Subcontractor files response to Patriot 'What's Happening' lawsuit

One of the defendants in a lawsuit filed by a Kane County heating and cooling company filed court papers asserting that he should not have been included, that he would pursue criminal charges against the plaintiff, and seeks unstated relief from the court.

Alan Herra, owner of Jackson Alan Services in Elburn, was named in a lawsuit filed June 7 in Kane County by Patriot Heating and Cooling Services Inc. of Elburn and Geneva.

The lawsuit alleges that Kevin Ketchum and his Geneva-based Nexxus Publishing LLC uses deceptive practices by charging for advertising and posts on its "What's Happening" pages on Facebook without disclosing that information.

The lawsuit also alleges that Ketchum allowed a defamatory and disparaging post about Patriot – posted by Herra – to exist on the pages to promote Ketchum's paid customer, McNally’s Heating and Cooling Inc. in St. Charles.

The Patriot lawsuit asserted that Herra, a subcontractor of McNally’s, created a “What’s Happening” post on June 1 that claimed or conveyed that Patriot ran an illegal business; that it did not have licenses or bonding to run its business; failed to pay taxes; and allowed its home office to exist in a state of squalor, according to the lawsuit.

Herra wrote his own response and filed it in Kane County on June 21, declaring that he lacks sufficient knowledge on the claims and denies nearly every allegation.

But in his filing, Herra admits he put up the “What’s Happening” post.

The lawsuit had alleged that Ketchum pinned Herra’s post to the top of each “What’s Happening” page so that it was the first post every visitor to a page would see.

Herra’s court filing states that he has no affiliation with the “What’s Happening” pages, and lacks knowledge regarding co-defendant Ketchum’s refusal to unpin his post from the pages, and has no control over what is allowed to remain on the pages.

In his court filing, Herra admitted to a paragraph of the original complaint, which stated:

"Herra's post conveyed an overall impression that Patriot ran and advertised an illegal business, that it lacked the necessary licenses and bonding to run its business, that it failed to pay appropriate taxes or rent and that it allowed its home office location to exist in a state of squalor," all of which is false, Patriot claims in the lawsuit. "Herra's post further led the readers to associate Patriot's [heating, ventilation and cooling] services and its wildly successful '$49 clean and check specials' with such illegal and improper activities."

Herra said he made the post as a “consumer beware” to Patriot's prospective customers.

“Offering a $49 furnace cleaning and check, the goal of that is to get in there and say, ‘You need this or that’ and upsell,” Herra said. “It’s like a teaser to get in the door.”

Patriot attorney Joshua Feagans said Herra admits he was mad about Patriot’s $49 furnace specials and that Herra’s answer to that paragraph “admits liability to the whole endeavor.”

“That is why he is being sued,” Feagans said. “His post was written with a lot of guesswork and supposition, and his answer to the complaint confirms that.”

Feagans said there is nothing illegal about offering a special for cleaning and checking a furnace.

Another issue Herra included in exhibits attached to his response filing has to do with licenses for plumbers and plumbing contractors. According to state law, Herra said licensed plumbers must be working for a licensed plumbing contractor; or if not, the licensed plumber must be an officer of the corporation.

Herra’s exhibits include social media postings from the wife of Patriot owner William White, which state the company has a licensed plumber on staff with more than 15 years of experience.

According to an email from a spokeswoman for the Illinois Department of Public Health, Herra’s assessment of the law is correct. A licensed plumber can also register as a plumbing contractor and work on his or her own as a sole proprietor, and then legally enter into a contract with a company – such as a HVAC company – to do work for them, the spokeswoman’s email stated.

More information about plumbing regulations are available by visiting www.dph.illinois.gov.

Feagans said Patriot does not advertise plumbing services.

And regarding social media posts about tankless water heaters, “there is no information on who is going to install it,” Feagans said.

“We never said we were a licensed and bonded plumbing company,” Feagans said. “We never said that. That’s No. 1.”

Also included in Herra’s exhibits is a copy of his zoning complaint filed May 17, asserting that Patriot violated zoning laws by running a business from an area zoned agricultural, and that Patriot owner White removed a work truck and told a county inspector he would cease operations there.

But Feagans said his client did not violate zoning laws and that the complaint and Kane County’s inspection were inaccurate.

“I’ve looked at the zoning ordinance in Kane County,” Feagans said. “There is no law that says you cannot run a home office from a farm or rental property. I’ve contacted the zoning department. They messed up on that.”

Feagans said he would not file court papers in response to Herra.

“This does not require a response,” Feagans said of Herra’s filing. “He has no affirmative defense.”

Retired Kane County Judge Michael Colwell of the Geneva law firm of Meyers and Flowers is representing Ketchum and Nexxus. Colwell initially said he believed the case would be dismissed.

Both sides are to appear in court Sept. 26.