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Home My WebLink About95-04449 . ./ ~ ~ t,.. J . ,0# 3 ~ c... ~ J I I I , I I i Sf I I i i I- I I , . , .. , .,,' ..,;1' . " ;~~'~,A:~~~;,~~~F~( , ," ' '~3;:~?::" ",: -.~: ~',;' .;..:",. , , ./( ;'.~~. ',: '.,", ..-.::i;,"', ~ ,;-;,-, .....\ :<~. .,". . r . j Brlsld Q. Alford, Esquire Supremc Court 1.0. #38590 BOSWELL, SNYDER, TINTNER &. PICCOLA 315 N. Front Succt PO Box 741 Harrlsbur8. PA 171Q8.0741 (717) 236-9377 Attorncys for Plaintiff RICHARD B. WICKERSHAM, PLAINTIFF : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNlY, PENNSYLVANIA ; NO. f-~'/- 4 ~ ~? (I;'tKL -:j~,,^- . v. GREGG R. CARIGN~ U d1bl a GREGG'S NURSERY, : CML ACllON . LAW . . . . DEFENDANT : 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 talee action within twenty (10) 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 defenses or objections to the claims set forth against you. You are warned that If you fall 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 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 FORm BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE CUMBERLAND COUNlY COURT ADMINISTRATOR 4m FLOOR, CUMBERLAND COUNlY COURmOUSE CARLISLE, PA 17013 (717) 14().6200 . ~OTICIA . . Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, uted tiene viente (20) dias de plazo al partir de la fecha de Ie demanda Y la notificacion. Usted debe presentar una aparlencia escrita 0 en persona 0 por abogado Y archivar en la corte en forma escrlta sus defensas os sus objeciones a leas demandas en contra de su persons. Sea avisado que si usted no se defiende, la corte tomara medidas y peude entrar una order contra usted sin pervio aviso 0 notificacion Y por cualquier queja or allvio que es pedido en la peticlon de demanda. Usted peude perder dinero os sus propiedades 0 ostros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO 'OENE ABOGADO 0 SI NO 'OENE EL DINERO SUFlCIENfE DE PAGAR RAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONE A LA OFICINA CUYA DIRECClON SE ENCUENTRA ESCRlTA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE CUMBERLAND COUNTY COURT ADMINISTRATOR 4m FLOOR, CUMBERLAND COUNlY COURmOUSE CARLISLE, PA 17013 (717) ~100 m:\ bome\bqa\ Utlpt\ wlckcr.cmp 8-18-95 BrlaJd Q. Alford, Bsqulre Supreme Coun 1.0. #38590 BOSWBLL. SNYDBR, TlNTNBR & PICCOLA 315 N. Front Street PO Box 741 Harrlsburs. PA 17108-0741 (717) 236-9377 Allomcys for Plaintiff RICHARD B. WICKERSHAM, PLAINTIFF : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNlY, PENNSYLVANIA . . v. : NO. . . GREGG R. CARIGNAN tJ dI bl a GREGG'S NURSERY, : CIVIL ACllON - LAW . . DEFENDANT : JURY T1UAL DEMANDED COMPLAINT Plaintiff, Richard B, Wickersham, by his attorneys, Brlgld Q. Alford, Esquire, and Boswell, Snyder. TinIDer & Piccola, presents his Complaint against Defendant Gregg Carigan, tJ dl bl a Gregg's Nursery, as follows: 1. Plaintiff is Richard B. Wickersham, an adult individual currently residing at 682 St, John's Drive, Camp Hill, Cumberland County, Pennsylvania 17011. ec.r' 2. Defendant is Gregg R. 1~ an adult individuai who, at all time relevant hereto, operated a nursery business under the trade name of "Gregg's Nursery," with a principal place of business at 450 Gettysburg Pike, Mechanlcsburg, Cumberland County, Pennsylvania 17055. '''""'tt_'.~~~.I~~''.~:i'kt..IoI!4,.~!~~'~'''''W. "-"':.c-'" 3. On May 27,1995, Plaintiff purchased from Defendant a certain "Cherokee Princess" white dogwood tree, and requested Defendant to deliver the tree to Plaintiffs home and plant It there. 4. In consideration of the purchase of the tree, Plaintiff paid Defendant the sum of $238.48 by credit card payment. A copy of Defendant's Invoice No. 6809 reflecting this purchase Is attached hereto, made part hereof, and Identified as Exhibit "A". 5. On June 22,1995, Defendant andlor his servants, agents, employees andlor Independent contractors planted a dogwood tree at Plalntlfrs home. 6. In consideration of the Defendant's planting the tree, grading, fertilizing, cutting sod, adding top soli, etc., Plaintiff paid Defendant an additional $307.89, by check dated July 7, 1995. A copy of Defendant's Statement dated June 30. 1995 and Plalntlfrs aforesaid check Is attached hereto, made a part hereof, and Identified as Exhibit "B". 7. Following the planting on June 22, 1995, Plaintiff carefully and attentively watered and cared for the tree, as per the written Instructions given to Plaintiff by Defendant, as "Guide to Proper Planting" Instructions, attached hereto, made a part hereof, and Identified as Exhibit "Co. 8. Less than two (2) weeks after the dogwood tree was planted, It started showing signs of stress andlor Illness, at which point Plaintiff and his wife Immediately and repeatedly contacted Defendant as per the Instructions set forth In Exhibit C. -2- _'''_:S:_>_:'.O;--J, ~'" -1o."';-I--'- 9. Despite Plaintiffs notification to Defendant and repeated requests for assistance, Defendant failed to respond, and the tree has since died. COUNT II IJmJdJ of COIII7rIa 10. Paragraph 1~ are Incorporated herein by reference. 11. Defendant's delivery of a dead or dying tree to Plaintiff and his failure to replace the same breached the terms of his contract with the Plaintiff. WHEREFORE, Plaintiff demands judgment acainst Defendant In the amount of $546.37, plus costs of suit, which amount Is subject to compulsory arbitration. COUNT II IJmJdJ of WamJIIIie.f 12. Paragraphs 1-11 are Incorporated herein by reference. 13. Defendant extended an express warranty to Plaintiff on the tree his purchased, the terms of which are set forth In Defendant's written "Nursery Stock Guaranty," a copy of which Is attached hereto, made part hereof, and identified as Exhibit "D". 14. Defendant's delivery of a dead or dying tree to Plaintiff, and his failure to replace the same breached the terms of the express warranty. 15. Defendant's deliver of a dead or dying tree to Plaintiff breached the terms of the Implied warranty of merchantability that runs with the purchase. -3- 'c" _,"",,0_ ....,...,.,..,. 1 . U ~ t;.' ~.__~t~"'Yll;r/t:~,.,......",,..,.",,,~~ . ~", ~,.,:" ,"-"'c-;'>',';.:, .:'~\~l,,,,,,(,"",n~i"',:' :~"-, WHEREFORE, Plaintiff demands judgment against Defendant In the amount of $546.37, plus costs of suit, which amount Is subject to compulsory arbitration. RESPECTFULLY SUBMITTED, BOSWELL, SNYDER, TINTNER & PICCOLA By: 17108-0741 DATE: August/(,1995 4- ",:,.;.<,..I'...<iIi"'~,'..,jf...~.'m....~..';,:,., ' : ' A. . ""',"r'l;'~ .....-:r,....I""_....,.....,..~".~ .~.:'J. . ... -P'i"'" -.10.. .-., ,'" , ..,.... ...~. , .. _ ...,', _ ,_. ,~ l. " ~ ....:.;. _."" .,....~'4... ';.._' ,"' ______...;____________ '. _' _. ._.... . :~=::::::::::'~:::::::::::::::::::::::::::: 1ST A T MEN T I::::::::::::::::::::::::::::: GREGG'S NURSERY & GARDEN CENTER 450 GETTYSBURG PIKE MECHANICSBURG, PA 17055 717-766-1762 ------------------------- CHECI< .. -----------__ DATE ------------- PAYMENT ------------- ------------------------- RICHARD WICI<ERSHAM ----------------------------------- 682 ST. JOHNS DRIVE STATMENT DATE JUNE 30, 1995 ----------------------------------- -------------------- CAMP HILL, PA 17011 ----------------------------------- I .-------------------------____________________________________________________ I PREVIOUS BALANCE PAYMENT CHECK # DATE BALANCE ************ PLEASE RETURN THIS PORTION WITH YOUR PAYMENT *********** ---------------- ------------- ------------- -------- --------- DATE 6/22/95 ' DESCRIPTION PRICE . EXTENDED BED-PLANTED DOGWOOD-CUT SOD-rILLED CHARGES --------. --------------------------------------- ------- 6/23/95 DEPRESSION IN THE LAWN --------- rERTILIZER SPIKES ---------------------------------------- ------- --- --------- 210.00, 1.00 4 4.00 ---------------------------------------- ------- TOP SOIL 19.98 2 , 39.96 -------- -------....-------------------------------- ------- UPSTART ",. '.~,:.r;..:.~. . .:~..-:~-.1.~'50 ., , -------- ---------------------------------------- ------- --- --------- MUSHROOM SOIL 35.00 ---------------------------------------- ------- --- --------- l-1 , ~::~J:Q~~~ tfI~ 19~ g-crll ~'-.~fJ_,' c1b DOLLARS ~25 313 ~~g-~?- :::7=Cl~~~~ ---,~ RICHARD B. WICKERSHAM P,O, DOX 741 PH, 717,236-9377 HARRISBURG. PA 17101Hl741 3883 --------- [j~~~~ ~OS~ b(~ (2J~ Q :0 H :10 ~ a. 2 2': ? 5 ~ ass 2)i.fr~; :lBB:i~ ~-, ' ... _'''_0 ------------------------.---- ----._---- .._-- ------- \ TERI1S: PLEASE PAY UPON RECEIPT, 2'30.4G GREGG'S NURSERY (717) 76G-176~ ~50 GETTYSBURG PI!(E MECHAN I CSDURI3, P^ 17055 TMENT TOTAL --------- PLAINnFF'S EXHIBIT Ii 17.43 SALES TAX --------- 307.89 D^L^NCE DUE --------- . ...t,' .:':,:f ' ., . " .' \ 'I ' '" t .. , . . GUIDE TO PROPER PLANTING 1) Dig II hole (j to 12 Inch~s wider limn the conl1liner or root ball. l) If )'OU have cia)' sOli or soil that druins pOOl' I)', place :2 to 4 Inches of stlOd or rock.~ in Ihe bottom ofthe'prepal'ed hole. ' 3) For belter root development, mix 1/3 reat moss, 1/3 manure or mushroom s,)il. tll1d 1/3 lop soil, 1'01' clay soils, mid sand inslead of real moss for dntlnllge. . 4) Use 1/1. of the prepllred growing mix, combine wilh an equalllmOunl of existing soil and gently pack Into the hole. S)MJx 1 gallon of water with 3 ounces of a root starter (we recommend Securi~' Start-oll), pour 1/1. of the solution Into the prepared hole. ' 6) If ~he plant Is w,rapped In plastic burlap or In a plastic conblner, remOVe It If the plant Is W1'lIpped In blodegnldable burlap, do not r~move but remove any plastic twine. If the plant Is ,j., In a fiber container, cut the container in :2 or 3 places and remove. ,',: 7) Be certain to cut and loosen circling or matted roots. 8) Set the plant Into the prepared hole with the top of the ball 1 to 3 Inches abo\'e existing ground level, Back tili with remaining soil mixture Ilnd lightly pack to ~limin:lle IIn)' ,ail' pockets. 9) Sprinkle rcnmlnlng root stllrter mixlure In Ihe soilllround the phllll, 10) SOllk thoroughl)' with water, Therellfter, water at least twice a week usln!.! :~,t drip method (15 minutes per caliper Inch for trees or per 12 Inches for shrubs), 11) Fertillze soil around tr~es with fruit tree spikes and n low nitrogen fertlliu. for shrubs. 'NOTE" If newl~' planted materinl shows nny signs of stress or if you need further Instructions, please feel free to call us Ilt (717)7\6,1762, t~::Pt.~mFF'8 ".. .'. EXHIBIT [1_ . . h1~~J.,:o(". .~ ,,< ~ :"; .. ~'~'~":_,~"\..~'loC'...,~.l-~:\.>;'~..-C>~"'" ;i;~..":.. , . . ' w . , .' \< ~,~"'?<'-"I~<l!i:!' , .'", " ":""'f'r.:~"". !l!;~"": , ..,.._. ~"~.,""'F!"ll~"'J _:'" '[ . .......,....:t,.'.....,' . " . '..,'" .,,,'" ., '.' . ...~.. . .' ' '.. ,;" .~., "":,,~,, -::.\.,' ,.',,' ,. <' . . \ ,.,'.,:. . '-.$ , .- """. .~~_.t_'::7.. "." ..{"",,_..:,' ",/ . ~""",- "..' r.::.."'/~'" N'~ . GREGdS~ERY :~:'.""?,,'" 450 Gellysburg Pike. Mecb:mlcsburg. P A 17055 (717)766-1762 NURSERY STOCK GUARANTEE " Trees. evergreens. & shrubbery purchased from our nursery are guaranteed at 50.t..~f ,the. original, ,,~h'" ,.~ ro, .''''.,_.......... 'olo of ,"oh.~..'" ."".. k~'~' ~~"Y ...ok prices as low as possible. we mUst abide bY the termS and conditions beloW: . . . .' : ~ . j. ') W.nantY b wid. ... 'GUIDE TO PROPER p,,ANTlNG' (". ""'" .Id.) · ..t r.lI~ ,)...... .b.b, ......~........bb, ......ii.,....; ~!~. Un """"""~. pl.Il~.~~~i~ c~~~!n~!!!~r~ ~~~h..f!.91~~. ~I;',~,:l!!ses a~;I1c;>:r <?u~' ';.\ ~~ : 3) AnY ~~t-b PM.~:q.i.!.!:C!~.rCilSal~.pqat~~~ol!S~!I!cir~ D~~ ~y~C!\~le ..~ Purchases are NOT GuTn-"",""",EOI ' ,.~.; . ,..:::~ 'l~'.z'.''! ,: ~ :-- .t..:~.: i:.t~1~.~~..;.;..t;:....~.,.\. ~',~'_ ... ,< .' ,. w,_o. . . ., r.'" ........"i".H 4) W,: ~.U r~place pl"nt m~~Kp'~1:9~~22F1€~l~~ ":": ,,:.i.;j\; ~~? .~/. . ; .:!~~;;:':~tti'l::::: 5) ReplaceDlent stock will.carry no gua\'lln~ m",3 '", 'll !'i'l" ..,.:. .}.. ,-. .~' i',""': :!,,(i..;'iii".,,/ . . ,"~'~r"" ,-" ..... .... ..' . ....,"~." " . ~ If pb" ~.I d1~ d., ..I....r....; 1;",Npo' .b....~..".-. ".d1_""" our control (drought, Qood, fire, acb of God, etc.) their guarantee is "aid. n A ."dP .Pp .nil b' ,,,.., I" ,n .f',. ,."b." ,riOt .blob .", h ."" ,. ." d.'........ of our nursel1'. THERE.-\RE NO CASH REFtJNDS! 8) In order for the guarantee to be honored, you must bring the sales slip and dClld pll1nt material with vou. ; .. ' 9) PI"" bt .....1. lb.. lb. ,I... m"'.'\ . COMPLETELY DEAD b.r." ....N... 1''' on, nursery. ' . ' . . '''\OJ,*,,,,,,,,,,'drilftQ' .....~ ... NOT ",.ft",bl' ....." tb. .~~.... ." '" ..., .....<It, \ f" Ibo .....<om..: of .,."",m.' .....1 ""'~ . . . .. . I !"'iilt:..."rf' .... "T" SHERIFF'S RETURN - REGULAR CASE NOI 199~-04449 P connON WEALTH OF PENNSYLVANIA I COUNTY OF cunBERLAND WICKERSHAn RICHARD B VS. CARIGNAN GREGG R ETC STEVE WHISTLER . Sheriff or Deputy Sheriff of CUnBERLAND County, Pennsylvania, who being duly sworn according to law, Bays, that he served the within COnPLAINT upon CARIGNAN GREGG R T/D/B/A GREGG'S NURSERY defendant, at 1220100 HOURS, on the ~ day of Auaust 19~ at 4~0 GETTYSBURG PIKE nECHANICSBURG. PA 170~5 .CUnBERLAND County, Pennsylvania, by handing to KAREN CARIGNAN. WIFE OF GREGG CARIGNAN a true and attested copy of the COnPLAINT and at the same time directing ~ attention to the contents thereof. the , , Sheriff's Costsl Docketing Service Affidavit Surcharge 18.00 6.16 .00 2.00 So ?~~ H. lhomas ~11ne, ~her1tt eZ~.lb BOSWELL SNYDER TINTNER PICCOLA 08/25/1995 by ~. I \L.n.. , D~~t Sworn and subscribed to before me this 30"'" day of ~t,_r- 19 qo( A.D. ' ('\ '1'. n. '>>t..CC....... ,~' "--t, ~rotnonotary . A: GREGG CARIGNAN, t/d/b/a GREGG'S NURSERY, DEFENDANT FECHA DE NO'DCIA: SEPl'EMBER 18.1995 NO'DCIA IMPORTANTE USTBD NO HA COMPLIDO CON BL A VISO ANTBRIOR PORQUB HA FALTADO BN TOMAR MBDlDAS RBQUBRIDAS RBSPBCTO A BSTB CASO. SI USTBD NO ACTUA DBNTRO DB DlBZ (10) DlAS DBSDB LA FBCHA DB BSTA NOTICIA, BS POSIBLB QUB UN FALLO SBRIA RBOISTRADO CONTRA USTBD SIN UNA AUDIBNCIA Y USTBD PODRIA PBRDBR SU PROPIBDAD 0 OTROS DBRBCHOS IMPORTANTBS. USTBD DBBB LLBVAR BSTA NOTICIA A SU ABOOADO BN SBOUlDA. SI USTBD NO TIBNB ABOOADO 0 NO TIBNB CON QUB PAOAR LOS SBRVICIOS DB UN ABOOADO, VAYA 0 LLAMB A LA OFICINA BSCRITA ABAJO PARA AVBRIOUAR A DONDB USTBD PUBDB OBTBRNBR LA A Y ADU LBOAL. LA WYBR RBFBRRAL SBR VICB CUMBBRLAND COUNTY COURT ADMINISTRATOR 4TH FLOOR, CUMBBRLAND COUNTY COURTHOUSB CARLlSLB, PA 17013 (717) 240-6200 RICHARD B. WICKERSHAM, plaintiff . . . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . v. : No. 95-4449 Civil Term . . GREGG R. CARIGNAN, t/d/b/a GREGG'S NURSERY, Defendant : CIVIL ACTION - LAW . . . . To: RICHARD B. WICKERSHAM, Defendant and BRIGID Q. ALFORD, ESQUIRE, his attorney NOTXCB YOU ARE HEREBY NOTIFXED TO FXLE A WRITTEN RESPONSE TO THE ENCLOSED DEFENDANT'S ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT WITHIN TWENTY (20) DAYS FROM SERVXCE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. BRATXC & PORTKO ~l~~~) Stephe K. Portko 101 South U.S. Route 15 Dillsburg, PA 17019 (717) 432-9706 Attorney X.D. *34538 Attorney for Defendant v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 95-4449 Civil Term CIVIL ACTION - LAW RICHARD B. WICKERSHAM, Plaintiff GREGG R. CARIGNAN, t/d/b/a GREGG'S NURSERY, Defendant DEFENDANT'S ANSWER AND NEW MATTER COMES NOW, the Defendant, GREGG R. CARIGNAN, by and through his undersigned Counsel, Stephen K. Portko, Esquire, and answers the Complaint as follows: 1. - 4. Admitted. 5. Admitted that on June 22, 1995, in addition to other services performed for Plaintiff, Defendant planted the tree. 6. Admitted. 7. Denied. On the contrary, Plaintiff did not properly water and care for the tree. By way of further answer the "Guide to Proper Planting" speaks for itself. 8. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averment contained in Paragraph 8 of Plaintiff's Complaint and therefore denies the allegations thereof. Strict proof will be demanded at time of trial if the same be material. By way of further answer, it is denied that Plaintiff and his wife immediately and repeatedly contacted Defendant. On the contrary, -1- Defendant believes and, therefore avers, that Plaintiff's wife contacted Defendant's nursery on two occasions, the first occasion disclosed that Plaintiff was improperly watering the tree and the second occasion revealed that the tree was dead. 9. Denied. On the contrary, Defendant did provide assistance; however, due to Plaintiff's improper care of the tree during extreme weather conditions, the tree died. COUNT I 10. Defendant's answers to Paragraphs 1 through 9 above are incorporated herein by reference. 11. Denied. On the contrary, Defendant delivered a healthy and live tree to Plaintiff and Defendant has no obligation to replace the tree under the terms of the contract. WHEREFORE, Defendant demands judgment in his favor and against Plaintiff. COUNT II 12. Defendant's answers to Paragraphs 1 through 11 above are incorporated herein by reference. 13. Denied. On the contrary, as part of the purchase, the parties agreed to be bound by the terms of the "Nursery stock Guarantee" attached to Plaintiff's Complaint as Exhibit "D", which document speaks for itself. -2- 14. Denied. On the contrary, Defendant delivered a healthy and live tree to Plaintiff. By way of further answer, the warranty document speaks for itself. 15. Denied. The allegations of paragraph 15 of Plaintiff's complaint are legal conclusions to which no answer is required. To the extent an answer may be appropriate, these allegations are denied, and Defendant avers, on the contrary, that he delivered a healthy and live tree to Plaintiff. WHEREFORE, Defendant demands judgment in his favor and against plaintiff. NEW MATTER 16. Defendant incorporates answers to paragraphs 1 through 15 as if set forth at length herein. 17. Plaintiff had a reasonable opportunity to inspect the tree both prior to and after the planting of said tree and accepted the tree nonetheless. 18. Plaintiff has refused to comply with the warranty provisions concerning replacement of guaranteed nursery stock. 19. Plaintiff has failed to comply with the specific instructions concerning the watering of said tree. 20. Any damage to Plaintiff's tree was the result of Plaintiff's inadequate watering or care of said tree. 21. Any damage to Plaintiff's tree was due to adverse -3- Date: cr/zzl'iS- RespectfullY submitted, ~ supreme Court I.D.34538 101 South U.S. Route 15 Dillsburg, PA 17019 (717) 432-9706 weather conditions beyond the control of Defendant. 22. The terms of Defendant's Nursery stock Guarantee limit any recovery by Plaintiff. WHEREFORE, Defendant demands judgment in his favor and against Plaintiff. -4- VERIFICATION I, Gregg R. Carignan . hereby acknowledge that I am a ~li the foregoing action; that I have read the foregoing ANSWER AND NEW MATl'm and the facts stated therein are true and correct to the best of my knowledge, Information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. H904, relating to unsworn falsification to authorities. Dated: Septanber 22, , 19 95 '1 I . CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first class mail, postage prepaid, upon the following: Brigid Q. Alford, Esquire BOSWELL, SNYDER, TINTNER a PICCOLA 315 Front Street P.O. Box 741 Harrisburg, PA 17108-0741 Dated: cr1Z4rs- ~~~ Defendant planted said tree and died soon after. Plaintiff did not accept nor anticipate that Defendant would plant a tree In such condition as described above. 18. Denied as stated. Defendant's "Nursery Stock Guarontee" Is completely Irrelevant to the facts of this case inasmuch as Defendant planted the tree on Plaintiffs property and the tree that Defendant planted was slck,l11 and dying, showed stress signs and Ulness within two weeks and died soon after. Defendant's "guaranteed nursery stock ~placemtnt provisions, "are an obvious fraud as nothing has been replaced for the dead tree and Defendant has refused to respond to telephone calls and correspondence and has totally ignored the situation caused by Defendant as stated hereinabove. 19. Denied. Defendant planted the tree on Plalntifrs property and gave the tree its initial watering. Plaintiff watered the tree In an appropriate fashion thereafter throughout Its brief life span, In compliance with the Instructions provided by Defendant. 20. Denied. Plaintiff cared for the tree after Defendant planted the same in a proper manner Including adequate and appropriate watering. Said tree, planted by Defendant, showed signs of stress and illness within two weeks and died soon after. 21. Denied. Weather conditions had nothing whatsoever to do with the death of the tree planted by Defendant. 22. Denied. Defendant's "Nursery Stock Guarontee" Is of no force and effect in view of the fact that Defendant planted the tree. If the tree died due to Improper planting or was diseased or otherwise defective at the time of planting, such Is obviously the fault of the Defendant. The tree was cared for properly by Plaintiff Including proper watering. The 2 . tree planted by Defendant was sick, III and dying and showed signs of stress and/or illness within two weeks of Defendant's planting same and died soon after. Plaintiff Is not limited In any way or manner whatsoever by the terms of "Defendant's Nurury Stodc Guarantee. . which has no applicabl1lly In this case, and where Defendant planted a tree that, within two weeks, demonstrated I1Iness and died soon after. WHEREFORE, Plaintiff demands judgment In his favor and against Defendant In the full amount of Plalntiers claim In his Complaint, plus costs of suit. Respectfully Submitted, BY: BRIGID . ALFORD, QUIRE Supreme Court 1.0. #38 90 Boswell, Snyder, Tlntner & Piccola 315 North Front Street Post Office Box 741 Harrisburg, PA 17108.()741 Telephone: (717) 236-9377 ATTORNEYS FOR PLAINTIFF DATED: October .JL,1995 CER'IlPCATE OF SERVICE I, BRIGID Q. ALFORD, Esquire, and the law firm of Boswell, Snyder, Tintner " Piccola, do hereby ccrtify that I am this ~ day of October, 1995, serving a true and correct copy of the foregoing PLAINTIFF'S REPLY TO NEW MATTER OF DBFBNDANT GREGG CARIGNAN on all counsel of record by depositing a copy thereof in the United States Mall, postage prepaid, addressed as follows: Stephen K. Portico, Esquire BRATIC ct. PORTKO 101 South U.s. Route IS Dlllsburg, PA 17019 ATTORNEYS FOR DEFBNDANT BY: ~.:I~ ~ ~' BRIGID Q. tALFOR ,ES lRE (" J '" ::t ~ - ..... 'j ~ ~:>- - oLl- :or: ~r ~ "'1" ~.. Q E';..-'?:;: ,~ .:7 ....C-~O~ &6.'0->> 0") O~, :;-:=-1 ~ ~Ci=~;; ~n...::::~ 00 '-I.J,--,,;r: '.. ::;.:U~ ... ,"- ~'" \' ~ ,..U en 0< ~ ~~ ~ ~ ll:: iils < ~~~llf~~~ Ii: ~ .,:~C/J '" .. c z o ~tol::>o:: Z ~ 0;;; i:q fe ::s ",u::>l1.c' ~!i: C ~ <",rr. ::> ,.,.. 0 c_ 0:: ...- '" !Xl:: :; c ~!;i en ~l ~~ .. .. ;::;:: EE ........ . . . /.A'" (JF/-'U'f:.'" .' . BHATIC & POIlTKO 1111 oFFt4 .~:' 'F"'l.fo:If. ~I TIT .\ IUI Sl H 'Till'S Iff II'TI-: L" . I'll 1111\ 1;4;7 IIrl.l~";ln'lU; 1....~S~yl.\',\'''\ 17nl'l ,. ~.;"" [j- ~' .. \',".;,.1 . . GREGG R. CARIGNAN, t/d/b/a GREGG'S NURSERY, Defendant CIVIL ACTION - LAW v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 95-4449 Civil Term RICHARD B. WICKERSHAM, plaintiff AND NOW this PROTECTIVE ORDER q' day of November, 1995, upon Motion of Defendant, Gregg R. Carignan, for a Protective Order, it is hereby ORDERED that all discovery in this action be stayed. p~nn-l"9 ai":'t'wol L'="ulI vI;; ueft:uchlnt. tj M""tisR, Afta IT IE: FURTHER ~n~D~n ~h~~ ~ ~~~~~ng i~ sQReduJ9A Fn~ 1QQc;, ~.. , _ P' , iA CourtrOQIII Ne. -' CUlIIb6...1Qud. Cuuut.) Ge'tl~theu!l,", CaxlisJ.e, pennsylvaRia. "",,.r ,...,/.0.. ~...~ u ~J oft;;- S'~,t.c.... BY THE COURT 7- /IlL J, \'... 9 "t' I.' '. lei:; j~(n . "",oJ . ::~U );:r ':. ,~ ~, ., GLr' .' '" .. h' ~'r i'U.",~(...";Mi:t. ",.~ .- ..-.~~~ RICHARD B. WICKERSHAM, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . v. : No. 95-4449 Civil Term GREGG R. CARIGNAN, t/d/b/a GREGO'S NURSERY, Defendant CIVIL ACTION - LAW DEFENDANT'S MOTION FOR A PROTECTIVE ORDER AND STAY OF DISCOVERY AND NOW comes the Defendant, GREGG R. CARIGNAN, by and through his undersigned Counsel, Stephen K. Portko, Esquire, for a Protective Order under Rule 4012 of the Pennsylvania Rules of Civil Procedure, a statement of which is as follows: 1. Defendant files this motion to terminate the deposition of defendant and to seek a protective order. 2. The deposition of defendant is scheduled on November 20, 1995 at 10:00 A.M. by virtue of the notice of deposition filed by Brigid Q. Alford, attorney for plaintiff, on October 30, 1995, and received by defendant's consel on November 2, 1995. 3. This case arises out of the sale and planting of a dogwood tree which subsequently died. Plaintiff filed suit against defendant alleging that defendant delivered a dead or dying tree and defendant filed an answer alleging that plaintiff failed to properly water and care for the tree. Plaintiff is suing for damages in the sum of $546.37. -1- 4. Defendant seeks a Protective Order prohibiting the deposition because: a. the deposition is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties, resources, and the importance of the issues at stake in the litigation; b. defendant should not be required to submit to the undue burden, inconvenience, and oppression which discovery by the Plaintiff would cause; c. it is motivated by an improper purpose, that being to harrass defendant and to cause defendant needless increase in expenses; c. it is unreasonably burdensome or expensive in light of the damages requested by Plaintiff; d. it it not needed because the sole issue is whether or not plaintiff properly watered the tree; and, further, plaintiff may obtain discovery through an easier means such as interrogatories; e. it unreasonably subjects defendant to annoyance and oppression. 5. The proposed deposition of defendant is not warranted by existing law or by a good-faith argument for modifying or extending the law. The purpose of the discovery is to harrass defendant. 6. Defendant requests under Rule 4012 of the Pennsylvania Rules of Civil Procedure that the Court prohibit the deposition and award defendant $200.00 as reasonable -2- :S~~t~~~J Attorney for Defendant CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first class mail, postage prepaid, upon the following: Brigid Q. Alford, Esquire 315 North Front street P. O. Box 741 Harrisburg, PA 17106-0741 Dated: November 6, 1995 Briski Q. Alford, Bsqulre Supreme Coun 1.0, t1138S90 BOSWBLL, SNYDBR, TINTNBR & PICCOLA 315 N. ProDt Street PO Box 741 HarrlaburB, PA 17108-0741 (717) 236-9377 Allomeys for Plaintiff RICHARD B. WICKERSHAM, : IN THE COURT OF COMMON PLEAS PLAINTIFF : CUMBERLAND COUNTV. PENNSYLVANIA . . v. : NO. 954449 . . GREGG R. CARIGNAN, tJ dlbl a GREGG'S NURSERY, : CML AcnON - LAW . . . . DEFENDANT : JURY TRIAL DEMANDED PLAINTIFFS ANSWER TO RULE TO SHOW CAUSE Plaintiff, Richard B, Wickersham, by his attorney, Brlgld Q. Alford, Esquire and Boswell, Snyder, TlnJner & Piccola, respectfully answers the Rule to Show Cause issued by this Court on November 9, 1995, and served upon his counsel on November IS, 1995, as follows: 1. Admitted. 2. Admitted. 3. Denied as stated. The Complaint speaks for itself. 4. Plaintiff denies the averments of Paragraph 4 generally and, with respect to the specific allegations states: , ,. (a) Denied that the requested deposition would be unduly burdensome and expensive; counsel for Plaintiff anticipates that It can be completed In less than one (1) hour; denied that the amount In controversy has any relevance to or bearing on Plaintiffs right to take the oral deposition of Defendant, who Is represented by counsel and who has filed an Answer to the Complaint denying the substantive facts at Issue and raising New Matter therein. Plaintiff further denies the Implication that only certain cases, In which the "Issues at stake" are first deemed subjectively and sufficiently Important by defense counsel, are open to the discovery process; (b) Denied that the requested discovery would cause undue burden, Inconvenience or oppression to defendant; (c) Denied that It was motivated by Improper purpose. To the contrary, Plaintiff has every right, under the applicable rules of civil procedure, to take the oral deposition of the -2- . .. (c) (d) . party-<lcfcndant, who has answcrcd thc complaint and whosc Answcr and Ncw Mattcr allcgc issucs of fact rclcvant to thc Plaintlrrs casc in chicf. [paragraph 4 of thc Pctltlon contains two (2) subscctlons labcllcd 'c."] Dcnied. Plaintiff incorporates hcrein by reference its answers to Paragraph 4(c) above; Denied. The applicable rules of civil procedurc entitle Plaintiff to take Defendant's oral deposltlon. The sole issue Is not whether or nor the Plaintiff properly watered the tree; there are also Issues as to the express and implied warranties that ran with the purchase, and the condition of the tree when initially delivered to the Piaintlff by the Defendant. Further, Plaintiff cannot assess Defendant's credlblllty and veracity, for purposes of evaiuatlng thc strcngths and weaknesses of the case pre-triai, as well as evaluating the possibility of settlcmcnt, through Interrogatories aione; -3- - (c) Dcnlcd. Plaintiff Incorporatcs hcrcln his answcrs to Paragraphs 4(a) through (d), abovc. 5. Dcnlcd. Plaintiff Incorporatcs hcrcln his answcrs to Paragraph 4 abovc. 6. Dcnlcd. Plaintiff Incorporatcs hcrcln his answcrs to Paragraph 4 abovc. WHBRBFORB, Plaintiff respectfully requests that this Honorable Court dcny thc motion and dlrcct Dcfcndant to prcscnt himsclf for orai deposition forthwith. Respectfully submitted, By: +~''''/~ C:<.~,,i... Brlgid Q.lAlford, Bsq Supreme Court I.D. #38590 BOSWBLL, SNYDER, TINTNER & PICCOLA 315 N. Front Street Post Officc Box 741 Harrisburg, PA 17108-0741 (717) 236-9377 Attorneys for Plaintiff Datc: Novcmbcr 22, 1995 - . . . CERTIFICATE OF SERVICE I do hereby certify that I have served a true and correct copy of the foregoing Notice of Deposition on the following by finl-<:lass mall, postage prepaid and addressed as follows: Stephen K. Portico, Esquire Bratic & Portico 101 South U. S. Route 15 Dillsburg. PA 17019 BOSWELL, SNYDER, TINTNER & PICCOLA BY: ~u,'J/ ~. ~,J Brlgld Q."Alford, Esqul 315 North Front Street P. 0, Box 741 Harrisburg, PA 17108.0741 (717) 236-9377 Attorneys for Plaintiff Date: November 22, 1995