Loading...
HomeMy WebLinkAbout02-4204CC~AMONVWEALTH Of PENNSYLVANIA COURT OF cOMMON PLEAS JUDICIAL DISTRICT NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT cOMMON PLEAS No. ~)~----~T' NOTICE OF APPEAL Notice is given that the appelk~nt has filed in the above Court of Common Pleos an appeal from the judgment rendered by the District Justice on the dote and in the case mentioned below ~ ~-05/Elder Gor~on C. i~er%zler,~/~ ~nd d/b/a Hertz-A-Cre%e C--.--2_~s~.~ -----------~-¢oo~ ~ shiremans%own PA 17011 i16 Eas~ Green S~ree~ ~  ~/a and d/b -~ ~ ~,,~c^~o~r~#~ Androshick ~Gordon CtH?_r,.~zler, ~ LTl9__ This block will be signed ONLY when this notation is required unde~ Po. R.C.PJP. No. If 81~o~ll~t was CLAIMANT (s~e P'd. ~.C.P.,J.P. NO. 1008B. This Notke of Appeal, when receJ~*~d by the District Justice, will operate as a SUPERSEDEAS to the judgment for possesdon in this case S/gna~um of Prothcnotary or Deputy 1 O01 (6) in action before District Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. PRAECIPE TO ,.NTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of fo~n to be used ONLY when appellant was DEFENDANT (see Pa. R.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 Prothonotary Enter rule upon - ~nh~rf. ~n~rn~hl ~r , appellee(s), to file a complaint in this appeal C~l (.> ~Lc'%,¢e"nef:iL~,G'~°P~ Iwi;C~et~i'~ twenty (20) days after ~rvke of rule or s/uf re_r_ entry (/~.-f::,~;K:)gment of//no'n Pr°s {1) Y~ am ~tifi~ ~t a rule is h~ ~ u~n you m fi~ a c~int in ~is a~al wi~in t~ty (20) d~s aff~ t~ da~ of (2) ff you do ~t fi~ a c~plaint within this ti~, a JU~ENT OF NON P~S WILL BE ENTERED AGAINST YOU. COURT FILE TO BE FILED WITH PROTHONOTARY PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT ( This proof of service MUST BE FILED WITHIN TEN (10) DA YS AFTER filing the notice of appeal Check applicable boxe~) COMMONWEALTH OF PENNSYLVANIA COUNTY OF. AFFIDAVIT: I hereby swear or affirm that J served L-J a copy of the Notice of Appeal, Common Pleas No, -, upon the District Justice designated thereto on (date of service) ~-- [] by personal service Lq by (certified) (registered) mail sender's receipt attached hereto, and upon the appellee. (name) ............. 19 .... ~.J by personal service [] by (certified) (registered) mail, sender's receipt attached hereto, ~ and further that I served the Rule to File a Complaint accompanying the above Notice of Appeal u pon the appellee(s) to whom m ' -, 19___~ ~ by personal service ~ by (certified) (registered) SWORN (AFFtF;MED) AND SUBSCRIBED BEFORE ME THIS DAY OF , 19_ . Signature of alfiant 3OMMONWEALTH OF PENNSYLVAN A COUNTY OF: CD~BERLAND 09-3-05 DJ Name: Hon GAYLE A. ELDER ,~d,~s: 507 N. YORK ST. MECHANICSBURG, PA (717) 766-4575 17055 G HERTZLER-D/B/A HERTZ-A-CRETE C/9'ST 116 E GREEN STREET SHIREF,-A-N'STOWN, PA 17011 TH S IS TO NOTIFY YOU THAT Judgment: ~ Judgment was entered for: NOTICE OF JUDGMENT/TRANSCRIPT PLAINTIFF: CIVIL CASE NAMEandADDRESS ~A-NDROSHICK, ROBERT F ~ 911 COCK.LIN STREET MECI'LANICSBURG, PA 17055 VS. DEFENDANT: NAMEandADDRESS ~G HERTZLER-D/B/A HERTZ-A-CRETE Ci'9'S~ 116 E GREEN STREET SHIREM~ANSTOWN, PA 17011 Docket No.: CV-0000176-02 l '~~ Date Filed: 6/21/02 (Name) AIglTIl~f%~T~IC: W~RRW'~ F ~--~ Judgment was entered against: (Name) ~. '/4R~"P~T.'~I~-D/R/A RRR'p~.-A- f'.WRq'R (/ig'.qT in the amount of $ I: qRR_':;0 on: ] 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. (Date of Judgment) (Date & Time). Amount of Judgment $ 1,890.00 Judgment Costs $ 70.50 Interest on Judgment $ .00 Attorney Fees $ .00 Total $. 1,960.51 Post Judgment Credits $ Post Judgment Costs $ [--~ Objection to levy has been filed and hearing will be held: Date: Place: Certified Judgment Total $_ 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. -~ --~'- O ~ Date ~ __, District Ju stice t 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 January, 2006 SEAL AQPC 315-99 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 AFFIDAVIT: I hereby swear or affirm that I served (date of service) ~,o.~/--,~u- ~,.. Z..~)-Z-_ , [] by personal service ~ by (certified) (r,e~jie,*4~) mail, sender's receipt attached hereto, ;nd upon the app'ellee, (name) ,O-¢_ ~'~'~"' ~ ~,4~/1¢~..~.._ , on .~'t,e,~¢,~' 7 , ~i~¢'"2""-,, BI by personal service ~ by (certified) (,¢eej~,t~ed) mail, sender's receipt attached hereto. ~i~ and further that i served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appellee(s) to whom ,74~i1¢~2-, [] by personal service ~[~oy (certified) (re~4~.~) the Rule was addressed on $¢.,,,j~.., '71r mail, sender's receipt attached hereto. SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS-- ~'J~ ..,. DAY OF ~_ ,~ ~ My commissloR expcres or~ __ , 19 , · Complete items 1,2, and 3. Also complete item 4 if Restricted Delivery is desired. · Print your name and address on the reverse so that we can return the card to you. · Attach this card to the back Of the mailpiece, or on the front if space permits. 1. Article Addressed to: A. Signature , .,: / / &" ~. ~! [] Agent B. Received by (Printed Name) C. Date of Delivery o? o 7 D. Is delivery address different from item 1 ? [] Yes If YES, enter delivery address below: [] No Robert F. Androshick 911Cocklin Street Mechanicsburg, PA 17055 2. Article Number (Transfer fromservicelabe~ 3. Service Type ~ . . , ~-~ '~[~' Certified Mail [] Express Mail ~[ [] Registered [] Return Receipt for I~rchandise [] Insured Mail [] C.O.D. 4. Restricted Delivery? (Extra Fee) [] Yes 7001 2510 0000 3029 3797 PS Form 3811, August 2001 Domestic Return Receipt 102595-01-M-2509 · Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. · Pdnt your name and address on the reverse so that we can return the card to you. · Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: Honorable Gayla A. Elder 507_~or. th York Street Mec~anzcsburg, PA 17055 D~Is delive~y~ddre~s different from item 17" '~ Yes If YES, enter delivery address below: 3. Service Type ~ ~ Certified Mail [] Express Mail · [] Registered [] Return Receipt for Merchandise [] Insured Mail [] C.O.D. 4. Restricted Delivery? (Extra Fee) [] Yes : 2. Article Number (Copy frorn serWce label) 7001 2510 0000 3029 2745 PS Form 3811, July 1999 Domestic Return Receipt 102595-¢ r- ~er Return Receipt Fee (Endorsement Required) Restricted Delivery Fee (Endorse~nent Required) 'Total Postage & Fees SentTo Honorable Gayle -~};~;7~.} ........................................................................... [o~So~No. 507 North York Street C;tz, State ZIP+4 POStage Certified Fee Return ReCeipt Fee (Endorsement Required) ROBERT F. ANDROSHICK, Plaintiff VS. GORDON ItERTZLER T/D/B/A me. RTZ-A-CRETE CONST. Defendant : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PA : : NO. CIVIL TERM ; ; : JURY TRIAL DEMANDED 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 Notice is served, by entering a written appearance personally or by an attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Defendant. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. 1~ 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 Lawyer Referral Service 2 Liberty Avenue, Carlisle, Pennsylvania 1-(800)-990-9108 ROBERT F. ANDROSHICK, Plaintiff VS. GORDON HERTZLER T/D/B/A HERTZ-A-CRETE CONST. Defendant : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PA : : NO. CIVIL TERM ; : JURY TRIAL DEMANDED COMPLAINT AND NOW COMES, the Plaintiff, Robert F. Androshick, by and through his attorneys, COYNE & COYNE, P.C., and aver the following in support of this complaint: 1. Plaintiff is Robert F. Androshick, an adult individual who resides at 911 Cocklin Street, Mechanicsburg, Cumberland County, Pennsylvania. 2. The Defendant is Gordon Hertzler, an adult individual who trades and does business as Hertz-a-Crete Construction, with a place of business located at 116 East Green Street, Shiremanstown, Cumberland County, Pennsylvania. 3. In May of 2001, Plaintiff and Defendant entered an oral contract for the Defendant to remove and replace the existing caulking around the perimeter of the Plaintiff's in-ground swimming pool and at all joints in the swimming pool and at the steps into the pool and paint the pool. 4. In May and June of 2001, the Defendant's employee removed and replaced the caulking at said locations and also painted the pool. 5. On August 14, 2001, the Plaintiff paid the Defendant, the sum of $2,313.23 for work performed. (See Exhibit "A" & "B') 6. Within sixty (60) days, more or less, after the Defendant completed the work, the pool water level began to subside. 7. Plaintiff employed the professional services of Aqua Specialists, Inc. of 160 Silver Spring Road, Mechanicsburg, Cumberland County, Pennsylvania, to investigate the cause of water loss from the pool. 8. Plaintiff also secured the services of a scuba diver from Aqua Specialists, Inc. who determined that the caulking at the joint where the pool wall meets the pool floor was missing in several areas where the Defendant had worked and that the caulking which Defendant used was not correctly adhered to the pool surface area at the joint stated above. The scuba driver could not patch where the caulking was missing. 9. The Plaintiff paid Aqua Specialists, Inc. the sum of $311.94 for the services of the scuba diver. (See Exhibit "C") 10. On or about June 10, 2002, the Plaintiff engaged the professional services of Aqua Specialists, Inc. to remove the existing caulking around the perimeter of the pool and concrete as well as clean, prime and install new caulking in the joint where the pool wall meets the pool floor. 11. On or about June 10, 2002, the Plaintiff paid Aqua Specialists, Inc. the sum of $1,890.00 for services described in Paragraph 10, above. (See Exhibit "D") 12. The Plaintiff alleges the Defendant and his employees did not perform the removal and replacement of the caulking in the PlaintiWs swimming pool in a workmanlike manner; the substandard workmanship caused Plainfiffto incur and pay to Aqua Specialists, Inc. an additional sum of $1,890.00 to correct the defective work by performed by Defendant. 13. Despite numerous demands by Plaintiff to Defendant to pay to Plaintiff the sum of $2,201.94 that Plainfiffpaid Aqua Specialists, Inc.; the Defendant refused to pay Plaintiff. 14. The Defendant violated the provisions of the Pennsylvania Unfair Trade Practices and Consumer Protection Law [73 P.S. 201-1 et seq.] by making repairs to real property which quality was inferior or below workmanlike standards. 15. The Plaintiff, pursuant to the provisions of the said Act [73 P.S. 201-9.2(a)], is entitled treble damages, docket costs, expert witness costs and reasonable attorney fees. 16. Alternatively the Plaintiff is also entitled to have the Defendant pay to Plaintiff the sum of money Plaintiff incurred for legal services and expert witnesses related to this action. This entitlement is in accordance with Pa. RCP 42 Pa.CSA 2503(9). WI~IEREIrORE, Plaintiff demands judgment in his favor and against Defendant in an amount of $2,201.94, plus interest from June 10, 2002; treble fees; docket costs; expert witness fees and reasonable attorney fees. Dated: Respectfully submitted: COYNE & COYNE, P.C. 3901 Market Street Camp Hill, PA 170114227 (717) 737-0464 Pa. Supreme Ct. No. Attorney for Plaintiff INVOICE AUG- 10-01 JOB: POOL AREA, AND MIS:: ANDROSHISK RES: 911 COCKLIN STREET MECH, PA 17055 FROM: HERTZ-A-CRETE CONST 116 EAST GREEN STREET, 8HIREMANSTOWN PA ,17011 717- 975-9483 PHONE: 766-7553 UNIT UNIT PRICE TOTAL POOL MATERIAL: SIKA CASE OF CAULKING ' ACID 5 GAL BRUSHS FOR ACID AND PAINT 555.73 LABOR ONEMAN TOTAL HRS :~2HR , .~ 1,470.00 LABOR ONE MA~ j REMOVE CAULKING ¢,HR 140.00 =UMP POOL, ACID WASH POOL CEAN AND REMOVE ALL EXISTING ~ECAULK ALL JOINTS AND CRACKS, TAPE OFF PAINT POOL AND STRIPE .nn=ou~.u ~'~ I=NfRY FROM POOL AREA TO 8CREED IN PATIO THRESOLD SPL: ITEM FOR 3-0 DOOR CUT TO FIT 42.50 AND REMOVE ROOTED WOOD UNDER EXISTING 105.00 Subtota/ 2,313.23 Tax rate: 0 % Tax ." .~ - , Total ,.. ,- ., 2,313.23 EXHIBIT "A" · = ....... 911 COCKIJN ST. . ' ' ' 50-235/219 · MECHANICSBURG-, PA 17055 ? /z/ ~ Z5 / ' PAY TO THE' .'-. ' ' ' ' .~'-,~ v .... '" - .~f,~,~ . NOT V^UD FOR [ESS THAN r~S00.00 ],0 ',~'OOOO 8 :~ ], ~, 8 ~,," . ];0-/_. -~1~O C'~ 1::/-1700170 0 -¢/-1700170 EXHIBIT "B" AQUA SPECIALISTS, INC. P. O. BOX 123 MECHANICSBURG PA 1;'055 VWVW. AQUA-SPEClALISTS.COM Telephone 717/766-2541 Bill 1'o: ROBERT ANDROSHICK 911 COCKLIN STREET MECHANICSBURG, PA 17055 Invoice 19457 Customer ANDRR1 ROBERT ANDROSHICK 911 COCKLIN STREET MECHANICSBURG, PA 17055 DIVF.~ THE-POOL AND EPOXY PUTTY. F.O.B. nescrlpl~n - . ..;.. LA~OR ~ + B EPOXY PUITt' I LB.REG. SET BrC, AR~ OF SODA. t CB. MEMO INSP,-uiEu FOR LEAKS. REPAIRED NUMEROUS LEAKS WITH AND VACUUMED THE POOL. BACKWASHED THE FILTER, LOWERED THE TESTED AND BALANCED THE WATER. BLEW AND PLUGGED ALL LINES. THE POOL AND FILTER SYSTEM. INSTALLED THE WIN'~ E=R COVER. NonTaxable Subtotal Taxable Subtotal Ta~ @ 6.0~0% Total Custo~-~e~ Orlglnal 2~0.00 290.0C tZ75 3,19 lS.?SJ o.0oI 0.00 0.04] Page 1 EXHIBIT "C" ~ ~ ~ ~ . . . ~ . __ . . . OOL CHEMIC~PPUES & E~PMENT 160 SILVER SPRING ROAD, P.O. BOX 123 - MECHANICsBuRG. PA 17055 · (717) 766-2541 (717) 763-9850 ~ohe~ AndroshJck aquaspec~paonline.com ~17J 249-7006 9] l CocklJn St~ w~.aqua-specialists.com FAX (717} 766-261~ M¢ch~Jcsbur¢, PA ]7055 1 O-June-2002 Re: Pool Caulking Work. Aqua Specialists. Inc. proposes to remove the existing caulking around the perimeter of thc pool between thc pool wall and concrete. Clean area, prime and insudl newt~,,Iking material. Allow five days of curing time, fill and start pool. ---' Including all labor and materials - $1,890.00 If accepted, please sign and return one copy. ohn L Sleck, Presmt~cnt Accepted by, EXHIBIT "D" VERIFICATION The facts set forth in the foregoing are tree and correct to the best of the undersigned's knowledge, information and belief and are verified subject to the penalties for unswom falsification to authorities under 18 Pa. C.S.A. § 4904. Dated: ROBERT F. ANDROSHICK CERTIFICATE OF SERVICE I, Henry F. Coyne, Esquire, hereby certify that a tree copy of the Plaintiff's Complaint has been served upon the below-referenced individual by sending the same by first class mail, postage prepaid, addressed as follows: Andrew C. Sheely, Esquire 127 South Market Street P. O. Box 95 Mechanicsburg, PA 17055 Dated:~ COYNE & COYNE, P.C. 3901 Market Street Camp Hill, PA 170114227 (717) 737-0464 Pa. S. Ct. No. 06250 ROBERT F. ANDROSHICK, Plaintiff VS. GORDON HERTZLER T/D/B/A HERTZ-A-CRETE CONST. Defendant TO: : IN THE COURT OF COMMON PLEAS : OF CUMBERL~/D COUNTY, PA : : NO. 2002-04204 CIVIL TERM .. : JURY TRIAL DEMANDED Gordon Hertzler TBDA Hertz-a Crete Const. 116 East Green Street Shiremanstown, PA 17011 Andrew C. Sheely, Esquire Attorney For Defendant 127 South Market Street P. O. Box 95 Mechanicsburg, PA 17055 DATE OF NOTICE: November 8, 2002 .IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Lawyer Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 1-800-990-9108 Date: November 8, 2002 COYNE & COYNE, P.C. 3901 Market Street Camp Hill, PA. 17011-4227 (717) 737-0464 Pa. S. Ct. No. 06250 Attorney for Plaintiff ROBERT F. ANDROSHICK, Plaintiff VSo GORDON HERTZLER T/D/B/A HERTZ-A-CRETE CONST. Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 2002-04204 CIVIL TERM JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Henry F. Coyne, Esquire, hereby certify that a tree copy of Plaintiff's Ten Day Notice of Default was served upon the below-referenced entity by sending the same by first class mail, postage prepaid, addressed as follows: Andrew C. Sheely, Esquire Attorney For Defendant 127 South Market Street P. O. Box 95 Mechanicsburg, PA 17055 Gordon Hertzler TBDA Hertz-a Crete Const. 116 East Green Street Shiremanstown, PA 17011 ROBERT F. ANDROSHICK, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS. : 02-04204 GORDON C. HERTZLER, T/D/B/A : CIVIL ACTION - LAW HERTZ-A-CRETE CONSTRUCTION, : Defendant : JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT, GORDON C. HERTZLER, TRADING AS HERTZ-A-CRETE CONSTRUCTION Defendant, Gordon C. Hertzler, trading and doing business as Hertz-A-Crete Construction, hereby files this Answer and New Matter and respectfully states as follows: 1. Admitted upon information and belief. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Defendant is without sufficient information to admit or deny the allegation contained in paragraph 6 of Plaintiff's Complaint, and therefore, the allegations contained therein are denied and strict proof thereof demanded at arbitration or trial. 7. Defendant is without sufficient information to admit or deny the allegation contained in paragraph 7 of Plaintiff's Complaint, and therefore, the allegations contained therein are denied and strict proof thereof demanded at arbitration or trial. 8. Defendant is without sufficient information to admit or deny the allegation contained in paragraph 8 of Plaintiff's Complaint, and therefore, the allegations contained therein are denied and strict proof thereof demanded at arbitration or trial. 9. Admitted upon information and belief. 10. Admitted upon information and belief. 11. Admitted upon information and belief. 12. Denied as to each of the claims and strict proof thereof demanded at arbitration or trial. By way of further response, Defendant completed the work requested by Plaintiff in a quality and workmanlike manner. 13. Admitted. 14. Denied as to each of the claims and strict proof thereof demanded at arbitration or trial. By way of further response, Defendant completed the work requested by Plaintiff in a quality and workmanlike manner. 15. The allegations contained in paragraph 15 of Plaintiff's Complaint are conclusions of law to which no response is necessary. To the extent any response is deemed necessary, the allegations are denied and strict proof thereof demanded at. arbitration or hearing. 16. The allegations contained in paragraph 16 of Plaintiff's Complaint are conclusions of law to which no response is necessary. To the extent any response is deemed necessary, the allegations are denied and strict proof thereof demanded at arbitration or hearing. WHEREFORE, Defendant, Gordon C. Hertzler, trading as and doing business as Hertz-A-Crete Construction, respectfully requests that this Honorable Court enter judgment in fawDr of Defendant and against Plaintiff, dismissing Plaintiff's complaint in its entirety. NEW MATTER 17. Paragraphs 1 through and including 16 are incorporated herein by reference. 18. Defendant completed the work in a quality and workmanlike manner and used materials and supplies requested by Plaintiff. 19. Prior to completing the work requested by Plaintiff, Defendant advised Plaintiff that the use of the caulking materials directed by Plaintiff would fail as the materials were not suited for contact with chlorine. 20. Defendant advised Plaintiff that the caulking materials directed for use by Plaintiff were not intended for use underwater. 21. Plaintiff failed to mitigate his damages. 22. Any acts or omissions of Defendant alleged to constitute a cause of action were not substantial factors and did not result or arise to support Plaintiff's claim for damages. 23. Paragraph 14 of Plaintiff's Complaint fails to set forth a cause of action for which relief can be granted. 24. Paragraph 15 of Plaintiff's Complaint fails to set forth a cause of action for which relief can be granted. 25. Paragraph 16 of Plaintiff's Complaint fails to set forth a cause of action for which relief can be granted. 26. Defendant made no representations or guarantees as to the work requested by Plaintiff as to the facts of this matter. 27. Plaintiff was aware that the materials installed by Defendant at Plaintiff's request were a temporary solution to correct an annual problem incurred by Plaintiff who owned an older inground pool. WHEREFORE, Defendant, Gordon C. Hertz].er, trading and doing business as Hertz-A-Crete Construction, respectfully requests that the Plaintiff's Complaint be dismissed, at the costs of Plaintiff. November I~ , 2002 Attorney for Defendant P.O. Box 95 127 S. Market Street Mechanicsburg, PA 17055 PA ID No. 62469 (717) -697-7050 VERIFICATION I verify that the statements made in this Answer with New Matter are true and correct. I understand that unsworn statements herein are made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. DATE: November ~ , 2002 ~-~~ n (~' ~- ~ ~~z ~r~ CERtIFICAtE OF SERVIC~ I, Andrew C. Sheely, Esquire, hereby certify that I am this day serving the foregoing Complaint upon the following named individuals this day by depositing same in 'the United States Mail, First Class, postage prepaid, at Mechanicsb~rg, Pennsylvania, addressed as follows: Henry F. Coyne, Esquire 3901 Market Street Camp Hill, PA 17011-4227 Date: November /~ , 2002 Andrew C. Sheely, Esquire Attorney for Defendant ROBERT F. ANDROSHICK, Plaintiff VS. GORDON HERTZLER T/D/B/A HERTZ-A-CRETE CONST. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-04204 CIVIL TERM JURY TRIAL DEMANDED ORDER OF COURT AND NOW, ,~/~fl /69 , 2002, in consideration of the foregoing petition, x~ z~, Esquire, and t/~4~a~) ~ ,~t/J~F/-.~.t~ , (~~ , Esquire, are appointed arbitrators in the above Esqui , and ./ff//~PLRM~ captioned action as prayed for. By the Court, ROBERT F. ANDROSHICIC Plaintiff VSo GORDON HERTZLER T/D/B/A HERTZ-A-CRETE CONST. Defendant : 1N THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2002-04204 CIVIL TERM _. : JURY TRIAL DEMANDED PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Plaintiff in the above action respectfully represents that: 1. The above-captioned action is at issue. 2. The claim of the plaintiff in the action is in excess of $2,201.94. The following attorneys are interested in the case as counsel or are otherwise disqualified to sit as arbitrators: Henry F. Coyne, Lisa M. Coyne, Andrew C. Sheely, Richard C. Snellbaker. WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, HENRY F. COYNE, .squire COYNE & COYNE, '.C. 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Pa. S. Ct. No. 06250 Attorney for Plaintiff CC: Court Administrator Prothonotary Bulletin Board Henry F. Coyne COYNE & COYNE A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 3901 Market Street Lisa Marie Coyne Camp Hill, Pennsylvania 17011-4227 717-737-0464 Fax: 717-737-5161 December 5, 2002 Honorable George E. Hoffer President Judge Cumberland County Courthouse One Courthouse Square Carlisle, PA 17011 Re.- Androshick v. Hertzler No. 2002-04204 Civil Term Dear President Judge Hoffer: I represent Mr. Robert F. Androshick, the Plaintiff. Andrew C. Sheely, Esquire represents Gordon Hertzler t/d/b/a Hertz-a-crete Construction, the Defendant.. On behalf of the Plaintiff, I file this motion for an appointment of the Board of Arbitrators. Mr. Androshick was injured while on active military duty in Viet Nam; he is a quadriplegic; he has difficulty ambulating; and he utilizes a motorized cart. Mr. Androschik is a resident of Mechanicsburg Borough. I respectfully request the Court direct the Chair of the Board of Arbitration to have its hearing at a location on the West Shore. The courtroom of District Justice Elder is ADA accessible as is the conference room in our office. Thank you for considering this request. LMC/amd Encl. Respectfully yours, Henry F. Coyne f ~ Cc: Mr. Robert F. Androshick, W/Encl. Andrew C. Sheely, Esquire, W/Encl. ROBERTF. ANDROSHICK · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-04204 ,CIVIL TERM GORDON HERTZLER t/d/b/a HERTZ-A-CRETE CONST. IN RE: ARBITRATION ORDER OF COURT AND NOW, March 27, 2003, the Court having been informed that the above-captioned case has settled prior to hearing, the panel of arbitrators previously appointed is vacated, and Lindsay Dare Baird, Esquire, Chairman of the Arbitration Panel, shall be paid the sum of $50.00. Lindsay Dare Baird, Esquire Brian Bornman, Esquire Thomas Capper, Esquire Court Administrator By the Court, ROBERT F. ANDROSHICK, Plaintiff VS. GORDON HERTZLER T/D/B/A HERTZ-A-CRETE CONST. Defendant : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PA : NO. 2002-04204 CIVIL TERM : JURY TRIAL DEMANDED TO THE PROTHONOTARY: Please settle and discontinue the above captioned case; issue a Certificate; and forward it to me in the enclosed envelope. Dated: Respectfully submitted: COYNE & COYNE, P.C. By: nry . yne,~squire 3901 Market Street Camp Hill, PA 17011-4227 (717) 737-0464 Pa. Supreme Ct. No. Attorney for Plaintiff ROBERT F. ANDROSHICK j : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-04204 CIVIL TERM GORDON HERTZLER t/d/b/a HERTZ-A-CRETE CONST. IN RE: ARBITRATION ORDER OF COURT AND NOW, March 27, 2003, the Court having been informed that the above-captioned case has settled prior to hearing, the panel of arbitrators previously appointed is vacated, and Lindsay Dare Baird, Esquire, Chairman of the Arbitration Panel, shall be paid the sum of $50.00. Lindsay Dare Baird, Esquire Brian Bornman, Esquire Thomas Capper, Esquire Court Administrator By the Court, .J.