion of work, the tank will bo s~mpled and analyzed for waste disposal characteristics. AmDyoe will complete ali necessary paperwork and provide that papcrwork to thc T & D Subcontractor. After disposal approval has . · · to the site to t~ansfer the g~aute, xl by PADF. P, tho T & D Subcontractor writ mobilize a vacuum truck liquid for transport. All waste will be transported and disposed of accoRling to all applicable taws, regulations and &uidance. 4 SCHEDULE . ~, ~,;' "., L~ ~0 C~u;-,=, ,*~,~. ADMINISTRATIVE REGUIREMEN~S · · , · ' secure trion of a U.S. Army h~stallation. AmDy~ is an° ...... .... ~rlvers Licen '~ with photo · Valid Vehicle Ri:gistration · Valid Insurance card for each vehicle All vehicles entering the installation will be subiect to a full seazch. AmDyne must escolt all tracks within the installation. All trucks will be issued a vehicle pass and temporary ID. For this reason, a dedicated crew of personnel and vehicles must be used throughout this effort. Changc~ in personnel or -~ehlcles will nut bc tolerated. In addition, the fallowing requirements will bc strictly enforced: · No illegal aliens · lqo weapons · No dmg, s or alcohol To satisfy administrative requirements, AmDyne will require the following be p~ovided within business days of executing thc Purcha~ Order: · Transport Company Name · Typ~ of vehicles and Tag numbers ® O~rators naHles The foliowin8 must be provided to AmDTnc within 10 business bays of exccutinl~ the Purchase Order. ' ales for all contractors and subcontractors . . / · ll~surance terrific ........... :-:--- ~ic~nse and r,e. rmits indicating they are ~ · Name, Address, and cop~es or the msposal sacm-~, r --. approve.to rcceive. Resi._d_u_~ f.rans~m license and permits indicating they are approved by · Name, AUOmSS, aha copt~ u ~ t-~ -J~w PADEP and local authorities to transport waste. SEP- 5-02 THU 11'22 AM Corporate Office (717) 369~411 6450 Lincoln Way West P.O. Box 275 St. Thom~,s. PA 17252°0275 FAX (717} 369-5381 BRAKE FAX NO, GHARLES E. COMPANY, INC. Founded 1924 HNIT COST QUOTE 17173695381 P, I 128,37 SM~m Avenue, Hage~stown. MD 2L740 Toll Free: ~D0=443-1 t~3 DATE: TO: October 30, 2001 Nick Bac, hofsky TITLE: FAX: (4t2 380-9288 PHONE: ~(412..____)., 3__8~,-~2_8~..~_ ADDRESS: Purcell & Associates 117 Fox Plan Road Suite 103 Monroev'~lte PA 15 STATE ZIP CODE FOR: Transport .a .p. pwxlmately 1,000 tons of Non-Hazardous dirt from New Cumberland, PA to WSI Landfill in Shippensburg~ PA. PROBABLE START TIME: November - December, 2001 PRICE: $7.001 ton based on 300 tons a day SPECIAL CONDITIONS: 18 ton min. $40.00 an hr. for over 1/2 hour waiting.time. Require two w~cks notice start time QUOTED BY: John Hartman VALID UNTtL: March, 2002 Harold L. Brake Randall L. Brake File CC: SEP- 5-02 THU 11'29 AM BRAKE 7 FAX NO. 0 17173695381 Z © ..q ?. 2 OJ "0 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARLES E. BRAKE CO., INC., Plaintiff, VS. PURCELL & ASSOCIATES OF DELAWARE INC., Defendant. CIVIL DIVISION NO.: 02-3981 PRAECIPE TO WITHDRAW AND ENTER APPEARANCE FILED ON BEHALF OF: Defendant. COUNSEL OF RECORD FOR THIS PARTY: Peter J. Payne, Esquire Pa. I.D.# 68902 Payne, Welsh & Klingensmith Penn Plaza, Suite 208 Turtle Creek, PA 15145 (412) 823-8100 Firm No.: 658 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARLES E. BRAKE CO., 1NC., Plaintiff, VS. PURCELL & ASSOCIATES OF DELAWARE INC., Defendant. CIVIL DIVISION NO.: 02-3981 PRAECIPE TO WITHDRAW AND ENTER APPEARANCE TO THE PROTHONOTARY: Kindly withdraw the appearance of DAVE ROMITO, ESQUIRE and enter the appearance of PETER J. PAYNE, ESQUIRE and PAYNE, WELSH & KLINGENSMITH, on behalf of PURCELL & ASSOCIATES OF DELAWARE INC., Defendant, in the above captioned matter. DATE DATE Dave Romito, Esquire PA(~3~_(~IGENSMITH Peier/J. P~, Esquire Attorney l~or Purcell & Associates of Delaware Inc. CERTIFICATE OF SERVICE I hereby certify that a tree and correct copy of the within PRAECIPE TO WITHDRAW AND ENTER APPEARANCE was served by U.S. Mail, first class, postage prepaid, upon the following: Shawn D. Meyers, Esquire Steiger, Steiger and Meyers 120 North Main Street Mercersburg, PA 17236 DATE Peter J. Payi~e, E~qui~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARLES E. BRAKE CO., INC., Plaintiff, VS. PURCELL & ASSOCIATES OF DELAWARE INC., Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL DIVISION NO.: 02-3981 ANSWER, NEW MATTER AND COUNTERCLAIM FILED ON BEHALF OF: Defbndant. COUNSEL OF RECORD FOR THIS PARTY: Peter J. Payne, Esquire Pa. I.D.# 68902 Payne, Welsh & Klingensmith Perm Plaza, Suite 208 Turtle Creek, PA 15145 (412) 823-8100 Firm No.: 658 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARLES E. BRAKE CO., INC., Plaintiff, VS. PURCELL & ASSOCIATES OF DELAWARE INC., Defendant. CIVIL DIVISION NO.: 02-3981 NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed Answer, New Matter and Counterclaim within twenty (20) days of service hereof or a .Judgment may be entered against you. Peter J. Pfifne, ]~uire Attorney for Defendant, Purcell & Associates of Delaware Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARLES E. BRAKE CO., INC., Plaintiff, VS. PURCELL & ASSOCIATES OF DELAWARE INC., Defendant. CIVIL DIVISION NO.:: 02-3981 ANSWER AND NOW, comes the Defendant, Purcell & Associates of Delaware Inc., by and through their attorneys, Peter J. Payne, Esquire, and Payne, Welsh & Klingensmith, and files the following Answer, New Matter and Counterclaim and in suppm~t thereof avers as follows: 1. After a reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the troth or falsity of the averments contained in Paragraph 1 and therefore said aveffnents are deemed denied and strict proof is demanded at time of trial. 2. The avenuents contained in Paragraph 2 of Plaintiffs' Complaint are admitted. 3. After a reasonable investigation Defendant is withouI knowledge or information sufficient to form a belief as to the truth or falsity of the averments contained in Paragraph 3 and therefore said averments are deemed denied and strict proof is demanded at time of trial. 4. The averments contained in Paragraph 4 of Plaintiffs' Complaint are admitted. 5. As to the averments contained in Paragraph 5 of Plaintiffs Complaint, it is admitted that on or about October 29, 2001, a facsimile was sent to Plaintiff regarding requirements for work to be performed at the new Cumberland Army Depot. The remaining averments contained in Paragraph 5 are denied. To the contrary, said document speaks for itself. 6. The averments contained in Paragraph 6 of Plaintiffs Complaint are denied. To the contrary, and in response hereto, said document speaks for itself. 6. The averments contained in Paragraph 6 of Plaintiffs Complaint are denied. To the contrary, and in response hereto, said document speaks for itself. 7. The averments contained in Paragraph 7 of Plaintiffs Complaint are admitted. 8. After a reasonable investigation Defendant is without iknowledge or information sufficient to form a belief as to the truth or falsity of the averments contained in Paragraph 8 and therefore said averments are deemed denied and strict proof is demanded at time of trial. 9. After a reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments contained in Paragraph 9 and therefore said averments are deemed denied and strict proof is demanded at time of trial. 10. After a reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments contained in Paragraph 10 and therefore said averments are deemed denied and strict proof is demanded at time of trial. 11. After a reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments contained in Paragraph 11 and therefore said averments are deemed denied and strict proof is demanded at time of trial. 12. After a reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the troth or falsity of the averments contained in Paragraph 12 and therefore said averments are deemed denied and strict proof is demanded at time of trial. ! 3. After a reasonable investigation Defendant is without knowledge or infmmation sufficient to form a belief as to the truth or falsity of the averments contained in Paragraph 13 and therefore said averments are deemed denied and strict proof is demanded at time of trial. 14. After a reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments contained in Paragraph 14 and therefore said averments are deemed denied and strict proof is demanded at time of trial. 15. After a reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments contained in Paragraph 15 and therefore said averments are deemed denied and strict proof is demanded at time of trial. 16. After a reasonable investigation Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments contained in Paragraph 16 and therefore said averments are deemed denied and strict proof is demanded at time of trial. 17. After a reasonable investigation Defendant is without knowledge or information sufficient to from a belief as to the troth or falsity of the avem~ents contained in Paragraph 17 and therefore said averments are deemed denied and strict proof is demanded at time of trial. By way of further answer, the invoice referred to as "Exhibit C" speaks for itself. 18. The averments contained in Paragraph 18 of Plaintiffs Complaint are a conclusion of law to which no response is required. To the extent however that any answer is deemed necessary, said averments are denied. It is specifically denied that Defendant was unjustly enriched in any way. By way of further answer, Defendant incorporates his hereinafter set forth new matter and counterclaim. 19. The averments contained in Paragraph 19 of Plaintiffs Complaint are admitted in part and denied in pan. It is admitted that Plaintiff has made repeated demands for payment. It is denied, however, that Defendant owes any sums of money to Plaintiff. WHEREFORE, the Defendant, Purcell & Associates of Delaware Inc., deny that they are liable to Plaintiff, Charles E. Brake Company, Inc., for any sums and demands dismissal of the Complaint against Plaintiff along with costs of suit, fees, and any other relief that this Honorable Court deems just and proper. NEW MATTER By way of further and more complete answer to Plaintiffs' Complaint, the Defendant, Purcell & Associates of Delaware Inc., sets forth the following New Matter: 20. Defendants hereby incorporate Paragraphs I through 19 of their Answer by reference. 21. Plaintiff has failed to state a claim upon which relief can be granted. 22. Plaintiff did not perform its duties as required under the agreement and question. 23. Defendant pleads accord and satisfaction as an affirmative defense. WHEREFORE, the Defendant, Purcell & Associates of Delaware Inc., deny that they are liable to Plaintiff, Charles E. Brake Company, Inc., for any sums and demands dismissal of the Complaint against Plaintiff along with costs of suit, fees, and andy other relief that this Honorable Court deems just and proper. COUNTERCLAIM 24. Defendant incorporates paragraphs 1-23 by reference. 25. Plaintiff/Counterclaim Defendant, Charles E. Brake Company, Inc., agreed to transport nonhazardous dirt from New Cumberland, Pennsylvania to WSI Landfill in Shippensburg, Pennsylvania until said job was completed. 26. Prior to the completion of the aforesaid job, Defendant refused to complete the aforesaid j ob. 27. The actions of Plaintiff/Counterclaim Defendant, Charles E. Brake Company, Inc., constitute a breach of their agreement with Defendant/Counterclaim Plaintiff, Purcell & Associates of Delaware, Inc. 28. As a result of the aforesaid breach by Plaintiff/Counterclaim Defendant, Defendant/Counterclaim Plaintiff, Purcell & Associates of Delaware, Inc., was required to hire another contractor to complete the aforesaid job and incurred costs in the amount of $7,000.00. WHEREFORE, the Defendant, Purcell & Associates of Dela~vare, Inc., denies that they are liable to Plaintiff, Charles E. Brake Company, Inc., for any sums and demands $7,000.00 on their behalf and against Plaintiffs along with costs of suit, fees, and any other relief that this Honorable Court deems just and proper. Respectfully submitted, Payne, WeJ'sh & Klingensmith By:~~~ Peter J. Pa~.~ Es~ire PA I.D. #68902 Attorney for Defendant, Purcell & Associates of Delawme Inc. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within ANSWER, NEW MATTER AND COUNTERCLAIM was served by U.S. Mail, first class, postage prepaid, upon the following: Shawn D. Meyers, Esquire Steiger, Steiger and Meyers 120 North Main Street Mercersburg, PA 17236 DATE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARLES E. BRAKE CO., 1NC., Plaintiff, VS. PURCELL & ASSOCIATES OF DELAWARE INC., Defendant. ) CIVIL DIVISION ) ) NO.:: 02-3981 ) VERIFICATION I verify that the statements contained herein are tree and correct to the best of my knowledge, information and belief, and are made subject to the penalties of 18 Pa. Con. Stat. Ann. §4904 relating to unsworn falsifications to authorities. Date: [ ~- rl -O'-Z"' John t~alf o ~Xsso:iates'of Delaware, In? StEIGER, STEIGER & MEYERS ATTORNEYS AT LAW 120 N. MAIN STREET MERCERSBIJRG. PA 17236 (7171328'3525 IN THE COURT OF COP~4ON PLE~ OF THE 9TM JUDICI~-L DISTRICT OF PENNSYLVANIA-CUMBERLAND COUNTY Charles E. Brake Company, Inc., Plaintiff VS. Purcell & Associates of Delaware, Inc., Defendant Civil Action No.. 02-3981 Assigned to J. 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 a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claims 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 Bar Association 2 Liberty Avenue...~ ..~ Carlisle, PA / /// ~ Shawn D~Meye~ Attorney for th~/Plaintiff STEIGER. STEIGEr & MEYERS ATTORNEYS AT LAW 120 N. MAIN STREET MERCERSBURG, PA 17236 {717) 328-3525 IN THE COURT OF COMMON PLEAS OF THE 9TM JUDICIAL DISTRICT OF PENNSYLVANIA-CUMBERLAND COUNTY Charles E. Brake Company, Inc., Plaintiff VS. Purcell & Associates of Delaware, Inc., Defendant Civil Action No. 02-3981 Assigned to J. PLAINTIFF'S RESPONSE TO DEFENDANT'S NEW MATTER AND COUNTERCLAIM And now comes the Plaintiff, Charles E. Brake Company, Inc., by and through its attorney, Shawn D. Meyers, Esquire, Steiger, Steiger & Meyers, who files the following Response to Defendant's New Matter and Counterclaim: RESPONSE TO NEW MATTER 20. Plaintiff denies the factual allegations or averments contained in Defendant's responses to paragraphs 1- 19 of Defendant's Answer. 21. Denied. Plaintiff denies that it has failed to state a claim upon which relief can be granted. 22. Denied. Plaintiff denies 'that it did not perform its duties as required under the agreement. 23. Denied. Plaintiff asserts that the averments contained in Paragraph 23 of Defendant's New Matter are a conclusion of law to which no response is required. To the extent that any answer is deemed necessary, the averments of the defense of accord and satisfaction are denied. Wherefore, Plaintiff respectfully requests that Defendant's defenses be denied and judgment be awarded to the Plaintiff plus interest, court costs and attorney's fees as may be allowed by law. STEIG ER, STEIG ER & MEYERS ATTORNEYS AT LAW 120 N, MAIN STREET MERCERSBURG, PA 17236 {7171328 3525 PLAINTIFF'S RESPONSE TO DEFENDANT'S COUNTERCLAIM 24. Plaintiff incorporates its responses to paragraphs 20-23 by reference as if more fully set forth herein. 25. Admitted in part and denied in part. Charles E. Brake Company, Inc., agreed to transport non-hazardous dirt from New Cumberland Army Depot, New Cumberland, Pennsylvania to WSI Landfill in Shippensburg, Pennsylvania, provided that they were able to complete deliveries on a daily basis as set forth in paragraphs 1-19 of its Complaint. Plaintiff complied with the terms of the agreement and completed the job to the extent that the Defendant permitted. 26. Denied. Plaintiff did not refuse to complete the job. Rather the Defendant failed to make suitable arrangements with WSI Landfill to ensure that Plaintiff could complete the job in accordance with the daily tonnage requirements agreed to by the Plaintiff and Defendant. 27. Denied. Plaintiff, Charles E. Brake Company, Inc. denies that it any way breached tlhe agreement with the Defendant, Purcell & Associates of Delaware, Inc. 28. Denied. Plaintiff, Charles E. Brake Company, Inc,. denies that it any way breached the agreement with the Defendant, Purcell & Associates of Delaware, Inc., or that the job was not completed. As to the remaining allegations that the Defendant, Purcell & Associates of Delaware, Inc., was required to hire another contractor at a fee of $7,000.00, perform additional work, Plaintiff after a reasonable investigation is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments contained in paragraph 28. Wherefore, the Plaintiff respectfully requests that it be awarded damages in the amount of $4,028.85 plus interest and court costs as maybe allowed by law and that the claim of the Defendant for $7,000.00 along with costs of suit, fees and any other relief be denied. And it will ever pray, etc. Respectfully submitted, Shawn D. Meyers, ~ire Steiger, Steiger ~hd Meyers 120 North Main Street Mercersburg, PA 17236 (717) 328-3525 Pa. Sup. Ct I.D. No. 68896 STEIG ER, STEIGER & MEYERS I, Randall L. Brake, President, Charles E. Brake Company, Inc., do state that the statements made in this Complaint are true and correct based upon my personal knowledge and/or information and belief as required under Pennsylvania Rule of Civil Procedure 1024(a). I understand that false statements made herein are subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Randall L. Brake, President Charles E. Brake, Company, Inc. STEIGER. STEIGeR & MEYERS ATTORNEYS AT LAW 120 N. MA~N STREET MERCERSBURG. PAI7236 IN THE COURT OF COMI~ON PLEAS OF : CUMBEp. La2qD cOUNTY, pENNSYLVANIA We do solemnly swear (or a~rm) that v~ will support, obey and ~def~nd .~ Constitution of thc We, the u~dersigned arbiWators, having been d~fly appointed and sworn (or affirmed) make the follow~g award: · ('Note: ffdamagesfor delay are awarded, the~ shall be separately stated.) a!~,l. 4 ,,, -t& ,,,,,~...+ 04. q.~'. g~' ,1~_ DateofI-Iearing: ~ -.~.'0.-~ ' "_ ~ ' ponce oF EmaY o~ Aw.am wow, ~,2c~ a.y of~, 20oa, .t a._:at~ ?__-~., e, a~o. ,,~ was entered upon the docket and notice thereof given by~)ml to t/t~e_ par~.es ~.jatmmeYs. Artibitrators'compensation to be Paid upon appeal: m-~m~o~-y .. ~ $ 290.00 ~ Depu~ STEIG ER, STEIG ER & MEYERS ATTORNEYS AT IN THE COURT OF COMMON PLF2%S OF THE 9TM JUDICIAL DISTRICT OF PENNSYLVANIA-CUMBERLAND COUNTY Charles E. Brake Company, Inc., Plaintiff VS. Purcell & Associates of Delaware, Inc., Defendant Civil Action No. 02-3981 PRAECIPE FOR ENTRY OF JUDGEMENT OF ~LRBITRATION AWARD TO: Curt Long, Prothonotary: 1. On June 30, 2003, the arbitrators in the above captioned action entered a judgement in favor of the Plaintiff against the Defendant in the amount of $4,028.85 plus court costs and interest at the legal rate. The arbitrators also found in favor of the Plaintiff against the Defendant on the Defendant's counterclaim. 2. The entry of award was lodged in the docket by the Prothonotary of Cumberland County on June 30, 2003, and notice was given to the parties by mail as required by Pennsylvania Rule of Civil Procedure 1307. 3. The Defendant has failed to file an appeal within the thirty (30) day time period as permitted under Pennsylvania Rule of Civil Procedure 1308. 4. Plaintiff requests that the Prothonotary enter judgement on the award in the appropriate civil indexes and dockets of the Court of Common Pleas for Cumberland County in accordance with Pennsylvania Rule of Civil Procedure 1307 (c). Respectfully submitted, 120 North Main Street Mercersburg, PA 17236 (717) 328-3525 Pa. Sup. Ct I.D. No. 68896 IN THE COURT OF coMMoN PLEAS OF : C~BE~A~ CO~, PE~S~VANIA !1 We do solemly swear (or affix) that we will suppoa, obey and def~d~ Consti~on of the U~ited States and the Consfi~tion of this Commonwe~ .d~ffe/disch~ge the duaes of Chai~ / -- AWARD We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: __ _(Note: If damages for delay are awarded, they shall be separately stated.) · ' ,. $~ ~an,,,~,'l' ~ . Arbitratos,..dissents, (insert name if ap Date °fHearing: Date of Award: NOTICE OF ENTRY OF AWARD was entered upon the docket and notice thereof given by r~il to the parties or the,~ttomeys. Artibitrators'compensafion to be Paid upon appeal: Prothonotary ,290.00 ~.' ~-~o-,~,~,~ -- bv. ,Il